DEO17 v Minister for Immigration
[2018] FCCA 540
•7 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEO17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 540 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a protection visa – whether the Tribunal failed to give proper, genuine and/or realistic consideration to whether the applicant would need to modify his conduct of religious activities – whether the Tribunal acted legally unreasonably in respect of finding in relation to modification of conduct – no jurisdictional error identified – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 36, 476 |
| Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473 |
| Applicant: | DEO17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2253 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 7 March 2018 |
| Date of Last Submission: | 7 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 7 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr O Jones |
| Solicitors for the Applicant: | Firmstone & Associates |
| Counsel for the Respondents: | Mr T Liu |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Grant leave to the applicant to rely upon the amended application filed 6 March 2018.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,200.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2253 of 2017
| DEO17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 June 2017 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Vietnam and his claims were assessed against that country. The applicant was issued with a passport in Vietnam on 13 December 2010. The applicant arrived in Australia on 24 October 2012 with a subclass 573 student visa. It was not until 9 July 2014 that the applicant made an application for protection.
The applicant claimed to fear harm by reason of having been baptised in an evangelical Christian church in Australia and claimed to fear persecution in Vietnam for the Convention-related reason of religion. The applicant claimed his family had no issues with his conversion to Christianity in Australia but the applicant claimed he would be harassed and persecuted by authorities and members of society for practicing his religion in Vietnam and, in particular, for evangelising according to the directives of his church and his understanding of the will of God. On 20 May 2015, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.
The Tribunal’s decision
The applicant applied for review of the delegate’s decision on 29 May 2015. The applicant was invited to attend a hearing before the Tribunal on 23 May 2017. The applicant attended the hearing on that date to give evidence and present arguments and was represented by his migration agent.
The Tribunal in its reasons identified the background to the application for review and set out the relevant law in an attachment incorporated into the Tribunal’s reasons. The Tribunal summarised the applicant’s claims and evidence and in particular, accepted that he had been baptised. The Tribunal referred to the applicant’s claim that he would have to alter his behaviour in Vietnam in order to avoid persecution from Vietnamese authorities and in doing so, would suffer self-imposed curtailment of his fundamental human right to live and bear witness to his religion. It was asserted by the applicant that proselytising activities were not permitted in Vietnam.
The Tribunal referred to the applicant declaring that his interest in Christianity began soon after his arrival in Australia, and that he regularly undertook activities with the Bethany Church including fellowship meetings and preaching. The Tribunal referred to the applicant identifying that he was still at an early stage of learning the bible and referred to questions that the applicant was unable to answer. The delegate referred to the applicant’s knowledge of Christianity and did not accept the applicant’s explanations for his lack of knowledge and found the applicant’s claims were not credible. The Tribunal referred to country information, that the applicant would be free to attend churches in Vietnam and noted the applicant’s claim that he would still not be able to evangelise.
The Tribunal identified the country information and that the Catholic Church reported its Protestantism is thriving in Vietnam and that to the extent that evangelising is treated as being illegal in Vietnam, this is only by some authorities in some localities. The Tribunal referred to country information and noted that it would appear that the relaxation in the law would be particularly advantageous to newly created Protestant churches, including evangelical ones.
The Tribunal noted that the Human Rights Report relating to Vietnam’s respect for religious freedom as surveyed in 2006 nevertheless appears to suggest the mistreatment of Protestant congregations being localised in villages and communities in Vietnam’s Central Highlands.
The Tribunal referred to the applicant’s evidence and that he said that he did not want to return to Vietnam as he would not be able to engage in all the practices that he had been engaging in here in Australia without being arrested and jailed. The Tribunal was prepared to accept that the applicant’s engagement with Christianity in Australia was not solely for the purpose of strengthening his protection visa application. The Tribunal identified that it must assess whether or not the applicant faces a real chance of persecution in Vietnam for reasons of his affiliation with Christianity and, in particular, evangelical Protestant Christianity, and since he has raised the subject, Catholicism.
The Tribunal referred to raising with the applicant the independent reporting to the effect that laws and practice have evolved and that evangelical activities are increasingly tolerated in Vietnam. The Tribunal referred to asking the applicant why foreign preachers are only allowed to preach religion and are not allowed to get involved in politics, as the applicant appeared only to be claiming a fear of persecution should he proselytise in Vietnam, as distinct from claiming that he wish to speak out politically but would be persecuted for doing so. The applicant responded that there is no freedom to practice religion in Vietnam and that he would not be allowed to engage in outreach or public evangelism although he would be free in Vietnam to worship and pray in church, church venues, amongst fellow congregants and at home.
The Tribunal raised with the applicant that there was no evidence to suggest he would face a real chance of persecution should he help or participate in leading a person to and through baptism, and the applicant identified that baptisms are allowed to be performed within the precincts of church land. The applicant asserted that the main issue for him was that churches cannot preach or solicit for donations outside church precincts.
The Tribunal referred to conflict with evangelical churches arising in respect of those who inhabit the Central Highland regions, which does not include the applicant, and referred to country information that reported very successful public evangelical initiatives in large cities, all with permission from city and national authorities.
The Tribunal raised with the applicant which church he might join and he said it could be the Catholic Church. The Tribunal raised with the applicant that the Catholic Church is the largest and oldest Christian church in Vietnam and raised that, according to independent evidence, Catholics evidently enjoy freedom to profess, pray and worship as Catholics in Vietnam. The Tribunal noted the applicant’s response that Catholic demonstrators who oppose the government in land disputes are persecuted. The Tribunal raised with the applicant that the Vietnamese authorities would not interfere if you wanted to live as a Protestant Christian or as a Catholic but might react at least at a local level, to his participation in protests relating to land disputes.
The Tribunal noted the applicant essentially repeated the general position to the effect that Vietnam persecutes Catholics. The Tribunal raised with the applicant that he had not mentioned or demonstrated the slightest interest in taking up any cause relating to the recent and ongoing land disputes in particular local locations in Vietnam. Given the opportunity to respond, the applicant then referred to an example of disputation over a parcel of land in a particular parish, and referred to the arrest of a person.
The Tribunal referred to other material including a reference to the post-hearing submissions sent to the Tribunal on 23 May 2017, 5 June 2017 and 8 June 2017. The Tribunal found that the persecution described in a particular article provided with the submissions appeared to be specific to conditions affecting ethnic minority church communities in the Central Highlands.
The Tribunal accepted that the applicant was a genuine baptised Christian and made reference to the applicant having described or at least referred to God’s message as he interprets it and demonstrated how he feels he might best bear witness to it by encouraging others to join him. The Tribunal found, on the applicant’s own admission, and in particular on his oral evidence, that he is still exploring his place in Christian life and is not wedded to specific manifestations of public evangelicalism as he claims, and that the applicant is open to a variety of ways of serving God, and remains open to moving from one church to another.
The Tribunal found the applicant was quite pragmatic about whether to be Protestant or a Catholic, and the Tribunal took into account his openness and flexibility in assessing whether any adaptation to life as a Christian in Vietnam might amount to persecution in the applicant’s own individual case. It was in those circumstances that the Tribunal found that in the event of returning to Vietnam, the applicant will genuinely seek to affiliate himself with a Christian church and that it will more likely be an evangelical Protestant church, although the Tribunal did not rule out that he may genuinely be curious about joining the Catholic Church.
The Tribunal did not accept the applicant’s suggestion that there is no church in Vietnam that would be equivalent or similar to the evangelical churches he has joined in Australia. The Tribunal found that the applicant will engage in an evangelical life and activities of that church, to the extent that his self-described abilities allow and under the guidance of his pastoral priest, just as he had been doing in Australia.
The Tribunal referred to having put to the applicant a number of references to independent evidence regarding the relaxation of local and national Vietnamese authorities’ attitudes to evangelical churches, their practices and their foreign affiliations. The applicant maintained that there was ongoing harassment of evangelical and other Christians, including Catholics. The Tribunal having reviewed all the evidence, was satisfied that the Tribunal could rely on this material being independent, and gave no weight at all to the applicant’s position about such reports being state propaganda. The Tribunal gave some weight to the independent evidence of an arguably significant relaxation in the Vietnamese government’s response at national and many local levels to the existence and growth of evangelical churches in Vietnam.
The Tribunal referred to the applicant’s response in relation to mistreatment of evangelical church communities in the Central Highlands being due to the persistent impact of old conflicts and prejudices in that region. The Tribunal gave little weight to the country information provided by the applicant as evidence that he would face a real chance of persecution in Vietnam in the reasonably foreseeable future.
The Tribunal found the applicant is not from any of the religious, ethnic or linguistic minority groups of the Central Highlands and has not expressed any interest in mixing with those communities. The Tribunal found the applicant is not a Catholic and has not displayed any genuine personal and principled interest in becoming involved in church land disputes anywhere or at any time in Vietnam. The Tribunal found in relation to those parts of Vietnam where there had been conflicts, the applicant had never resided and showed no interest of residing.
The Tribunal referred to evangelicalism taking many forms, whether on a more personal level or more of a communal context, and that some country information shows a variety of ways in which the applicant could participate in church outreach on both levels without facing a real chance of persecution as long as he does not mix religion and politics which he displayed no interest in doing.
The Tribunal observed that to be able to engage in a life of evangelicalism, this would appear to require the applicant to undertake a lot more learning than he claims to have undertaken. The Tribunal noted it would also logically require him to become more settled in his mind as to which church he should be attracting others to join, and at present he evidently is not. The Tribunal was satisfied on the evidence before it, that whether the applicant remains a member of an evangelical Protestant church or becomes a Catholic, the applicant does not face a real chance of persecution in Vietnam for identifying, professing, praying or worshipping as a Christian in Vietnam, or for engaging in outreach or evangelist activities there.
The Tribunal was not satisfied on the evidence before it, that the applicant would need to alter his behaviour to avoid persecution in Vietnam, let alone in such a way or to such a degree as would infringe upon his freedom of conscience and religion. The Tribunal found having considered all the evidence cumulatively, that it was not satisfied that the applicant faces a real chance of persecution in Vietnam in the reasonable foreseeable future for reasons of being a Christian, whether Catholic or Protestant, or even evangelical Catholic or Protestant, or for any other Convention-related reasons.
The Tribunal found the applicant’s fear of Convention-related persecution is not well-founded and that he is not a refugee. The Tribunal found the applicant failed to meet the criteria in s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
The grounds of the amended application are as follows:
1. The Tribunal failed to give proper, genuine and realistic consideration to the question of whether the Applicant would need to modify his conduct of religious activities upon his return to Vietnam, as the Tribunal did not engage in an active intellectual process with respect to the question, instead basing its conclusion solely upon the Applicants past conduct and perceived present state;
2. The Tribunal made a legally unreasonable finding of fact with respect to the question of whether the Applicant would need to modify his conduct of religious activities upon his return to Vietnam, as the Tribunal merely identified the Applicant's past conduct and perceived present state without properly evaluating the Applicants' future conduct.
Ground 1
Mr Jones of counsel in developing his argument in relation to ground 1, took the Court to the decision in Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473 (“S395”) and emphasised that the fallacy identified in the joint judgment of the learned McHugh and Kirby JJ was one which was not confined in the scope of the application of the fallacy, emphasising that this is particularly so where the actions of persecutors have already caused the person affected to modify his or her conduct. Mr Jones submitted that it was not necessary for there to have been a modification of conduct for the fallacy of the kind identified in the joint judgment to have application.
Mr Jones submitted that it was open to the Tribunal to conclude as a matter of fact, a person will not engage in conduct which would attract relevant harm, and that the Tribunal makes no jurisdictional error where in concluding that the person will refrain from particular conduct, provided the Tribunal finds reasons for the person refraining from doing so, which are unrelated to the fear of relevant harm. Mr Jones submitted that making findings of the kind just identified, must be the result of an active intellectual process and the findings of fact must have an evident and intelligible justification.
Mr Jones submitted that on these assumptions it may be accepted that the Tribunal found as a fact that the applicant would not engage in conduct attracting relevant harm for reasons unrelated to fear of such harm and/or that the Tribunal found the applicant would have no individual need to engage in the kind of behaviours which would attract relevant harm. Mr Jones submitted that the basis for the Tribunal’s finding to that effect is what gives rise to the alleged jurisdictional error.
Mr Jones made reference to the Tribunal referring to the fact that the applicant showed no interest in politics and would require further steps in his Christian journey before he would engage in evangelical activities. Mr Jones submitted that there was no proper assessment by the Tribunal of the applicant’s apprehended future conduct beyond this assessment of his past conduct and presently perceived state. Mr Jones asserted that this amounted to a failure to undertake the requisite level of intellectual engagement with the question about the applicant’s future conduct. Mr Jones submitted that there was a failure to provide a legally reasonable basis for the conclusion as to the applicant’s future conduct that identified a further error of legal unreasonableness.
The flaw in Mr Jones’ argument is that this is not a case where the Tribunal found the applicant will refrain from particular conduct of a kind giving rise to a fallacy or assumption of the kind identified in S395. The Tribunal identified correctly the applicant’s claims and took into account country information in relation to the applicant’s claims and made an adverse finding that he did not face a real chance of persecution in Vietnam for identifying, professing, praying or worshipping as a Christian in Vietnam or for engaging in outreach or evangelical activities there. That was a dispositive finding in respect of the claims of the applicant.
The Tribunal expressly found that the applicant would not need to alter his behaviour to avoid persecution in Vietnam. There was no failure to give proper and genuine and realistic consideration to the applicant’s claims. The Tribunal made an express adverse finding that the applicant would not need to modify or later his behaviour.
Mr Jones submitted that the reference to the proposition that the applicant displays no interest in mixing religion and politics was itself a source of the jurisdictional error. Whilst this appears to go beyond ground 1, the Tribunal explored with the applicant whether he had an interest in land disputes or politics and made adverse findings in that regard that did not involve any fallacy of the kind identified in S395. There was no claim advanced by the applicant that he feared harm by reason of mixing religion and politics, and no such claim fairly arose on the material before the Tribunal.
There was no failure by the Tribunal as alleged in ground 1, to engage in an active intellectual process in assessing the applicant’s claims to fear future harm in accordance with the criteria correctly identified by the Tribunal. The Tribunal’s adverse finding was not legally unreasonable and was open for the reasons given by the Tribunal summarised above. The Tribunal’s adverse finding cannot be said to lack an evident and intelligible justification. No jurisdictional error as alleged in ground 1 is made out.
Ground 2
In relation to ground 2, Mr Jones submitted that there was legal unreasonableness in the finding made by the Tribunal in concluding that the applicant does not face a real chance of persecution in Vietnam for identifying, professing, praying or worshipping as a Christian in Vietnam, or for engaging in outreach or evangelical activities there. Mr Jones submitted that the Tribunal in that regard had failed to provide a reasonable basis for the conclusion as to the applicant’s future conduct.
Ground 2 itself refers to legal unreasonableness in determining whether the applicant would need to modify his conduct. The Tribunal expressly found that the applicant would not need to alter his conduct to avoid persecution in Vietnam. That was a finding that was open to the Tribunal for the reasons given by the Tribunal as summarised above and which took into account the country information to which the Tribunal referred. There was no finding of the kind identified in ground 2 which made a false assumption and the adverse finding was open for the reasons given by the Tribunal. Those reasons cannot be said to be illogical or unreasonable. No legal unreasonableness is made out. Accordingly, no jurisdictional error as alleged in ground 2 is made out.
For these reasons, the amended application is dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 1 May 2018
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