CFC17 v Minister for Immigration

[2018] FCCA 259

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFC17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 259

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – the adverse credibility findings in respect of the activities that the applicant wished to engage in were open to the Tribunal – as there was no conduct being modified, it was not necessary for the Tribunal to address the issue raised by Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Cases cited:

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473

Applicant: CFC17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1595 of 2017

Judgment of: Judge Street

Hearing date: 6 February 2018

Date of Last Submission: 6 February 2018

Delivered at: Sydney

Delivered on: 6 February 2018

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Firmstone & Associates

Solicitors for the Respondents: Mr K Eskerie
Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1595 of 2017

CFC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an applicant for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 27 April 2017 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. 

2. The applicant was found to be a citizen of Vietnam and her claims were assessed against that country. On 3 August 2013, the applicant arrived in Australia on a class TU (subclass 573) student visa valid until 30 December 2015. It was not until 3 November 2014 that the applicant applied for protection. 

3. The applicant claimed to fear harm by reason of her practice of Catholicism in Vietnam and as a result of activities in Australia, as well as by reason of being a failed asylum seeker. On 27 July 2015, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. 

The Tribunal’s decision

1. The applicant was invited to attend a hearing on 27 March 2017 and the applicant appeared on that date. The Tribunal identified in the background to the visa application the relevant law and summarised the applicant’s claims and evidence.

2. The Tribunal made adverse credibility findings in relation to the applicant’s claimed activities in Vietnam. The Tribunal took into account the delay in her application for protection and found that as the applicant is well-educated, that this impacted on her credibility. The Tribunal did not accept that the applicant failed to apply for protection for over a year after she arrived in Australia because she was unaware of the possibility of her seeking protection, or because she was fearful of the Vietnamese government would find she had revealed how they treat Catholics.

3. The Tribunal found the applicant’s failure to make the application for protection earlier was an indication that she did not fear serious or significant harm in Vietnam when she arrived in Australia, and that she has not provided an honest account of her reasons for seeking protection. 

4. The Tribunal referred to the applicant’s alleged conversion and religious activities in Vietnam.  The Tribunal identified raising with the applicant credibility concerns in relation to her evidence that she would have been sent out to distribute books in the manner claimed. The Tribunal did not accept the applicant had any involvement with the Catholic Church prior to her departure to Vietnam. The Tribunal provided six logical and probative reasons in support of those adverse credibility findings set out in each reason.

5. The Tribunal did not accept the applicant converted to Catholicism in Vietnam, or that she attended a Catholic Church or that she distributed books or leaflets on Catholicism or spoke to anyone about the treatment of Catholics in Vietnam. The Tribunal did not accept that she was detained or experienced any other problems in Vietnam because she had become a Catholic. The Tribunal found these claims were concocted in order to obtain protection in Australia. The Tribunal did not accept the applicant had any involvement with the Catholic Church in Vietnam, and rejected the claim that she had problems with her parents because of this. 

6. The Tribunal identified the applicant’s claims concerning religious activity in Australia. The Tribunal accepted that the applicant was baptised at the Sacred Heart Church in Cabramatta in May 2015, and that she has attended services at church since that time. The Tribunal accepted that she has attended two public events organised by the Catholic Church in Australia and that she has posted a picture of herself at one of these events on Facebook.

7. The Tribunal did not accept that she began attending Catholic services shortly after she arrived in Australia or that she attended services at the Sacred Heart Church regularly before May 2015, or that she has distributed religious leaflets to strangers in the street once a month since shortly after arriving in Australia. The Tribunal found that the applicant had concocted the claim and that she converted to Catholicism prior to arriving in Australia and found it did not reflect well on her credibility in relation to activities in Australia.

8. The Tribunal found the claim that the applicant distributed leaflets of Catholicism to strangers in the street in the city in Cabramatta farfetched and implausible. The Tribunal did not accept that the applicant would have felt compelled to engage in that activity because of her love of Jesus or because she believed it was required by her faith.

9. It was in these circumstances the Tribunal turned to the question of whether or not the applicant had a well-founded fear of persecution.  The Tribunal identified the applicant’s claim that she would not be free to practise her religion in the manner she wished, and that now she had been baptised and had a certificate to attest to this she would face problems in areas such as employment.

10. The Tribunal referred to DFAT country information which indicated that the Catholic Church is a recognised religion in Vietnam and that they are not aware of credible claims of societal abuse or systemic discrimination of Catholics based on their religious practices. The Tribunal also referred to a US Department of State International Religious Freedom Report of 2013 that adherence to a religious group generally does not seriously disadvantage individuals in non-government, civil, economic or secular life, and practitioners of various religions are represented in local and provincial government positions.

11. The Tribunal found there is no credible evidence before it to suggest that the applicant has or wishes to, or would do anything more than attend church on Sundays. It was in these circumstances that the Tribunal found that it did not accept that there is a real chance that the applicant will be detained or unable to practice a religion in the manner she wishes, or that she would be denied the right to or earn a livelihood because of her religion.

12. The Tribunal did not accept the applicant faces a real chance of experiencing serious harm on return to Vietnam because she converted to Christianity and attended Catholic Church services in Australia. The Tribunal did not accept that the applicant faces a real chance of serious harm amounting to persecution if she returns to Vietnam because she has attended two public events in Australia. The Tribunal did not accept the applicant faces a real chance of suffering serious harm on return to Vietnam because of the posts she had made.

13. The Tribunal made reference to having considered the reports provided by the applicant relating to restrictions faced by some religious groups and the problems faced by some Catholics, particularly if they are seen as a political threat. The Tribunal found they contain nothing which suggests that someone who practices the Catholic faith quietly and in conformity with government regulation would be at risk of harm in Vietnam.

14. The Tribunal turned to the question of being a failed asylum seeker.  It was not satisfied the applicant faces a real chance of experiencing serious harm on return to Vietnam because she applied for asylum in Australia. 

15. Having considered the applicant’s claims individually and cumulatively, and taking into account all of the relevant evidence, the Tribunal was not satisfied that there is a real chance the applicant would suffer serious harm amounting to persecution in the reasonably foreseeable future for a Convention reason if she returns to Vietnam.

16. The Tribunal found the applicant did not have a well-founded fear of persecution for a Convention reason. The Tribunal was not satisfied that the applicant had met the criteria under s 36(2)(a) of the Act, or s 36(2)(aa) of the Act and affirmed the decision under review. 

Before this Court

1. The ground of the application is as follows:

   Ground 1

   The Tribunal constructively failed to exercise its jurisdiction, or failed to carry out its statutory task, by failing to lawfully consider (including giving proper, genuine and realistic consideration) to the Integra claims.

   Particulars

   iii) The Tribunal concluded at para 68 of the decision record that someone who practices the Catholic faith quietly and in conformity with government regulations would be at risk of serious harm in Vietnam.

   iv) The Tribunal failed to give proper and genuine consideration to the Applicant's central claim that if she were to return to Vietnam she would practice her religion in the manner she wants, including engaging in outreach/preaching activities and whether such practice conforms to government regulations.

   v) The Tribunal failed to give proper and genuine consideration as to whether the government regulations governing Catholic religious practices impose an unreasonable restriction on the discourse of the Applicants faith.

2. Mr Jones of counsel for the applicant confirmed that particulars (i), (ii) and (vi) were abandoned. 

3. Mr Jones contended that this was a case where the Tribunal had failed to ask a question of a kind identified in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [82]-[83]. Mr Jones contended that this was a case where the Tribunal should have considered why it was that the applicant would only attend church on Sundays and that the failure to consider that matter was of the kind identified in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176. Mr Jones submitted the Tribunal’s reasoning fell within the fallacy identified in the joint judgment of the learned McHugh and Kirby JJ in S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473 in respect of the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor, and that the relevant persecutory conduct is the harm that will be inflicted.

4. Mr Jones emphasised from the High Court’s decision in S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473 that in such cases the well-founded fear of persecution held by the applicant is the fear that unless person acts to avoid the harmful conduct, he or she will suffer harm.

5. The quotation of the High Court in S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473 at [43] refers to it being the threat of serious harm with its menacing implications that constitutes the persecutory conduct, and that to determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm was to fail to consider the issue properly.

6. This is a case where the Tribunal made express findings rejecting the applicant’s credit in relation to her alleged activities in Vietnam and made adverse credibility findings that were open in relation to rejecting the applicant’s claims as to the activity she engaged in in Australia and that the applicant would only in the future attend church on Sundays. 

7. This is not a case where there was an assumption made of the kind identified in S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473. This is a case where there were adverse credit findings that were open to the Tribunal for the reasons given by the Tribunal as to the activities that the applicant wished to engage in being only attending church on Sundays.

8. Mr Jones maintained that the focus in respect of the persecutory conduct is what the applicant would do in the future, and that in substance what was required was the Tribunal to turn its mind to why it was the applicant in the future would only attend church on Sundays.

9. I do not accept that there was any modification of conduct of the kind requiring consideration of why the applicant would only attend church on Sundays. This is a case where there were adverse credibility findings determinative of the applicant’s claims in relation to her past activities and an adverse credibility finding as to what it was she would do in the future being only attending church on Sundays, that was open to the Tribunal.

10. In the circumstances of that adverse credibility finding, it was not necessary for the Tribunal to address the issue raised by Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, as there was no conduct being modified. Rather, there was a finding as to the limited conduct that the applicant could engage in by reason of the adverse credit finding. That adverse credit finding was open on the material before the Tribunal for the reasons given by the Tribunal and cannot be said to be illogical or unreasonable.

11. The decision in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 is distinguishable for the above reasons. No jurisdictional error as alleged in ground 1 is made out.

12. Accordingly, the application dismissed. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 February 2018