Cze17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 16
•21 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CZE17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 16
File number(s): MLG 1432 of 2017 Judgment of: JUDGE EGAN Date of judgment: 21 January 2022 Catchwords: MIGRATION – Application for protection visa – no validity to claim that the Tribunal erred in the manner in which it treated the applicant’s claim that he would suffer persecution by reason of his religion if returned to Vietnam – no validity in the applicant’s claim that the Tribunal acted unreasonably in failing to find that the applicant was a conscientious objector to the carrying out by him of compulsory military service in Vietnam if returned there – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss.36(2), 424AA, 499
Article 1A(2) of the 1951 Convention relating to the Status of Refugees
Ministerial Direction No.56Cases cited: MZAPC v Minister for Immigration and Border Protections [2021] HCA 17
MZZJO v Minister for Immigration [2014] FCAFC 80CED15 v Minister for Immigration and Border Protection [2018] FCA 451
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 8 December 2021 Date of hearing: 8 December 2021 Solicitor for the Applicant: Mr Saul of Estrin Saul Lawyers Solicitor for the First Respondent: Sparke Helmore Counsel for the First Respondent: Ms Taggart of Counsel Second Respondent: Submitting appearance save as to costs ORDERS
MLG 1432 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CZE17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
21 JANUARY 2022
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Originating Application for Review filed on 4 July 2017 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $5,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction
The applicant is a Vietnamese citizen who arrived in Australia on 19 May 2013 as an unauthorised maritime arrival.
On 14 April 2014, the applicant applied for a Protection (Class XA) visa.
On 22 July 2015, a delegate of the Minister refused to grant the applicant a Temporary Protection (Class XD) visa on the basis that the applicant was not a person who was in need of protection.
On 31 July 2015, the applicant lodged an application for review by the Administrative Appeals Tribunal (‘the Tribunal’) of the decision of the delegate.
On 5 June 2017, the Tribunal affirmed the decision of the delegate.
On 4 July 2017, the applicant filed an Originating Application for Review, the grounds of which were as follows:
“Grounds of application
1. The Tribunal erred in failing to apply the correct test in relation to the question of internal relocation.
Particulars
a. One of the Applicant's claims was that he would be unable to practise his religion 'wherever he lives in Vietnam'.
b. The country information which the Tribunal referred to stated that problems exist in relation to the free practice of religion in some parts of Vietnam (see eg [48] and [52] of the Tribunal's decision). There was no country information before the Tribunal that stated the contrary, that there were no problems anywhere in Vietnam.
c. The Tribunal concluded at [58] that it did 'not accept that wherever he lives in Vietnam he will be unable to freely practice (sic) Catholicism and will be subjected to harm', without either:
i. identifying a particular safe locality or localities where the Applicant could reasonably relocate without being subjected to harm; or
ii. delimiting a local area of risk and finding that the Applicant could reasonably relocate to a locality or localities outside the delimited area of risk.
2. The Tribunal erred in unreasonably finding that the Applicant was not a conscientious objector.
Particulars
One of the Applicant's claims for protection was that he was a conscientious objector. The unreasonableness arises from the Tribunal's rejection of the conscientious objection claim solely on the basis that he failed to mention it at his entry interview, being an interview primarily for the purposes of eliciting 'information about so-called "people smuggling" and at which the Applicant was 'asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent', rather than an interview for the purposes of determining whether the Applicant engaged Australia's protection obligations.”
Consideration of Claims by Tribunal
At [8] of its reasons, the Tribunal relevantly outlined the criteria that were needed to be met for a Protection visa to be granted under the provisions of s. 36 of the Migration Act 1958 (Cth) (‘the Act’).
At [9] of its reasons, the Tribunal set out the relevant considerations required to be taken into account by it when assessing Australia’s protection obligations pursuant to the provisions of s. 36(2)(a) of the Act. At [11] of its reasons, the Tribunal set out the relevant considerations when assessing Australia’s complimentary protection obligations pursuant to the provisions of s. 36(2)(aa) of the Act.
At [10] of its reasons, the Tribunal had regard to Article 1A(2) of the 1951 Convention relating to the Status of Refugees, which relevantly defined what constituted a person as a refugee.
At [12] of its reasons, the Tribunal relevantly noted that it was required to take into account policy guidelines as set out in Ministerial Direction No. 56 made pursuant to the provisions of s. 499 of the Act.
At [13] of its reasons, the Tribunal set out the applicant’s claims as follows:
·“He was born on [date omitted] at [name of place omitted], [name of place omitted] in Vietnam. He is an orphan, has no siblings or other relatives.
·He is Catholic. He suffered discrimination from local Vietnamese authorities because of his religion. This affected his ability to freely practice his religion as there was always a threat to his safety. He did not have freedom and human rights because the authorities did not respect his religion.
·His personal circumstances of having no family, no support and being threatened by the authorities for practising his religion contributed to his decision to leave Vietnam.
·He has experienced harm in Vietnam. The discrimination against him began when he was ten years old. Teachers and other students discriminated against him because of his religion and he did not have the freedoms that other people had.
·Undercover Police stopped Catholic Church goers and asked them questions regarding their identity and drivers’ licenses. When asked why they were being questioned by people who were not in uniform, the Police asserted their power and arrested the Church goers. They were taken to the Police Station where they were questioned and statements obtained from them. The aim of the Police is to stop Church goers from attending weekly services. This interfered with his capacity and the capacity of others to practice their religion.
·Although he was not physically harmed by the authorities he could see what was going on around him. Catholics were harmed by the authorities and he became concerned for his safety.
·If he returns to Vietnam he will face 3 years to 5 years imprisonment. His biggest feat of imprisonment is torture and death. He has concerns for his safety and protection if he returns to Vietnam. This fear comes in from Vietnamese legislation in relation to returning to Vietnam after leaving illegally.
·He no longer has a life in Vietnam. Because of his personal circumstances he will struggle to live. He will be living on the streets and begging to survive. Because of the stigmatisation of convicts in Vietnam it will be impossible for him to seek employment, coupled with discrimination due to his religion, which will make his life very difficult in Vietnam.
·If he relocates to a different area in Vietnam he will still face the same problems. Wherever he lives in Vietnam he will be unable to freely practice Catholicism and will be subject to harm.
·If he returns to Vietnam he will face imprisonment for his illegal exit from Vietnam. If he is in prison, he will experience torture in prison. The wider Vietnamese community will discriminate against him. It will be impossible for him to seek employment or study due to discrimination and stigmatisation of convicts in Vietnam.
·The authorities are the predominant reason why he left Vietnam. The authorities will not protect him if he returns to Vietnam.”
Consideration of Grounds of Review
Ground 1 of the Originating Application for Review was a claim that the Tribunal failed to apply the correct test in relation to the question of internal relocation. Reference was made to the applicant’s claim that he was unable to practice his Catholic religion anywhere in Vietnam.
It was submitted on behalf of the applicant that there was no evidence before the Tribunal that religious organisations, or their followers, faced no problems in all parts of Vietnam. As to that submission, the applicant bore the onus of establishing the claim that the applicant would be discriminated against in all parts of Vietnam. The applicant’s failure to do so did not assist the applicant in relation to the Ground 1 claims.
In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [60], Kiefel CJ, Gageler, Keane and Gleeson JJ upheld the principle, as articulated in SZMTA V ???, that an applicant bore the onus of proving that a breach of procedural fairness was material to the outcome of an administrative decision. It was there said as follows:
“[60]Accordingly, the decisions on which the appellant relies provide no support for the shift in onus for which he contends. Where materiality of a breach of an express or implied condition of a conferral of statutory decision-making authority is in issue in an application for judicial review of a decision on the ground of jurisdictional error, the onus of proving by admissible evidence on the balance of probabilities historical facts necessary to satisfy the court that the decision could realistically have been different had the breach not occurred lies unwaveringly on the plaintiff.”
The Tribunal did identify the applicant’s claims at [13] of its reasons. Further, at [26] - [59] inclusive of its reasons, the Tribunal comprehensively considered all of the applicant’s claims in the context of both the written material placed before the Tribunal, as well as available country information. Having conducted a thorough examination of all relevant information before it, it was open for the Tribunal to find that it did not accept that the applicant would be unable to freely practice his Catholic religion if he was to be returned to Vietnam. The Tribunal carefully analysed the applicant’s claims at [41] – [59] of its reasons as follows:
[41] The applicant’s migration agent has referred to country information in her submissions to the Department and to the Tribunal. In her submissions to the Department on 4 December 2014, she quoted from part of a paragraph from the United States Commission on International Religious Freedom’s (UNCIRF) 2014 Annual Report on Vietnam and referred to specific incidents in March 2013 and in early 2014. These incidents occurred in Dak Nong Province, Son La Province and Dien Bien Province. The first incident in March 2013 refers to the death in Police custody of a Hmong Christian leader in Dak Nong Province. The second and third incidents in 2014 also refer to ethnic Hmong Christians who had converted to Christianity.
[42] The applicant’s evidence is that he is of Kinh ethnicity which makes up approximately 86% of the population of Vietnam. People of Hmong ethnicity make up less than 1.5% of the population of Vietnam. His evidence is that he was born into a Catholic family and is therefore not a convert to Catholicism. His evidence is that he is from the [name of place omitted] in Vietnam.
[43] The Tribunal has had regard to a more up to date version of the USCIRF’s Annual Report on Vietnam. In its 2017 Annual Report it makes the following key findings in relation to Vietnam:
In 2016, Vietnam continued to make progress to improve religious freedom conditions. While the government’s Law on Belief and Religion, approved on November 18, 2016, does not comply fully with international standards, the measure reflects the government’s and National Assembly’s good faith efforts to solicit input from some religious organizations, incorporate guidance from international experts in a relatively transparent fashion, and address myriad religious freedom challenges in the country. Nevertheless, severe religious freedom violations continued, especially against ethnic minority communities in rural areas of some provinces.
Given the law’s approval late in the reporting period, its effective date of January 1, 2018, and the serious scope and nature of ongoing abuses during 2016, USCIRF again finds that Vietnam merits designation as a “country of particular concern,” or CPC, under the International Religious Freedom Act (IRFA) in 2017, as it has every year since 2002. USCIRF believes Vietnam may be on the right path toward comprehensive and enduring improvements in religious freedom conditions; continued positive movement along this path may prompt USCIRF to consider moving Vietnam to its Tier 2 list in the future. This possible change in tier status will depend, in part, on whether the Vietnamese government implements and enforces the new law in a manner that ensures the rights of religious organizations and individual believers, providing equal treatment and fairness to both state-sponsored and independent groups, as well as registered and unregistered groups.
[44]This Report indicates that, whilst Vietnam has continued to make progress to improve religious freedom conditions, religious freedom violations have continued especially against ethnic minority communities in rural areas of some provinces in Vietnam.
[45] In pre-hearing submissions to the Tribunal, the applicant’s migration agent referred to the Report from the USCIRF as well as to extracts from Reports from Human Right Watch, Minority Rights Group International and Amnesty International. The Report from Human Rights Watch refers to a January 2015 Report from UN Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt. His Report is summarised as follows:
After an analysis of Vietnamese legal framework and norms concerning freedom of thought, conscience, religion or belief, the Special Rapporteur identifies positive developments but also a number of serious problems; mainly the lack of clarity in the legal provisions that tend to give broad leeway to regulate, limit, restrict or forbid the exercise of freedom of religion or belief in the interest of “national unity and public order”. Other challenges originate from the tight control that the Government exercises on religious communities. Whereas religious life and religious diversity are a reality in Viet Nam today, autonomy and activities of independent religious or belief communities, that is, unrecognized communities, remain restricted and unsafe, with the rights to freedom of religion or belief of such communities grossly violated in the face of constant surveillance, intimidation, harassment and persecution. The Special Rapporteur sees the need for improvements and shares his recommendations with a view to maintaining a constructive dialogue and cooperation with the Government.
[46] The Tribunal notes that since this Report was prepared there have been changes in the legal framework in Vietnam concerning freedom of religion or belief which are referred to in the USCIRF Report below.
[47] The Human Rights Watch 216 World Report on Vietnam stagtes, in part, the following in its key findings:
Government restrictions on religious activities in Vietnam vary widely across geographical areas, as well as among religious organizations based on theire relationship with the State. This sends conflicting messages about Vietnam’s overall commitment to respecting and protecting freedom of religion or belief.
[48] In relation to the relationship between the Vietnamese government and the Catholic Church it states as follows:
Relations between the Vietnamese government and the Vatican improved in 2015, with Vatican prefect Cardinal Fernando Filoni visiting Hanoi in January and Pope Francis naming Pierre Nguyen Van Nhon as Vietnam's newest Cardinal. The Vietnamese government also approved a new Catholic university centered around a theological institute, and government officials highlighted to USCIRF the expanding opportunities for charitable and social work by the Catholic Church.
During USCIRF's visit, some interlocutors stated that their religious activities and gatherings faced little to no interference, though several acknowledged that religious organizations in other areas experience problems. In some cases, these positive trends were new and welcome developments, for which local authorities should be lauded.
[49] The Tribunal notes that the applicant claims that he is Catholic and has never claimed that he belongs to an unregistered Catholic house Church. The Tribunal also notes that the Catholic Church in Vietnam is registered and officially recognised.
[50] The applicant’s migration agent’s submissions referred to the Minority Rights Group International’s State of the World’s Minorities and Indigenous Peoples 2016 – Vietnam Report. This Report expresses some concerns about the draft Law on Belief and Religion and focuses on the situation for minorities and indigenous peoples, in particular, indigenous Montagnards. In this case, the applicant is not an ethnic minority. He is, however, a religious minority. The country information indicates that nearly 26% of Vietnam’s population follow recognised religions and this includes 11 million Buddhists, 6.5 million Catholics, 2.5 million Cao Dai followers, 1.5 million Protestants and over 1.3 million Hoa Hoa Buddhist with a small number of Muslims, Baha’is, Hindus and people with other beliefs.
[51] The applicant’s migration agent’s submissions referred to the 2016/2017 Amnesty International Report on Vietnam which the Tribunal has had regard to. She also referred to an article from Christianity Today referred to by the delegate in the Department’s Decision Record. The Tribunal has read and had regard to the whole article rather than reading one paragraph quoted out of context in the Department’s Decision Record.
[52] The Tribunal has had regard to the DFAT Country Information Report on Vietnam. It states the following:
Article 24 of the Constitution allows citizens to enjoy freedom of belief and religion, and to follow any religion or none. It also states that all religions are equal before the law, and that no one may ‘misuse beliefs and religions to contravene the law and State policies'. The Penal Code 1999 includes penalties for offenses such as 'Undermining the unity policy … [through promoting] division between religious believers and nonbelievers'….
Broadly speaking, DFAT assesses that as long as religious practice is exercised within state-sanctioned boundaries and does not challenge the interests or authority of the Government of Vietnam-which can be broadly defined and include land use issues-religious adherence in Vietnam is tolerated, even for some religions not officially recognised by the government. There may, however, be restrictions on some activities and the freedom of individuals to travel outside of Vietnam to attend religious festivals and events. There are credible reports of restrictions on the activities of some unregistered groups, including allegations of violence and harassment, which are discussed in more detail in following sections. DFAT is not aware of credible claims of societal abuse or systemic discrimination based on religious practices. Authorities are, however, concerned about the potential for religious groups to be mobilised for political purposes.
The Catholic Church is registered in Vietnam and in recent years has had some restrictions on charitable activities lifted. A number of new church congregations were approved in 2013, mostly in the Central and Northwest Highlands areas in response to increased demand from the growing Catholic communities in the area, although many more registration requests are still pending. DFAT assesses that Catholics in Vietnam who worship quietly and in a manner that conforms to government policies and sensitivities are able to do so with a low risk of official interference.
[53] The Tribunal discussed the above country information with the applicant. He declined to respond.
[54]. Towards the end of the hearing, the Tribunal raised as an issue with the applicant its concerns about his credibility and the veracity of his claims in view of the inconsistencies in his evidence and the new claims he made throughout the hearing. He responded that the contents of his evidence are the same. He then stated that maybe he was previously unable to say things. He then re-iterated that his evidence was the same. When the Tribunal referred to one of the inconsistencies in his evidence he responded that it was not definitely like that and what he told the Tribunal did happen in Vietnam and he did not lie. The Tribunal does not accept this explanation and it is not alleviate the Tribunal’s concerns.
[55] The Tribunal raised as an issue with the applicant its doubts that he would be at risk of serious harm or significant harm because of his practice of Catholicism if he returned to Vietnam. He responded that his answer was the same as what he said before.
Findings
[56] Having considered the applicant’s claims, the evidence and the submissions, the Tribunal accepts that the applicant is Catholic and that his mother was also Catholic. The Tribunal accepts that he attended Church in Vietnam two to three times a week. The Tribunal accepts that he attends Church once a week in Australia. The Tribunal does not accept that he was discrimination against by teachers and other students because of his religion and that he did not have the freedoms that other people had. The Tribunal does not accept that he was discriminated against by local Vietnamese authorities because of his religion and that this affected his ability to freely practice his religion as there was always a threat to his safety. The Tribunal does not accept that he did not have freedom and human rights because the authorities did not respect his religion.
[57] The Tribunal does not accept that the applicant was ever stopped by the Police when he was on his way to Church and not allowed to go to Church. The Tribunal does not accept that the Police went to his home and challenged and threatened him in relation to going to Church. The Tribunal does not accept that threats from the authorities for practising his religion contributed to his decision to leave Vietnam. The Tribunal does not accept that he left Vietnam because he had any fears in relation to practising Catholicism or that he fears returning to Vietnam for this reason.
[58] The Tribunal accepts that the applicant would continue to practise Catholicism if he returns to Vietnam. The Tribunal does not accept that wherever he lives in Vietnam he will be unable to freely practice Catholicism and will be subjected to harm. The Tribunal does not accept that, if he returns to Vietnam, he will be put in gaol and tortured because he is Catholic.
[59] Having considered all the evidence, including the country information, and the submissions, the Tribunal is not satisfied that there is a real chance that the applicant would be at risk of serious harm for reason of his religion if he returns to Vietnam now or in the reasonably foreseeable future.”
Further, the Tribunal was entitled to reject the applicant’s claims as to why he left Vietnam, and his claims about having been stopped by the police and not allowed to go to church. The Tribunal identified inconsistencies in the applicant’s evidence, and had doubts as to the applicant’s credibility.
The Tribunal was entitled to find that there was not a real chance that the applicant would suffer serious harm, by reason of his expressed desire to practice his religion, should he be returned to Vietnam. Ground 1 of the Application for Review is without merit and is dismissed.
Ground 2 of the Application for Review was a claim that the Tribunal had acted unreasonably in finding that the Applicant was not a conscientious objector in respect of the carrying out of military service. It was submitted that the Tribunal’s rejection of such claim was based solely on the failure of the Applicant to mention that he was such an objector at the time of the holding of the entry interview. It was further submitted that the Tribunal took such failure into account as its sole reason for rejecting the applicant’s claim that he was a conscientious objector, because that was the only information put to him for comment pursuant to the provisions of s. 424AA of the Act. Section 424AA relevantly provided as follows:
“424AA Information and invitation given orally by Tribunal while applicant appearing
(1)If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”
It was submitted on behalf of the applicant that the applicant was 17 years of age at the time of the entry interview, and that by reason thereof, the applicant’s lack of maturity ought to have been taken into account by the Tribunal when assessing whether the failure to mention such objection to military service at the time of such interview was meaningful or not.
It was further submitted that caution should have been exercised by the Tribunal in concluding that the failure to refer to the alleged conscientious objection at the time of the entry interview was relevant based upon the judgment of the Full Court of the Federal Court in MZZJO v Minister for Immigration [2014] FCAFC 80 at [56], where it was said:
“[56] On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling“. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.”
At [79] of its reasons, the Tribunal identified that the applicant’s claim that he was a conscientious objector was a new claim made in submissions dated 4 December 2014. Those submissions post-dated both the time of the holding of the entry interview in 2013, as well as the holding of a further interview with a departmental officer on 20 November 2014. In each interview, the applicant had failed to relevantly claim that he was an objector. At [79] – [91] of its reasons, the Tribunal carefully considered the applicant’s claim that he was a conscientious objector, finding as follows:
“[79] In submissions dated 4 December 2014, provided to the Department after the applicant’s interview with the Department on 20 November 2014, the applicant’s migration agent made a new claim that the applicant is at risk of serious harm or significant harm because of his failure to report for or undertake compulsory military service. She claimed that there is no possibility of conscientious objection to military service in Vietnam. She submitted that Catholics in the Vietnamese armed forces are discriminated against on a regular basis. She provided no country information to support this submission and the Tribunal is unable to find any that does. The applicant did not make these claims in his application for a Protection visa or during his interview with the Department on 20 November 2014.
[80] In pre-hearing submissions to the Tribunal, the applicant’s migration agent claimed on behalf of the applicant that he does not wish to undertake military service in Vietnam as he is fearful of the treatment he would experience as a Catholic, an orphan and a failed asylum seeker. She claimed that he believes he will be subjected to unfair treatment and significant harm whilst in the military and will be forced to renounce his faith. She submitted that his refusal to undertake military service will be viewed as an expression of his anti-government political opinion.
[81] The Tribunal discussed these claims with the applicant during the hearing. He gave evidence that he has not undertaken military service in Vietnam. When asked about the process for registration for military service, he stated that he does not know the process. When asked whether the government wrote to prospective conscripts informing them that they are required to register for military service, he responded that he does not know. When asked whether he has contacted the Vietnamese government and informed them that he is not prepared to undertake military service, he responded that he never received any letter from the government so why should he respond. When the Tribunal pointed out that his migration agent had claimed, on his behalf, that he had refused to undertake military service, he responded that he cannot remember saying that. He stated that he does not want to undertake military service.
[82] The Tribunal asked the applicant why he does not want to undertake military service. He responded that he does not want to do it because the government is turning its back on people, harming people and taking wealth from people. When asked how they do that, he responded that they suppress people and say things that are not true. When asked how they suppress people, he responded that they use force to suppress people and people have nothing to protect themselves. When asked if there was any other reason why he did not want to do military service, he responded that they suppress people so how could he join the army and do the same thing.
[83] The applicant attended an interview with the Department on 7 July 2013. During that interview, he was asked a number of questions including why he left Vietnam. He responded that the main reason was that he has no relatives, no one to support him financially and has no future. He stated that he would have a chance to study in Australia. He was then asked whether he came to Australia to study and seek employment. He answered “yes, I want to have better education and a better life”. He made no mention of not wanting to do military service.
[84] The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that this could lead it to the conclusion that the reason he came to Australia was because he wanted a better education and a better job. The Tribunal noted that this could lead it to the conclusion that he fabricated his claims in relation to objecting to military service for the purpose of enhancing his prospects of getting a Protection visa. He requested additional time in which to respond to this information and was granted until 27 April 2017 to do so. The Tribunal has not received any comment on or response to this information to date.
[85] The applicant attended an interview with the Department on 7 July 2013. During that interview, he was asked what he thought would happen if he returned to Vietnam. He replied “I have no one to turn to. I have no home to go to and I have no one in Vietnam.” He did not make any claim about being afraid to return to Vietnam because he will be sent to gaol for refusing to undertake military service. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that this could lead it to the conclusion that he fabricated this claim for the purpose of enhancing his prospects of getting a Protection visa. He responded that what he had told the Tribunal was the truth.
[86] The Tribunal is of the view that if the applicant has a conscientious objection to undertaking military service or if he feared the treatment he would receive whilst undertaking military service, including being forced to denounce his religion and being subjected to serious harm or significant harm, he would have made these claims in his visa application or to the delegate during his interview with the Department on 20 November 2014. His failure to do so raises issues in relation to the credibility of these claims.
[87] The Tribunal raised as an issue with the applicant its doubts that he has a conscientious objection to undertaking military service. The Tribunal informed him that it accepts that he may prefer not to do military service and that there may be many young men in Vietnam who would prefer not to do military service. He responded that that is true.
[88] The applicant’s evidence is that he was born on [date omitted] and that he left Vietnam in May 2013. He would therefore have been [age omitted] years old at the time he left Vietnam. The country information indicates that military service is compulsory for males aged 18 to 25 years. DFAT indicates that “while all males must register with the military, not all end up serving. There are exemptions granted on several grounds, including for university students and people employed in certain professions.” The Tribunal accepts this country information and therefore accepts that the applicant is required to undertake compulsory military service.
[89]The country information indicates that the Vietnamese Penal Code 1999 specifies the following penalty for evading military service:
Article 259 – Evading military service
1. Those who fail to strictly abide by the law provisions on military service registration, fail to abide by the order for enlistment into the army, the summoning order for military training, have already been administratively sanctioned for such acts or have already been sentenced for such offenses, not yet entitled to criminal record remission but continue to commit such violations, shall be sentenced to noncustodial reform for up to two years or between three months and two years of imprisonment.
[90] The applicant is currently [age omitted] years old. He has been in Australia since the age of [age omitted] years. He was not in Vietnam at the time he turned 18 years when he became eligible to register for military service. The Tribunal is not satisfied that the mere fact that he was not in the country at the time he became eligible to register for military service amounts to a refusal to undertake military service or an evasion of military service. He has time until he is 25 years of age to fulfil his obligations to undertake compulsory military service.
[91] The Tribunal has considered the submissions made by the applicant’s migration agent. The Tribunal was unable to access any country information that supports the submissions made by her.”
As is apparent from the paragraphs of the reasons of the Tribunal last referred to, the Tribunal did not confine its consideration of the applicant’s claim that he was an objector solely on the basis of the applicant’s failure to make such claim at the time of the holding of the entry interview. The Tribunal was entitled to call into question the applicant’s credibility by reason of his failure, over time, to make the conscientious objection claim. The conclusions reached by the Tribunal were open on the evidence before it. As Thawley J said at [21] - [24] in CED15 v Minister for Immigration and Border Protection [2018] FCA 451:
“[21] In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:
[69] The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.
[70] However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, [name omitted], was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that [name omitted] was his cousin while he was “at the camp”.
[22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of his family and the appellant’s fear of the army because of his being a witness.
[23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox.
[24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”
It cannot be said that no other rational or logical decision make could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135] (‘SZMDS’):
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
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[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76], where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
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[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 21 January 2022
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