AZAAU v Minister for Immigration - [2009] FMCA 524

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AZAAU v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 524

MIGRATION – Review of Refugee Review Tribunal decision affirming decision not to grant the applicant a protection visa – alleged jurisdictional error by the Tribunal – application refused.

Migration Act 1958 (Cth), ss.91R, 474, 476 & 477
Australian Constitution, para.75(v)
Convention relating to the Status of Refugees 1951, Art.1

Craig v The State of South Australia (1995) 184 CLR 163

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) ALR 112

Applicant:

AZAAU

Respondents:

MINISTER FOR IMMIGRATION & CITIZENSHIP AND ANOTHER

File number:

ADG 284 of 2008

Judgment of:

Lindsay FM

Hearing date:

15 May 2009

Date of last submission:

15 May 2009

Delivered at:

Adelaide

Delivered on:

2 June 2009

REPRESENTATION

Counsel for the Applicant:

Mr Charman

Solicitors for the Applicant:

Westside Community Lawyers

Counsel for the First Respondent:

Mr D’Assumpcao

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The Application for Judicial Review filed on 5 December 2008 be refused.
The applicant do pay the first respondent’s costs of, and incidental, to these proceedings fixed in the sum of FIVE THOUSAND DOLLARS ($5,000.00).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 284 of 2008

AZAAU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an Application pursuant to s.476 of the Migration Act 1958 (“the Act”) for an order by way of review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 30 October 2008. That decision itself was a decision to affirm the decision of the delegate of the Minister in respect of the application made by the applicant for a protection visa. This Court has the same powers of review in such matters as the High Court has under para.75(v) of the Constitution of the Commonwealth.
Section 474 of the Act provides that certain decisions - and this decision of the Tribunal would be one of them - are privative clause decisions and not liable or susceptible to review. It is because of the operation of that section that it is necessary for an applicant in such a case to establish that the decision of the Tribunal was vitiated by jurisdictional error.
Jurisdictional error is a concept that has been explained by the High Court in a number of cases; most helpfully, perhaps, in the decision of Craig v The State of South Australia (1995) 184 CLR 163. In particular, the High Court has explicated that concept in the context of decisions under the Act in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
The Tribunal relied on information provided to it by the applicant and his advisers and took the oral evidence of the applicant, in this case at two separate hearings, the first on 6 August 2008 and the second on 20 October 2008. At both hearings the applicant was given an opportunity to give evidence and to make oral submissions.
At the second hearing the Tribunal also took the evidence of the applicant’s father. That was in relation to an issue that had arisen in relation to the father’s experience at the hands of the Vietnamese government in the period following the invasion of the South by the North. That topic - that is, the evidence of the father - is not a matter that has turned out to be important in the determination of the application as it was agitated before me.
The applicant has, very late in the day, amended his application, and it was agreed at the outset of the hearing before me on 15 May 2009, that the document provided to me headed Applicant’s Grounds of Review, setting out two grounds of review, was in fact the form of the amended application relied upon by the applicant.
No point was taken as to that document being filed or the contentions of fact and law being filed outside of the time provided in an earlier interlocutory order I made. I obviously was content for the hearing to proceed on the basis of the grounds set out in those documents.
Mr D’Assumpcao for the Minister properly reminded me of the fact that there was still outstanding an application for this application itself to be the subject of an extension of time order. It is an application that was filed outside of the time prescribed by s.477(2) of the Act but within eighty-four days of the actual notification of the decision.
Mr Charman, who appeared on behalf of the applicant, went through the Tribunal’s decision and drew my attention to those passages which he said instanced the jurisdictional error into which the Tribunal had fallen.
Before I come to those grounds, it would be convenient to summarise the findings of the Tribunal as they related to the key issue of whether the applicant was likely to suffer persecution in Vietnam, if he were returned there, on account of his political opinions. It was plain that that was the particular aspect of Article 1 of the Convention relating to the Status of Refugees 1951 upon which the applicant relied.
He said that he was, owing to a well-founded fear of being persecuted for reason of political opinion, outside of the country of his nationality and unable or, owing to such fear, unwilling to avail himself of the protection of that country.
As I say, evidence was taken at two separate hearings, from the applicant. The state of the evidence as to the issue of the applicant’s political activity and his political profile - to use some neutral expressions - was dealt with at both of those hearings.
In respect of the first hearing the applicant said as follows. Firstly, at CB 330 he confirmed that he claims to be a refugee in consequence of his political opinion that opposes the Vietnamese communist government. He went on to say that he claims to be a refugee because his family belongs to the old regime. He went on to say that, in Vietnam, he did not publicly protest or sign any petitions against the Vietnamese government and he did not join any political organisations in Vietnam. If he had done so he would have risked being arrested, detained or beaten. He did state that he had participated in online political forums in Vietnam. The forums were not named; they were secret exchanges of ideas. He stated he was not ever arrested or charged in Vietnam but that his father and grandfather had previously been.
When he was asked why he would be of interest to the Vietnamese government if he had never been arrested or charged, he said that he had not dared to participate in anti-government political activity, so there has not been any reason for the authorities to detain him. He was asked about his knowledge of and participation in an organisation known as “Bloc 8496”. Presumably that was a question that was asked by the Tribunal to test his knowledge of dissident activity within Vietnam.
This question of his political activity and profile was also the subject of his evidence at his second hearing. It is conveniently summarised by the Tribunal at para.74 (CB 338). He said that in the past and presently he participates in online discussions about human rights in Vietnam. In those discussions he uses his first and second names, not his third name which is his family name. He has had discussions face to face and online with others about human rights in Vietnam and that he had investigated Bloc 8406 after he came to Australia and since he has been in Australia he has participated in online discussions associated with Bloc 8406.
Incidentally, in respect of his conduct in Australia, the Tribunal considered the matters raised by s.91R(3) of the Act at CB 334 and accepted that he did not engage in political conduct in Australia simply for the purposes of strengthening his claim to be a refugee.
The evidence of the applicant at the second hearing as to this topic also included the following. He was asked whether he would actively express his political views if he returned to live in Vietnam. He said he wanted to repeat what he said at the first hearing, that if he dared to protest publicly he would be arrested. All he can do is fight for human rights by exchanging ideas with others.
The Tribunal put to him some information from a publication entitled Freedom House: Freedom in the World - Vietnam 2008, which suggested that - speaking of Vietnam:
The state appears to act most harshly against prominent pro-democracy activists; private citizens can generally speak freely in private discussion without fear of repercussions.
In fact the Tribunal squarely put to the applicant the contention that he had not been a pro-democracy activist in the past and did not intend to be one if he returned to Vietnam. Therefore it would not be likely - on the basis of the country information from that publication - that he would come to the attention of the Vietnamese government for expressing his pro-democracy ideas privately.
The applicant responded to that and his response is contained at para.84 (CB 340). His response was essentially to say that one would have to live in Vietnam to understand how the Vietnamese government operates.
The Tribunal made a series of findings in relation to this contention as to his fear of persecution on the grounds of political activity and they start at para.94 (CB 341) and go through to para.118.
There are other claims that are discussed by the Tribunal but they are not germane to the way in which this particular application was advanced before me.
Relevantly, the Tribunal found that the country information available to it suggested that there were many restrictions upon political activists within Vietnam, despite the constitutional protection of freedom of expression, and that the country information indicated that human rights violations occur in Vietnam with respect to political activists. So I think it is important to note that finding at the outset.
The Tribunal went on at paragraph 96 to note that the visa applicant had not said to the Tribunal that he ever had publicly protested against the Vietnamese government or signed any petitions in opposition to it. He had not joined any political organisations in Vietnam and he had not done so for the very reason that he would have risked persecution. He had not been arrested or charged with any offence, in Vietnam, and again his explanation as to why he had not was because he had chosen not to participate in the kind of activity which would have resulted in that kind of persecution.
His claim to have participated in online political forums in Vietnam were noted, as was the fact that they were, according to him, secret exchanges of ideas. He continued to communicate online, he said, in Australia, with persons affiliated with Bloc 8406.
At para.103 (CB 342) the Tribunal says:
At both hearings the applicant told the Tribunal that if he returns to Vietnam his expression of his political views would not be in the public forum and that he would continue to voice his views about human rights and democracy privately, online.
The Tribunal made a number of factual findings in relation to the applicant’s political activity. It found at para.108 (CB 343) that his knowledge of anti-government organisations in Vietnam was meagre to the extent of being almost nonexistent. At para.109 (CB 343) it summarised his evidence as to his political activity as being:
… that he was opposed to the current Vietnamese government but he is someone whose political profile is that of a person who expresses his view in a private manner.
Having summarised his mode of expression of political opinion in that way, the Tribunal went on to say that the country information supported the finding that someone whose mode of political expression was private was unlikely to find himself persecuted in Vietnam on account of his political opinions.
It went on to find, in para.110 (CB 343), that he did not have the necessary level of commitment or interest to be a political activist. In other words, the reason for his non-participation in political activity was not his fear of persecution but it was because his level of political involvement was such as to leave him satisfied with private rather than public promotion of his sentiments.
Ultimately, what this led to, at para.112 (CB 344), was a finding that the fear of persecution alleged by him was not well founded because the country information did not indicate a real ground for believing this applicant was at risk of persecution for his having engaged in private anti‑government discussions or expressing private anti-government views online.
The first complaint that is made about the way in which the Tribunal approached its task is that it erred in asking itself the wrong question, in that whereas the question should have been whether he would be persecuted for his political views, the question was inverted by the Tribunal asking itself whether he would be persecuted for his private views.
Certainly the distinction between private expression of views and public expression of views is one that occurs throughout the Tribunal’s findings with respect to this issue. The argument of the applicant is essentially that the Tribunal characterised online discussion by the applicant with other persons of his views as private and it then linking that with the country information led to the conclusion that there was no risk of such expression of political opinion being the object of persecution.
I think we have to be careful, though, before we jump to too many conclusions as to precisely what it was that the Tribunal meant when it used the expression “private expression of opinion”. It is not simply a matter of characterising the use of the Internet as a public forum and therefore the use of the expression “private” becoming inappropriate. I think the characterisation of the applicant’s mode of political expression as private had something to do with his use of that particular forum but was as much related to that as it was to the fact that he kept his identity secret.
There are many ways of expressing a political opinion. One of the more obvious ways is to join a political party. Another frequent mode of expression of political view is to meet with persons who are like‑minded. Then we move to various other gradations of political activity such as protesting, distribution of written material, and the enlisting of other members of political organisations and the like.
It can be readily accepted that the fact that the mode of expression of a political opinion is private, in the sense that it does not involve public demonstration or public meeting, should not be a disqualification for a person being taken to have a fear of persecution on that ground.
It is a matter, I think, of paying careful attention to all of the facts and circumstances that relate to the particular mode of the applicant’s expression of political opinion. One aspect of that, and an important aspect of it, was that it was on the Internet. A second important aspect of it was that it was private. It does not appear, on the applicant’s own case, to have taken any other form.
The Tribunal could have described that mode of political activity in a range of ways. For instance, it could have been described as anonymous rather than private. It could have been described as passive. It could have been described as peaceful. Essentially, the description of it as private picks up the salient aspects of the mode of political expression of the applicant.
It is not so much a question of the epithet that is used to characterise that mode of expression but of looking at how and when the applicant has expressed his political views in the past and how he would express them in the future, and we are irresistibly led to the conclusion that he would behave in the future, if he were returned to Vietnam, in the same way he behaved in the past. That is, his political opinion would be expressed anonymously and it would be expressed in the forum of the Internet.
Understanding the applicant’s mode of political expression in that way the Tribunal then measured it with what was available in the country information about the nature of the persecution of the communist authorities in Vietnam and formed the view, on the basis of that material, that a person who conducted himself in the way the applicant had chosen to do in the past and indicated he would continue to do in the future was unlikely to suffer persecution at the hands of the authorities.
I do not think asking the question in a way which involved a different descriptor of the mode of political activity would have made any difference to the Tribunal’s determination of the issue. The private use of a public forum such as the Internet does not mean that the description of the applicant’s political expression as private is inappropriate because for us to take that view would leave out of account the fact that it is a forum that the applicant participates in on an anonymous basis.
Whilst I hope I have understood the basis upon which the ground has been advanced - that is, that the essential exercise of determining whether this man was at risk of political persecution in Vietnam if he were to be returned - was distorted on account of a false dichotomy between public and private expression of political opinion, I do not think, when one pays careful attention to all of the evidence available to the Tribunal as to the mode of the applicant’s political expression, that it can be seen to have resulted in any failure to apprehend the nature of the case he was advancing or any failure to address the actual case that the applicant was advancing with respect to his political opinion.
A related point was made in respect of the second ground. It was contended that the Tribunal failed to go to the individual circumstances of the applicant as a person who had published anti-government views to consider the specifics of his own political activity.
The suggestion is that the Tribunal instead opted to say that advancement of refugee status on this ground was only available to persons who could be described as political activists and that having imposed that artificial constriction on the definition the Tribunal then determined that the applicant did not measure up to its own ideas of what a political activist was.
It said that in so doing the Tribunal fell into the error that was described by the High Court in the case of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) ALR 112 at paras.[73] and [77]:
73.The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. …
…
77.Further, there is a serious risk of inverting the proper order of inquiry by arguing from an a priori classification given to the applicant, or the applicant’s claim, to a conclusion about what may happen to the applicant if he or she returns to the country of nationality, without giving proper attention to the accuracy or applicability of the class chosen. …
I have re-read the Tribunal’s findings with respect to this issue with that criticism in mind, but I do not think it does justice to the way in which the Tribunal dealt with this particular issue to attribute an error of this kind to it. The use of the expression “activist” has just been, it seems to me, a shorthand expression adopted by the Tribunal to describe the circumstance that the evidence promoted by the applicant indicated that he did not participate in the past in the kind of political activity in Vietnam, nor did he intend to participate in the kind of political activity in Vietnam in the future, which would lead to persecution.

I do not read the Tribunal’s reasons as suggesting that political activism cannot take the form of expression of opinion and sharing of opinion on the Internet. What the Tribunal, it seems to me, was careful to do in its determination was to summarise the applicant’s own evidence as to the mode of his political expression and then to measure that information against what it knew of the behaviour and policies of the Vietnamese government and it found that there would be no intersection between the two. In other words, the persecution that was described in the country information as occurring in Vietnam - past, present and future - was persecution that would not be directed to persons who choose the mode of political expression that this applicant does.
To say that he was not a political activist is really just to make the point made throughout the judgment: that the mode of political expression adopted by this applicant is a passive rather than an active one. I do not think there can be any serious suggestion that that is not a fair characterisation of the way the applicant promoted his own case. It is not to suggest that in certain circumstances and with certain policies of a government or authority that such passive political activity could not result in persecution.
The problem for the applicant, as identified by the Tribunal, was that political activity of the non-active variety - that is, the anonymous exchange of ideas and opinions on the Internet - was not something that was likely to get a person into trouble with the authorities in Vietnam.
I think it is fair for the expression “political activist” to be reserved for persons whose mode of expression of political opinion is such as will, in the circumstances extant in the country, bring them to the attention of the relevant authorities.
The Tribunal took a view, which I think it was entitled to take on the evidence, that the mode of political activity of this applicant was not such as would bring him to the attention of the authorities in such a way as would result in persecution.
Those were the only reasons advanced as to the question of jurisdictional error in the Tribunal’s reasons, and I am not satisfied that either ground has been made out. I think in the circumstances it is appropriate to allow the extension of time to be made under s.477(2) to enable the Application to be brought, but that the Application should then be dismissed, and I so order.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: Ms N. Julius

Date: 4 June 2009