Apd21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 185
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
APD21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 185
File number: ADG 54 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 23 March 2022 Catchwords: MIGRATION – Safe Haven Enterprise visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misconstrued or misapplied s 36(2)(aa) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36, 476 Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429
DQU16 v Minister for Home Affairs [2021] HCA 10
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of hearing: 8 March 2022 Place: Perth Counsel for the Applicant: Mr H Glenister Solicitor for the Applicant: William Gerard Legal Pty Ltd Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
ADG 54 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: APD21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
23 MARCH 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Vietnam (Court Book (“CB”) 17). He arrived in Australia in April 2013 (CB 23)
On 18 September 2019, the applicant applied for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (the “visa”) (CB 10-36). In his application, the applicant claimed that he left Vietnam because he was “an activist” who had joined “protests against the communist party”. The applicant also claimed that if he returned to Vietnam he would be “locked up for life” (CB 32). He also claimed that he was “interrogated” and “tortured” by the communist party in Vietnam (CB 33).
On 18 February 2020, the applicant attended an interview with an officer of the Department of Home Affairs (the “Department”) (CB 54-55 & 68).
On 21 February 2020, the applicant provided a bundle of photographs to the Department via email (CB 56-61).
On 4 March 2020, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 66-75). The delegate was not satisfied that the applicant faced a real chance of serious or significant harm in Vietnam (CB 74).
On 9 March 2020, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 76-84).
On 2 November 2020, the Tribunal invited the applicant to attend a hearing before it scheduled for 18 November 2020 (CB 98-100).
On 18 November 2020, the applicant attended a directions hearing before the Tribunal by telephone. He was assisted by an interpreter in the English and Vietnamese languages
(CB 114-117).
On 23 November 2020, the Tribunal invited the applicant to attend a resumed hearing before it on 16 December 2020 (CB 122-123).
On 25 November 2020, the applicant attempted to provide material to the Tribunal (CB 129). The Tribunal was unable to access that material, advised the applicant and asked that he resend the material (CB 131).
On 16 December 2020, the applicant attended a further hearing before the Tribunal. He was again assisted by an interpreter (CB 140-143).
On 17 December 2020, the Tribunal invited the applicant to attend a further hearing before it on 5 January 2021 (CB 149-150).
On 5 January 2021, the applicant attended his third hearing before the Tribunal. He was again assisted by a Vietnamese interpreter (CB 158-161).
On 24 February 2021, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 166-172).
On 11 March 2021, the applicant filed an application for judicial review (CB 1-5) and supporting affidavit (CB 6-9) in this Court. At the request of this Court, pro bono counsel was retained on 24 August 2021 via court orders. An amended application was filed on behalf of the applicant on 24 September 2021.
The applicant seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
In this matter, the Tribunal’s decision is seven pages long and spans 48 paragraphs.
The Tribunal began by identifying the type of visa under review and detailed the applicant’s migration history (at [1]-[2]).
The Tribunal noted that the applicant had appeared before it on 5 January 2021. At that time, the applicant explained that he had been unable to obtain legal assistance but wanted to proceed with the hearing without further adjournment. The applicant gave evidence at that hearing and was assisted by an interpreter in the Vietnamese language (at [3]).
The Tribunal outlined its task and explained that it would conduct a de novo hearing of the matter on its merits (at [4]).
The Tribunal noted that the applicant’s submission to it was that he “would be persecuted if he had to return to Vietnam” and that his submission in this regard raised two concerns (at [6]). As explained by the Tribunal:
7.First, [the applicant] says he fears persecution because of his past protest activities. [The applicant] claimed to be of the Roman Catholic faith, which I accept, and he said his safety concerns stem from his participation in a protest in 2012 against the Government near a Catholic Church in Con Cuong resulting in his arrest and a summons, which he did not answer. Secondly, [the applicant] points to his participation in Australia in rallies conducted by the Viet Tan, which he submitted, and I accept, is considered a terrorist organisation by the Vietnamese Government.
The Tribunal then detailed the applicant’s “submissions and version of events”, as follows:
(a)he was born in the province of Nghe An (Vietnam). He has three sisters and two brothers. The applicants parents are alive and he has a number of aunts and uncles (at [8]);
(b)the applicant, joined a protest in July 2012 in Con Cuong and was the only member of his family in attendance. He claimed to have heard about the protest through his church community and the local priest had encouraged community participation. The protest voiced “demands for the return of human rights and freedom of religious expression” (at [9]);
(c)he did not know the exact date of the protest (but thought it occurred between the 10th and 12th of July 2012). The applicant had discussed the protest with his parents, who allowed him to attend, telling him “to be very careful”. He claimed to have arrived in Con Cuong at 8.30am at the local church. The applicant explained that he was part of a large group of people yelling “give us back the right to practise religion” and described himself as “a religious person” (at [10]);
(d)the applicant said there were police at the protest (in uniform and in plain clothes) but he joined the protest anyway. While he said the police were not initially attacking anyone, he described them as later beginning to “smash things, … beat the protesters with wooden bats” and throw “smoke grenades among them” (at [11]);
(e)he said he was “captured by police” and taken to a station in Con Cuong (having been transported in a vehicle with seven or eight people). The applicant claimed that hundreds were arrested and taken to the police station, initially being put together but later separated. The applicant said that he was “eventually put in a room by himself” where he was left “for some one or two hours” (at [12]);
(f)the applicant said he was interrogated by police and forced to give his name and address. After being asked who had “persuaded him to join the protest”, he was given a statement, was slapped in the face and was forced to sign the statement (without reading it). He was very frightened and was never provided with a copy of his statement (at [13]);
(g)he said that he was “kept at the station for some two days” where he slept alone in a room and was fed after he signed the statement. His parents were then called by the police to collect him (at [14]);
(h)when he returned home with his parents, after asking him what happened, they were afraid and said “that boy will definitely go to jail”. The applicant then also became fearful (at [15]);
(i)his parents arranged for him to stay with his mother’s brother on a farm and, instead of attending school, he helped with childminding and cooking. The applicant accepted that the police did not come to his home while he remained there (before moving to his uncle’s house) (at [16]);
(j)the applicant had infrequent telephone contact with his parents (once a month or every two months) and they contacted him so infrequently because they were afraid . The police did not come to the uncle’s farm (at [17]);
(k)he said a summons arrived in early January 2013 for him at his parents’ house, requiring his attendance at a police station in March 2013. His parents did not want to worry him and did not tell him about the summons before he left for Australia in April 2013. The applicant said that he was told by his parents at the end of March 2013 that arrangements had been made for him to leave for Australia and that his father told him that they had done so “because the police had come to look for him”. The applicant did not see his parents before leaving for Australia but claimed that he had “a good relationship with his parents” (at [18]);
(l)the applicant said he left Vung Tau in April 2013 by boat (a trip that took 20 days) and that his parents paid for the trip. He travelled with a people smuggler and the price of the trip was $10,000. The applicant’s boat was intercepted by the Australian Navy and he was taken to Darwin. He does not remember the initial interview, being only 16 at the time (at [19]); and
(m)the Department helped him to attend school and he moved into the community at the end of 2014 (or thereabouts). In June 2017, the applicant was convicted of drugs charges and sentenced to five years and ten months in jail. He was placed in immigration detention following his release from prison in May 2019 and applied for a protection visa in September 2019 which was rejected (at [20]).
The Tribunal then discussed its “findings of fact about the events in Vietnam”, noting that the applicant should be given the benefit of the doubt. The Tribunal stated that it had considerable doubt about the applicant’s attendance at the protest in Con Cuong in July 2012 but was prepared to accept that he did attend (at [21]).
The Tribunal outlined its further findings as follows:
22.I do not accept the remainder of [the applicant’s] evidence, however. I bear in mind that [the applicant] was a teenager at this time. On his account, the police chose to arrest and detain a teenager in a cell for two days and then decided to release him. It is not clear to me why [the applicant] would have been released by the police if they had intended to deal with him further. On [the applicant’s] account, the police took the surprising step of serving a summons at his home in January of the following year, some six months after he had been released. The summons, he said, required his attendance some two months later, namely in March 2013.
23.This is implausible in my view. [The applicant] was not a ringleader or organiser of the protest: he was a mere teenager. It makes little sense for the police to bother with a teenager some six months later given the very large numbers of people that were arrested that day on [the applicant’s] account. Moreover, if the police were interested in [the applicant], they would simply have come to his home to pick him up. It makes little sense for the police to serve a summons requiring his attendance some two months later.
24.There are other aspects of the account which do not make sense and are in my opinion implausible. First, [the applicant] was not told by his parents that they had received the summons. The receipt of the summons could only have been a very serious event for them, signalling real danger for their son. No attempt was made, however, to move him from his uncle’s. It is implausible to suppose that a person who is of interest to the police would not be warned by family of the danger which he or she was in. On [the applicant’s] account, his parents were so concerned with his safety that they felt it was no longer appropriate for him to reside in the family home and arranged his move to a relative’s. Indeed, they even feared to have regular contact by phone lest he be tracked down through surveillance. If the police had an interest in re-interviewing their son, [the applicant’s] parents must have been very concerned for his safety and would have warned him of the need for extreme caution. That did not occur on [the applicant’s] account. That this warning did not occur is implausible in my view.
25.I note further that [the applicant] said the police did not attend at his uncle’s farm even though they would presumably have come looking for him once he failed to present himself for interview in March 2013. On his account they had attended his home in March 2013 looking for him. It is reasonable to suppose the police would have attempted to track him down at his relatives’ homes. That this did not occur also seems implausible.
The Tribunal concluded that, even giving the applicant the “benefit of every reasonable doubt”, it did not believe the applicant’s version of events in relation to his arrest and subsequent events (at [26]).
The Tribunal then considered the applicant’s “evidence about events in Australia”, noting that he said he was not a member of Viet Tan but had attended Viet Tan demonstrations in Perth and Melbourne and assisted them from time to time by asking for donations at the end of meetings or demonstrations that he attended (at [27]).
The Tribunal noted that the delegate had recorded that the applicant admitted that he had attended the rallies to “bolster his claim for a protection visa”. However, when asked by the Tribunal about this, the applicant denied that he had said it to the delegate. Rather, he had attended meetings to “oppose the Vietnamese Government” (at [28]).
The Tribunal continued:
29.I have listened to the recording of the interview, and I note the delegate asked explicitly “how” (but not “why”) [the applicant] came to approach the Viet Tan party. To this question [the applicant] replied that he had been told by members of the Vietnamese community that it would benefit his visa application if he were a member of Viet Tan. Given the question that was asked, [the applicant’s] answer does not admit that he approached the party in order to bolster his application; but it does indicate an awareness of community information that membership of the Viet Tan might help an application for a protection visa.
My findings of fact about events in Australia
30.I accept that [the applicant] attended Viet Tan demonstrations in the company of many others on the occasions that he said he had. I am prepared to accept that he has attended an unspecified number of private meetings. I also find that [the applicant] has never been a member of the Viet Tan.
The Tribunal then explained that the criteria for the grant of the visa are set out in the Act (at [31]), noting that s 36(1A)(b) of the Act requires that the applicant satisfy the criteria in either ss 36(2)(a) or 36(2)(aa) of the Act (at [32]).
In relation to the application of s 36(2)(a) of the Act to the alleged events in Con Cuong, the Tribunal found that, on evidence before it, the applicant did not “answer the description of a ‘refugee’ as defined”. Given the Tribunal’s rejection of the applicant’s accounts of the events in Vietnam, it did not accept that the applicant feared being persecuted as a consequence of his participation in the Con Cuong protest (at [33]).
In applying s 36(2)(aa) of the Act to the alleged events in Con Cuong, for the same reasons detailed above, the Tribunal did not believe there was a real risk the applicant would suffer significant harm as a consequence of his participation in the Con Cuong protest. The Tribunal did not believe the applicant met the s 36(2)(aa) criterion (at [34]).
The Tribunal then applied ss 36(2)(a) and 36(2)(aa) of the Act in relation to the applicant’s faith, noting that a question arose about whether the police or the authorities would harm the applicant “simply because of his Catholic beliefs” (at [35]).
The Tribunal considered recent country information reports (at [36]) and determined that the applicant would not face harm if he returned to Vietnam and practised his faith (at [37]).
The Tribunal then considered whether the applicant would face harm on his return to Vietnam as a failed asylum seeker. The Tribunal reviewed the relevant country information and noted that there was no suggestions that there is any “serious threat of persecution or harm”. The Tribunal did not believe the applicant’s application should succeed on that ground (at [38]).
The Tribunal noted that it also needed to consider the applicant’s visa application with respect to his claimed association with Viet Tan in Australia (at [39]), stressing that it needed to be satisfied that the applicant’s activities were undertaken “otherwise than for the purpose of strengthening” his protection claims (at [40]).
The Tribunal noted its concerns about the reliability of the applicant’s evidence and his evidence before the delegate in this regard. The Tribunal accepted that the applicant did not explicitly admit to the delegate that he had conducted activities with Viet Tan to strengthen his protection claims, but was not satisfied that the activities were for any other purpose. The Tribunal also referenced evidence from the applicant that he was aware from community information that membership to the Viet Tan might strengthen his protection claims (at [41]).
The Tribunal was not satisfied that the applicant’s activities were undertaken for any reason other than to strengthen his protection claims (at [42]).
In applying s 36(2)(aa) of the Act in relation to the applicant’s participation in Viet Tan activities, the Tribunal stated:
43.As I read the complementary protection provisions in s 36(2)(aa), however, it does not matter whether [the applicant] associated with the Viet Tan for the purpose of bolstering his claim to be a refugee. Section 5J(6) does not apply. Rather, the only question for me is whether I have “substantial grounds for believing that, as a necessary consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”.
44.I accept the Vietnamese Government is a very authoritarian and illiberal one-party state. I accept that it maintains a very significant security apparatus through which it monitors the activities of the regime’s suspected opponents. I accept that the apparatus has the capacity to monitor overseas activities.
45.But in my opinion it would be unreasonable to assume, without supporting evidence, that the security apparatus could, or would, go to the extraordinary effort of obtaining, where possible, information about the identity of every person attending an overseas protest rally connected with the Viet Tan, even though the Viet Tan is a declared terrorist organisation. I have no information to suggest that [the applicant’s] attendance at Viet Tan rallies or private meetings might have been monitored by the Vietnamese authorities or that his identity might have been discovered and recorded. I note again [the applicant’s] evidence to me that he is not a member of the Viet Tan.
46.Accordingly, in my opinion, I do not have “substantial grounds” for “believing that there is a real risk” that [the applicant’s] attendance at the rallies or at private meetings has come to the attention of the security authorities in Vietnam. To conclude otherwise would be speculative and, as I have said, the Act specifies that I must “have substantial grounds” for “believing that there is a real risk” in this regard. I accept, however, that if the authorities knew of his attendance at Viet Tan rallies or meetings, [the applicant] would face a real risk of harm on his return.
The Tribunal ultimately concluded that the applicant’s visa application did not meet the criteria for the grant of the visa (at [47]) and affirmed the decision not to grant him the visa (at [48]).
PROCEEDINGS IN THIS COURT
An amended application was filed on behalf of the applicant on 24 September 2021 which contained two “substituted grounds” of review. Ground 1 was ultimately abandoned. As such, only one ground of review remains relevant. Substituted ground 2 provides as follows:
2.The Tribunal made a jurisdictional error at [45] by misconstruing or misapplying s 36(2)(aa) of the Act.
The materials before the Court include the amended application for judicial review filed on behalf of the applicant on 24 September 2021, a Court Book numbering 172 pages (marked as Exhibit 1), written submissions filed on behalf of the applicant on 3 February 2022 and written submissions filed on behalf of the Minister on 21 February 2022.
The applicant was represented by Mr Glenister of counsel. As noted above, Mr Glenister appeared in this matter pro bono as a result of a referral certificate issued by this Court. The Court thanks Mr Glenister for accepting this referral. It has become increasingly difficult of late for applicants to access pro bono assistance. Mr Glenister consistently, and without reservation, assists applicants (and the Court) when he is able to do so and the Court thanks him for his considerable assistance. Others would do well to emulate his efforts in this regard.
WRIITEN AND ORAL SUBMISSIONS BEFORE THE COURT
In written submissions filed with this Court on behalf of the applicant (on 3 February 2022), Mr Glenister advised that ground 1 was abandoned and ground 2 would be the only ground being pressed.
The sole issue for this Court’s consideration is thus whether the Tribunal made a jurisdictional error (at [45]) by misconstruing or misapplying s 36(2)(aa) of the Act.
Applicant’s written submissions
In summary, the applicant’s written submissions relevantly provide as follows (at [8]-[15]):
(a)under s 36(2)(aa) of the Act the Minister may grant a protection visa to a non-citizen if the Minister is satisfied that Australia has protection obligations “because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”;
(b)while a decision-maker is entitled to weigh the material before it and make findings of fact, the degree of probability that various events have occurred in the past is relevant to the determination of whether a person faces a real chance of persecution. Where a decision-maker is uncertain about whether a past event occurred, it may be necessary for the decision-maker to take into account the possibility that the event occurred in its determination of whether a person faces a real chance of persecution. The test for whether there is a real risk that a person will suffer significant harm is the same standard as whether that person faces a real chance of persecution;
(c)in this matter, the Tribunal accepted that the Applicant had ‘attended Viet Tan demonstrations in the company of many others’ and ‘attended an unspecified number of private meetings’ but was not a member of Viet Tan (Tribunal’s reasons (T [30]);
(d)the Tribunal was not satisfied that the Applicant engaged in the Viet Tan activities ‘otherwise than for the purpose of strengthening his claim to be a refugee’ and, therefore, pursuant to s 5J(6) of the Act, disregarded the activities for the purposes of any assessment of whether the Applicant was a refugee (T [40]-[42]);
(e)the Tribunal then proceeded to consider whether the Applicant’s Viet Tan activities gave rise to any complementary protection obligations (T [43]-[46]). The Tribunal was satisfied that ‘if the authorities knew of his attendance at Viet Tan rallies or meetings, [the applicant] would face a real risk of harm on his return’ (T [46]) and that the Vietnamese Government ‘maintains a very significant security apparatus through which it monitors the activities of the regime’s suspected opponents’ and ‘has the capacity to monitor overseas activities’ (T [44]);
(f)at [45] the Tribunal states:
But in my opinion it would be unreasonable to assume, without supporting evidence, that the security apparatus could, or would, go to the extraordinary effort of obtaining, where possible, information about the identity of every person attending an overseas protest rally connected with the Viet Tan, even though the Viet Tan is a declared terrorist organisation. I have no information to suggest that [the Applicant’s] attendance at Viet Tan rallies or private meetings might have been monitored by the Vietnamese authorities or that his identity might have been discovered and recorded.
(g)the above paragraph demonstrates a misconstruction or misapplication of s 36(2)(aa) of the Act. The task required by s 36(2)(aa) of the Act is for the decision-maker to engage in reasonable speculation about whether a person will face a real risk of significant harm if returned to their country. This can involve but does not require findings of fact, assumptions or evidence about what has happened in the past. On the Tribunal’s own analysis, the dispositive question was whether there was a real risk the Vietnamese Government was aware of the Applicant’s Viet Tan activities; and
(h)the Tribunal did not answer that question. Instead, the Tribunal erected a requirement for evidence about the extent that the security apparatus of Vietnam, which the Tribunal itself accepted was ‘very significant’ with the ‘capacity to monitor overseas activities’, would go to monitor the Applicant or those in a similar position. This was a misunderstanding of its task. Unless the Tribunal could be satisfied that the chances of the Vietnamese Government knowing about the Applicant’s activities were negligible, in order to complete its task, the Tribunal was required to weigh the possibility of this having happened with the possibility the Applicant was face significant harm.
Minister’s written submissions
In summary, the Minister’s written submissions relevantly provide as follows (at [20]-[25]):
(a)the applicant adopts an overly narrow reading of the Tribunal’s decision;
(b)the Tribunal’s application of s 36(2)(aa) must be read in the context of [44]-[46] of the Tribunal’s decision and the Tribunal’s decision as a whole. Read fairly:
(i)at [44], the Tribunal accepted that the Vietnamese government has the ability to monitor the activities of suspected opponent’s overseas activities;
(ii)at [45], the Tribunal found that there was no “supporting evidence” to justify the conclusion that the security apparatus could and would have monitored the rallies the applicant attended and discovered the identity of every person attending it. What the Tribunal was stating was that, while there was some capacity to monitor overseas activities of suspected opponents, there was “no information” or “supporting evidence” to establish that there had in fact been monitoring of the applicant’s attendance at rallies and meetings and that his identity might have been discovered. Given the context of the situation (ie, that the applicant attended the rally in the company of ‘many others’ (at [30]) and was not a member of the Viet Tan), in the absence of further information, the Tribunal could not be satisfied that the Vietnamese authorities were aware of the applicant’s involvement in activities in Australia. In this regard, it is noted that it is for the applicant to advance the evidence necessary to establish their claims: Abebe v The Commonwealth (1999) 197 CLR 510 at [187]. Here, the Tribunal is simply saying that the applicant had not provided sufficient evidence to satisfy the Tribunal that he was a ‘suspected opponent’ whom the Vietnamese authorities would monitor; and
(iii)at [46], the Tribunal makes this conclusion clear when it states, in effect, that it was not satisfied that the attendance at the rallies or at private meetings had come to the attention of the authorities in Vietnam. In the absence of any evidence that it might have, this was the only conclusion reasonably open to the Tribunal;
(c)the Tribunal is required to engage in ‘reasonable speculation’. However, the Tribunal expressly found that such an assumption or speculation (ie, that the applicant had come to the attention of the Vietnamese authorities) would be unreasonable in the absence of supporting evidence. No challenge is made to that finding;
(d)notably, the use of the Tribunal’s language at [45]-[46] (to ‘assumption’ and ‘speculation’) can be derived from the authoritative statements of Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 (“Guo”) at [48]:
…Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
(e)here, the Tribunal’s findings were clear and conclusive. They were not uncertain or expressive of doubt. The Tribunal was not satisfied on the evidence before it that there was a real risk that the applicant’s activities had come to the attention of Vietnamese authorities (at [46]). To arrive at a different conclusion would, based on the information before the Tribunal, be to make an ‘unreasonable’ assumption or be to speculate in a way that was not supported by the evidence. To accept that the applicant had come to the attention of the Vietnamese authorities from his activities in Australia, in the absence of any evidence, was, the Tribunal considered, ‘mere speculation’; and
(f)ultimately, the applicant’s ground rises no higher than to we expressing disagreement with the Tribunal’s conclusion that it could not be satisfied that there was a real risk the applicant’s participation in activities in Australia had come to the attention of the authorities in Vietnam. The sole ground of review does not demonstrate a misapplication of the test in s 36(2)(aa) of the Act.
Applicant’s oral submissions
In oral submissions, Mr Glenister submitted that the Tribunal “did not reject the notion that the applicant may have come to the attention of the Vietnamese authorities”. Instead, in Mr Glenister’s submission, the Tribunal was simply “not satisfied that he had”. Mr Glenister was of the view that the Tribunal had found that there was “at least a bare possibility that he had” come to the attention of the authorities but “did not do anything with that bare possibility”. According to Mr Glenister, the Tribunal’s assessment was thus lacking.
Minister’s oral submissions
In Ms Scott’s submission, the Tribunal here determined that the evidence before it did not indicate that there was a “real ground for believing that this particular applicant had come to the attention of the Vietnamese authorities because of his involvement in activities in Australia”. Ms Scott stressed that this statement needs to be considered in the context of the Tribunal’s reasoning “as a whole” and that the Tribunal had also noted that the applicant was “one of many others” in attendance. Further, the Tribunal found, at [30] of its reasons, that the applicant was not a member of the Viet Tan (a finding made based on the applicant’s own evidence). The Tribunal had otherwise rejected the applicant’s claims to have come to the attention of authorities previously on the basis of his involvement in religious demonstrations.
In that context, Ms Scott submitted, the Tribunal made no error when applying s 36(2)(aa) of the Act. Importantly, the applicant had simply “failed to provide sufficient evidence to satisfy the Tribunal to the relevant standard”.
CONSIDERATION
The Tribunal’s statutory task under s 36(2)(aa) of the Act
A person is eligible for a protection visa when they meet the criteria in s 36(2)(aa) of the Act which, together with ss 36(2A), 36(2B) and 36(2C) of the Act, is often referred to as the “Complementary Protection Regime”. This regime took effect in March 2012 and engages Australia’s express and implied non-refoulement obligations.
Section 36(2)(aa) of the Act applies where an applicant does not satisfy s 36(2)(a) of the Act and relevantly provides:
36 Protection visas—criteria provided for by this Act
(2) A criterion for a protection visa is that the applicant for the visa is:
…
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
…
In DQU16 v Minister for Home Affairs [2021] HCA 10 (“DQU16”), the High Court described the statutory task under s 36(2)(aa) of the Act as follows (emphasis added):
13.The question s 36(2)(aa) asks is whether the decision‑maker has substantial grounds for believing that there is a real risk that a person will suffer significant harm, as defined in s 36(2A) and subject to the matters in s 36(2B) and (2C), as a "necessary and foreseeable consequence" of the person's return to a receiving country. The inquiry is prospective. There are three elements that must be satisfied for the prospective harm to satisfy s 36(2)(aa): (1) the decision‑maker must have substantial grounds for believing (2) that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, (3) there is a real risk that the non‑citizen will suffer significant harm.
14.The circumstances constituting “significant harm” are exhaustively identified in s 36(2A) in the following terms:
“[I]f:
(a)the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non‑citizen will be subjected to degrading treatment or punishment.”
…
27.Although the statutory questions posed by s 36(2)(a) and s 36(2)(aa) are different, it has long been recognised that, to the extent that the factual bases for claims under s 36(2)(a) and s 36(2)(aa) overlap, a decision-maker, when considering the complementary protection criterion under s 36(2)(aa), is entitled to refer to and rely on any relevant findings the decision-maker made when considering the refugee criterion under s 36(2)(a). The question under s 36(2)(aa) then is whether, in light of those and any other relevant findings, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm of the kind prescribed in s 36(2A), subject to s 36(2B) and (2C). And, as will be seen, that is what the Authority did in this case.
The High Court also clarified the differing requirements under ss 36(2)(a) and 36(2)(aa) in DQU16 as follows:
18.As is self-evident, the text of s 36(2)(a) and s 36(2)(aa) is different and therefore, unsurprisingly, the statutory questions are different: they are not interchangeable. And they are different because the purpose of the inquiry under each provision is different. Determining whether a person has a well‑founded fear of persecution for a Convention reason under s 36(2)(a) is a fundamentally different inquiry to the question in s 36(2)(aa). Section 36(2)(a) seeks to define when a protection visa will be granted to a person seeking refuge. Under s 36(2)(aa), the question is whether a person can be returned to a particular State and the provision is formulated by reference to the consequences of a non‑citizen's removal to a particular State.
19.The fact that the Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011, containing what became s 36(2)(aa), recorded that Australia's non‑refoulement obligations under the ICCPR and the CAT are “absolute and cannot be derogated from” does not support the contention that the principle in Appellant S395 has any application in assessing the complementary protection criterion under s 36(2)(aa). The relevant question is not what the ICCPR and the CAT provide, but rather the statutory question posed by s 36(2)(aa), which engages some, but not all, of Australia's non‑refoulement obligations under the ICCPR and the CAT. The statutory question, namely whether a person can be removed to a particular State without suffering identified forms of harm, is framed by reference to the risk of a non‑citizen suffering significant and specified harm as a necessary and foreseeable consequence of removal to a receiving country. Assessing the risk that a non‑citizen will suffer significant harm within s 36(2A) necessarily involves an assessment of the individual circumstances of the non‑citizen and the basis on which the non‑citizen claims that those circumstances give rise to the requisite degree of risk as a necessary and foreseeable consequence of removal to a receiving country.
Whether the Tribunal’s decision was affected by jurisdictional error by reason of misconstruing or misapplying s 36(2)(aa) of the Act
The applicant submits that the Tribunal’s statutory task, pursuant to s 36(2)(aa) of the Act, is “for the decision maker to engage in reasonable speculation about whether a person will face a real risk of significant harm if returned to their country”. The applicant is of the view that the Tribunal failed to complete that task in this matter, making specific reference to [45] of the Tribunal’s reasons.
The Minister, in response, submits that the applicant “adopts an overly narrow reading of the Tribunal’s decision” and submits that the Tribunal’s application of s 36(2)(aa) of the Act must be read in the context of [44]-[46] of its reasons and, indeed, the decision as a whole.
The Tribunal considers the application of s 36(2)(aa) of the Act with respect to the applicant’s participation in Viet Tan activities at as follows:
43.As I read the complementary protection provisions in s 36(2)(aa), however, it does not matter whether [the applicant] associated with the Viet Tan for the purpose of bolstering his claim to be a refugee. Section 5J(6) does not apply. Rather, the only question for me is whether I have “substantial grounds for believing that, as a necessary consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”.
44.I accept the Vietnamese Government is a very authoritarian and illiberal one-party state. I accept that it maintains a very significant security apparatus through which it monitors the activities of the regime’s suspected opponents. I accept that the apparatus has the capacity to monitor overseas activities.
45.But in my opinion it would be unreasonable to assume, without supporting evidence, that the security apparatus could, or would, go to the extraordinary effort of obtaining, where possible, information about the identity of every person attending an overseas protest rally connected with the Viet Tan, even though the Viet Tan is a declared terrorist organisation. I have no information to suggest that [the applicant’s] attendance at Viet Tan rallies or private meetings might have been monitored by the Vietnamese authorities or that his identity might have been discovered and recorded. I note again [the applicant’s] evidence to me that he is not a member of the Viet Tan.
46.Accordingly, in my opinion, I do not have “substantial grounds” for “believing that there is a real risk” that [the applicant’s] attendance at the rallies or at private meetings has come to the attention of the security authorities in Vietnam. To conclude otherwise would be speculative and, as I have said, the Act specifies that I must “have substantial grounds” for “believing that there is a real risk” in this regard. I accept, however, that if the authorities knew of his attendance at Viet Tan rallies or meetings, [the applicant] would face a real risk of harm on his return.
An applicant will have a well-founded fear of persecution if there is a “real chance of persecution”. In Guo, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ considered the “real chance test” and determined:
57.Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not “differentially at risk for a Convention reason.” Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.
A majority of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 confirmed that, whilst s 36(2)(aa) of the Act uses the words “real risk”, the relevant test in determining whether an applicant is entitled to Australia’s protection obligations under the Complimentary Protection Regime is according to the “real chance” test (being the same test applied under s 36(2)(a) of the Act).
Further, the real chance test is not an onerous test and “even as little as a ten percent chance can suffice”: see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 (“Chan”). See also Guo.
As outlined above, the High Court in DQU16 identified three elements which must be satisfied for any “prospective harm” to satisfy the requirements under s 36(2)(aa) of the Act as follows:
(i)the decision‑maker must have substantial grounds for believing that;
(ii)as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country; and
(iii)there must be a real risk that the non‑citizen will suffer significant harm.
Here, the Tribunal did not have any evidence to satisfy it that there were substantial grounds for believing that the applicant had come to the attention of the Vietnamese authorities such that he would be at real risk of significant harm upon his return to Vietnam.
In conducting its statutory task in relation to s 36(2)(aa) of the Act, the Tribunal is entitled to refer to, and rely on, any relevant findings it made when considering the refugee criterion under s 36(2)(a) of the Act: DQU16 at [27]. It did so here.
The Tribunal noted the applicant’s evidence that he is “not a member of Viet Tan (at [27]) and accepted that the applicant “attended Viet Tan demonstrations in the company of many others” (at [30]). That information was relied upon by the Tribunal when applying s 36(2)(aa) of the Act.
When so doing, the Tribunal accepted that the Vietnamese Government “maintains significant security apparatus” which is utilised for the purpose of monitoring “activities of the regime’s suspected opponents” and that, with this equipment, overseas activities could be monitored (at [44]).
The Tribunal then determined that, in its opinion, it would be “unreasonable to assume, without supporting evidence, that the security apparatus” would obtain “information about the identity of every person” attending overseas protest rallies and stated that it had no evidence to suggest that the applicant’s attendance might have been monitored (at [45]).
There is no error in this reasoning.
Contextually, the Tribunal found that there was no evidence before it to satisfy it that there were “substantial grounds for believing that there is a real risk” that the applicant’s attendances at rallies or private meetings would have come to the attention of the authorities in Vietnam (at 46]).
Relevantly, the Tribunal:
(a)accepted that the applicant attended Viet Tan demonstrations in the company of many others (at [30]);
(b)accepted that the applicant had attended an unspecified number of private meetings (at [30]);
(c)accepted that the Vietnamese government has the technology and apparatus to track its opponents and uses that apparatus for that very reason (at [44]);
(d)acknowledged that the Vietnamese government can track opponents outside of Vietnam, including monitoring of overseas activities (at [44]); and
(e)accepted that, if the authorities knew of his attendance at Viet Tan rallies or meetings, the applicant would face a real risk of harm upon his return (at [46]).
Ultimately, however, the Tribunal was not satisfied that there were substantial grounds for believing that the applicant’s attendance at those rallies or meetings had come to the attention of authorities. In the absence of any “substantial grounds” for believing so, the Tribunal lacked one of the elements identified in DQU16 (and needed for it to be satisfied of any prospective harm).
The Tribunal’s reasoning here is sound. The Tribunal completed its statutory task in relation to the application of s 36(2)(aa) of the Act.
No error arises in relation to substituted ground 2.
Other - error in referencing the applicant’s name
The Court notes that the Tribunal has referenced the incorrect name (in lieu of the applicant’s name) in three separate paragraphs in its reasons as follows (emphasis added):
6.The essence of Mr Nguyen’s submission to me is that he would be persecuted if he had to return to Vietnam. There are two aspects to this submission.
…
30.I accept that Mr Tan attended Viet Tan demonstrations in the company of many others on the occasions that he said he had. I am prepared to accept that he has attended an unspecified number of private meetings. I also find that [the applicant] has never been a member of the Viet Tan.
…
38.I have also considered whether Mr Nguyen would face harm on his return as a failed asylum seeker. The most recent DFAT Report suggests that [the applicant] would not face a real risk of significant harm as a failed asylum seeker were he to return to Vietnam. The position of failed asylum seekers on return to Vietnam is dealt with specifically at paragraph [5.24] to [5.35] of the Report in terms which do not suggest that there is any serious threat of persecution or harm. I do not believe, therefore, that [the applicant’s] application should succeed on this ground.
The Court considers these errors to be no more than typographical errors. It is clear from the remainder of the Tribunal’s decision that the Tribunal has referenced the correct applicant. Whilst this is an unfortunate oversight, and something to be avoided, it does not point to jurisdictional error on the part of the Tribunal.
The Court is satisfied that no error arises in this regard.
CONCLUSION
The amended application for judicial review filed on behalf of the applicant on 24 September 2021 has failed to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 March 2022
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