ASZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 255
•19 February 2020
FEDERAL COURT OF AUSTRALIA
ASZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 255
Appeal from: ASZ17 v Minister for Immigration & Border Protection & Anor [2018] FCCA 2863 File number: SAD 306 of 2018 Judge: RANGIAH J Date of judgment: 19 February 2020 Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – decision of Immigration Assessment Authority – refusal of protection visa – appeal dismissed Legislation: Migration Act1958 (Cth) s 473DC(3) Date of hearing: 19 February 2020 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 15 Counsel for the Appellants: The First Appellant appeared in person with the assistance of an interpreter and on behalf of the Second Appellant Counsel for the First Respondent: Mr DF O’Leary Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent did not appear ORDERS
SAD 306 of 2018 BETWEEN: ASZ17
First Appellant
ATA17
Second Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
19 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The name for the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The appeal is dismissed.
3.The appellants pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE AND REVISED)RANGIAH J:
This is an appeal against a judgment of the Federal Circuit Court of Australia delivered on 16 November 2018. That judgment dismissed the appellants’ application for judicial review of a decision of the Immigration Assessment Authority (the Authority), which affirmed a decision of a delegate of the first respondent not to grant the appellants Safe Haven Enterprise Visas.
The appellants are citizens of Vietnam who arrived in Australia by boat in 2012. They applied for visas primarily on the basis that they feared persecution in Vietnam on the basis of their Catholic faith.
The first appellant is the husband of the second appellant. It is convenient to refer to them as “the husband” and “the wife” respectively.
On 16 September 2016, the Minister’s delegate decided to refuse to grant the appellants visas on the basis that Australia did not owe protection obligations to them. The matter was referred to the Authority, which made its decision on 25 January 2017.
The Authority summarised the basis of the appellants’ claims as follows:
•The applicants fled Vietnam because they feared being arrested, detained and tortured by the Vietnamese government for their association with the Catholic Church.
•The first named applicant opposes the government’s treatment of Catholics and will be perceived to be a threat and opponent to the Vietnamese government.
•In August 2012, he travelled to Con Cuong church to attend a prayer service to advocate for an end to violence against Catholics and to protest the treatment of priest, of the Con Cuong Church. When he arrived at the church he was beaten by three men that may have been from the authorities. He was able to run away and seek help from a house where the owners drove him to a bus stop and he returned home that night.
•Five or six days later he was issued with a summons from the police to appear at police headquarters in Nghe An, yet he did not attend.
•A week later he was issued with another summons and they decided to flee Vietnam to save himself from the authorities.
•The applicants left Vietnam as they feared they would both be targeted by the government because of his activities. They fled Vietnam with the first named applicant’s brother, who had also had trouble with the authorities based on his involvement with the Con Cuong Church.
•Since leaving Vietnam, the authorities have questioned the first named applicant’s parents and their children about their whereabouts. They claim this is one of the reasons they moved their children to Saigon. They also claim their children were denied access to school in Nghe An.
•The applicants also fear harm on the basis of their illegal departure and as persons who have sought asylum in Australia.
•They fear they will be arrested and detained by the Vietnamese government if they return because of their association with the Catholic Church, and the first named applicant’s involvement at Con Cuong
The principal findings of the Authority were as follows:
32.I found the applicant’s evidence of his involvement at Con Cuong, and the consequences that followed, to be unconvincing. I have serious concerns about the consistency of his evidence as to whether he entered the church or not, his claim that he volunteered his home area to these men, the question of how the authorities would have identified him given that he did not provide his name, the destruction of the summons letters, and, given the brief nature of his involvement, the reason why he considered the risks were so great that they would need to leave the country. Separately, these matters could have been explained or overlooked when assessing his evidence, but when considered together, they lead me to conclude that his claims in relation to Con Cuong are not credible. I find these concerns outweigh his other evidence, and the limited documentary evidence provided in support of these claims.
33. I find that he did not attend the Con Cuong church in August 2012. I do not accept he was attacked by plain clothes authorities, that he was issued (and defied) two summons by the authorities because of his attendance at the church, or that either of the applicants is otherwise at threat from the authorities for these reasons.
34. I find that the first named applicant has fabricated these matters to strengthen his protection claims to fear harm on the basis of his religion, and as a person who is politically and religiously active and opposed to the government. I reject those claims entirely. It follows that I also do not accept that the authorities have made inquiries about the applicants since they left Vietnam, or that their children were denied access to school and were forced to move to Saigon on the basis of his involvement with the church.
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43. Having regard to the DFAT information cited above about the treatment facing unregistered churches and communities that are outspoken against the government, I find that the churches they attend in their home areas are either registered with the authorities and/or their church communities are not considered by the local authorities to be politically active or opposed to the state. I am also satisfied that neither of the applicants have been politically outspoken about their faith, or involved in religious or political activities opposed to the state...
44. On the basis of their evidence, I am satisfied that the applicants have not modified their conduct in the past to avoid harm. Neither of them have claimed any need to practise their faith discretely, or indicated that they modified their conduct in any way to avoid harm or the scrutiny of the authorities. On the contrary, they have both claimed to have been actively involved with their church communities. I am satisfied that the applicants have not modified their behaviour in the past in any way to avoid harm.
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50. The country information before me indicates that the government maintains considerable control and restriction on overt political activism in Vietnam, and there is clear country information before me on the harsh treatment of religious and political activists in Vietnam. I accept that there are credible risks to those outspoken and critical of the state or who engage in anti-government activities. I also acknowledge information cited by the representative about harsh conditions in prison, and the serious mistreatment of political and religious activists in Vietnamese prisons. I accept the first named applicant is pro-Catholic and believes in religious freedom, however I am not satisfied that he is a ‘pro-Catholic religious activist’ as claimed in the submissions. Other than active involvement in his church and community, he has not satisfied me that he has engaged in any activities that were political or against the state, nor am I satisfied he would be politically active on return to Vietnam.
51. I find that the religious and political views the applicants hold in relation to their religion are low level and not opposed to the state. I am satisfied there is no basis on which the authorities would consider them to have any anti-government political opinion or profile, whether actual or imputed. I find that there is no real chance of them being seriously harmed for these reasons.
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62. I have accepted that the applicants may be briefly detained and fined on return and found that these penalties would not constitute serious harm. On a separate basis, having regard to the information before me, I am also satisfied that the provisions and penalties under Vietnamese law are laws of general application that apply to all Vietnamese equally. The information before me does not indicate the law is discriminatory on its terms, nor is there any country information before me that indicates the law is applied in a discriminatory manner or that it is selectively enforced.
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71. In view of all the information before me, I am satisfied that if the applicants returned to Vietnam, there is not a real chance they would face serious harm on the basis of their religion, any actual or imputed political opinion or profile, as persons who sought asylum in Australia (including as persons whose information was released in a breach of departmental systems in 2014) or on the basis that they left Vietnam illegally.
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77. There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicants will suffer significant harm. The applicants do not meet s.36(2)(aa).
The appellants applied to the Federal Circuit Court for judicial review of the Authority’s decision. They were represented by counsel. It was necessary for the appellants to demonstrate jurisdictional error on the part of the Authority. They relied upon three grounds.
The first ground was that the appellants had been denied procedural fairness by the failure of the Authority to invite them to give new information pursuant to s 473DC(3) of the Migration Act1958 (Cth) in response to alleged inconsistencies in the husband’s account of events at the Con Cuong Church in August 2012. Despite the expression of the ground as a denial of procedural fairness, it seems to have been argued on the basis that it was legally unreasonable to fail to invite the appellants to give further evidence. The primary judge found that the Authority’s failure to do so was not capricious or otherwise unjustifiable. His Honour rejected the first ground.
The second ground was that the Authority’s conclusion that the Con Cuong Church incident was a fabrication involved a process of reasoning that was illogical, irrational or unreasonable. The primary judge held that it was logically open to the Authority to find there were inconsistencies in the husband’s account of the incident. There were also other aspects of his evidence that the Authority had disbelieved. Taken together, they justified the Authority’s conclusion that the husband’s claims in relation to the Con Cuong Church incident were not reliable or credible. The primary judge accordingly rejected the second ground.
The third ground was that the Authority erred in finding that there was nothing in the appellants’ history which would lead the Vietnamese Government to consider them to have an adverse risk profile and that they did not face a real risk of being seriously harmed on the basis of their religion. The argument seemed to be that the Authority had imposed a requirement or an expectation that they should live discreetly. The primary judge held that the Authority had merely found that the husband had not previously been involved in any religious activism or criticism of the government and had not claimed that they were forced to modify their religious practice. Accordingly, they would be able to continue to worship, as they had done in the past, without persecution. The primary judge rejected the third ground.
Before this Court, the appellants relied upon a single ground of appeal, namely:
The Federal Circuit Court erred in holding that the decision of the Administrative Appeals Tribunal confirming the decision of the Minister to reject the Applicants' application for a Protection Visa was not affected by jurisdictional error.
The appellants were not legally represented in the appeal. The husband appeared at the hearing with the assistance of an interpreter. The husband represented the wife. They have not filed any written submissions.
In his oral submissions, the husband alleged that there were documents that he had presented to the Minister’s delegate that were not on his file. These were, as I understand it, a letter from a priest who is said to have witnessed the Con Cuong Church incident, and summonses issued to him by the Vietnamese authorities. However, the Authority’s reasons record that it had considered a letter purporting to be from the priest. It also referred to the husband’s evidence that he did not have the summonses because they had been destroyed.
The husband also asserted that after the delegate’s decision had been made, he had been provided by his father with a warrant for his arrest issued in Vietnam. He claimed that he had told his former lawyer about the arrest warrant, but the lawyer had not asked him for a copy of the warrant. It is apparent that the warrant was not provided to the Authority. There is no jurisdictional error in the Authority not considering a document that was never provided to it.
The appellants have not otherwise elaborated upon their ground of appeal. I am unable to discern any error on the part of the Federal Circuit Court, or any jurisdictional error in the decision of the Authority. The appeal must be dismissed with costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 4 March 2020
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