Ani17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1975
•25 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ANI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1975
File number(s): MLG 263 of 2017 Judgment of: JUDGE EGAN Date of judgment: 25 August 2021 Catchwords: MIGRATION – application for Safe Haven Enterprise Visa – whether factual errors in findings of the Authority gave rise to jurisdictional error – whether errors material – whether Authority actively intellectually engaged in a consideration of the applicants’ claims of extreme discrimination based on religious grounds – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth), ss 5H(1) 5J, 36(2)(a), 36(2)(aa), 473CB Cases cited: SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Number of paragraphs: 31 Date of last submission/s: 23 August 2021 Date of hearing: 23 August 2021 Place: Brisbane Solicitor for the Applicant: Visatec Legal Counsel for the Applicant: Ms J. Zhou Solicitor for the First Respondent: Clayton Utz Counsel for the First Respondent: Mr M. Hosking Second Respondent: Submitting appearance save as to costs. ORDERS
MLG 263 of 2017 BETWEEN: ANI17
First Applicant
ANJ17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
25 AUGUST 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Amended Application for Review filed on 8 July 2021 be dismissed.
3.The First Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7,206.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The applicants are citizens of Vietnam who arrived in Australia as unauthorised maritime arrivals on 14 July 2013. The first applicant is the older brother of the second applicant. They each participated in entry interviews on 20 July 2013.
Having been invited to apply for a Temporary Protection (Sub Class 785) visa, the applicants made application for a Safe Haven Enterprise Visa (SHEV) on 21 September 2015.
On 2 September 2016, a delegate of the Minister refused the applicants’ visa applications.
On 8 September 2016, the Department referred the delegate’s decision to the Immigration Assessment Authority (‘the Authority’) for review.
On 11 January 2017, the Authority affirmed the decision of the delegate.
At [3] of its reasons, the Authority recorded that it had had regard to the material referred to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).
At [34] and [35] of its reasons, the Authority duly recorded what constituted a person a refugee under s. 5H(1) of the Act, and what constituted a well-founded fear of persecution under s. 5J of the Act.
At [8] of its reasons, the Authority recorded that the second applicant was included in the first applicant’s protection visa application as a dependant. At [9] of its reasons, the Authority summarised the claims of the first applicant as follows:
“9. The applicant’s claims can be summarised as follows:
· The applicant is a Catholic born in [name of place omitted] in Vietnam.
· As a Catholic from [name of place omitted] in Vietnam the applicant states he was discriminated against by the non-Catholic teachers at school and was unable to access employment opportunities.
· The applicant was a member of a Catholic youth group (youth group) and assisted the poor, tidied the church and with others ensured that people did not "spoil" or "make trouble" at the church services and celebrations.
· On 22 May 2013, the applicant was gathered with others at Saint Anthony's church when plain clothes police officers tried stopping people from attending the mass. The applicant and others went outside and tried to assist the people trying to attend to the mass. The applicant was pushed and he fell over and his tooth was broken. When people heard what happened a crowd of people from the parish gathered. The people then brought the plain clothes police officers to the cultural house/town hall which belonged to the village. The plain clothes police officers were held late into the night by the people from the parish before they were released at the request of local and provincial leaders of the church.
· On or around 26 June 2013, two people were kidnapped from the applicant's parish. When this occurred the applicant's parents decided that as a person involved in a youth group it was not safe for the applicant to stay and arranged for the applicant and his brother (second referred applicant) to leave Vietnam.
· Approximately three months ago the applicants' parents were taken to the police station and questioned about the whereabouts of the applicants.
· The applicant fears on return to Vietnam he will be harmed by the Vietnamese government and the police force on account of his Catholic beliefs, his participation in the youth group and the events of 22 May 2013, the inadvertent release of some of his personal details on the Department's website, his illegal departure from Vietnam and his return to Vietnam as a failed asylum seeker.”
(names of places omitted)
Grounds of Review
At the hearing of the matter before the Court, the applicants relied upon an Amended Application for Review filed on 8 July 2021, the grounds of which were as follows:
“Grounds of application
1. The IAA reached a finding without any evidence or probative basis, in concluding that the first applicant was pushed, fell over and broke his tooth during the events of 22 May 2013 at St Anthony’s Church. Alternatively, the IAA’s finding was irrational or illogical.
2. The IAA failed to consider the first applicant’s claim that he would face ‘extreme discrimination’ as a Catholic from Nghe An Province.”
Ground 1 was a claim that the Authority had made a finding relating to the circumstances in which the first applicant had suffered a broken tooth on 22 May 2013 which had no evidentiary basis. The finding (underlined) was contained in [26] of the reasons of the Authority which was as follows:
“[26] On the basis of the evidence before me, I accept the applicant was present at St. Anthony's on 22 May 2013 when plain clothed officers started to stop and search parishioners. I accept when the applicant heard what the plain clothes police officers were doing him and others went out and tried to assist the parishioners who were being stopped and searched. I accept when the applicant was doing this confusion and arguments occurred and the applicant was pushed and he fell over and his tooth was broken. There is no information before me to suggest that the applicant's broken tooth was caused by him being beaten by a plain clothes police officer or anyone else from the Vietnamese authorities.”
(underlining added)
The underlined finding was erroneous, insofar as it was held that there was no information before the Authority to suggest that the first applicant’s first broken tooth was caused by him being beaten by a plain clothes police officer, because there was such information. Paragraphs [10] – [17] inclusive of the first applicant’s statement dated 16 September 2015 give context to the first applicant’s claims that he left Vietnam to travel to Australia after he had been beaten and suffered a broken tooth. The statement was as follows: [1]
[1] Court Book (CB) pp. 158 – 159.
“[10] Police offers in our area regularly interfere with us when we try to worship or have special religious celebrations. For example, in May 2013 before a court hearing for some young Catholic people in Vinh City (who had been wrongly accused of crimes because of their work with the church), the church gathered hundreds of people to pray at Saint Anthony's Church in our area. I was there and I heard that police had been trying to stop Catholics on the way them from going to the Mass.
[11]As I was a member of the youth group of the parish I took it upon myself with some others to ask the men who were preventing the churchgoers from reaching the church why they were doing this. The men were in plain clothes but revealed themselves as police officers form the district authority. I had asked them politely but they beat me and one of my teeth was broken. I still have nightmares about being beaten on this day.
[12]The Father of My Yen Parish found out about what was happening and a crowd of people gathered. The Catholics outnumbered the police. The people brought the police into the Town Hall of Village 13 and confronted them. The police officers were held their until late into the night. I stayed until around 12.30am even though my mouth was bleeding, because it was important that we had evidence of what they had done to the people they had used violence against. That night, local and provincial leaders asked the Priest, Nguyen Thai Hop to tell the residents to release the police officers.
[13]In the weeks after this incident tension was very high between the community and the police. The police vandalised the trees on the approach to Saint Anthony's church. My family was worried about my safety after what had happened I had treatment on my teeth.
[14]On around 26 June 2013, two people from my parish were kidnapped: Mr [name omitted] and Mr [name omitted]. Mr [name omitted] was in the administration of the church and [name omitted] was a teacher in the parish.
[15]When this happened my family decided that as a person involved in the youth group it was not safe for me to stay in our area. My family was worried that I would also be disappeared. My parents said to me that I should leave. I don't know why they chose the route they chose for me to Australia.
[16]My parents thought that growing up there would not be good for [name omitted] either, and he would be exposed to religious discrimination and violence as he grew older and treated the same way as I and other members of the church were. I share with my parents the fear that as [name omitted] gets older he will be in similar position to what I was, and be exposed to the same sort of problems.
[17]Eight days after they were kidnapped their families of the kidnapped men were told that they were in police custody.”
(underlining added)
(names omitted)
Further, during the course of the hearing, an audio recording was played of part of the interview conducted on 3 February 2016 between a delegate of the Minister and the first applicant. That audio recording was stored on a USB stick which was marked as Exhibit 2. The relevant audio recording related to the dialogue between the delegate, the first applicant and the first applicant’s interpreter, and was recorded between pages 23.43 – 25.1 of the transcript. That transcript was Annexure A to the affidavit of one Ms Paton filed on 22 July 2021, and was as follows:
“THE APPLICANT: On 22 May 2013, they got a few youth been taken to court in [name of place omitted] court. And when the youth, like, been held up, people keep, like, praying for them those people, praying for those youth. They got some police, but without uniform, without uniform. They no uniform, like police, but they definitely police without uniform, because they wearing socks and shoes belong to police.
THE DELEGATE: Okay.
THE APPLICANT: But no uniform, and stop people from going for praying. And then they come into the - and then people inform us when I'm inside the church, they inform that there is police without uniform stop people from coming to the church for praying. And then I and one person belonging to the youth group came out and we tried to sort of, like, make sure that people can come in and they pushing us, the people pushing us. I am two others, that means three of us, but they pushing us. When they pushing me and I fell over, pushing me, I fell - push, push, push, assaulted, assaulted.
THE INTERPRETER: The word "(in Vietnamese)" and "(in Vietnamese)" are very similar when he pronounce.
THE APPLICANT: Assaulted more than pushing, yes. They assaulted me and then knocked me - one of my tooth out. After that, a lot of youth groups came along, came along, yes, and then in - so, like, they restrain three un-uniform police, and put in - they got a cultural house and they took those people, three un-uniform police, into the cultural house belong to the village, and from that time until midnight, more than midnight, 12.30 the day after. Because the three - the people who assaulted, three of them intercepted by the villagers and also the youth groups, they belong to town, like the village, like a unit, like a village, and the town, the district, and that's why people - police from the district know that they belong to them and they intercept with the - with the clergy, like high clergy, and asking the villagers and the youth group release those three people, because they un-uniform, but they belong to the police force - security police force.
THE DELEGATE: So after you were assaulted, what happened to you personally? What did you do?
THE APPLICANT: In the church - at the church they got a, like, a small unit taking care of people who are injured, yes, at the church.
THE DELEGATE: Right. So after you were assaulted you went and got taken care of?”
(underlining added)
(names of places omitted)
Not only did the first applicant make it clear to the delegate that he had been assaulted, and that the assault had caused him to suffer a broken tooth, it was also apparent that the delegate had appreciated that the first applicant had claimed that he had been assaulted. So much was clear to the Court from a reading of the transcript, and after its having listened to the audio file.
The Court does not accept the submission made on behalf of the first respondent that the last two sentences of [26] of the Authority’s reasons were somehow based upon country information otherwise referred to in the reasons. Reference to country information at [20] – [21] of the Authority’s reasons does not cure the error in the factual finding made at [26] of the reasons of the Authority.
Further, on 20 September 2016, the first applicant had provided written submissions to the Authority which reiterated the first applicant’s claim that he had suffered a broken tooth after having been beaten by police on the occasion of the May 2013 incident. In part, those submissions provided as follows: [2]
“The 2013 incident where I was beaten by police and had my tooth broken did happen. I didn't mention this when I first arrived in Australia because I was very young and scared of the Department officer who was interviewing me. I had been at sea for a long time and suffered from seasickness. The department should have taken this into account before deciding that they didn't believe me.
I also worry that due to the discrimination against Catholic people, myself or my brother will not be able to work in Vietnam and will not be able to subsist or survive.
I still hear of Catholics who are detained in Vietnam and then, after they are released, continue to suffer from their ordeals. My parents continue to be harassed by the Vietnamese authorities. An example of this is my parents were taken to the police station about three months ago and questioned about the whereabouts of me and my brother. They are interested in my whereabouts in particular after the incident where I was beaten and my tooth was broken.”
(underlining added)
[2] CB p. 294.
The Court finds that there was evidence before the Authority contrary to its relevant finding at [26] of its reasons. A consideration as to whether such error on the part of the Authority constituted jurisdictional error or not turns upon the question as to whether such error was material or not. In SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210, when discussing whether jurisdictional error had been demonstrated where some factual findings had been made which were said to be either irrational or illogical, Wigney J, at [52] and [55], said:
“[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
[55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].”
It was submitted on behalf of the first respondent that any error on the part of the Authority was not a critical finding, and was otherwise immaterial, in that even if the Authority had correctly recorded and considered the first applicant’s claims about his having been beaten, it could not realistically have resulted in a different decision being arrived at. The submission made at [28] of the first respondent’s written submissions filed on 22 July 2021 was as follows:
“[28] Further, even if the Authority’s finding that the first applicant’s tooth was broken as a result of an altercation with someone who was not a police officer was unsupported by evidence or irrational or illogical (which is denied), the Minister submits that the finding was not sufficiently critical to the outcome of the Authority’s decision for any error to amount to jurisdictional error. What was critical was not the precise identity of the person who caused the first applicant’s broken tooth, but whether the first applicant was of any interest to the Vietnamese authorities as a result of the May 2013 incident. On the basis of the first applicant’s own evidence that nothing happened to him between May and July 2013, and he continued to attend church during that period, the Authority concluded that the first applicant was not of interest to the Vietnamese authorities (CB 319 [27]). The identity of the person who caused the first applicant’s broken tooth made no difference to that conclusion.”
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
At [27] – [28] of its reasons, the Authority recorded how there was no evidence before it that suggested that the authorities had any particular interest in the first applicant from the time of the 22 May 2013 incident until the first applicant’s departure from Vietnam on or about 26 June 2013. [3] The Authority found as follows:
“[27] I also do not accept the applicant's claims that the arrest of the two people in June 2013 was the reason for the organisation of the applicant and his brother's travel to Australia. While I accept the authorities arrested and detained two men, I find there is no basis for the applicant's claims that he would also be arrested and detained for his involvement in the events on 22 May 2013. On the applicant's own evidence nothing happened to him after he was injured and he continued to attend church twice daily until he left Vietnam. There is no information before me to suggest that the applicant was of interest or being sought by the Vietnamese authorities during this period.
[28]I find the applicant was not being watched or followed, he was not of interest and nor was he being sought by the Vietnamese authorities including the police prior to his departure to Australia in July 2013. It follows that I do not accept there is any basis for the applicant's claims that his parents have been taken to the police station and questioned about the whereabouts of him and his brother.”
[3] CB p. 24.
The Court accepts the first respondent’s submissions. The first applicant had only just finished school at the time his parents arranged for his and his brother’s unauthorised maritime departure for Australia. The Authority was entitled to find that the predominant reason why the applicants’ did not have a well-founded fear of persecution was that they did not have a profile which would have led to them being targeted by the police, or others, who might have been opposed to the Catholic religion. There is no merit to Ground 1 of the Amended Application for Review.
As to Ground 2 of the Amended Application for Review, the Court does not accept that the applicants would face “extreme discrimination” by reason of the fact that they would be returned to live as Catholics in Nghe An Province in Vietnam.
At [37] – [45] of its reasons, the Authority considered the question of religious based discrimination in Vietnam in the context of claims made by, or on behalf of the applicants, that there was a heightened risk of harm to Catholics in the Nghe An Province as opposed to Catholics who lived in other parts of Vietnam. Those claims were made as follows:
First Applicant’s Statement of 16 September 2015 [4]
[4] CB p. 158.
“[6] The Catholic community in Nghe An Province, is the target of extreme discrimination and regular violence. Members of our community are discriminated in accessing employment. It is common to see written advertisements for workers that specifically say "No people from Nghe An". In school, non-Catholic teachers have always discriminated against me.
[7] Police and other authorities refuse to protect us from discrimination and victimisation, and have actively engaged in attacking and kidnapping members of our community.
[8] Harassment and discrimination against Catholics has persisted for many years, but recently it has become worse, with many incidents of beatings of churchgoers and the destruction of churches in the last few years.”
RACS Submission of 18 February 2016 [5]
[5] CB pp. 237 – 240.
“3 Real chance
(a) Treatment of Catholics in the applicants’ region
3.1 The applicants are members of the parish of [name omitted], made up of the people of the various hamlets of [name omitted] Commune in [name omitted] District, in Nghe An Province. There is ample country information to demonstrate that the Catholic population of this region has experienced a high risk of harm from local authorities on the basis of their religious affiliation.
3.2 [ANI17] can be distinguished from other Catholic members of his community by his profile as a young man who is an active member of the Catholic youth group. We submit that this significantly increases [ANI17's] exposure to risks of harm, for the reasons [ANI17] described at the Interview and in his Statement.
3.3 While [ANI17] also mentioned his fear of being singled-out and targeted by the police officers who were involved his May 2013 assault, a risk of harm also arises from simply returning to his previous practice of his religion and involvement in the Catholic youth group.
(b) [ANI17’s] experience of harm in Nghe An
3.4 [ANI17] referred to two major incidents of harm in his statement:
· one in May 2013 involving a conflict between local plainclothes police officers (who had been harassing local parishioners) and local parishioners who effectively detained the police officers; and
…
3.8 In light of the nature of the incidents described in [ANI17’s] statement within a pattern of discrimination, harassment and violence against Catholics in Nghe An, we submit that [ANI17’s] experience of harm in 2013 amounted to persecution for a Convention reason. The information below supports a finding that a real risk of similar or other forms of persecution of significant harm continues to exist for one or both of the applicants.
(c) Further instances of harassment or violence directed at Catholics in Nghe An
3.9 In, there have been numerous other incidents involving the Catholics of Nghe An region. For instance, in January 2013, 14 Catholic activists from Nghe An were convicted on charges of subversion against the state and sentenced to between three and 13 years in prison. Further, the 2013 United States Commission report on International Religious Freedom stated:
Nghe An province has become a flashpoint of tensions between the Vietnamese government and Catholics. In March and May, five young Catholic activists — [names omitted] — were jailed for distributing prodemocracy leaflets. They all had begun their activism, blogging and conducting peaceful prayer vigils at disputed property of the Thai Ha parish in Hanoi.
In June and July 2012, local authorities sought to prevent Catholic worship at private homes in [names of places omitted] districts in Nghe An province. Unidentified groups of young men regularly gather to throw stones at worshipers and block roads to the sites, and officials reportedly have visited homes asking people to sign pledges not to "illegally celebrate Mass." On July 3, 2012 a mob beat several of those worshipping in [name of place omitted], at least one severely. Catholics in [name of place omitted] have been frequent targets of abuse and intimidation in recent years. In November of 2011, a pipe bomb explosion caused heavy damages to the site used for worship. In both areas, local Catholics have filed multiple requests to register as legal sites for religious activity without success.
In the past year, the Nghe An government also has continued to disrupt private religious activities of Catholic college students, including by hiring thugs to beat up students and having police pressure them to sign pledges not to hold religious activities in private homes.
3.10 Incidents such as these, occurring throughout 2012 and 2013, are demonstrative of the anti-Catholic sentiment present in the region, both among non-Catholics and the authorities. While there is extensive evidence to suggest that the situation in Nghe An was particularly volatile in 2013, we submit that the Nghe An region continues to be a dangerous area for local Catholics attempting to practice their faith freely. Christian Solidarity Worldwide (CSW) has stated that it received several reports of Freedom of Religious Beliefs violations in Nghe An throughout 2015.
3.11 In December 2015, Catholic lawyer Nguyen Van Dai and his fellow activists, all of whom are from Ngh0 An, were detained and beaten by masked assailants after being monitored by authorities, as reported by Radio Free Asia:
Masked assailants in Vietnam detained and beat a dissident lawyer and his fellow activists after they led a class to educate residents of Nghe An province about their human rights, he said Monday, upon returning to his home in the capital Hanoi.
Lawyer Nguyen Van Dai told RFA's Vietnamese Service that security personnel had been monitoring the class of around 60 participants he led with three young colleagues early on Sunday in Nam Dan district before ordering them to stop.'
3.12 In December 2015, Catholic lawyer Nguyen Van Dai and his fellow activists, all of whom are from Nghe An, were detained and beaten by masked assailants after being monitored by authorities. It was later reported by Christian Solidarity Worldwide (CSW) that Van Dai had been detained on 16 December 2015 under a charge of "spreading propaganda" while preparing to meet European Union delegates to the EU-Vietnam human rights dialogue in Hanoi.'
3.13 To the extent that there is a finding that the risk of harm to Catholics in Nghe An has decreased since 2013, we submit that it is necessary to consider to what extent local Catholics have reduced their exposure to harm by modifying their religious practice in daily life. As set out below at 6.3, we submit that a finding that the applicants could reduce their exposure to the risk of persecution by doing the same would be a misapplication of s 5J(1).
(d) Harm directed towards Catholics in Vietnam generally
… ”
(footnotes omitted)
(names of persons and places omitted)
The Court finds that the Authority properly considered the country information before it, and that it analysed such information before reaching its findings. At [38] – [39] of its reasons, when considering country information concerning the treatment of Catholics in Vietnam and in Nghe An Province in particular, the Authority found as follows:
“[38] In terms of religious practise reports on the treatment of Catholics in Vietnam vary depending on whether Catholics practise in a registered or unregistered church, and/or whether the church or its members are outspoken or critical of the Vietnamese government. Information indicates that Catholics who worship quietly and in a manner conforming to government policies and sensitivities are able to do so with a low risk of official interference.
[39] Information before the delegate confirms that in the past there have been reports of clashes between Catholics and government authorities in Nghe An. Unidentified groups regularly gather to throw stones at worshippers and block roads to sites in Nghe An province. It was reported attacks were carried out by people connected with the authorities; however these appear to be largely targeted at those participating in political acts such as protesting land disputes or disseminating pro-democracy information. Reports also indicate that these past clashes have been addressed with dialogue between the government and the diocese occurring and resulting in an improvement in the relationship.”
(footnotes omitted)
When considering the particular circumstances of each of the applicants, the Authority, at [40] – [45] of its reasons, found as follows:
[40] Additionally, information does indicate that there are considerable risks to those that are politically and religiously active in Vietnam. There is evidence that people who have been involved in high profile and violent protests have been seriously harmed, arrested and detained. Information indicates that people who engage in religious activity which is perceived to actively oppose government policy or pose a threat to the state face a high risk of being subject to close monitoring and government action to curtain their activities.11 DFAT advises that, on its best estimates, upwards of 30 activists connected to the Catholic church have been arrested since 2011 and have either not been charged or are facing charges for crimes against the state.
[41] I am satisfied the applicants will return to their home area in Vietnam and that they would continue to be regular, but low profile members of the Catholic Church who will participate in masses and youth group activities. I am satisfied that this level of participation is low profile in manner and a genuine expression of their faith and does not involve any modification of their behaviour. I am satisfied these acts would not be considered as being acts of a political or religious activist by the state. I am also satisfied that there is nothing about their religious profiles or beliefs that would impute them with any religious or anti-government (anti- Communist or pro-democracy) political opinions that might put them at risk on return to Vietnam.
[42] I have considered the information regarding the current situation in Nghe An province, and as the applicants' have not claimed they will become religiously or politically activists on return and as this does not involve any modification of their behaviour, I am satisfied that the applicants' would not face a real chance of harm on this basis on their return to Vietnam in the reasonably foreseeable future.
[43] I accept that on return to Vietnam the applicants may seek to continue their education or employment opportunities. In terms of schooling and employment, the country information indicates a degree of discrimination towards a range of religious adherents. The US State Department assesses that while unofficial policies of the Communist Party of Vietnam (CPV) and the government hampered advancement of religious adherents within those organisations, membership of a religious group generally did not seriously disadvantage individuals in nongovernmental civil, economic, and secular life. Education is universal and free until the age of fourteen, and while there is evidence of barriers to education for certain minority ethnic groups and children with disabilities, and economic concerns may prompt poorer families in rural areas to discontinue their children's educations, there is no clear evidence in the country information that children are denied access to schooling on the basis of their religion.
[44] While I accept that as a Catholic the applicant may have been discriminated at school in the past, I am not satisfied the discrimination or disadvantage the applicant has described and which he may again endure on return to Vietnam would threaten their livelihood or impact on their capacity to subsist or otherwise constitute serious harm. I am also not satisfied that as a Catholic, the limited employment barriers, such as in government roles would threaten their livelihood impact on their capacity to subsist or otherwise constitute serious harm. As a regular, but low profile members of the Catholic church, I am not satisfied that there is a real chance the applicants would be denied employment or further education, or otherwise suffer discrimination amounting to serious harm on the basis of their religion on their return to Vietnam.
[45] A cumulative assessment of the information before me, I find there is not a real chance of the applicants being seriously harmed on the basis of their religion as Catholics, or in the expression of their religious practises and beliefs, should they return to Vietnam. I am satisfied they would be low profile Catholics and they do not have any actual or imputed political opinion or profile, and accordingly would face no chance of harm on that basis on their return to Vietnam now or in the reasonably foreseeable future.”
(footnotes omitted)
(underlining added)
The Court finds that clearly articulated arguments were advanced on behalf of the applicants to the effect that Catholics in Nghe An Province were subjected to extreme discrimination by reason of their religion. The Court further finds that the Authority appropriately intellectually engaged in a consideration of such claims before dismissing them. Ground 2 of the Amended Application for Review is without merit.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
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[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
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[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
It was open for the Authority to find that the applicants did not meet the relevant refugee criteria under s. 36(2)(a) of the Act, or that if returned to Vietnam they would suffer significant harm thereby entitling them to complementary protection under s. 36(2)(aa) of the Act.
The applicants have failed to establish jurisdictional error on the part of the Authority.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 25 August 2021
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