AGV17 v Minister for Immigration
[2018] FCCA 225
•2 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGV17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 225 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal made an error of the type identified in MZYTS – whether the Tribunal considered all of the applicant’s claims – whether the Tribunal considered that having experienced past persecution was essential for a well-founded fear of future persecution. |
| Cases cited: ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054 |
| Applicant: | AGV17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 123 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 17 November 2017 |
| Date of last submission: | 17 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 2 February 2018 |
REPRESENTATION
| Counsel for the applicant: | Jim Hartley |
| Solicitors for the applicant: | Lander & Rogers Lawyers |
| Counsel for the first respondent: | John Maloney |
| Solicitors for the first respondent: | DLA Piper Australia |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | DLA Piper Australia |
ORDERS
The decision of the Administrative Appeals Tribunal made on 16 December 2016 in matter number 1513756 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 123 of 2017
| AGV17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is a 45 year old citizen of Vietnam. She was first married in Vietnam in 1995. There was one child of that relationship, a daughter, who is now 20 years old. The family lived with the husband’s parents. In 2002, the applicant and her husband separated. The applicant and her daughter continued to live in the home of the husband’s parents until 2007, when the applicant met Mr Chan. At that point, the daughter, who was then 10 years old, remained with her paternal grandparents. The applicant returned to live in her father’s house with her brother, his wife and their children, while the applicant’s father lived with her sister.
Mr Chan is an Australian citizen who lives in Australia. The applicant and Mr Chan were married in Vietnam in 2010. The applicant was granted a subclass 309 partner visa. She arrived in Australia on 12 March 2011. Her relationship with Mr Chan ended in 2012, but they continued to live in the same house and the applicant continued to work in Mr Chan’s restaurant. On 13 February 2013, the Department of Immigration and Citizenship refused the applicant’s subclass 100 partner visa application. The applicant moved into a women’s refuge in April 2013.
The applicant applied for a protection visa on 6 November 2013. That is the application that is the subject of the present proceeding.
The applicant’s claims
In a statutory declaration made on 12 May 2016 in support of her application to the Tribunal, the applicant claimed that:
a)she was raised as a Buddhist and her entire family are practising Buddhists;
b)she converted to Christianity in Australia and is now a practising Baptist Christian;
c)she was baptised in December 2012 at the Church of Christ in Carlton;
d)if she returned to Vietnam, she would have nowhere to go but to her family, and they will not accept her as she is a Christian;
e)she has heard from her pastor that Christians are persecuted in Vietnam;
f)if she returned to Vietnam, she would be gossiped about as a divorced, single woman, and could be physically harmed;
g)her family would not support her or allow her to stay with them;
h)as a divorced woman, she would have trouble getting a job;
i)she would be socially isolated and end up homeless or worse;
j)she was abused by Mr Chan, and has carpal tunnel syndrome from working (without pay) in his restaurant;
k)she suffers from anxiety and depression, and saw a psychologist;
l)if she returned to Vietnam, her family would reject her because of her religion and because she brings shame on them;
m)she fears that her family may harm her if she returns to Vietnam;
n)she could not get a job and support herself without help from her family;
o)Christians are in danger everywhere in Vietnam;
p)as a divorced woman in Vietnam she would be vulnerable;
q)in summary, if the applicant returned to Vietnam:
i)she would be a divorced, single woman;
ii)she would be gossiped about;
iii)she could be physically abused as she would have no family or husband to protect her;
iv)it would be hard for her to get a job;
v)she could not stay with her family as they may harm her;
vi)she could be persecuted by the authorities as she is now a Christian; and
vii)she would not be allowed to practise her Christianity.
The applicant attached to her affidavit an annexure (“the annexure”) which set out written submissions and referred to country information.
The Tribunal’s reasons for decision
The Tribunal accepted that the applicant had converted to Christianity in Australia in 2012 and continued to practise that religion. The Tribunal accepted that the applicant had not converted to Christianity to strengthen her protection claims. The Tribunal cited country information from the Department of Foreign Affairs and Trade which indicated that religious practice within state sanctioned boundaries was tolerated in Vietnam.
The Tribunal did not accept that the applicant’s family would not support her or would harm her if she returned to Vietnam. The Tribunal considered that, if the applicant returned to Vietnam, she would not engage in anti-government protests and, therefore, she would not be imputed within an adverse political opinion because of her Christianity. The Tribunal considered certain country information and concluded that the applicant would be able to access essential services. The Tribunal was not satisfied that the applicant faced a real chance of serious or significant harm as a divorced woman with health problems.
Ground 1
The first ground of review in the application filed on 19 January 2017, amended on 4 September 2017 and further amended on 6 November 2017 is:
The Administrative Appeals Tribunal (“Tribunal”) ignored relevant material in a way that affected the exercise of its power.
Particulars
(a)The Applicant put before the Tribunal:
(i)a letter from her pastor (“letter”); and
(ii)a statutory declaration dated 12 May 2016, annexing a document entitled, “[AGV17]—attachment to Administrative Appeals Tribunal statutory declaration: Country information in support of my claims” (“annexure”).
(b)The letter and the annexure contained country information that was probative of one of the claims advanced by the Applicant, namely that she would be persecuted in Vietnam because she is Christian.
(c)In addressing the applicant’s claim, the Tribunal did not deal with the country information in the letter.
(d)In addressing the applicant’s claim, the Tribunal did not refer to or deal with the country information in the annexure.
(e)The Tribunal engaged in no process of weighing the evidence proffered by the applicant against other evidence, and preferring some evidence over other evidence.
This ground primarily concerns paragraphs 37 to 44 of the Tribunal’s reasons for decision, which are as follows:
37.The Tribunal undertook research in regard to the Church of Christ and the practise of the religion in Vietnam. According to an Australian website, the Churches of Christ comprise autonomous Christian congregations with a focus on the New Testament and evangelism:[1]
[1] Churches of Christ in Australia 2016, ‘Who we are’ < Accessed 28 November 2016
The family of churches known as Churches of Christ grew out of an early 19th Century movement with origins in both the UK and the USA. Today, there are congregations related to this Christian movement in over 170 countries. Sometimes they are referred to as being part of the “Stone Campbell Movement”. Participation by lay people in all aspects of the church’s life is a notable feature. Lay people conduct the sacraments.
Members of Churches of Christ live under the authority of Christ but this authority is seen as being worked out in the local congregation. Churches of Christ are ‘people of the Book’. They believed that ‘restoring’ the New Testament Church and stripping away the accumulation of traditions that had brought about division could achieve unity… ultimate authority is the Scriptures, not the traditions or hierarchies of the church.
38.Further information was not located in regards to whether the Church of Christ organisation is one of the 38 registered religious organizations in Vietnam, that is registered at the national level.[2] There exist distinct religious denominations affiliated with Protestantism which are not sanctioned nationally within the 38 recognised organizations but are locally registered distinct denominations.[3]
39.In the absence of specific information from the applicant about the Church of Christ in Vietnam, the Tribunal relies upon publicly available information about the Church. There is no evidence that the Church of Christ is registered at the national level in Vietnam. This situation appears consistent with the information that local congregations are lay-led and autonomous, thus unlikely to be part of an organised and politically active religious hierarchy.
40.The Tribunal has considered the claims made by the applicant and the pastor that Christians cannot practise freely in Vietnam, and that the applicant may be persecuted on the basis of her Christianity if she returns to Vietnam. As they have not referred to specific restrictions or persecution on the basis of the applicant being a member of the Church of Christ, the Tribunal has also considered whether she faces a real chance of being persecuted because she is Christian.
41.Consideration has been given to country information indicating that certain Protestant groups, including the activist Montagnard church movement, the Hmong Protestants and some Evangelical Christians, have been targeted by Vietnamese authorities on the basis that they are actually separatist organisations and/or seek to undermine the Vietnamese government[4]. There are various reports of such church leaders being subject to monitoring, arrest or imprisonment[5]. However the applicant does not claim to be a member of these church movements.
42.The Tribunal gives weight to Department of Foreign Affairs and Trade (DFAT) country information about the practise of Christianity in Vietnam[6]. DFAT assesses that, as long as religious practice is exercised within state-sanctioned boundaries and does not challenge the interests or authority of the Government, religious adherence is tolerated, even for religions not officially recognised by the government.
43.The Tribunal put to the applicant that country information indicates that Christians in Vietnam who worship quietly and in a manner that conforms to government policies and sensitivities are able to do so with a low risk of official interference. The applicant said that the Government might say that religious practise in tolerated, but the reality is different.
44.The Tribunal is not persuaded by the applicant’s claim that she will be persecuted in Vietnam because she is Christian. While accepting that she has converted to Christianity in Australia, she has not claimed that she holds a leadership role in the Church. She has not practised as a Christian in Vietnam, therefore she has no experience of religious restriction or persecution in Vietnam. While referring to having heard about the persecution of Christians in Vietnam, the applicant said that she does not personally know any Christians in Vietnam who have been persecuted. Her claim that the government hates Christians is not supported by credible country information.
[2] Sources consulted: CISNET, Factiva and Google. A search of the Official Socialist Government of Vietnam website in Government Committee for Religious Affairs found no mention of Church of Christ.
[3] US Department of State 2010, International Religious Freedom Report for 2010 - Vietnam, 17 November, para. 13 < Accessed 23 November 2016
US Department of State 2015, International Religious Freedom Report for 2014 - Vietnam, p.8, para.5 < Accessed 23 November 2016
[4] Home Office. Country Information and Guidance. Vietnam: religious minority groups. December 2014.
[5] US Commission on International Religions Freedom. 2016: Vietnam.
[6] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 31 August 2015.
It is clear from paragraph 40 of the Tribunal’s reasons for decision that the Tribunal did consider the pastor’s letter. The applicant did not press this aspect of ground 1. It is without substance.
In relation to the aspect of this ground that concerns the country information in the annexure, the applicant said in her written submissions filed on 6 November 2017 that she had set out certain propositions in the annexure and referred to certain sources of country information in footnotes to those propositions. The applicant submitted that at least some of the sources were recent and credible.
The Minister conceded that the Tribunal did not refer in its reasons for decision to the country information cited by the applicant in her written submissions. The parties were in dispute about the consequences of that circumstance.
The applicant argued that the Tribunal fell into error of the type identified by the Full Court of the Federal Court in Minister for Immigration and Border Protection v MZYTS & Anor (2013) 230 FCR 431; (2013) 136 ALD 547; [2013] FCAFC 114. The applicant noted that the court in MZYTS said at [34] that the fulfilment of the Tribunal’s task required:
… first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
The applicant noted that MZYTS had provided to the Tribunal country information addressing the current situation for rank and file members of the Movement for Democratic Change in Zimbabwe. The Tribunal did not refer to it. The court, in MZYTS, said in relation to this circumstance at [38]:
[The Tribunal’s] task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there. While it is most certainly the case that “[i]t is for the applicant to advance whatever evidence or argument she [or he] wishes to advance in support of her [or his] contention that she [or he] has a well-founded fear of persecution for a Convention reason”, the Tribunal “must then decide whether that claim is made out”: Abebe v Commonwealth (1999) 197 CLR 510 at [187]. Evidence and material about what it was like for “ordinary” MDC supporters and members in 2002, or 2007, or 2010 might give the most accurate picture, but that decision could only be made by the Tribunal after evaluation of all the pertinent material put forward by the visa applicant in support of the specific claim (and, of course, any contradictory information to which the Tribunal chose to make reference), including the most recent material and a decision about whether or not things had changed, were changing, were likely to change or had stayed much the same. The evaluation, in the context of a country like Zimbabwe and in the context of the very specific terms of the visa applicant’s claim, needed to include consciousness about the cycle of political violence around foreshadowed and/or actual elections, and other circumstances particular to both the visa applicant and to his country of nationality. This much is clear from the decision of the High Court in S395.
In the present matter, the Minister submitted that the Tribunal had in fact had regard to the annexure to the applicant’s statutory declaration. The Minister relied on SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109, where the Full Court of the Federal Court said at [25]:
It is regrettable that the Tribunal referred to only two of the three letters sent to it under cover of the letter from the appellants’ lawyers dated 30 October 2006. We agree that the express reference to two only of the three letters is capable of supporting an inference that the Tribunal did not consider the Police letter. However, the appellants are obliged to do more than point to material capable of supporting an inference that the Tribunal did not consider the Police letter. It is necessary for the appellants to demonstrate that, having regard to all of the evidence and other material before the Court, it would be appropriate to draw that inference; that is, the appellants must demonstrate, on the balance of probabilities, that the Tribunal did not consider the Police letter.
The Full Court in SZDXZ went on to conclude, for reasons that it stated, that it was more likely than not that the Tribunal had considered the police letter, and that its relevance was illusory in any event.
The Minister also relied on Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; (2003) 75 ALD 630; [2003] FCAFC 184, where the Full Court of the Federal Court, (French, Sackville and Hely JJ), said:
45.… If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.
46.It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47.The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
It seems to me that it is apparent from paragraph 58 of the Tribunal’s reasons for decision that the Tribunal did consider the annexure to the applicant’s statutory declaration. That paragraph is as follows:
Consideration has been given to country information submitted by the applicant which says that, despite having extensive divorce legislation, cultural norms regarding the role of women in Vietnamese society means that many divorced women are seen as a burden on their families and are often ostracised or left without assistance.[7]
[7] Report of Non-/government Organisations regarding implementation of the Convention [on the Elimination] of all forms of discrimination against women (CEDAW in Vietnam (2006).
The reference to country information submitted by the applicant could only have meant country information referred to in the annexure. The applicant did not submit any other information that could realistically be described as country information. Footnote 7 to paragraph 58 of the Tribunal’s reasons for decision is virtually the same as footnote 22 to the annexure.
The whole of the applicant’s annexure was just over four pages. As the Tribunal read and summarised in its reasons for decision the aspect of the applicant’s annexure that dealt with divorce in Vietnam, I infer that the Tribunal had at least read the other aspects of the applicant’s relatively short annexure, which dealt with the persecution of Christians in Vietnam. As the Tribunal read the country information, I also infer that the Tribunal considered it, at least to the extent of considering that it was not worth mentioning in its reasons for decision. The question that remains is whether the Tribunal was obliged to refer in its reasons for decision to the country information cited by the applicant.
The Minister submitted that the applicant had misconstrued MZYTS, in that the error in that case was not simply that the Tribunal had failed to refer to country information put forward by the applicant, but that the Tribunal had failed to consider the applicant’s claims as put. In MZYTS, the Tribunal had failed to consider the claims as put because it did not consider the recent country information supplied by the applicant. That recent country information showed that the current political situation in Zimbabwe was different to the political situation described in the country information cited by the Tribunal, which was relatively old.
The Minister also relied on ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054 where Bromberg J said:
31.In [MZYTS], the Full Court found that the Tribunal, having accepted that the visa applicant was a former member of the MDC opposition political party in Zimbabwe, committed jurisdictional error through its reliance on outdated information to find that the visa applicant’s fears of politically-motivated violence were not well-founded, without reference to the more current information put to it by the applicant’s representatives which indicated increasing political violence in Zimbabwe in the lead up to an election.
32.The appellant relied upon the Full Court’s reasoning in MZYTS to contend for the existence of a general proposition that where the Tribunal fails to consider evidence that, had it been considered and dealt with, may have been dispositive of a critical issue, then the Tribunal will have committed jurisdictional error. The facts of MZYTS were said to be especially pertinent to the present appeal given that the failure in that case was a failure to take account of a fundamental change in circumstances, as was said to be the case here.
33.I do not accept that MZYTS stands for the broad proposition contended for by the appellant. Critical to the Full Court’s reasoning was that the failure of the Tribunal in that case was such that it betrayed a misapprehension of the nature of the claim which it had been invited to determine and a miscarriage of the task it was required to perform…
34.This was not simply a matter of overlooking or failing to consider important, or even potentially dispositive, pieces of evidence in coming to a decision. The failures pointed to by the Full Court revealed that the Tribunal in that case had failed to form a “correct understanding of the basis” of the claim. In particular, it had not appreciated that the risk to the visa applicant was said to arise, or at least to be exacerbated, by the changed circumstances brought about by the prospect of elections. The Tribunal thereby failed to perform its statutory task.
35.The failures of the Tribunal in the present case expose no such misapprehension. It is not possible to infer from the Tribunal’s failure to account for the capacity material that the Tribunal did not have a genuine consciousness of the nature of the claim, at least as it related to the appellant’s ability to pay any fine.
36.The Tribunal was conscious that an inability to pay the fine may result in significant harm, it asked itself the correct question: whether the appellant would be able to pay any fine, and the material it considered was relevant to the resolution of that question. That there may have been additional material relevant to that question that was not considered does not betray the kind of error envisaged by MZYTS, that being a misapprehension of the basis of the claim and a miscarriage of the statutory task of determining the claim. Any error of the Tribunal did not go to jurisdiction.
As WAEE shows, it is not a jurisdictional error simply to fail to refer to country information cited by an applicant. As ACE15 explains, the crucial error in MZYTS was that the Tribunal did not consider the claims as put.
The applicant in the present case said that the Tribunal misunderstood the claims that were put and dealt with a claim that was not made rather than a claim that was made. The applicant said that the Tribunal disposed of the applicant’s claims to fear persecution as a Christian on the basis that the applicant had never herself experienced persecution in Vietnam. That contention was based on part of paragraph 44 of the Tribunal’s reasons for decision, which is as follows:
… She has not practised as a Christian in Vietnam, therefore she has no experience of religious restriction or persecution in Vietnam. While referring to having heard about the persecution of Christians in Vietnam, the applicant said that she does not personally know any Christians in Vietnam who have been persecuted. Her claim that the government hates Christians is not supported by credible country information.
However, in making that contention, the applicant omitted the first two sentences of that paragraph, which are as follows:
The Tribunal is not persuaded by the applicant’s claim that she will be persecuted in Vietnam because she is Christian. While accepting that she has converted to Christianity in Australia, she has not claimed that she holds a leadership role in the Church. …
The whole paragraph makes it clear that, in saying that the applicant had no experience of religious persecution in Vietnam, the Tribunal was simply acknowledging that, because the applicant had converted to Christianity after arriving in Australia, she had no past experience of persecution in Vietnam. The Tribunal was not suggesting, in making that observation, that it was necessary for the applicant to have had an experience of past persecution in Vietnam for her to have a well-founded fear of future persecution.
The applicant also took issue with paragraph 35 of the Tribunal’s reasons for decision, which is as follows:
The Tribunal asked the applicant if she knows personally any member of her Church who has been unable to practise their religion in Vietnam, or has been persecuted for practising their religion in Vietnam. She said that she does not know of anyone personally, but she has heard that priests and teachers have been persecuted. The Tribunal put it to the applicant, that as she did not practise Christianity when she lived in Vietnam, she has little knowledge of the situation for Christians in Vietnam. She said that the problems for her are ‘in the future’.
The applicant said that the Tribunal had put to the applicant that she could not know what the situation was like for Christians in Vietnam because she had never been a practising Christian there. That overstated the case. The Tribunal did not say that the applicant could not know. The Tribunal said that the applicant had little knowledge. It seems to me that it is fair to infer that the Tribunal meant little personal knowledge, which was accurate and unexceptionable. In any event, in this paragraph, the Tribunal was not setting out its findings, but summarising what was said at the hearing.
The applicant also particularly took issue with paragraph 41 of the Tribunal’s reasons for decision, which is as follows:
Consideration has been given to country information indicating that certain Protestant groups, including the activist Montagnard church movement, the Hmong Protestants and some Evangelical Christians, have been targeted by Vietnamese authorities on the basis that they are actually separatist organisations and/or seek to undermine the Vietnamese government4. There are various reports of such church leaders being subject to monitoring, arrest or imprisonment5. However the applicant does not claim to be a member of these church movements.
4 Home Office. Country Information and Guidance. Vietnam: religious minority groups. December 2014.
5 US Commission on International Religions Freedom. 2016: Vietnam.
The applicant’s complaint about this paragraph was that it overlooked the fact that the applicant’s country information was not limited to certain Protestant groups and it overlooked the fact that the Church of Christ is a Protestant group that focusses on evangelism. However, that submission overlooked that the Tribunal had earlier in its reasons said that:
a)it had undertaken research on the Church of Christ, some of which it set out;
b)there was no evidence that the Church of Christ was registered in Vietnam;
c)in the absence of information from the applicant specifically about the Church of Christ, the Tribunal had relied on publicly available information; and
d)in the absence of specific claims by the applicant that members of the Church of Christ were persecuted in Vietnam, the Tribunal had also considered whether the applicant faced persecution as a Christian.
The Tribunal then set out paragraph 41 of its reasons for decision, which is reproduced above. It is not apposite to say that the Tribunal overlooked the fact that the Church of Christ is a Protestant denomination that focusses on evangelism. The Tribunal simply referred to country information about certain Protestant groups, and said, correctly, that the applicant did not claim to be a member of any of them. The reference to Hmong Protestants is not a reference to all Protestants, and the reference to some Evangelical Christians is not a reference to all Evangelical Christians. Paragraph 41 of the Tribunal’s reasons for decision was simply setting out the potentially relevant research it was able to find, and then saying that it was not actually relevant. There is no substance to the applicant’s complaints about this paragraph.
In relation to the MZYTS point, the applicant did not clearly articulate exactly which of her claims the Tribunal had failed to deal with. Rather, the applicant said that some of her claims were made in the annexure and the Tribunal did not deal with certain propositions contained in the annexure. The propositions contained in the applicant’s annexure purport to be summaries of source material identified in footnotes to the annexure. Country information is properly understood as the source material, rather than the applicant’s summary of it.
The principal question at this point is whether the Tribunal was obliged to refer to the country information identified in the footnotes to the propositions identified by the applicant in her annexure. A related question is whether the Tribunal was obliged to refer to the propositions themselves.
The first proposition (CB203) was:
Since 2014, there has been evidence of official crackdowns against Christian practices in Northern Provinces. Officials have been known to be present at funerals which are typically a week long ritual. Police have destroyed funeral storage facilities and used brutality against Christians protesting for freedom of religious expression. Hmong Christian villages in Cao Bang have been targeted by state sanctioned violence carried out by police.1 The aggressive anti-Christian campaign commissioned by police also has a presence in Bae Kang, Thai Nguyen and Tuyen Quang.2
1 Vietnam: Hanoi hospitals refuse treatment to ailing Hmong Christian leader. (14 February 2014) Refworld < Ibid.
The first proposition was contained in a summary at the commencement of the annexure. It concerns the position in the northern provinces. The applicant was from Ho Chi Minh City, which is in the south. There was no suggestion that the applicant would be practising her religion in the northern provinces. There was no suggestion that the applicant would be practising her religion in a Hmong Christian village or in Bae Kang, Thai Nguyen or Tuyen Quang. There was no suggestion that the applicant would be protesting for freedom of religious expression. There was no suggestion that the applicant would be impacted by the police destroying funeral storage facilities, or by police being present at funerals, in the northern provinces. The assertion that there has been evidence of official crackdowns against Christian practices in Northern Provinces is a very generalised assertion. It claims that there is evidence but does not provide it. There was no obligation on the Tribunal to refer to the first proposition because it did not, in fact, raise any claims that had any bearing on the applicant’s circumstances.
The footnotes to the first proposition refer to Vietnam: Hanoi hospitals refuse treatment to ailing Hmong Christian leader. This is an article about Hmong Christians being refused hospital treatment and having their burial practices restricted. The applicant is not a Hmong Christian. There was no obligation on the Tribunal to refer in its reasons for decision to the article mentioned in footnotes 1 and 2 of the annexure, as the article had no bearing on the applicant’s circumstances.
The second proposition (CB203-204) was:
… Christian traditions such as Catholicism, Evangelism and Protestantism are perceived as a threat to national security and values due to their links with Western society. Although religious freedom has improved somewhat in recent years, heavy restrictions through legislation are designed to restrict the practice of different branches of Christianity.6 The Vietnamese government does so through banning religious practices, ignoring registration forms of religious organisations and heavy police intervention against active Christians.7 …
6 Vietnam’s Religion Law. (8 May 2015) Worldwatch Monitor Amnesty International Report 2015/16: The State of the World’s Human Rights. (2015/16) < [399].
It is apparent from the Tribunal’s reasons for decision that it accepted that Protestantism, and some other religions, were perceived as a threat to national security in Vietnam, and that was the reason for some measure of official interference in, and regulation of, religious practice. The Tribunal was not obliged to expressly refer to the first two sentences of the second proposition because, in broad terms, it accepted them. The Tribunal was not obliged to refer to the third sentence of the second proposition because it was vague and general and, as discussed below, not supported by the source cited in support of it.
Footnote 6 is Vietnam’s Religion Law. It does not substantiate the proposition for which it is cited. It is commentary on draft legislation. There was no need for the Tribunal to refer to commentary on draft legislation, especially when the Tribunal referred to other country information that dealt with the existing reality for Christians in Vietnam. As we know, draft legislation does not always pass the legislature, or can be amended significantly before it does pass. The article cited by the applicant expressly stated that the draft law had been circulated for comment by religious groups. Moreover, the article is cast in very general terms, and did not add anything to the country information cited by the Tribunal. The applicant did not articulate how the draft legislation could impact on her. Its possible application to the applicant is not something that emerges from the materials.
Footnote 7 is Amnesty International Report 2015/16: The State of the World’s Human Rights. The reference is to page 399. It does not substantiate the statement for which it is cited. The only part of that page dealing with religious matters in Vietnam is:
Reports of repression of religious activities outside state-approved churches continued, including against Hoa Hao Buddhists, Catholic practitioners and Christian ethnic minorities.
None of that applies to the applicant. Moreover, the passage is so vague and general as to not warrant an express reference by the Tribunal, particularly when the Tribunal did expressly deal with other country information that did have some bearing on the applicant’s circumstances, and when the Tribunal accepted that there was a degree of repression outside state-approved churches.
Other parts of the Amnesty International report for Vietnam noted that:
a)religious institutions remained under state control, which the Tribunal accepted;
b)some religious people remained in prison, but did not explain their characteristics, so there was no reason for the Tribunal to form the view that the information applied to the applicant;
c)the new laws on religion had not been finalised;
d)some Montagnards alleging religious persecution had fled, but the applicant is not a Montagnard; and
e)the head of a banned Buddhist Church, a pro-democracy Catholic social activist and a Catholic priest were imprisoned, but the applicant does not fit into any of those categories.
There was no need for the Tribunal to refer to the country information in footnotes 6 and 7 because they did not appear to have any bearing on the applicant’s situation.
The third proposition (CB204) was:
… these principles combined with the proposed articles 25 and 72 of the draft legislation give the government ultimate power to implement rules and procedure to restrict religious practice in the name of ‘necessity’ outlined by section 14 of the constitution.11 Existing legislation and proposed changes aim to restrict the feared Western influence of Christianity. …
11 Ibid, i.e Vietnam’s Religion Law. (8 May 2015) Worldwatch Monitor >
Footnote 11 is a reference to Vietnam’s Religion Law (8 May 2015) by Worldwatch Monitor. It is commentary on draft legislation. While the Tribunal is obliged to make an assessment of the reasonably foreseeable future, draft legislation is inherently too remote to require any express mention by the Tribunal, particularly where the applicant had not articulated how the draft legislation could have an impact on her, and where the impact on the applicant does not emerge from the materials. The Tribunal was obviously aware that some Christians in Vietnam suffer for their religion. However, the question for the Tribunal was whether the applicant, with her particular set of characteristics, faced a real chance of persecution by reason of her religion. Vague and general statements about legislative proposals did not assist in that task, and there was no obligation on the Tribunal to expressly deal with them.
The fourth proposition (CB204) was:
… The international community has expressed concern over the treatment of Christians, particularly Catholics, which began in the northern regions and central highlands but has become more widespread. …
This proposition relates primarily to the northern and central regions. It says nothing specific about the south, where the applicant was from and where she could be expected to return to. It focusses on Catholics, when the applicant is a Protestant. It is a vague and general statement. It does not say exactly what the treatment of Christians involved, so did not enable the Tribunal to assess whether that treatment amounted to persecution. There was no obligation on the Tribunal to expressly mention this proposition as it was vague and general and unsubstantiated. It was not supported by any footnote at all, much less a footnote containing source material that could constitute country information.
The fifth proposition (CB204) was:
… Congregations that have not received permission to practice from the state often conduct services in private residents (sic) to avoid prosecution; however authorities often infiltrate and perform arrests against pastors.13 Furthermore, religious groups that are given permission to practice are often subject to conditions which involve police officers being present at services.14 …
13 Ibid, i.e Julia A. Seymour, ‘Vietnamese Christians face arrest, violence,’ World October 28 2013
14 Ibid.
The applicant is not a pastor, so the aspect of the fifth proposition that concerned pastors had no bearing on the applicant and did not need to be referred to by the Tribunal. In relation to the balance of the fifth proposition, the applicant did not explain how the matters alleged could amount to persecution of her and it is not apparent. It follows that there was no requirement for the Tribunal did deal expressly with the fifth proposition.
Footnotes 13 and 14 are references to Julia A. Seymour, ‘Vietnamese Christians face arrest, violence,’ World October 28 2013. That is a media article in what appears to be a religious publication emanating from the United States of America that advocates against the theory of evolution and advocates against abortion rights. It is not an authoritative publication. Having said that, the Tribunal actually accepted, based on a more recent and authoritative source1, much of what the article said, such as that some Christian leaders are subject to monitoring, arrest or imprisonment. Some of the article concerned Catholics, which had no bearing on the applicant’s circumstances. Other parts of the article were vague, general and unsubstantiated. The Tribunal was under no obligation to refer to such an article, especially in circumstances where the applicant did not explain how it related to her.
1 Paragraph 41, referencing the US Commission on International Religious Freedom, 2016, Vietnam
The sixth proposition (CB205) was:
In 2013, Human Rights Watch observed that Christian groups were routinely harassed by authorities, especially when they took a stance on political issues including freedom of expression and land rights … .
The Tribunal expressly found that the applicant would not engage in any political activities upon her return to Vietnam. That was made clear in paragraph 52 of the Tribunal’s reasons for decision, which are as follows:
The Tribunal finds that the applicant is an ordinary practitioner who has not engaged in any activities other than regular church attendance. The Tribunal does not accept that if the applicant returns to Vietnam that she will engage in any activities additional to her ordinary practise of her Christian faith such as protesting against the government. The Tribunal does not accept the applicant will be considered to have [an] imputed political opinion based on her Christian religion.
Therefore, the sixth proposition had no application to the applicant. Moreover, harassment as such is generally regarded as not amounting to persecution. There was no requirement for the Tribunal to refer to the sixth proposition.
The seventh proposition (CB205) was:
… The US [S]tate [D]epartment has supported the view that a link with Christianity and pro-democracy stances has led to persecution based on religious belief; contrary to Vietnam’s constitution.
The seventh proposition concerns people who have Christian and pro-democracy stances. The applicant did not meet that description. Therefore, the seventh proposition had no bearing on the applicant and the Tribunal was not obliged to refer to it.
All in all, there was nothing in the country information that the applicant has nominated that contained any claims that required any express reference by the Tribunal. As the country information was not sufficiently pertinent to the applicant’s claims, the Tribunal was not obliged to weigh it against other country information. Ground 1 is not made out.
Ground 2
The second ground of review in the application filed on 19 January 2017, amended on 4 September 2017 and further amended on 6 November 2017 is:
The Tribunal failed lawfully to discharge its task on review of the delegate’s decision.
Particulars
(a)See particulars to ground 1.
For the reasons expressed in relation to ground 1, this ground is not made out.
Ground 3
The third ground of review in the application filed on 19 January 2017, amended on 4 September 2017 and further amended on 6 November 2017 is:
The Tribunal:
(a)ignored relevant material in a way that affected the exercise of its power; or
(b)failed lawfully to discharge its task on review of the delegate’s decision
Particulars
(a)In her Visa application and in other material given by the applicant to the Tribunal, the applicant advanced a claim that, by reason of her status as a practising Christian, she would be persecuted by the Vietnamese community.
(b)In dealing with the applicant’s claims, the Tribunal addressed a claim that the applicant would per [sic] persecuted by Vietnamese authorities (albeit that its consideration of that claim is affected by jurisdictional error).
(c)However, the Tribunal nowhere addressed the separate claim, recognised by the Minister’s delegate, that the applicant would be persecuted by the Vietnamese community.
(d)Accordingly, in failing to address a claim advanced by the applicant, or put alternatively by failing to deal with a clearly-articulated submission made by the applicant, the Tribunal fell into jurisdictional error.
The Minister did not challenge the submission that the applicant had claimed to fear harm from her community by reason of her religion. That is clearly correct. In the delegate’s decision, the following appears, at CB175-7:
… The applicant stated she does worry about people in the community harming her and discriminating against her because of her religion and because she is a divorced and/or separated woman. (emphasis added)
The applicant also claims to fear being arrested and assaulted by the Vietnamese authorities or physically harmed and harassed by people in the community because of her religion. … (emphasis added)
…
Assessment of real chance of physical harm or discrimination from the Vietnamese community
At interview I put to the applicant that country information did not indicate that she would face a real chance of being harmed or harassed by the community for the reason of religion. According to the US Department of State, ‘There were no reports of societal abuses or discrimination based on religious affliation, belief or practice’.12 The applicant did not put forward any claims or provide information to contradict the above country information.
Further, in a recent Department of Foreign Affairs and Trade (DFAT) Information Report for Vietnam, it stated that ‘DFAT is not aware of credible claims of societal abuse or systematic discrimination based on religious practices.13
I also note that the applicant indicated at interview that her main fear was from the Vietnamese authorities and the support letter from her pastor referred to the oppression of Christians in Vietnam by the authorities.
I am not satisfied that there is a real chance that the applicant would be subject to physical harm or discrimination that amounts to persecution from the community at large because of her joining a Christian community if she were to return to Vietnam.
12 OG54B5446191: Vietnam – International Religious Freedom Report July 2014, US Department of State, 28 July 2014, p. 1
13 CISEC96CF13212: DFAT Vietnam Country Information Report August 2015, Department of Foreign Affairs and Trade, 31 August 2015, page 10
Clearly, the claim was made. The Minister said, firstly, that the emphasis in the applicant’s claims was on persecution by the authorities, so the absence of an explicit discussion by the Tribunal of harm at the hands of the community is unremarkable. However, the emphasis in the applicant’s claims is irrelevant. If a claim was made, the Tribunal was obliged to deal with it, even if the claim was a minor aspect of the totality of the claims.
The Minister then argued that the Tribunal did deal with the claim of harm at the hands of the community by making a finding of greater generality. That finding was said to be in paragraph 53 of the Tribunal’s reasons for decision, which is as follows:
Therefore, on the basis of the applicant’s profile as an ordinary practising Christian who does not hold any position within the church or [engage] in activities beyond regular church attendance, the Tribunal does not accept that the applicant faces a real chance of serious harm amounting to a well-founded fear of persecution in the reasonably foreseeable future because of her membership of the Church of Christ religion and/or because she is a practising Christian.
The Minister argued that the Tribunal meant in that passage to encompass both the authorities and the community. The Minister said that followed from:
a)the Tribunal noting in paragraph 32 of its reasons for decision that the applicant had claimed that Everyone is supposed to be a Buddhist in Vietnam;
b)the Tribunal challenging the applicant about her claim that Christians are in danger everywhere in Vietnam, as recorded in paragraph 33 of the Tribunal’s reasons for decision; and
c)the Tribunal asking the applicant if she knows personally any member of her Church who has been unable to practise their religion in Vietnam, or has been persecuted for practising their religion in Vietnam, as recorded in paragraph 35 of the Tribunal’s reasons for decision.
The Minister said that these exchanges and enquiries were not confined to threats from the authorities, but concerned threats from the community as well. The Minister argued that the Tribunal’s conclusion that the applicant did not face a real chance of serious or significant harm by reason of her Christianity should be taken as including harm from the community.
I do not accept that submission. The Tribunal did not indicate anywhere in its reasons for decision that it was conscious of a claim regarding the community. On the contrary, in setting out a summary of the applicant’s claims at paragraph 28 of its reasons for decision, the Tribunal specifically noted only that the applicant had said that she feared being harmed by the authorities if she practised her religion in Vietnam. The three aspects of the Tribunal’s reasons relied on by the Minister do not convey any awareness of the claim to fear harm from the community, and make perfect sense if understood as being confined to the question of harm from the authorities. When specifying who may persecute the applicant, under the heading of religion, the Tribunal referred to the government in paragraph 30, the authorities in paragraph 32, the government in paragraph 33, the authorities in paragraph 41 and the government in paragraphs 42, 43 and 52 of its reasons for decision.
The Tribunal did record at paragraph 57 of its reasons for decision that it asked the applicant how she may be discriminated against by people in the community. However, this issue was discussed under the heading, Membership of a particular social group – separated/divorced women. The Tribunal did not deal with the question of harm from the community in its consideration of harm the applicant may face by reason of her religion.
I am satisfied in the present case that the Tribunal did overlook the claim that the applicant may be physically harmed by members of the community for reasons of her religion. This is a jurisdictional error.
Ground 4
The fourth ground of review in the application filed on 19 January 2017, amended on 4 September 2017 and further amended on 6 November 2017 is:
The Tribunal:
(a)ignored relevant material in a way that affected the exercise of its power; or
(b)failed lawfully to discharge its task on review of the delegate’s decision.
Particulars
(a)In an annexure to the applicant’s statutory declaration provided to the Tribunal, the applicant submitted that her risk of persecution as a practising Christian was heightened by the fact that she converted to Christianity in a “Western” country.
(b)The applicant articulated a clear basis for the submission: the reason for persecution by Vietnamese authorities is that Christianity is seen by the authorities to be linked with “Western” values, which is seen to be negative.
(c)Therefore, to have converted to Christianity in the “West”, and to have lived in a “Western” country, was submitted to increase the applicant’s risk of persecution.
(d)The Tribunal nowhere dealt with this submission.
(e)Accordingly, in failing to address the claim advanced by the applicant, or put alternatively by failing to deal with a clearly-articulated submission made by the applicant, the Tribunal fell into jurisdictional error.
(f)In the further alternative, the Tribunal mischaracterised the applicant’s claim based on membership of a particular social group. The, or a, social group of which the applicant claimed to be a member was the social group constituted by practising Christians who had converted to that religion, or who had lived, in a “Western” country.
The applicant said that the claim that she would face a heightened risk of persecution because she had converted to Christianity in a Western country was made in the annexure as follows:
a)Christian traditions … are perceived as a threat to national security and values due to their links with Western society;
b)Existing legislation and proposed changes aim to restrict the feared Western influence of Christianity;
c)this is due to the idea that Christianity is linked with western values and therefore poses a threat to national security; and
d)As highlighted in paragraphs 15 to 21 of my statement, I face a threat of persecution because of my Christianity which could be increased by my time spent in a western country.
In addition, the applicant said that the claim was made verbally during the Tribunal hearing. A partial transcript of the Tribunal hearing was annexed to an affidavit affirmed by Kate Cristabel Haynes Rietdyk on 10 November 2017. It shows the following:
MemberWhat difference does that make that you’ve been living overseas and will return?
AGV17I don’t know what is going to happen in the future but they will think that I come from a Western country and I will bring the religion from a Western home and maybe I create trouble.
MemberDo you intend to create trouble?
AGV17I can’t say. It’s about the future.
MemberI don’t understand why they would consider you Western when you have lived the vast majority of your life in Vietnam and you are a Vietnamese citizen and all your family is there.
The Minister did not dispute that the applicant claimed to be at a heightened risk of persecution because she had converted to Christianity in a Western country. However, the Minister submitted that the findings about that issue were subsumed in findings of greater generality, being the findings in paragraph 53 of the Tribunal’s reasons for decision, which is set out above.
I do not accept that submission. The Tribunal did not indicate anywhere in its reasons that it was aware of the claim. The Tribunal’s summary of the applicant’s claims about religion at paragraph 28 of its reasons for decision do not refer to the applicant facing a heightened risk because she converted in a Western country.
In paragraph 53 of the Tribunal’s reasons for decision, it described the applicant as an ordinary practising Christian, without noting that the applicant had converted in the West.
It is true that the Tribunal found at paragraph 49 of its reasons for decision that the applicant had converted in Australia. However, there is nothing to indicate that the Tribunal was aware of the claim that the circumstance of the applicant having converted in Australia might heighten her risk. There was certainly no process of reasoning that applied to that claim.
In her oral submissions in reply, the applicant articulated the issue in ground 4 more clearly than she had previously. The point that was clearly made in submissions in reply was that, because the applicant had converted in the West, she might be imputed with a propensity to engage in anti-government protests. While the point was made clearly in submissions in reply, it had been sufficiently raised in the annexure and orally at the Tribunal hearing. The Tribunal did not deal with the point and appears to have not understood it.
It follows that the Tribunal made a jurisdictional error as alleged in ground 4.
Ground 5
The fifth ground of review in the application filed on 19 January 2017, amended on 4 September 2017 and further amended on 6 November 2017 is:
The Tribunal misdirected itself as to the test to be applied in relation to whether the applicant had a well-founded fear of persecution.
Particulars
(a)In addressing of the Applicant’s claim that she had a well-founded fear of persecution arising out of her conversion to Christianity, the Tribunal relied dispositively on the fact that the Applicant had not herself experienced persecution, in Vietnam, arising out of her Christianity.
(b)It is well established that a fear of persecution may be well-founded even if the claimant has not himself or herself experienced persecution.
(c)In the premises, the Tribunal misdirected itself as to the applicable principles going to, or the applicable test of, whether a person’s fear of persecution is well founded.
For the reasons discussed in relation to the same point made in relation to ground 1, this ground is without substance.
Ground 6
The sixth ground of review in the application filed on 19 January 2017, amended on 4 September 2017 and further amended on 6 November 2017 is:
The Tribunal’s decision was affected by serious illogicality or irrationality.
Particulars
(a)In addressing of the Applicant’s claim that she had a well-founded fear of persecution arising out of her conversion to Christianity, the Tribunal relied dispositively on the fact that the Applicant had not herself experienced persecution, in Vietnam, arising out of her Christianity.
(b)Where circumstances in which an applicant might experience persecution have not arisen, it is seriously illogical and irrational to reason that the well-foundedness of the applicant’s fear is diminished by reason that the applicant has not experienced persecution.
(c)On the facts of this case, the applicant was never in a position to experience persecution as a Christian in Vietnam, because she had not prior to the date of her application been a Christian in Vietnam.
(d)In the premises, it was seriously illogical to reason (as the Tribunal did) that the absence of past persecution weakened or defeated the applicant’s claims of a well-founded fear. There was no logical connection between the evidence and the conclusion drawn therefrom.
For the reasons discussed in relation to the same point made in relation to ground 1 at paragraphs 25 to 27 above, this ground is without substance.
Ground 7
The seventh ground of review in the application filed on 19 January 2017, amended on 4 September 2017 and further amended on 6 November 2017 is:
The Tribunal:
(a)ignored relevant material in a way that affected the exercise of its power; or
(b)failed lawfully to discharged its task on review of the delegate’s decision.
Particulars
(a)The applicant clearly articulated a submission that her risk of persecution was enhanced by two factors: (i) the fact that she was twice separated rather than only once separated; and (ii) the fact that she had been a victim of domestic violence.
(b)The applicant articulated a logical connection between the two factors upon which she relied and a heightened risk of persecution.
(c)The Tribunal mentioned the fact that the applicant had been twice separated, but did not consider to [sic] the submission that the applicant’s risk of persecution was thereby increased.
(d)The Tribunal did not mention, make findings in relation to, or consider the submission that the applicant’s having been a victim of domestic violence enhanced her risk of persecution.
(e)Accordingly, in failing to address a claim advanced by the applicant, or put alternatively by failing to deal with a clearly-articulated submission made by the applicant, the Tribunal fell into jurisdictional error.
The Minister disputed that the applicant had made a claim that her risk of persecution would be heightened by the fact that she had been a victim of domestic violence. The Minister relied on a passage in a statement accompanying the applicant’s protection visa application where she said (CB27):
The community culture is very strict and as this is my second marriage which has broken down and the personal and societal shame, regardless of the family violence I experience, will be pointed at me.
However, the Minister has misinterpreted that passage. Taking into account the whole statement, it is clear that the applicant meant that she would be shamed, even without taking into account the family violence she had experienced. However, the applicant went on to say:
… My reputation, which means everything to function in the society, has been destroyed by this experience of marriage breakdown due to family violence. This public shaming and rejection will mean no-one will want to employ me. As it is in Vietnam, looking for [a] job is very hard, but with this societal rejection it will be near impossible. My outlook is very grim and I deeply fear I will be forced to live in poverty on the streets, homeless and unprotected.
In that passage, the applicant clearly claimed that she would be unable to function in society due to marriage breakdown resulting from family violence. In addition, the applicant said in her annexure (CB206):
Women who do manage to divorce to escape an abusive husband often receive little support from their families and broader community as it is seen as woman’s responsibility to maintain a happy family life. A study conducted on domestic violence against women in Vietnam by a journal of Culture, Health and Sexuality examines how abused Vietnamese women perceive divorce. … One of the overwhelming reasons women feared divorce was the stigma that would arise.26 In this situation, many of the women involved with the study felt pressured by their families to stay in abusive relationships as they were told they would bring shame and humiliation.27 Most families were unwilling to help women who were victims of domestic violence seek divorce, thus many feel they are better off staying in an abusive relationship even if it leads to serious injury or death. Being a divorced woman, I am at risk of harm as outlined in paragraphs 32, 38 and 42 of my statement. Furthermore, returning to Vietnam after a second marriage breakdown due to domestic violence (refer to paragraphs 22 to 34 of my statement) means I will be isolated from my family and society at large. Due to this, I have no prospects of employment and will not be able to support myself.
26 Ibid, 638, i.e Tu Ann Hoang, Trang Quach, Sidney Schuler and Ha Song Vu, ‘Divorce in the context of domestic violence against women in Vietnam’ (2014) 16/6 Culture, Health and Sexuality: An International Journal for Research, Intervention and Care 637.
27 Ibid, 642.
The Minister said that the Tribunal dealt with the applicant’s claims of shame and inability to subsist as a twice divorced, single woman. That is so. The Tribunal said:
54.The applicant claims that if she returns to Vietnam as a single woman who has been divorced from one husband and separated from another, people will gossip about her and she will be discriminated against. She said that she will suffer economic hardship as she will have nowhere to live, and will not be able to work.
55.The applicant said that her family will be shamed because her marriage ended. When asked how her family reacted when her first marriage ended, the applicant said that it was sad, but her family said it was OK and they did not reject her. The Tribunal notes that the applicant returned to live with her brother prior to her marriage to her second husband, and that this indicates that she was supported by her family when she was separated. The Tribunal notes that this evidence is inconsistent with the applicant’s written statement of 12 May 2016 in which she said that “My family did not support me after my first marriage was broken. I had to go out and work to support myself”. It is also inconsistent with the applicant’s written claim statement of 24 October 2013 in which she claimed that “when my first marriage broke down I experience ill treatment from my family and isolation from my community. I was yelled at, called names, and excluded from everyday activities. It was considered a great shame and I was punished by my family”.
56.Given the applicant’s evidence that she currently has positive relationships with her family members, the Tribunal questioned why they would not support her if she returns to Vietnam. She said that ‘this is all in the future – it has not happened yet”. In the context of the positive relationship between the applicant and her family following the breakdown of her first marriage, and since the breakdown of her second marriage, the Tribunal finds that there is little evidence to support the claim that the applicant’s family will not support her if she returns to Vietnam.
…
63. The Tribunal is mindful that the applicant’s family home is in Ho Chi Minh City, which has a population of over 7 million people. Given statistics of divorces granted in Ho Chi Minh City over recent decades, the Tribunal considers that the applicant will be one of many divorced women living in the city. The Tribunal acknowledges that the applicant is concerned about feeling shame if she returns to Vietnam after 2 unsuccessful marriages, and that she fears that members of the community may talk about her and her situation. The Tribunal accepts that the applicant is likely to suffer low levels of social discrimination, however this does not give rise to the level of serious or significant harm.
…
66.The Tribunal considers that the applicant’s inconsistent evidence about her family’s reaction to the breakdown of her first marriage casts doubt on her evidence that they will not support her if she returns to Vietnam as a result of her second marriage. The Tribunal is also not persuaded that the applicant’s depression is such that she will be unable to obtain work.
67.The Tribunal notes its concerns raised in the letter from Belinda Miller from the Martina Women’s Refuge, dated 1 January 2013. Ms Miller expressed the view that there is no welfare system or accessible medical system in Vietnam to improve the applicant’s circumstances, and that the applicant fears that she will be outcast, homeless and vulnerable. She states that returning the applicant to these circumstances would “be tantamount to placing her on a path of unacceptable vulnerability that would inevitably precipitate a violation of her human rights”. The Tribunal does not accept this evidence, given that the Tribunal finds that the applicant will have the support of her family. Further the Tribunal does not accept the assertion that there is no accessible medical system in Vietnam. The World Health Organisation reported the following in May 2015:
Overall, Viet Nam’s policies are largely grounded upon the governments high commitment to address inequalities in health. The government initiated the Health Fund to cover basic health services for poor population two decades ago. In 2010, Viet Nam adopted universal health coverage as its development agenda for health and has initiated a series of policies and reforms to achieve UHC.
Viet Nam health status has significantly improved with the overall, basic health indicators being better than those of other developing countries in the region with similar or even higher per capita incomes. ……The health-related Millennium Development Goals (MDG’s) are on track. MDG 4 has been achieved with under-five mortality rate reduced from 56% in 1990 to 24% in 2013. MDG 5 is on track with maternal mortality rate ratio reduced from 233 per 100,000 live births in 1990 to 49 per100,000 live births in 2013.
The country is moving towards universal health coverage (UHC) with around 69% of its population covered by social health insurance in 2012 and the poor and ethnic minorities are fully covered. Progress however is uneven and there are old and new challenges. Health inequities and disparities in health outcomes continue to persist among the poor, ethnic minorities and those living in the hard to reach areas. (citation omitted)
…
73.In the context of the above information, the Tribunal finds that, as a Vietnamese citizen residing in a large city, the applicant will be able to access health and other services.
…
75.The Tribunal does not accept that the applicant faces a real chance of serious harm amounting to a well-founded fear of persecution in the reasonably foreseeable future because of she is a separated/divorced woman and/or because she will be unable to obtain household registration and obtain employment.
It is clear from those passages that the Tribunal did not consider whether the applicant might be perceived more negatively than other twice divorced, single women because she was a victim of family violence. It was not enough that the Tribunal considered the applicant’s capacity to subsist as a twice divorced single woman. The Tribunal was also obliged to consider the balance of her claim, which concerned her capacity to subsist as a twice divorced single woman who had been a victim of domestic violence. The Tribunal failed to do that, and so fell into jurisdictional error.
Conclusion
As some of the applicant’s grounds have been made out, the decision of the Tribunal must be set aside and the matter must be remitted to the Tribunal for determination according to law. The Minister will be ordered to pay the applicant’s costs of the proceeding.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 2 February 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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