CNN15 v Minister for Immigration
[2017] FCCA 67
•18 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CNN15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 67 |
| Catchwords: MIGRATION – Review of AAT decision for jurisdictional error – citizen of Vietnam – claimed persecution for reason of religion – applicant claimed to be involved in confrontations between authorities and members of the Catholic Church in Nghe An province – significant new claims raised late – adverse finding about the applicant’s credibility by the Tribunal – whether basis for finding. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 91R, 499. |
| Cases cited: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) FCR 220 Minister for Immigration and Ethnic Affairs v Guo (1997) CLR 559 |
| Applicant: | CNN15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | DNG 70 of 2015 |
| Judgment of: | Judge Young |
| Hearing date: | 24 August 2016 |
| Date of Last Submission: | 24 August 2016 |
| Delivered at: | Darwin |
| Delivered on: | 18 January 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Nguyen |
| Solicitors for the Applicant: | Eric Hutton |
| Counsel for the Respondents: | Mr Rogers |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed 30 November 2015 be dismissed.
The applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $6,600.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 70 of 2015
| CNN15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal to refuse the applicant a protection visa. The applicant is a citizen of Vietnam and claims to have a well- founded fear of persecution because of his membership of the Catholic Church in Vietnam and associated activities.
The main reason for the Tribunal’s decision to reject the application was a finding that the applicant lacked credibility. It did not believe that the applicant had suffered the claimed harm. It is useful to set out the background to understand the Tribunal’s reasoning before turning to the grounds of review.
The applicant left Vietnam and arrived in Australia in about March 2013. The applicant participated in an entry interview in Australia on 4 April 2013. It is not in contention that the applicant provided some false personal details in that interview such as his birthdate and information about his family members. He later corrected that information and said that he had provided the false information in order to protect his family in Vietnam.
He subsequently applied for a protection visa and in support of that he made a statutory declaration on 6 June 2014. That statutory declaration, in English but stated to have been interpreted into Vietnamese, was prepared by lawyers on behalf of the applicant.
In the statutory declaration the applicant said he was from Nghe An province (which is in northern Vietnam). He said he feared to return to Vietnam because of government persecution of the Catholic Church. He said that he was a “devoted Catholic” who went to church every Sunday. He said that in around June 2012 his church congregation held a big mass to pray for fellow Catholics in three other parishes where the authorities had attacked churches and the Catholic population. He said that they had been praying for the safety and the peace of the parishes and had placed big banners wishing for peace for their people. Officials came and tried to get people to take the banners down but they refused. The applicant said the authorities started hitting people and a big physical altercation occurred. He said he sustained minor injuries and some church members were arrested during the “prayer stand”. He said he was lucky not to be arrested. He said he was scared to go to church after that and felt he could not practise his religion freely. He said the authorities were also “capturing a lot of Catholics” in his area and he knew that his turn would come eventually so he decided to leave the country.
The applicant also said that following his arrival in Australia he called his wife and she told him that the authorities had come to the house and asked about him and that there had been a large number of incidents where Catholics had been “taken by the authorities”.
The applicant was interviewed by the delegate of the Minister on 19 December 2014. The delegate’s decision record of that date shows that she asked the applicant about his claim that the police only came to his home after he left Vietnam. She records that she asked him whether the police had ever made enquiries about him before they contacted his wife after he left Vietnam. She records that he replied “no”. She records that later in the interview he stated that the police had made enquiries about him three times before he left Vietnam but had not made contact because he had been away from home each time[1].
[1] Court book page 83.4
The delegate did not accept that the police had visited the applicant’s home more than once or that he was the subject of ongoing interest by the authorities[2]. She noted that the applicant had not provided a reason for the police visit after he left Vietnam in March 2013 and concluded that it was unlikely that the police were searching for the applicant in relation to an event that occurred many months previously[3]. She did not accept that he held any position of authority or a level within his church which would be considered a threat by the Vietnamese authorities.
[2] Court book page 88.10
[3] Court book page 83.7
The applicant sought a review of the delegate’s decision by the Refugee Review Tribunal (RRT). He was not legally represented and no documentary evidence or written submissions were provided. The RRT affirmed the decision of the delegate on 27 March 2015. The decision record of the RRT states that the applicant said there had been problems at the church with local authorities harassing people between the incident in June 2012 and the applicant’s departure in early 2013. The applicant agreed that he said in his written claim that local authorities had come to the church on only one occasion but in fact they had come “many times”. The Tribunal put to the applicant that it might appear that he was trying to enhance his claims by exaggerating the level of harassment[4]. He confirmed that he had never been arrested for his religious activity. When asked if anyone from his church had been arrested he said he had not asked for details when he contacted his family in Vietnam but there “might have been 1 or 2 arrests”[5].
[4] Court book page 106.1
[5] Court book page 106.2
The RRT rejected the application for review. The RRT decision was subsequently quashed by consent because the RRT had misapprehended the particular category of protection visa that the applicant sought. The matter was remitted for rehearing.
The applicant made a further statutory declaration dated 17 October 2015[6]. He was represented by a migration agent and the document is professionally drafted. The applicant stated that he suffered memory loss as a result of trauma from fleeing Vietnam, being separated from his family, not being able to attend his father’s funeral and his ongoing indefinite detention. He stated that he was “very involved in his local church” and that as a result of his “close involvement in the church as a dedicated parishioner and helping with routine organisation of prayer meetings” his profile was raised with local authorities who saw him as anti-government. He said that over about seven years before coming to Australia he worked at his local church on a voluntary basis as “one of just a few people who helped with general organisation of regular prayer meetings to prepare the church beforehand, ring the bell, hold the door open and clean up afterwards”[7]. He said the police often came to harass people at the church and that his:
close involvement in organisation of church gatherings placed me in conflict with the police when they came to take down our banners and we refused, and during physical confrontations at the doorways of the church when they tried to enter and we pushed them out.
He said that police came to the church every Sunday after the incident in June 2012. He repeated his claim made to the RRT that the police had come to his home looking for him after the incidents at the church but he was not at home at the time.
[6] Court book page 182
[7] Court book page 184.6, [18]
The applicant appeared before the Tribunal at the rehearing on 30 October 2015 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter and the applicant was represented by his registered migration agent.
The Tribunal’s decision record is dated 12 November 2015. The decision record states that the applicant said the problem started in July 2012 when his family put up a “banner for prayers outside their house”. He said that he and others were arrested because of the banner. He said he was asked to put the banner down but he refused. He said there were confrontations between the police and parishioners and the police came weekly to disperse them and stop them practising their faith. He said the confrontations became brutal and violent and he had witnessed the beatings of other parishioners. The Tribunal asked the applicant about his arrest and he changed his evidence and said that he was not arrested himself[8].
[8] Court book page 531, [30], [31]
The applicant said that he received a summons from the police after these confrontations. The Tribunal asked the applicant when he received the summons. He said he could not recall and was scared and fled. The Tribunal asked the applicant why he had not mentioned the summons in his statutory declaration provided in support of the application for a protection visa. The applicant said this was because he was confused and did not remember those details.
The Tribunal asked the applicant for more detail about the summons. He said he received “letters” inviting him to attend for police interrogation. He said he was invited a few times but did not attend. He said he received about four “letters” from the beginning of the “following year”, that is, 2013. The Tribunal noted there was no mention of the “letters” in the applicant’s statutory declaration. The applicant said he had been stressed and could not recall details and that he had not understood the process. The Tribunal considered this explanation was not merely the elaboration of claims but the making of significant new claims late in the process.
The applicant was also asked about a statement made by him at the time of his entry interview. In addition to giving other reasons for leaving Vietnam he said there was an economic reason: that he had to support members of his family. He said that because of the confrontations with the police he could not look for jobs to help his father and family. He said he could not get a reference letter to enable him to find a better job in the south of Vietnam. He said that when he sought a reference letter from the authorities they had looked up his details and then refused to give him such a letter. He said his name was on a list of opponents of the government. The Tribunal indicated to the applicant that there was no mention in his statutory declaration provided in support of his application that his name was on a list of opponents. The applicant said he did not recall at the time.
In post-hearing submissions to the Tribunal the applicant’s representative said that the applicant’s difficulty with memory and recollection was the result of “cumulative trauma” resulting from separation from his family, constant threat of deportation, loss of his father, the presence of Vietnamese “A18” or immigration police in Australia, the data breach[9], other Vietnamese asylum seekers being deported, anxiety and poor mental health. It was also submitted that the applicant did not receive legal advice at critical stages and this affected his ability to present his claims coherently. The Tribunal noted that this last submission was not correct because the applicant had received assistance from a reputable migration law firm in the preparation of his protection visa application (which included preparation of a statutory declaration).
[9] A reference to an incident when certain personal details of protection visa applicants and others were accidentally posted on a government website.
As can be seen from this narrative the applicant made significant new claims at different stages or at a late stage of the process, particularly the claim, subsequently withdrawn, that he had been arrested, and claims that, following confrontations at the church, he received a summons or letters of invitation from the police, that the police had visited his home on multiple occasions looking for him before he left Vietnam and the claim that he was on a blacklist of government opponents which prevented him travelling outside his province to obtain work.
These matters were raised relatively late and after the applicant had, with legal or professional assistance, completed a statutory declaration that did not mention them and in the case of his second statutory declaration, also prepared with professional assistance, did not mention that he was on a blacklist of government opponents. These matters raised obvious and serious questions about the applicant’s credibility and suggested he may not be telling the truth. After considering the applicant’s explanations, including those relating to stress, anxiety and poor mental health, the Tribunal did not accept that the applicant was ever involved in confrontations with the police or the applicant’s claims more generally about frequent confrontations between police and parishioners at the applicant’s church. The Tribunal did not accept that he was ever summonsed by the police or sent letters inviting him to go to the police or that he refused to go to the police out of fear. It did not accept that he feared that the authorities would take action against him, that he was on any list of opponents or that he was of any adverse interest to the Vietnamese authorities. In essence, the Tribunal did not accept that the applicant had a profile that led him to come to the attention of the Vietnamese authorities or that he suffered any of the claimed harm[10].
[10] Court book page 533, [43]
The Tribunal also considered whether there was a real risk or a real chance of serious or significant harm occurring on the basis of the applicant being a Catholic. The Tribunal paid particular and detailed attention to a report prepared by Dr Peter Hansen dated 2 September 2011 about ill-treatment of Catholics in Vietnam. Dr Hansen is a scholar concerned with relations between the Catholic Church and the state in Vietnam. The applicant relied on this report. Although it is not necessary to summarise Dr Hansen’s report or the Tribunal’s discussion of it, it is enough for present purposes to say that Dr Hansen identified a number of indicators of potential harm for Catholics in Vietnam. These included participation in anti-government demonstrations, particularly those relating to land confiscation, entering into a religious formation (such as a seminary), teaching catechism, being a youth leader or organiser, being on a parish council or any other body responsible for parochial affairs, especially relating to finances or property, and belonging to a proscribed body such as Legio Maria[11].
[11] Court book, Dr Hansen report page 220, Tribunal decision page 536, [53]
Dr Hansen also pointed out the variable nature of Church and state relations on a regional basis and noted that one of the centres of conflict between the Catholic Church and the state in Vietnam was Nghe An province where there was conflict about land seizures. He pointed out that in this context participation in anti-government demonstrations, which the Catholics themselves characterise as prayer services, are characterised by the authorities as anti-state activity[12].
[12] Court book, page 222.2
Dr Hansen also pointed out that in areas where Church-state conflict is at its worst (including the province of Nghe An) it is not only Catholics who participate in land issues who may be harassed but also those who hold virtually any position or participate in any activity beyond mass-going.
The Tribunal accepted that the applicant will continue to practise his Catholic faith if he returns to Vietnam and may continue to have some involvement with the Catholic Church. The Tribunal found that the indicators identified by Dr Hansen did not apply to the applicant. Although the Tribunal did not expressly note that a prayer service may in some circumstances be considered by the authorities to be an anti-state activity it did not accept that the applicant had been involved in any actual or imputed anti-government demonstrations. It noted that the applicant did not claim to have been involved in demonstrations relating to land confiscation or claim to be included in any other of the indicators identified by Dr Hansen[13].
[13] Court book page 537, [60], [61]
The grounds of review
The applicant’s amended application for review contained eight grounds of review. One ground was abandoned. The remaining grounds are as follows:
1. The Second Respondent erred in its determination as to whether the applicant faced a real chance of persecution because it failed to consider the possibility of error in its evaluation of the applicant's claims.
2. The Tribunal committed an error of law in making adverse credibility findings based on placing disproportionate weight on minor inconsistencies in the applicant's evidence and insufficient weight on the impact of detention and past trauma on the applicant's ability to recall or articulate all past events with precision, and in doing so, failed to apply the high threshold expected of the assessment of evidence in findings of implausibility.
3. The Tribunal erred in its finding that ''the fact that the applicant provided false information provides further support for the Tribunal's concerns about the applicant's evidence and credibility”: (RRT, para 41), as it failed to give sufficient consideration and weight to plausible reasons for the applicant's provision of false information about his identity.
4. The Tribunal unreasonably concluded that the applicant's response regarding why he chose not to swear on the Bible was indicative that ''the applicant knew that he might not be conducting himself truthfully before the Tribunal” (RTT, para 42), as there was [no] logically probative basis upon which to find so.
5. The Tribunal's conclusion that "the indicators identified by Dr Hansen do not apply to the applicant" is erroneous as it failed to take into account relevant parts of Dr Peter Hansen's report regarding ill-treatment of Catholics in Nghe An Province, Vietnam, and takes into account irrelevant parts of the report, insofar as it applies to the applicant.
6. The Tribunal committed an error of law in its determination of persecution under section 91R of the Migration Act, in failing to consider and apply the definition of "serious harm" under section 91R(2)(f) of the Act to the circumstances raised by the applicant, namely that a "denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist" is an instance of “serious harm”.
7. The Tribunal erred in over-relying on, and preferring, Department of Foreign Affairs and Trade (DFAT) country information on the basis of recency (para 67), over equally recent reports by Human Rights Watch, and further, over-relies on DFAT's conclusion that "those who have been detained upon return have been detained due to their political views, held or imputed, rather than [because] they have sought asylum" even where these reports expressly state that DFAT is "unaware" of various matters (para 64).
Ground 1 alleges the Tribunal was required to consider whether it may be in error in its evaluation of the applicant’s claims. The applicant’s submissions dealt with two different issues: first, the possibility of error referred to in the ground of review and, secondly, a submission that “The threshold expected of the assessment of evidence in findings of implausibility is very high, particularly in the absence of ‘clear and cogent evidence’”.
In relation to the first issue the applicant relied on the decision in MIMA v Rajalingam[14] and submitted that the Tribunal:
failed to apply the correct test for findings of implausibility in that its determination of a real chance of persecution was not made on an evaluation of all the findings, including findings based on taking into account when a possibility of error may occur.
This submission appears to imply that it is always necessary for the Tribunal to consider the possibility of error when making its findings. This is not so. At [55] and [56] of that decision Sackville J (with whom North J agreed) said, referring to the High Court judgment in MIEA v Guo[15],:
It can be seen from this passage that if the RRT finds that it is only slightly more probable than not that an alleged relevant event has not occurred, it must take into account the chance that it did occur when determining whether on there is a well-founded fear of persecution….
If, on the other hand, it appears that the RRT had no “real doubt” that its findings were correct, it is not bound to consider whether those findings might be wrong. …
[14] (1999) 93 FCR 220, FCR 719
[15] (1997) 191 CLR 559 at 576
In this case the Tribunal did not express any doubt about its findings and was not required to consider whether its conclusion about the applicant’s credibility may be in error.
The submission on the second issue relied on the decision of the Full Court of the Federal Court in Thevendram v MIMA[16]. Counsel particularly relied on paragraph [90] where Merkel J said:
Since preparing these reasons for judgement I have had the benefit of reading in draft the reasons for judgement of Lee J. I also have concerns at the confidence with which some members of the Refugee Review Tribunal find themselves able to make adverse findings on credibility on the basis that the evidence given by claimants is “implausible”, “incredible” or “concocted”. Anyone experienced in fact finding would be well aware that in the usual course clear and cogent evidence is necessary before such strong findings are made against a witness.
[16] (2000) 182 ALR 290, FCA 1910
A reading of each of the judgments in Thevendram shows that in deciding the appeal the members of the court were concerned with the question of whether there was a basis for the adverse credibility findings in that case. Lee J said at [26]:
If a Tribunal finds that an event or circumstance did not occur as represented in oral or documentary material before the Tribunal, and finds further that the falsity of the representation was known to the applicant at the time the applicant sought to rely upon it, such findings of fact may lead the Tribunal to determine that it is not satisfied that the applicant has a well-founded fear of persecution. But if the Tribunal does no more than assert that some part of an applicant’s account of past events is “not credible”, or is “implausible”, and relies upon that assertion not to make findings of fact on material issues in the applicant’s case the decision-making process engaged in by the Tribunal may require analysis.
And at [34]:
An apparent finding on credibility that amounts to no more than an assertion that aspects of an applicant’s claim are “implausible”, or are “not credible”, raises the issue whether the decision-making process has been duly disclosed and explained.
At [38] and [39] he said (omitting citations):
Ground for review under the Act will not be made out by showing that a Tribunal has made findings of fact that are barely conceivable on the material before it. A Tribunal does not err in law by making a “wrong” finding of fact. The principle thus expressed is that conclusion of fact, however unlikely, cannot be a “wrong” conclusion if there is some material to support it. That principle does not extend to a conclusion made in the absence of probative material or a conclusion based on the existence of a fact that does not exist.
Ground for review will be shown, however, by failure of the Tribunal to observe the requirement of the Act that the decision be made by rational process… The Tribunal must give “proper, genuine and realistic consideration upon the merits” to the material questions of fact before it.
Counsel for the applicant also relied on W321/01A v MIMA[17]. In that case Lee J said:
The Tribunal cannot exclude an applicant’s account from the material the Tribunal is obliged to consider, by relying upon a bare assertion that the applicant’s account is “implausible”. There must be facts found that are inconsistent with claimed events, or the claimed events must be so beyond human experience of possibilities that they may be said to be inherently unlikely.
[17] [2002] FCA 210 at [30]
In this case the Tribunal did not rely on a bare assertion of implausibility or lack of credibility. Consistently with the requirement described in Thevendram the Tribunal based its adverse credibility finding on probative material, particularly the matters referred to in paragraphs [18] and [19] above, and disclosed its process of reasoning.
This ground is not made out.
Ground 2 alleges that the Tribunal erred in making credibility findings based on placing “disproportionate weight on minor inconsistencies in the applicant’s evidence” and “insufficient weight” on the impact of detention and past trauma. The weight to be given to evidence is a matter for the Tribunal. The Tribunal considered the evidence of the applicant relating to the impact of detention and trauma[18] but did not accept that those matters adequately answered its concerns about the applicant’s credibility. The ground does not disclose jurisdictional error.
[18] In particular, Tribunal decision record, paragraphs [16], [22] to [24], [39] and [40]
The allegation that the Tribunal “failed to apply the high threshold expected of the assessment of evidence in findings of implausibility” is identical to the submission made in support of Ground 1 and has been addressed in relation to that ground. The Tribunal did not base its findings on bare assertions of implausibility but on matters that gave rise to doubt that the applicant was telling the truth.
Ground 3 alleges that the Tribunal erred by finding that the applicant’s admission that he had given false information in his application for a protection visa and by failing to give “sufficient consideration and weight” to plausible reasons for giving the false information. The Tribunal noted at paragraph [41] of its decision that the applicant’s explanation may be convincing in isolation but taken with the other concerns about his credibility it was not persuaded or convinced by the explanations. The Tribunal’s finding had a basis and was not irrational. This ground is not made out.
Ground 4 alleges that the Tribunal’s finding that the applicant’s decision to make an affirmation and not to swear on the Bible was suggestive that the applicant knew he might not be conducting himself truthfully before the Tribunal was irrational.
The Tribunal dealt with this issue at paragraphs [28] and [42] of the decision record. The applicant was asked why he did not take the oath given that he was a Christian. He replied, through an interpreter, “If I lie, I’d commit a sin”. On being asked for clarification he stated that as a “pure Catholic, he could not swear on the name of God”. The Tribunal noted that it understood there are some Catholics who do not swear on the Bible for religious reasons. However, the Tribunal was presumably concerned by the apparent inconsistency of the first and second explanation.
As counsel for the Minister conceded in oral submissions, taken alone, this would be a flimsy ground for an adverse credibility finding. However, if interpreted, as counsel for the Minister said it was interpreted by the Tribunal, not in isolation but as another instance of the applicant changing his evidence it provided some basis for the Tribunal’s finding and was not irrational. I accept that submission.
The second submission in support of this ground was that the Tribunal, in substance, found that the applicant intended to conduct himself dishonestly and perjure himself before the Tribunal. It was submitted that it was obliged to apply the standard in Briginshaw v Briginshaw[19] before making such a finding. The applicant cited Pochi v MIEA[20] and Sullivan v CASA[21] in support of this submission.
[19] (1938) 60 CLR 336
[20] (1979) 36 FLR 482
[21] [2014] FCAFC 93
The passage from paragraph [16] of the judgement of Logan J in Sullivan cited by the applicant states clearly that Briginshaw only applies to administrative decision-making by analogy for the reminder it offers about what may be necessary in particular kinds of case to induce reasonable satisfaction in the mind of a decision-maker. The joint judgement of Flick and Perry JJ also rejects the claim that Briginshaw can be applied as a rule of evidence in administrative decision-making[22]. At paragraph [119] their Honours referred to the requirement that findings be neither “irrational” nor “illogical” as one of a number of limitations on administrative decision-making. At paragraph [120] they said:
Within these already accepted principles, the Tribunal is otherwise free to make findings of fact which cannot be set aside by this Court. When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.
[22] At paragraphs [106] to [122]
In this case the Tribunal was not required to assess whether the applicant engaged in criminal conduct but whether it was satisfied that he met the refugee or complementary protection criteria in the Migration Act. It found on the basis of a number of factors including inconsistencies in his evidence, lack of detail in his claims, his admission to providing false information and his late reliance on significant new claims that he was not to be believed. Taking the evidence as a whole, this finding was open to the Tribunal. This ground is not made out.
Ground 5 alleges that the Tribunal’s conclusion that the “indicators identified by Dr Hansen do not apply to the applicant” is erroneous. It is alleged the Tribunal failed to take into account relevant parts of Dr Hansen’s report regarding ill-treatment of Catholics in Nghe An province and took into account irrelevant parts of the report.
The relevant considerations that were alleged to have not been addressed by the Tribunal were identified as:
(a)Being an active Catholic is sufficient to preclude one from holding a position in the middle to higher echelons of government or academia;
(b)The state views the Church as a politically antagonistic entity and protests over ownership and confiscation of Church property as an intolerable act of political dissent;
(c)The worst relationship between the Church and the state is in the provinces of Nghe An and Ha Tinh; and
(d)There are Catholics in the following categories who face severely negative consequences, depending on place, time and circumstance: Catholics who may hold virtually any position or participate in any activity beyond mass-going, particularly in the provinces of Nghe An, Ha Tinh and Quang Binh.
The Tribunal expressly considered Dr Hansen’s report at paragraphs [17], [52], [53], [58] and [60] and, impliedly, at [61].
The Tribunal did not consider the factor identified at (a). It is not relevant to the applicant and need not have been taken into account. The factor identified at (b) is a general proposition contained in Dr Hansen’s report. It is clear from a reading of the Tribunal’s consideration of Dr Hansen’s report that it was aware of these matters as a general background to the applicant’s claim. No specific consideration was required. The factor identified at (c) appears to be referred to in paragraph [60] of the Tribunal’s decision. The Tribunal notes that the submissions by Dr Hansen “refer to a level of ill-treatment of Catholics in the applicant’s problems,…”. The word “problems” is almost certainly an error for “province” implying that the Tribunal had regard to that factor[23].
[23] There are indications of other similar typographical errors in the decision record, possibly stemming from the use of voice recognition software.
The factor identified at (d) was not expressly considered by the Tribunal. The applicant’s claims in this regard were set out in his second statutory declaration and included a statement that he was “one of just a few people who helped with general organisation of regular prayer meetings to prepare the church beforehand, ring the bell, hold the door open and clean up afterwards”. This hardly amounts to a claim that the applicant is a person who holds a “position or participate[s] in any activity beyond mass-going” and appears to confirm that the applicant’s involvement in the Church did not include any activity beyond going to mass.
At paragraph [61] the Tribunal found that:
…the applicant has no interest in getting involved in the Church in a manner or at any level that would attract the adverse attention of the Vietnamese authorities, or that he has to modify his behaviour in any way to avoid harm, in case of his return to Vietnam. In essence and for the stated reasons, the Tribunal is satisfied that the applicant is an ordinary practising Catholic who has had some involvement in the church; the Tribunal does not accept that the applicant had any significant role in the church, or that he has ever attracted the adverse attention of the authorities as a result of these activities…
To the extent that the factor identified at (d) is relevant to the applicant - and in my view it is not - it is subsumed in the more general finding referred to in paragraph [61].
The submissions of the applicant did not identify any irrelevant considerations that were taken into account.
Counsel for the Minister submitted that the weight given to country information is, in any event, a matter for the Tribunal and it cannot be said that the Tribunal failed to have regard to relevant country information or had regard to irrelevant country information in this case[24]. I accept that submission as an additional reason why this ground is not made out.
[24] Relying on NAHI v Minister for Immigration [2004] FCAFC 10 at [11]
Ground 6 alleges that the Tribunal erred by failing to consider and apply the definition of “serious harm” in section 91R(2)(f) of the Act to the circumstances raised by the applicant, namely that a “denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist” is an instance of “serious harm”. It was agreed that the reference to section 91R(2)(f) should be read as a reference to section 5J(5)(d) of the Act.
Counsel for the Minister accepted that denial of capacity to earn a livelihood where the denial threatens the person’s capacity to subsist is serious harm.
The applicant’s claim was that the authorities had “blacklisted” him and prevented him from seeking work because of his involvement in the Church and related activity. The Tribunal specifically referred to this claim at paragraphs [36] to [38], [40] and [43]. The Tribunal specifically rejected the applicant’s claim that he was on a list of opponents at paragraph [43]. It also rejected the applicant’s claim to have a well-founded fear of persecution for reason of religion and this covered his claim that he was prevented from seeking work. This made it unnecessary to consider whether that would involve “serious harm”. Clearly it would, as counsel for the Minister conceded. This ground is not made out.
Ground 7 alleges that the Tribunal erred by “over-relying on, and preferring” DFAT country information[25] on the basis of “recency” over equally recent reports by Human Rights Watch and “over-relies” on DFAT’s conclusion that “those who have been detained upon return have been detained due to their political views, held or imputed, rather than [because] they have sought asylum” even where those reports expressly state that DFAT is “unaware” of various matters.
[25] The relevant DFAT report was not in evidence although excerpts were included in the Tribunal's decision record.
The applicant criticises the Tribunal’s preference for the DFAT country information and criticises the reliability and independence of the information. It was submitted that there was no “logical basis” for the Tribunal to prefer the DFAT country information over other sources of country information. The weight to be given to country information is a matter for the Tribunal. It is not an error of law, or a jurisdictional error, for the Tribunal to base a decision on country information that is not true[26]. Further, the Tribunal was required to take into account DFAT country information prepared for protection status determination purposes, to the extent that it is relevant, pursuant to Ministerial Direction No. 56 made under section 499 of the Act[27].
[26] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]
[27] See Tribunal decision record at [11].
This ground is not made out.
The application is dismissed with costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Young
Date: 18 January 2017
0
7
2