DFD16 v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

DFD16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 136

Catchwords:
MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – application for protection visa – claim of persecution on the basis of membership of social group – did Tribunal properly examine composite aspects of the applicant’s claim for protection – whether Tribunal properly considered claims put forward by applicant – real chance.

Legislation:

Migration Act 1958 (Cth), ss.2A; 5H; 5J; 36; 65; 474; 476(1)

Cases cited:
S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Chan v Minister for Immigration (1989) 169 CLR 379
Minister for Immigration v Guo (1997) 191 CLR 559
See Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2001] HCA 71
SWCB v Minister for Immigration & Multicultural Indigenous Affairs [2004] FCA 1178
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1
Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801
Re Minister for Immigration & Multicultural & Indigenous Affairs and Anor; ex parte Applicants S134/202 (2003) 211 CLR 441
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 75 ALD 630

Applicant:

DFD16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 357 of 2016

Judgment of:

Judge Brown

Hearing date:

14 November 2017

Date of Last Submission:

14 November 2017

Delivered at:

Adelaide

Delivered on:

30 January 2018

REPRESENTATION

Counsel for the Applicant:

Mr Ower SC

Solicitors for the Applicant:

McDonald Steed McGrath Lawyers

Counsel for the First Respondent:

Mr O'Leary

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

Submitting appearance

ORDERS

The application filed 26 October 2016 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of seven thousand three hundred and twenty-eight dollars ($7,328.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 357 of 2016

DFD16

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 migration decision made by the Administrative Appeals Tribunal “the AAT” on 21 September 2016. The applicant is a citizen of Vietnam, where he was born on 20 March 1954.
The applicant arrived in Australia in 2007, pursuant to a sponsored family visa, which last expired on 26 June 2008. He did not leave Australia and therefore his continued presence in Australia became unlawful.
On 14 January 2016, the applicant was located by immigration officials and placed into detention. On 11 April 2016, he lodged an application, for a protection visa, pursuant to the provisions of the Migration Act 1958 (Cth) “the Act”.
The applicant claimed to be entitled to the protection of Australia on the basis that he falls within the criteria, provided by the Act, which characterise persons to be regarded as refugees or alternatively he is entitled to the complementary protection considerations arising under the Act, on the basis that he:
·had worked as a spy or secret agent, for the United States Army, during the Vietnam War between 1971 and 1973;
·held anti-government views about the Vietnamese government;
·had resisted joining the Vietnamese Army and resisted going to fight in Cambodia between 1979 and 1983;
·had been absent from Vietnam for a prolonged period of time; and
·if returned to Vietnam, would be characterised as a failed asylum seeker.
The applicant completed a statement, in support of his application for a protection visa, on 1 April 2016. In this statement, he indicated as follows:
“I fear returning to Vietnam. I fear that I will be targeted by the Vietnamese authorities because of my previous involvement with the US Army, my resistance to joining the Vietnamese Army and because I have been outside the country for such a long time.
In approximately 1968 I started work alongside the US Army. I started off selling them food and drinks and then in about 1970 they asked me if l would like to do some training to become a secret agent. They wanted me to spy on people in my community to see who was working with the communists. This was not a common thing for people to do and from my knowledge I was the only one working as an agent for the US Army in my area. I worked in this job .until 1973.
In 1979, the Vietnamese Army tried to forcibly recruit me. I initially refused to join but so I was forced me to go to a correctional centre where I was subjected to 'reeducation'. After I was released I was forced to join the Vietnamese Army to fight against Pol Pot's supporters in Cambodia. I was afraid that if I said no I would be deemed a traitor and killed. I was given a gun but I was never involved in any armed combat. While I was in Cambodia, I travelled to Laos trying to go to Thailand because I wanted to escape. I stayed in Laos for one day before returning to Cambodia because I was unable to get to Thailand.
I still feel very angry about being· forced to go to Cambodia and continue to feel resentment towards the Vietnamese Government. In Vietnam I was never brave enough to criticise the Government, but in Australia I often talk with my friends about how I feel about the Vietnamese Government. Some of the people I talk to are international students and people who are returning to Vietnam.
I have recently been told by my friends that the Vietnamese Government will arrest me if they know about my involvement with the US Army. Even though the war finished a long time ago, the Vietnamese Government is still very worried about people that may be working against them. They arrest people and take them away all the time.
I am worried that because I have been away from Vietnam for such a long time it will prompt the Vietnamese authorities to investigate me if I return, and that they will assume I have been speaking against them or they will come to learn that l have previously been a spy for the US Army.
What I fear may happen to me, by who and why, if I return to that country
I fear that I will be arrested, detained for a very long time and tortured by the Vietnamese Government if I am forced to return to Vietnam.
I am worried that the Government will view me as a traitor and a threat because I have previously worked as a spy for the US Army, because I have resisted joining the Vietnamese Army and because l have been overseas for such a long time.”[1]
[1] See casebook at page 16-17
On 20 June 2016, a delegate of the Minister for Immigration & Border Protection determined that Australia did not owe the applicant any obligation to provide protection or any other complementary protective obligations arising under the Migration Act.
As a consequence of this decision, on 28 June 2016, the applicant applied to the AAT for a review of this decision. His application was dealt with, by the AAT, on 21 September 2016. On this occasion, the Tribunal affirmed the decision not to grant the applicant a protection visa.
It is this decision, which is the subject of these proceedings. The applicant seeks that the decision of the AAT be quashed and the matter be referred back to the Tribunal for re-determination. The grounds of the application are as follows:
1. The Second Respondent committed jurisdictional error, in that:
1.1    It determined that the applicant did not have a well-founded fear of persecution for a Convention reason by asking, inter alia, whether that was the case "because he is a failed asylum seeker who unsuccessfully sought asylum in Australia".
1.2    The Second Respondent, however, had found that:
(a)     the applicant had an association with the US Army during the US-Vietnam War;
(b)     This fact was not known to the Vietnamese government;
(c) The applicant   had subsequently refused to fight     in Cambodia for the Vietnamese Army;
(d)     The applicant had been absent from Vietnam for approximately 7 years.
1.3    In the circumstances, the Tribunal asked itself the wrong question as set out in paragraph 1.1 above, but instead should have asked itself whether this particular applicant had a well-founded fear of persecution for a Convention reason, as distinct from classifying the applicant as part of a general class without considering the individual and distinctive features of his claim.”[2]
[2] See casebook at page 4

The hearing before the AAT

The applicant provided an additional statutory declaration prior to the hearing before the AAT. In addition, he was invited to give oral evidence before the Tribunal and was questioned by it.
The Tribunal also had available to it departmental records detailing the applicant’s travel to and from Australia. This information indicated that the applicant had first arrived in Australia on 9 October 2007, pursuant to a sponsored family visa.
He had then departed Australia on 8 January 2008, which was one day prior to the visa expiring. Thereafter he had returned to Australia on 26 June 2008, pursuant to a further sponsored family visitor visa granted on 15 May 2008, which was valid until 26 September 2009.

The findings of the AAT

Under the heading Summary of Substantive Claims, the AAT summarised the applicant’s claims for protection, in the following terms:
·As a thirteen or fourteen year old, in the early 1970s, he had sold soft drinks to US soldiers and provided them with information about the location of North Vietnamese troops;
·In 1970, a US colonel had asked him to join the US Army and he had subsequently been trained to be a spy;
·He had worked as a spy for about two years and provided information to the US Army about the location of the Viet Cong;
·The applicant had told no-one (including his wife), apart from one friend, of his involvement with the US Army as a spy;
·Between 1973 and 1975, he lived in Saigon and trained to be a motor bike mechanic;
·In 1979, he refused to join the Northern Vietnamese Army but subsequently joined, although he refused to fight in the conflict against Cambodia.
The Tribunal suggested to the applicant it appeared doubtful that the Vietnamese authorities would be interested in him, given the Vietnam War had ended in 1975 and he himself conceded that no-one in the Vietnamese Government was aware that he had had any involvement with the US Army whatsoever.
It was also suggested to him that the evidence indicated that he had been able to obtain a Vietnamese passport and depart from Vietnam, on two occasions, without any difficulty. It was also noted that his claim for protection had only arisen when he had come to the notice of the Australian authorities, which was some years after his arrival in this country.
In this context, it is apparent from the reasons provided by the Tribunal that it had significant doubts regarding the applicant’s credibility. It found that his claim of having worked as a spy, for the US Army, to be vague, inconsistent and lacking detail.[3]
[3] See casebook at page 215 [44]
Mr Ower, of senior counsel, for the applicant, is critical of the manner in which the Tribunal set out its specific findings in respect of the applicant’s claim for protection. It did so under three specific headings referable to the applicant’s various claims for protection.
In so doing, Mr Ower submits that the Tribunal has adopted what he characterises as a cookie cutter approach. As a consequence of this categorisation, Mr Ower contends that it has failed to acquit the jurisdiction conferred upon it, which require it to consider the entirety of the applicant’s claim for protection, rather than category by category. In so doing, it is submitted by him that the Tribunal has fallen into legal error, which vitiate its decision.
Before turning to this submission in more detail, it is appropriate to set out each of the headings concerned and detail the specific findings arising under each of them. In this context, it is to be noted that it is Mr Ower’s overall submission that the Tribunal has failed to provide a composite finding in respect of the entirety of the evidence available to it, but rather has erroneously unduly compartmentalised that evidence.
a) Anti-government imputed political opinion
The Tribunal accepted that country information, available to it, indicated that, during the Vietnam War, the US Army had worked closely with local Vietnamese people, including children, to provide them with information and assistance during the early stages of the war.
In this context, the Tribunal accepted that the applicant may have come into contact with US soldiers in 1968 and may have provided them with general information about the movement of people in his area. As such, it was accepted that the applicant could have developed some form of relationship with the US Army. However, the Tribunal rejected the applicant’s claim that he had worked as a spy for the US Army or had received specific training on how to become a spy.
The Tribunal also accepted that the applicant may have refused to fight in Cambodia and might have been sent to a re-education camp as a consequence. However, the Tribunal also noted that the applicant had worked as a cook for the Vietnamese Army and had not come to the attention of authorities, after his demobilisation in 1983.
In these circumstances, the Tribunal did not accept that the applicant had any form of profile, which had the potential to draw the attention of the Vietnamese authorities. In this context, it was further noted that the applicant had been able to apply for a Vietnamese passport and leave the country without incurring the attention of the Vietnamese authorities. These matters caused the Tribunal to doubt the applicant’s credibility.
The Tribunal also had access to country information, which it accepted indicated that the Vietnamese authorities were not greatly concerned with individuals considered to be historical opponents of the current government. This information further noted that government amnesties had been offered to political opponents, who had worked previously for the South Vietnamese government and individuals who had fled the country in 1975 were being welcomed back to Vietnam, provided that they engaged constructively with the current government.
The Tribunal found that the applicant came to Australia for personal reasons, relating to a sick relative, rather than to escape from the authorities in Vietnam. It further found that the applicant’s claim that one of his friends might disclose his previous involvement with the US Army to the Vietnamese authorities to be vague, speculative and lacking in credibility.[4]
[4] Ibid at page 218 [60]
In summary, under this heading, the Tribunal found as follows:
“Looking into the reasonable foreseeable future, the Tribunal is not satisfied that there is a real chance that applicant will face persecution in Vietnam because of his actual or imputed political opinion or because he will be viewed as anti-communist or anti-government or a spy. The Tribunal finds that the applicant's fear of persecution because of his actual or imputed political opinion is not well-founded.”[5]
[5] See casebook at page 218 [61]

b) Prolonged period of absence from Vietnam

The Tribunal noted that many thousands of Vietnamese citizens travelled to Australia for a multiplicity of reasons. In this context, it was noted that the policy of the Vietnamese government was not to discriminate against any of its nationals, who had become part of the Vietnamese diaspora. In these circumstances, the Tribunal rejected any submission that the applicant would face persecution because he had been a Vietnamese national residing overseas.

c) Failed asylum seeker

The Tribunal had country information available to it that indicated that the Vietnamese authorities did not harass or discriminate against citizens who had unsuccessfully sought asylum overseas and such individuals were able to secure registration in Vietnam, if their previous registration had lapsed. In this context, the Tribunal did not consider that the applicant faced a real chance of persecution, having departed Vietnam legally and because he had applied for asylum in Australia, if he was returned to Vietnam.
Finally, the Tribunal also found that there was no real risk that the applicant would suffer significant harm, as defined by section 36(2)(a) of the Act, if he was returned to Vietnam.

The legal framework applicable

Pursuant to section 65 of the Act, the Minister is required to grant a protection visa, if satisfied that all relevant criteria attaching to that visa have been satisfied by the applicant concerned.
The relevant criteria are set out in section 36 of the Act. In particular, pursuant to section 36(2)(a), a person is entitled to a protection visa, if he or she satisfies the definition of refugee contained in section 5H and section 5J of the Act.
These sections reflect the definition appearing in the Refugees Convention, to which Australia is a signatory and which provides that a refugee is a person who:
“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
The High Court has established that this definition has both subjective and objective elements. The question to be asked by the relevant decision maker being does the applicant subjectively fear persecution and is that fear objectively well founded.
In assessing the objective aspects, the decision-maker concerned must determine what is likely to happen to the applicant concerned if he or she is returned to the country. Necessarily these matters are predictive in nature. They are often encapsulated under the rubric of the real chance test.
In this context, the High Court has said as follows:
“The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant …
Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. …”[6]
[6] S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 478 – 479 [72] – [73]

Accordingly, in this case, the Tribunal was required to assess what was the real chance the applicant in this case would suffer persecution, if returned to Vietnam.
In cases such as Chan v Minister for Immigration[7] and Minister for Immigration v Guo,[8] the High Court has indicated that a fear can be well-founded even if there is no certainty or even probability that it will be realised; or even though there is only a ten percent chance that persecution will occur. However far-fetched possibilities of persecution must be excluded.
[7] Chan v Minister for Immigration (1989) 169 CLR 379
[8] Minister for Immigration v Guo (1997) 191 CLR 559
In addition, pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm. Subsection (2A) defines significant harm. It includes being subject to torture; being subjected to cruel or inhumane treatment; and degrading punishment and treatment. This is known as the complementary protection criterion.

The jurisdiction of the court

Pursuant to section 476(1) of the Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under section 75(v) of the Constitution”. The provision of the Constitution grants original jurisdiction, to the High Court, in matters of mandamus against any officer of the Commonwealth.
In his application, the applicant seeks that such a writ issue to the AAT, after its decision has been quashed, and it be directed to re-hear his application, according to law.
The jurisdiction conferred by section 474(1) of the Act, which stipulates that a wide variety of decisions, made under the Act, which are of an administrative nature are to be categorised as “a privative clause decision”.
Pursuant to the provisions of section 474 a privative clause decision is to be regarded as final and conclusive. As such, it cannot be subject to challenge, review or appeal. The decisions of the Tribunal, which the applicant seeks to review, in this case, are such privative clause decision as defined by section 474 of the Act.
However, the High Court has held that the provisions of section 476 do not prevent the review of decisions, made by the Tribunal, which are affected by jurisdictional error; have been made in bad faith; or in denial of natural justice.
In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[9]
[9] See Craig v South Australia (1995) 184 CLR 163
It is important to note that, in exercising its jurisdiction under section 476(1) of the Act, the court is not authorised to conduct a merits review of the hearing in question or to substitute its own findings of fact for those of the Tribunal.
In Minister for Immigration & Ethnic Affairs v Wu Shan Liang[10] the High Court said as follows:
“…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court.”
[10] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ

The applicant’s submissions

It is Mr Ower’s submission that the Tribunal has fallen into jurisdictional error by artificially creating three considerations, which it has considered as being germane to the situation of the applicant – namely, anti-government opinion; individuals absent from Vietnam for an extended period; and failed asylum seekers.
Thereafter, the Tribunal has considered whether grounds for protection arise from any of these circumstances individually, so far as the applicant is concerned. When the Tribunal has concluded that none of them separately does provide for a ground of protection, it has rejected the applicant’s claim.
In this context, Mr Ower contends that it is the jurisdictional obligation of the Tribunal to consider each individual integer of the applicant’s claim for protection to determine whether the statutory criteria, provided by section 36(2)(a) of the Act have been satisfied.
It being the jurisdictional obligation of the Tribunal to consider the claim for asylum made and each component integer thereof. If the Tribunal does not do so, it fails to complete the jurisdiction provided to it. It is to be distinguished from errant fact finding per se.[11]
[11] See Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42] per Allsop J (as His Honour then was)
In this particular case, Mr Ower submits that the Tribunal made three positive findings, in respect of the applicant’s situation, which are relevant components of the applicant’s claim for protection and which the Tribunal did not consider in their totality.
In so doing, the applicant’s claim for protection did not receive the “close consideration”, as stipulated by the High Court in Appellant S395/2002[12], which all such claims for protection require, particularly in respect of the degree of prediction required regarding what might befall the applicant personally, given his idiosyncratic characteristics, if he was returned to Vietnam.
[12] See Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2001] HCA 71 per Gummow & Hayne JJ
The relevant findings, on which Mr Ower places emphasis, can be summarised as follows:
·firstly, it was accepted that the applicant had a degree of association, with the US Army, during the Vietnam War;
·secondly, this fact was not known to the Vietnamese authorities, but was known to one individual, in Vietnam, namely a friend of the applicant and presumably this individual might disclose this at some stage in the future;
·thirdly, the applicant had refused to fight in Cambodia;
·finally, it was self-evident that the applicant had been absent, from Vietnam, for a period of approximately seven years.
It is Mr Ower’s submission, as I understand it, that the Tribunal was required to ask itself what would be the situation of a person, in this idiosyncratic situation, if returned to Vietnam, if all these factors became known to the relevant authorities. Mr Ower contends that it is apparent that the Tribunal did not so consider.
In this context, Mr Ower places particular emphasis on the following passage from Appellant S395/2002:
“Further, there is a serious risk of inverting the proper order of inquiry by arguing from an a priori classification given to the applicant, or the applicant's claim, to a conclusion about what may happen to the applicant if he or she returns to the country of nationality, without giving proper attention to the accuracy or applicability of the class chosen. That is, there is a real risk of assuming (wrongly) that a particular applicant will be treated in the same way as others of that race, religion, social class or political view are treated in that country.”[13]
[13] Ibid at [77]
Appellant S395/2002 was applied by Finn J in SWCB v Minister for Immigration & Multicultural Indigenous Affairs.[14] It is Mr Ower’s contention that the factual situation arising in that case is apposite to the personal circumstances of the applicant in the present case and illustrative of an analogous error having been committed by the Tribunal in the current matter.
[14] See SWCB v Minister for Immigration & Multicultural Indigenous Affairs [2004] FCA 1178
The applicant concerned in SWCB was an Albanian national, whose deceased husband had formerly been a member of the Democratic Party, in that country, which was opposed to the governing regime. The applicant contended that her husband had been murdered because of his membership of the party. She herself had also been a member of the party but never an office holder and had ceased to be active in it.
The applicant was also a psychiatrist, who had formerly practised her profession in Albania. She had been critical of a number of aspects of the manner in which the Albanian authorities administered psychiatric institutions in that country, including how doctors were directed, by the authorities, to make false assessments, particularly in the context of forensic diagnoses.
At first instance, the Tribunal concerned found that the applicant would not be at risk of persecution, if returned to Albania, because of her past association with the Democratic Party. Accordingly, it rejected her claim for protection. Finn J held that the Tribunal had failed to exercise the jurisdiction conferred upon it.
To utilise the terminology utilised by Finn J, the applicant concerned had been classified, for the purposes of her risk assessment, in a way, which did not conform to the particularised circumstances of the political opinion claim, which she had made. He determined that the applicant had been regarded as an ordinary party member, who did not have a political profile, rather than a member who may not have been a particularly active political participant but who nonetheless had a number of idiosyncratic personal characteristics, which might lead to her being attributed with some form of political profile – with adverse consequences for her.
In this sense, Finn J categorised the applicant’s claim as not being one of mere membership of a political party or of engaging in ordinary campaigning against the government, rather Finn J indicated as follows:
“Her claim, as I have indicated, had its own distinctive characteristics. She was a person who claimed identification with a party without actually being an active member of it; who says she was well known; and who used her professional standing and position both to criticise the government on mental health issues and corruption and to refuse to falsify her professional opinion when directed to do so.
It was as a claimant so circumstanced that the assessment had to be made. This did not occur. At best it was said that the applicant would not face a real chance of persecution for reason of her past political opinion. This, though, does not address what may happen if, on return, the applicant was to continue to express views critical of the government. The Tribunal could not properly expect the applicant “to hide the fact that … she holds the [views] in question”: Appellant S395 at [80]. It did not consider what the consequences for her might be if she continued as she had in the past.”[15]
[15] Ibid at [40]-[41]
It is Mr Ower’s submission that the Tribunal, in the current matter, fell into error by concluding that because the applicant had no current political profile, in Vietnam, he was not likely to face the prospect of persecution on return to Vietnam.
Essentially, the Tribunal did not properly conduct the predictive elements contained within the real chance test. It did not ask itself specifically what might happen to this person, if the Vietnamese authorities discover, for whatever reason, of his past associations with the US military, given his other personal circumstances.
Accordingly, Mr Ower argues that what the Tribunal should have considered was what were the likely risks to the applicant, if on his return to Vietnam, he was attributed a political profile by reason of his particular circumstances, including his past association with the US authorities; his refusal to be involved in the Cambodian conflict; and his lengthy period away from Vietnam. Mr Ower contends that the Tribunal did not consider this issue and therefore failed to acquit the jurisdiction conferred upon it.

The first respondent’s submissions

It is the submission of Mr O’Leary, counsel for the Minister that the Tribunal did conduct the idiosyncratic inquiry required of it. He submits that to contend otherwise would be to subject the reasoning of the Tribunal to the knit picking scrutiny of minutiae of which the High Court was critical in Wu Shan Liang.[16]
[16] See Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6
It is Mr O’Leary’s submission that this court, in conducting its obligations of judicial review, is required to give the Tribunal’s reasons a beneficial construction, which requires them to be read as a whole and in context.[17]
[17] See Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 [67] per Sackville J
In this context, it is Mr O’Leary’s submission that the Tribunal did consider all aspects of the applicant’s claim for asylum, particularly whether there was a real chance he would be subject to persecution, if returned to Vietnam, given his particular idiosyncrasies.
This included an assessment of the prospective risks applicable to the applicant, which included both his political profile in Vietnam and the circumstances surrounding his departure from that country. In this context, Mr O’Leary places emphasis on the following passage from the Tribunal’s decision.
“In conclusion the Tribunal is not satisfied the applicant faces a real chance of persecution for having departed Vietnam legally and because he applied for asylum in Australia. The Tribunal has considered the applicant’s claims both individually and cumulatively and the Tribunal is not satisfied that there is a real chance of persecution in Vietnam. The Tribunal finds that in the absence of a more significant profile, such as being a known political activist the chance of the applicant being targeted for harm having left Vietnam legally in June 2008 is too remote to amount to a real chance.”[18]
[18] See casebook at page 220 [75]
It is Mr O’Leary’s submission that a fair reading of the whole of the AAT’s decision indicates that it had no real doubt about its findings, particularly the remoteness of any possibility of harm befalling the applicant, if he returned to Vietnam.
This assessment included the remoteness of his involvement with the US Army, during the Vietnam War; the lack of difficulty experienced by him in departing from Vietnam in 2007; and country information, which indicated individuals returning from Vietnam after prolonged periods living overseas were not generally subjected to the adverse interest of the authorities.
Accordingly, Mr O’Leary contends that the Tribunal did acquit the jurisdiction conferred upon it and has neither misconstrued nor overlooked any of the grounds for protection clearly advanced by the applicant through any erroneous compartmentalisation of his claim.

Conclusions

The jurisdictional task posed for the Tribunal, by this application, was for it to determine whether Australia owed the applicant an obligation to provide him with protection because he was a refugee, as defined by section 5H of the Act. This, in turn, required it to make an assessment of what was the degree of risk, potentially arising for him personally, if returned to Vietnam because he might be subject to persecution there.
Assessment of persecution involves the application of the criteria provided by section 5J of the Act. The question arising for the Tribunal being whether the applicant has a well-founded fear of persecution based on his race, religion, nationality, membership of a particular group or political opinion.As previously indicated this assessment has both subjective and objective elements.
Necessarily, this requires an element of prognostication, on the Tribunal’s part, as to what might possibly happen to the applicant concerned, if returned, and whether it will involve serious harm or systematic discrimination, within the terms envisaged by section 5J(5).
In many, if not most cases, it will be impossible for the Tribunal to predict, with an assured degree of certainty, what will happen to any individual, who seeks this country’s protection because of his/her claim for refugee status. This difficulty, however, does not absolve the Tribunal from its jurisdictional obligation to give each such claim close and careful consideration, including in respect of each individual component of the claim for protection so advanced.
It is not the obligation of the Tribunal to make out the claim for the applicant before it or to search out for any particular grounds, which may not have been actually advanced by the applicant concerned. The Tribunal is not obliged to deal with claims not articulated and which do not clearly arise from the material before it. [19]
[19] See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 at [60]
However, the Tribunal is also required to be cognisant that many claimants for protection do not seek English fluently and may find it difficult, for all sorts of reasons, to advance their claims for asylum cogently and coherently before it. As the Full Court recognised in Dranichnikov v Minister for Immigration and Multicultural Affairs[20] an asylum seeker does not have to pick the correct “label” applicable to him or her arising under section 5J.
[20] Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49]
The Tribunal is required to deal with the case put before it. Accordingly it is a jurisdictional error for a decision maker not to consider a legislative criteria relating to protection, advanced by an applicant. As the High Court indicated in Applicants S134/202: “a decision maker cannot be said to be satisfied or not satisfied if effect is not given to those criteria because, for example, they have been misconstrued or overlooked.”[21]
[21] See Re Minister for Immigration & Multicultural & Indigenous Affairs and Anor; ex parte Applicants S134/202 (2003) 211 CLR 441 at [85]
As was pointed out in SWCB, as the task of assessing the chance of future persecution requires prediction, decision-makers frequently find it illustrative to examine how individuals, similar to the applicant, in the matter before them, have been or are currently being treated in the relevant country, as an aid to the determination of the real chance of persecution befalling the applicant with whom they are then concerned.
However, such an approach is not without its pitfalls, particularly if the comparisons utilised are too rigidly or exclusively applied, leading to the exclusion of a proper consideration of the actual claims for protection being made. The practice may result in the decision maker in question inadvertently overlooking the idiosyncratic features of the claim for protection being advanced, within these more generalised classifications, leading to a failure of jurisdiction.
It is Mr Ower’s contention that this is in fact what has occurred, so far as the applicant is concerned in this case. I do not agree. In my view, the Tribunal, notwithstanding its use of classificatory headings, did give active and proper considerations to all the individual circumstances of the applicant, particularly his previous relationship with the US Army and the possible consequences of the Vietnamese authorities learning of it, in the context of him being returned to Vietnam.
As was the case in SWCB, the applicant in the current matter did not have a history of actual personal persecution in his country of origin. However, in my view, there is no indication that the Tribunal extrapolated back from this finding alone to reach the conclusion that there was no real chance of persecution.

This was the criticism arising in SWCB, where it was found that no proper consideration had been given to the applicant’s history of activism within her profession in Albania and other matters, which had the potential to lead to her coming to the notice of the authorities there. In my view, the factual circumstances in SWCB and the current matter are significantly different.
For obvious reasons, every case must be considered according to its own circumstances. In this case, the events which may have led to the Vietnamese Government having an antipathetic attitude towards the applicant had happened many years ago. The applicant’s involvement with the US Army had not been definitively established and was not, in any event, a fact generally known in Vietnam. The applicant had been able to leave Vietnam legally. These were all factors, which clearly had significant influence on the Tribunal’s determination.
In the current matter, the Tribunal determined that it could not definitively rule out that the applicant had had an involvement with the US Army, as an adolescent, during the Vietnam War in the 1970s. It also accepted that he may have resisted conscription into the Vietnamese Army during the conflict in Cambodia. It found that these factors had not lead to the applicant coming to the notice of the authorities in any way.
This was a different situation to the applicant in SWCB, who been engaged in activities, which had the potential to be inimical to the Albanian authorities. In the current matter, what the applicant had done was leave Vietnam and seek asylum in Australia, factors which the Tribunal considered.
In these circumstances, in my view, the Tribunal actively considered whether these attributes, when coupled with the fact that he had left Vietnam legally, were likely to lead to him being subject to a real chance of suffering persecution. It concluded that they did not.
In my view, this exercise cannot be characterised as being artificially mechanical in nature, such that some obvious characteristic of the applicant, which he has advanced as a ground for protection, has been overlooked by the Tribunal. In my view, the applicant’s claims for protection did receive the close and careful consideration required.
It is clear from Appellant S395 that each individual case requires its own analysis, particularly in terms of it factual matrix. Very often, there will be a fine distinction between inconsequential findings and miss-findings of fact, which do not vitiate jurisdiction and failures to consider the gravamen of a claim for protection, including in respect of individual components of that claim, which does.
As the Full Court said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”[22]
[22] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 75 ALD 630 at 641 [47]
In my view, the reasons for decision in this case were comprehensive, particularly in respect of the applicant’s past experience in Vietnam from the early 1970s onwards. The Tribunal did not reject his evidence outright regarding his involvement with the US Army nor did it disregard his subsequent military history with the Vietnamese armed forces.
It is a misstatement of this process to assert that it was tantamount to a disregard of this material in the sense that it represented an overlooking of his idiosyncratic characteristics as an asylum seeker. Rather the Tribunal regarded this evidence in the light of what had happened to the applicant since these events had occurred, prior to reaching its substantive determination that he was not subject to a real chance of suffering persecution, if returned to Vietnam. As such, I do not consider that it can be said the Tribunal has overlooked a crucial aspect of the applicant’s claim for protection, which amounts to jurisdictional error.
To assert that the Tribunal has fallen into jurisdictional error, as a consequence of it not having explicitly either posed or answered the composite question, regarding the risk potentially arising to the applicant of him being attributed a political profile as a person involved with the US Army as a teenager, who had refused service in Cambodia and who had subsequently sought asylum in Australia is, in my view, to subject the otherwise extensive and comprehensive findings of the Tribunal to the level of hyper-scrutiny characterised by the High Court in Wu Shu Liang.
For these reasons, I have reached the conclusion that the application for review should be dismissed. The first respondent seeks costs. The cost of an application, pursuant to the relevant schedule of costs attached to the court’s rules is $7,328.00. In my assessment, this is an appropriate amount in the present matter.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 30 January 2018

[2018] FCCA 136

30 January 2018

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction