CFU16 v Minister for Immigration
[2018] FCCA 319
•16 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CFU16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 319 |
| Catchwords: MIGRATION – Protection Visa – whether action by the police amounts to persecution – whether a law of general application has been applied in a discriminatory way – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23 |
| Applicant: | CFU16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1729 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 4 September 2017 |
| Date of Last Submission: | 4 September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 16 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Guo |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondents: | Mr Hill |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The amended application filed 7 August 2017 be dismissed.
The applicant pay the respondent’s costs fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1729 of 2016
| CFU16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 7 August 2017, the Applicant is seeking judicial review of a decision of the second Respondent (‘the Tribunal’) dated 8 July 2016 to refuse to grant him a Protection (class XI) visa.
Grounds
The ground of application is:
The Tribunal failed to consider whether the Applicant being charged by police for ‘obstruction of public officials in the execution of their duties’ had a nexus with the Applicant’s political opinion that arose from his resistance to his family’s land being seized.
The Applicant submitted that the facts relevant to this ground were that the Tribunal accepted that:
a)people involved in land disputes are at risk of persecution;
b)the Applicant was involved in a land dispute;
c)not only did the Applicant resist seizure of his land, the Tribunal also accepted that the Applicant physically fought off the authorities who came to seize his land; and
d)the Applicant was charged with ‘obstruction of public officials in the execution of their duties’ as a result.[1]
[1] Applicant’s submissions [15].
As will be noted below, the Tribunal did not in fact accept the matters set out in 15(c) of the Applicant’s submissions.
The Applicant’s claims when he made an application for a Protection visa are set out in full in the Tribunal’s decision at [25]. Those claims are accurately summarised in the Respondent submissions as follows:
4. The Applicant’s claims were set out in a statement dated 17 June 2014.
4.1 The Applicant stated that he had an altercation with the police when local authorities confiscated a large portion of the land on which his family home was built. On 5 September 2012, the local authorities sent about 10 people to destroy the fence to the Applicant’s family home. The Applicant hit a few of them with a stick.
4.2 The Applicant claimed that he was arrested around 15 September 2012, and beaten and accused of obstructing the police. After that the Applicant was monitored and followed by the police. The Applicant claimed that he was beaten again in October 2012 when he went to register his son’s birth.
4.3 The Applicant also claimed the fear harm as a failed asylum seeker; because Vietnamese officials visited him in immigration detention and he signed a document providing his personal details.[2]
[2] Respondent’s submissions [4].
On 24 December 2014, a delegate of the First Respondent refused to grant the Applicant a Protection visa.
Before the Tribunal, the Applicant’s representative filed submissions and a statutory declaration of the Applicant dated 14 June 2015, which the Applicant said was in order to clarify the timeline of events in September – October 2012. The Tribunal referred to those submissions and evidence at paragraph [31].
In relation to the events which were alleged to have occurred at the family property, the statutory declaration stated:
[27] At the beginning of September 2012, my family and I were verbally advised that the Vietnamese authorities wanted to confiscate our entire property to build roads.
[28] About three days after, the same authorities came to our house, demanding that my family sign an agreement to give up the land for a compensation of $20 million Vietnam Dong. The compensation was for the whole property. This was not a fair and just compensation and my family and I suspected that the corrupt local authorities had already taken a share of our compensation and only wanted to give us $20 million dong.
[29] After this I was very angry at how corrupt and unjust the Vietnamese authorities were to my family. My father then immediately wrote a petition to the authorities to object to the seizure of their entire land. We did not hear a reply to this petition.
[30] A few days later the same local authorities came to our house to force us out of the house so that they could bulldoze the property. However, we refused to let our land be taken away from us and we fought back. As a result, they beat my father, mother and myself.
[31] The next day the local authorities came back to demolish our house. But this time a few of the local villagers had gathered around to see the commotion (as some of them had witnessed the authorities beating our family the day before).
[32] On this day I was holding a stick and I told the authorities that they cannot demolish our house because the compensation they offered was not good enough, we could not relocate or even buy another piece of land with the price they were offering. Many of the local people heard me say this.
[33] The authorities seemed a bit hesitant and instead of demolishing our entire house they only demolished our fence and took a part of our land. During the demolishing process, I tried to physically stop them from taking our land. My father, mother and I were beaten by the authorities for trying to intervene.
[34] Approximately two weeks after they seized a portion of our land they commenced building the road. We did not receive any compensation for the seizure of land. The roads took approximately two months to complete.
[35] After the day the authorities came to demolish the fence and seize the land, on 10 September 2012 I was issued a summons to attend the police station for obstructing the police in the carrying out of their duties.
[36] I was very scared and I did not want to attend however, at the time, I thought that I did nothing wrong in speaking up against the unfair seizure of my land so I decided to attend the summons the next day. When I attended the police station the authorities harassed me, threatened me and fined me.
[37] Because I had upset the authorities and had publicly opposed them, I was fearful for my safety. In Vietnam, people could be imprisoned without a fair trial or convicted on little evidence. I tried to stay out of the police’s way and I rarely went out of my home during this time, this is one of the reasons why I was not working.
[38] On 11 October 2012 my son Bao Long Nguyen was born and we needed to apply for his identity documents to be issued. It was very soon after I was harassed at the police station and I did not want my elderly parents to go to the police station to seek the documents because if they were old and I could not bear if they were hurt. My wife had just given birth so she could not go. Additionally a police station is not a place for a female to attend alone. I decided that I needed to go despite my fear that the police will seek to harm me.
[39] The other reason why I went back to the police station is that our village is small and the police station is used as a local community office. I had nowhere else to go and get my son’s birth certificate.
[40] When I went into the police station to apply for the birth certificate, the authorities told me that I had to kneel on the floor and apologise. The police stated that I must apologise before they would give me the birth certificate. They said I had to apologise for fighting back when they came to my house to tear down my fence.
[41] The police also demanded that I sign a confession which said that I was guilty of obstructing the police in their duties by physically opposing them.
[42] I believe that they tried to coerce me into signing the confession so that they could avoid the matter being sent to the city authorities. The city authorities would have had to run a trial to charge me if they did not have a signed confession.
[43] I refused to sign the confession.
[44] I told the police officers that if I was put on trial by the city authorities, I would tell the court that the local authorities wanted to take all of my land but would not only give me $20 million Dong in return.
[45] The police beat me and attacked me. I defended myself by retaliating. In that moment, I feared for my life and I had already been injured. As a result, I fled the police station.[3]
[3] Statutory Declaration of applicant [27] – [45].
The Tribunal at [33] made reference to this evidence of the Applicant and noted that the evidence of the Applicant given before the Tribunal was generally consistent with claims made. The Tribunal referred to the Applicant’s evidence in relation to those matters:
[h]e said that because of the family’s opposition, the local authorities did not take the whole of their land as originally planned but took their fence and a strip land of about 4 metres wide along the front of the property for the road widening project. As a result the road now runs close the family’s house. He said that his family did not accept the 20 million dong compensation offered by the local authorities because it was too small.
In relation to the claims regarding the events arising from land seizure at [59] the Tribunal stated that it accepted that a portion of the Applicant’s family land may have been confiscated but found that the Applicant’s claims about his opposition to the seizure of land were not credible. At [59] the Tribunal stated:
The inconsistencies in his claims about his interactions with the local authorities, including the police, are not insignificant and immaterial, nor do they relate to peripheral details in his claim. The claim to have been physically assaulted by police is a key aspect of his claim, and the Tribunal does not consider that any factors identified by Mr Justice Kirby in SGLB operated to impair the Applicant’s ability to give clear evidence about these matters.
In considering the claims that the Applicant had been prosecuted for an offence and whether that could amount to persecution, the Tribunal referred to refugee law guidelines (at [61]) and the UNHCR Handbook. At [63] the Tribunal noted that:
…given the Applicant’s evidence that he attacked the Vietnamese police force with a stick and injured a number of them, the action of the police in summoning him to answer questions about a charge of obstruction of public officials in execution of their duties clearly amounted to prosecution for a common law offence.
The Tribunal held that it was satisfied that the Applicant’s fear that he would face further charges over this matter did not amount to a fear of persecution under the convention. At [64] the Tribunal noted that if it had accepted the Applicant’s claims about his interaction with the police, then his fears of physical ill- treatment at the hands of police would constitute a fear of serious harm, which would fall outside the definition of prosecution for a common law offence.
It is apparent that the Tribunal’s reference to “common law offence” picks up the language used in the UNHCR Handbook and could be used interchangeably with the term “law of general application”.
The Applicant’s submissions
The Applicant referred to Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23 at [40] where Perram J held (with whom Moore J agreed):
In a case where a person applying for a protection visa claims to be a member of a particular social group which is persecuted by the operation of some criminal law, the approach to be taken by those deciding the visa application is well settled. First, the decision-maker must ask whether the particular social group claimed exists. Secondly, if the group exists then the decision-maker must ask whether the nominated criminal law discriminates against that group. This is necessary because unless the criminal law discriminates against the group then there can be no question of the group being persecuted by that criminal law. Thirdly, however, discrimination although necessary is not sufficient. If discrimination be shown the decision-maker must then ask whether the criminal law is appropriate and adapted to some legitimate object of the country in question. This is a two-pronged test requiring consideration both of the legitimate object identified as well as an assessment of whether the criminal law is appropriate and adapted to the achievement of that object.
The Applicant submitted that if the Tribunal failed to undertake any step in the process of analysis referred to by Perram J, there was a failure on the part of the Tribunal to complete its task which constituted a jurisdictional error.
In my view there has been no failure on the part of the Tribunal to consider whether a law of general application has been applied in a discriminatory way because the Applicant was a member of a particular social group or held particular political views.
The difficulty with the Applicant’s submissions is that they proceed as if the Tribunal’s finding that it did not accept that the Applicant’s claims about his opposition to the confiscation of land to be credible had not been made.
The Tribunal’s consideration of the Applicant’s claims about his treatment by police after being charged occur in a context where the Tribunal has expressly found that he was not subjected to arrest or harsh treatment. The Tribunal reasoned that even if the Applicant’s claims that officials came to seize his land occurred, he attacked the police with a stick and injured a number of them and it was not surprising or unreasonable that he would be summonsed to answer charges of obstruction of public officials.
At [60] the Tribunal stated: ‘[i]ndeed, it appears unlikely to the Tribunal that if these claims were true the police would not have arrested him on these and more serious charges of assaulting police.’
The Tribunal is not there accepting that the claims are true and is reference to the Applicant’s evidence that he twice answered summonses and that he was beaten but not arrested or charged is set out at [60] as an example of why the Tribunal did not accept this account.
The Applicant’s submission, at 15(c) of his written submissions, that the Tribunal accepted that the Applicant had physically fought off authorities who came to seize his family’s land is not supported by the text of the decision.
At [60] – [64] of the Tribunal’s decision, the Tribunal noted that there is a distinction between persecution and prosecution for a common law offence (which by the context in which it is used, I take the Tribunal was referring to a law of general application).
In my view there is no error of the kind asserted by the Applicant’s grounds of review and in this circumstance I dismiss the application and order that the Applicant pay the Respondent’s costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 16 February 2018
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