DKM22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 504
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DKM22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 504
File number: PEG 200 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 20 July 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to properly address the question of whether the first applicant’s fear of persecution was well-founded – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth), ss 5H, 36 & 476 Cases cited: AJS18 v Minister for Home Affairs & Anor [2019] FCCA 1108
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71
ARV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 426
CRP16 v Minister for Immigration & Anor [2017] FCCA 2957
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599
Minister for Immigration and Border Protection v SZSCA [2014] HCA 45
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of hearing: 15 May 2023 Place: Perth Counsel for the Applicants: Mr S Sharify Solicitor for the Applicants: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr T Lettenmaier Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 200 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DKM22
First Applicant
DLD22
Second Applicant
DLE22
Third Applicant
DLF22
Fourth Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
20 JULY 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent dated 30 September 2022.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicants’ application for review according to law.
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 KENDALL:
BACKGROUND
The first and second applicants are husband and wife respectively. Both are citizens of Vietnam (Court Book (“CB”) 1-5). They arrived in Australia in November 2009 as the holders of valid Australian student visas (CB 213).
The third and fourth applicants are the (minor) children of the first and second applicant. They were both born in Western Australia (CB 5-8).
On 12 August 2019, the first applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”). The second, third and fourth applicants were included in that visa application as members of the first applicant’s family unit (CB 1-77). Attached to that visa application were English translations of “Certificates of Completion of Re-Education Program” documents relating to the first applicant’s parents (CB 78-81) and a statement from the first applicant outlining his claims for protection (translated from Vietnamese on 5 August 2019) (CB 82-84). The application also contained extracts from various news articles and other country-related information (CB 85-92).
In his visa application, the first applicant claimed to fear harm from the Vietnamese government. In particular, he claimed that his mother was “incarcerated and tortured” because she had “worked for the old regime”. The first applicant claimed that he was “discriminated against and [that] his options for study and employment were limited due to his status as the son of parents who were involved with the old regime”. He also claimed that he “lived in fear of being persecuted by the [g]overnment because of his political opinion” and, further, that the persecution that he would be subjected to may include “kidnapping, arresting, torturing physically and mentally” and threats to his family. In the first applicant’s view, the only way for him to “avoid the persecution above would be to repress any expression of political opinion or criticism of the current regime” (CB 69-71).
Although the second, third and fourth applicants were included in the first applicant’s visa application, they did not raise any protection claims of their own.
On 26 June 2020, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas they were seeking (CB 113-127). The delegate was not satisfied that the first applicant met the criteria in s 5H(1) of the Migration Act 1958 (Cth) (the “Act”) and was thus not a refugee. The delegate was also not satisfied that first applicant was a person who was owed complementary protection under s 36(2)(aa) of the Act (CB 126).
On 10 July 2020, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 128-130). In their review application, the applicants provided contact details for their appointed representative (CB 130).
Additional documents were later provided to the Tribunal in support of the applicants’ review application, comprising an English translation of a statement from the first applicant’s mother and a letter of support from the Republic of Vietnam Veterans’ Association of WA Inc in relation to the first applicant (CB 135-136).
On 23 June 2022, the applicants were invited (through their representative) to attend a hearing before the Tribunal, scheduled for 27 July 2022 (CB 137-143).
On 18 July 2022, the applicants’ representative provided the Tribunal with written submissions, a character reference from the first applicant’s sister, a declaration signed by the first applicant, the first applicant’s response to the delegate’s decision (dated 8 July 2022) and a bundle of photographs and links to country information (CB 152-161).
On 19 July 2022, the Tribunal notified the applicants (through their representative) that the Tribunal hearing had been rescheduled to 23 August 2022 (CB 162-166).
On 23 August 2022, the first and second applicants appeared before the Tribunal to give evidence and present arguments. They were assisted by their representative and an interpreter in the Vietnamese and English languages (CB 171-175). The first applicant’s sister and the president of the Vietnamese RSL attended that hearing as witnesses (CB 171 & 175).
On 29 August 2022, the applicants’ representative provided the Tribunal with a letter from the first applicant and copies of the first applicant’s social media posts (with English translations) (CB 176-206).
On 30 September 2022, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas (CB 210-243).
On 20 October 2022, the applicants filed an application for judicial review and a supporting affidavit in this Court. An amended application was filed on 26 April 2023.
The applicants seek review of the Tribunal’s decision pursuant to s 476 of the Act. To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
APPLICATION TO THIS COURT
An amended application was filed on behalf of the applicants on 26 April 2023. That amended application contained a substituted ground of review, as follows:
1.The Tribunal fell into the error described by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
Particulars
a)The Applicant claimed that he would face persecution on the basis of his opposition to the Vietnamese Communist government.
b) The Tribunal found at [179]:
i.That the Applicant genuinely held such a political opinion but he had previously not voiced his opposition whilst living in Vietnam;
ii.The Applicant would not face serious harm because he would continue to not voice his opposition to the government if returned to Vietnam;
iii.The Tribunal was not satisfied that there was a real chance that the Applicant would suffer serious harm as a consequence of his political opinion.
c) By doing so:
i.The Tribunal failed to consider whether the Applicant had previously not voiced his opposition to the Vietnamese Government because he feared persecution; and
ii.The Tribunal misunderstood the definition of refugee, which can include someone who modifies his actions because of fear of serious harm.
The materials before the Court include the amended application for judicial review filed on behalf of the applicants on 26 April 2023, a Court Book numbering 245 pages (marked as Exhibit 1), written submissions filed on behalf of the applicants on 26 April 2023, written submissions filed on behalf of the Minister on 10 May 2023 and a list and bundle of authorities filed on behalf of the applicants on 12 May 2023.
The matter came before this Court for hearing on 15 May 2023. The applicants were represented at the hearing by Mr Sharify of counsel. The Minister was represented by Mr Lettenmaier of counsel.
CONSIDERATION
The applicants’ core contention is that the Tribunal erred by failing to properly consider whether the first applicant held a well-founded fear of harm.
The parties are in agreement that whether or not the Tribunal fell into error turns on the interpretation of one paragraph in the Tribunal’s reasons, which provides:
179.The Tribunal does accept that the first named applicant has a genuinely held political opinion opposed to the Vietnamese government however this opinion has been held by the first named applicant for a long time, including the periods of time that he lived, studied and worked in Vietnam. The applicant has claimed that in the past in Vietnam he held back his political views for fear of being harmed but that if he did return to Vietnam in the future, he would no longer hold back his views but would freely express them publicly and online. The Tribunal does not accept this claim by the applicant about how he would act upon return to Vietnam because based on his activities in Australia he has not actively participated in public political debate despite the opportunity to do so. Instead, he has confined his activities to attendance at some events held by Vietnamese groups in Australia, private comments to his close friends and some engagement with posts online. Given his past behaviour in Vietnam and given his low level of engagement in political activities in Australia, the Tribunal is not satisfied that if the first named applicant returned to Vietnam now or in the reasonably foreseeable future that he would voice his political opinion publicly and openly. Accordingly, the Tribunal is not satisfied that if the first named applicant returned to Vietnam now or in the reasonably foreseeable future that there is a real chance that he would suffer serious harm for reasons of his actual and imputed political opinion opposed to the current government in Vietnam.
As will be discussed below, the applicants submits that the Tribunal above has fallen into error of the kind described by the High Court in the decision of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (“Appellant S395/2002”). Relevantly, it is argued that the Tribunal assumed that the first applicant would act discreetly but did not ask why he would do so.
Relevant legal principles
Legislative scheme
As correctly submitted by the applicants (at [3] in written submissions filed in this Court on 26 April 2023), the eligibility criteria for a protection visa was succinctly summarised by the Federal Court in ARV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 426 as follows:
5…Particular criteria for a protection visa are set out in s 36 of the Act. Section 36 provides that a non-citizen in Australia will be eligible for that visa if the Minister is satisfied that Australia has protection obligations to that person for one or other of the following reasons:
(1)The person is a refugee (s 36(2)(a)). This is known as the “refugee criterion”.
(2)The Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a “real risk” that the non-citizen will suffer significant harm (s 36(2)(aa)). This is known as the “complementary protection criterion”.
(3)A person is a member of the same family unit as a non-citizen referred to in ss 36(2)(a) or (aa) (s 36(2)(b)–(c)).
6The term “refugee” is relevantly defined in s 5H of the Act to mean a person who is outside his or her country of nationality and “owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country”. A person has a “well founded fear of persecution” if the person “fears being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion”; there is a “real chance” that, if the person returned to the receiving country, the person would be persecuted for one or more of those reasons; and the real chance of persecution relates to all areas of the receiving country (s 5J(1)). For a person to have a “well-founded fear of persecution” under s 5J(1)(a), the reason for that fear must “be the essential and significant reason” for the persecution, the persecution must involve “serious harm” to the person, and it must also involve “systematic and discriminatory conduct” (s 5J(4)).
7Without limiting what constitutes serious harm, the Act provides in s 5J(5) some “instances” of “serious harm”.
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
8In order to suffer “significant harm” for the purpose of satisfying the complementary protection criterion, s 36(2A) provides:
A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
Failure to properly consider whether there is a real chance of persecution
The applicants submit that the Tribunal fell into error of the kind described by the High Court in the decision of Appellant S395/2002.
In Appellant S395/2002, the Tribunal found that, whilst living in Bangladesh, the appellants had suffered no serious harm by reason of their being gay because they had “clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now”: Appellant S395/2002 at [21]. On that basis, the Tribunal determined that the appellants had no well-founded fear that they would be persecuted if they returned to Bangladesh and the appellants were, accordingly, not refugees: Appellant S395/2002 at [21].
In Appellant S395/2002, the High Court quashed the Tribunal’s decision, with Justices McHugh and Kirby (in the majority) finding that the Tribunal had erred by failing to consider why the appellants would live discreetly and whether that “was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly”: Appellant S395/2002 at [35].
Essentially, as set out by this Court in AJS18 v Minister for Home Affairs & Anor [2019] FCCA 1108, Appellant S395/2002 enshrined the principle that a person claiming harm as a refugee because of a central part of their personal or cultural identity (such as their sexuality or political opinion and affiliations) should not be denied protection because they are seen to have the “option” of concealing that part of their identity. Hence, it should not be assumed, for example, that a gay male can avoid harm by acting “discreetly”. To require concealment of that sort is both offensive to the individual and, given what concealment or invisibility often actually requires, harmful in its own right. Appellant S395/2002 makes that clear.
Before considering the conduct of the Tribunal in the present matter, it is useful to first set out the High Court’s findings in in Appellant S395/2002 in some detail in relation to the issue of “discretion”.
Relevantly, the High Court in Appellant S395/2002 determined:
34.Much of the appellants’ argument in this Court was directed to the claim that the Tribunal had required them “to be ‘discreet’ about their membership of a group.” In answer, the Minister submitted that the Tribunal had imposed no such requirement. He contended that it merely found that the appellants would live discreetly in the future, as they had done in the past, because “there is no reason to suppose that they would not continue to do so if they returned home now.” It was for that reason, so the Minister contended, that the Tribunal found the appellants had no well-founded fear of persecution. In our view, these contentions of the Minister are correct.
35.The reasons of the Tribunal show, however, that it did not consider whether the choice of the appellants to live discreetly was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly. It did not consider whether persons for whom the government of Bangladesh is responsible condone or inculcate a fear of harm in those living openly as homosexuals, although it seems implicit in the Tribunal’s findings that they do. Nor did the Tribunal’s reasons discuss whether the infliction of harm can constitute persecution where an applicant must act discreetly to avoid that harm. Nor did they discuss whether, if the appellants wished to display, or inadvertently disclosed, their sexuality or relationship to other people, they were at risk of suffering serious harm constituting persecution. If the Tribunal could not have properly exercised its jurisdiction without considering these matters, it has fallen into jurisdictional error and the Federal Court should have set aside the Tribunal’s decisions.
…
40.The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution. Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a “particular social group” if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.
41.History has long shown that persons holding religious beliefs or political opinions, being members of particular social groups or having particular racial or national origins are especially vulnerable to persecution from their national authorities. The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them. It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention. As Simon Brown LJ stated in Secretary of State for the Home Department v Ahmed:
“It is one thing to say ... that it may well be reasonable to require asylum seekers to refrain from certain political or even religious activities to avoid persecution on return. It is quite another thing to say that, if in fact it appears that the asylum seeker on return would not refrain from such activities – if, in other words, it is established that he would in fact act unreasonably – he is not entitled to refugee status.” (original emphasis)
42.Simon Brown LJ went on to say:
“[I]n all asylum cases there is ultimately but a single question to be asked: is there a serious risk that on return the applicant would be persecuted for a Convention reason? If there is, then he is entitled to asylum. It matters not whether the risk arises from his own conduct in this country, however unreasonable.”
43The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
Ultimately, the Tribunal was found to have misdirected itself by failing to appreciate that the definition of refugee is someone who has a well-founded fear of persecution, even if they would or could be expected to live discreetly. That the appellants could or would live discreetly was not an answer to the question of whether they would do so because of a fear of persecution.
Parties’ submissions
Applicants’ written submissions
In this matter, the applicants’ written submissions provide, relevantly, as follows (at [6]-[10]):
(a)the first applicant is a citizen of Vietnam who claimed, inter alia, fear of persecution because of his opposition to the Communist Party government of Vietnam (at [154], CB 231);
(b)the Tribunal found (at [179], CB 237):
The Tribunal does accept that the first named applicant has a genuinely held political opinion opposed to the Vietnamese government however this opinion has been held by the first named applicant for a long time, including the periods of time that he lived, studied and worked in Vietnam. The applicant has claimed that in the past in Vietnam he held back his political views for fear of being harmed but that if he did return to Vietnam in the future, he would no longer hold back his views but would freely express them publicly and online. The Tribunal does not accept this claim by the applicant about how he would act upon return to Vietnam because based on his activities in Australia he has not actively participated in public political debate despite the opportunity to do so. Instead, he has confined his activities to attendance at some events held by Vietnamese groups in Australia, private comments to his close friends and some engagement with posts online. Given his past behaviour in Vietnam and given his low level of engagement in political activities in Australia, the Tribunal is not satisfied that if the first named applicant returned to Vietnam now or in the reasonably foreseeable future that he would voice his political opinion publicly and openly. Accordingly, the Tribunal is not satisfied that if the first named applicant returned to Vietnam now or in the reasonably foreseeable future that there is a real chance that he would suffer serious harm for reasons of his actual and imputed political opinion opposed to the current government in Vietnam.
(c)the above passage manifests a clear error of the kind described by the High Court in Appellant S395/2002. In that case, the applicants were gay men from Bangladesh. The Tribunal found that while living in Bangladesh, the applicants had suffered no serious harm by reason of their sexual identity and (at [21]):
clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now.
(d)accordingly, the Tribunal held that the applicants had no well-founded fear that they would be persecuted if they returned to Bangladesh, and accordingly, they were not refugees;
(e)the High Court quashed the decision, with Justices McHugh and Kirby (in the majority) saying that the Tribunal had erred by failing to consider why the appellants would live discreetly and whether that “was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly”: Appellant S395/2002 at [35]. Their Honours continued (at [43]):
The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many — perhaps the majority of — cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
(f)similarly in the present case, the Tribunal has misdirected itself by failing to appreciate that the definition of refugee is someone who has a well-founded fear of persecution, even if they would or could be expected to hide their political opinion. That the first applicant would hide his political opinion is not an answer to the question of whether he fears persecution; and
(g)this error is clearly material because, had the Tribunal not made it, there was a realistic possibility that it could have found that the first applicant satisfied the definition of refugee under the Act: Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 (“SZMTA”) at 611 [45] per Bell, Gageler and Keane JJ .
Applicants’ oral submissions
In oral submissions before this Court, Mr Sharify (on behalf of the applicants) submitted that:
(a)if the Court considers that the Tribunal made a finding that the first applicant did not comment politically in Vietnam for a reason other than his fear of harm, the applicants concede that this “would not manifest jurisdictional error”;
(b)on a fair reading of the Tribunal’s decision, the Court cannot make such a finding;
(c)the Tribunal (at [140]) accepted that the first applicant holds a political opinion – that is, that he fits a particular social group – which is what the High Court emphasised in Appellant S395/2002 it was required to do;
(d)the Tribunal recounted (at [90]) that the first applicant said that he did not comment in Vietnam because he feared for his safety and (at [94]) that he did not comment in Australia because he feared for his safety;
(e)the Tribunal recounted further that the first applicant said that he had two choices (if returned to Vietnam) – he could either stay silent or speak and be persecuted – both of which, he said, would be a breach of his fundamental human rights (at [43]-[44]);
(f)this is what the High Court found in Appellant S395/2002 – that is, if a concealment of one’s traits were allowed such that one would not meet the definition of a refugee, it would undermine the purpose of the Refugee Convention;
(g)this case asks, simply: has the Tribunal asked the right question? The first applicant argues that it has not done so. It has not asked why the first applicant would hide his opinion;
(h)further, on a fair reading of the Tribunal’s reasons as a whole, it can be implied that the Tribunal has accepted that the first applicant is not voicing his opinion to avoid persecution (although there is no specific finding to that effect). The Tribunal appears to direct its attention and inquiry to the fact that the first applicant will not voice his opinion and, as such, will not face persecution;
(i)contrary to the Minister’s submission, there is nothing in the Tribunal’s decision that characterises the first applicant’s failure to “speak out” in Australia as being a decision based on the fact that he was “removed from harm whilst in Australia”. In fact, the first applicant has specifically said that he has not spoken out because he also fears harm in Australia;
(j)contrary to the Minister’s submissions (in relation to [112] in the Tribunal’s decision), the first applicant’s response to the Tribunal’s question about the first applicant being outside of Vietnam for so long and being so quiet was that the “Vietnamese government was like a mafia organisation” and the first applicant “had to be very careful about whatever he did”. This response simply “reinforces the error that the Tribunal made continuously by directing its enquiry to whether the first applicant would speak openly”. By doing so, it has “misconceived what persecution means” and overlooked that it “means fearing the consequence”;
(k)a fair reading of [179] of the Tribunal’s reasons shows that there were two reasons for the Tribunal not accepting that the first applicant would speak openly about his political opinion upon his return to Vietnam (without an emphasis on either). The first reason is his previous conduct in Vietnam. The second reason relates to his conduct in Australia. Whilst the Minister would like the Court to infer that there was some finding made about the first applicant “not being active in Australia because he was not such a political person,” this is a stretch. No such finding was made by the Tribunal;
(l)the manner in which the error was described in Appellant S395/2002 was “interesting” in that it was described (by Justices McHugh and Kirby) as “a failure to consider”. In particular, the High Court said that “when the Tribunal finds that there is a concealment (and for that reason the person will not be harmed), the Tribunal has to consider the reason for the concealment”;
(m)there is nothing in the Tribunal’s decision in this matter that would constitute a consideration of the first applicant’s reasons for concealment; and
(n)whilst the Court should not look at the Tribunal’s decision “with an eye finely attuned to error”, it should also not look at the decision “with an eye finely attuned to apologising for the Tribunal’s error”.
Minister’s written submissions
The Minister’s written submissions relevantly provide (at [30]-[36]):
(a)Appellant S395/2002 provides that it is an error for the Tribunal to conclude that persecution does not exist if the person avoids such persecution by concealing their relevant opinions or behaviour. If such concealment is motivated by fear or something else, the Tribunal may be required to assess the reasons for an applicant’s concealment or abandonment of an opinion or behaviour: Appellant S395/200 at [34]-[35].
(b)it is well established that the Tribunal’s decision should be read as a whole: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [14];
(c)here, the Tribunal undertook the consideration required by Appellant S395/2002 and relevantly found that:
(i)the first applicant had waited almost 10 years after arriving in Australia before applying for the visa (at [105], CB 224);
(ii)the first applicant had spent almost 20 years outside of Vietnam without having done anything that would give him an adverse public profile in relation to the Vietnamese government (at [112], CB 225);
(iii)the first applicant’s activities with RVA Veterans’ Groups and online had been low level and low profile (at [133], [158]-[162] & [173], CB 228-229 & 232-234);
(iv)the credibility of the first applicant’s claim that his father had been contacted by police in Vietnam because of the first applicant’s online activity was such that it rejected this claim entirely (at [163]-[170], CB 233-234);
(d)the Tribunal’s reasons demonstrate that it considered that the first applicant having not actively engaged in substantial or significant public anti-government activities whilst he had the opportunity to do so safely in Australia was critical. In that context, the Tribunal rejected the first applicant’s claim that he would not hold back his views in Vietnam and was not satisfied that he would voice his political opinion publicly and openly;
(e)further, the Tribunal did not find that the first applicant would completely conceal his political opinion. Rather, it accepted that he would post online as he had been whilst in Australia but that this conduct would not result in a real chance of harm in the reasonably foreseeable future;
(f)overall, the Tribunal’s decision demonstrates that it engaged with the question of whether the first applicant’s lack of active participation in public political debate was influenced by the threat of harm from the Vietnamese government. It is implicit in the Tribunal’s decision that, given the first applicant had not been actively participating in public political debate in Australia (removed from the influence of the Vietnamese government), the Tribunal was not satisfied that his past reticence to do so in Vietnam was influenced by a fear of harm. Rather, whilst the first applicant was political, his level of political activism was such that he would only sporadically re-post or comment on anti-government content on social media if he returned to Vietnam (at [179], CB 237); and
(g)if the Court is satisfied that the Tribunal committed an error as alleged by the applicants, the Minister does not dispute that it would be material.
Minister’s oral submissions
In oral submissions before this Court, Mr Lettenmaier (on behalf of the Minister) submitted as follows:
(a)the Tribunal was concerned that, by the time it assessed the matter, the first applicant had spent 20 years outside of Vietnam and had not engaged in high-level political activity during that period of time;
(b)the Tribunal (at [179]) notes that the first applicant claimed that he held back his political views in the past out of fear of being harmed but, if he did return to Vietnam, he would freely express his views publicly. Based on the first applicant’s activities in Australia, the Tribunal did not accept that that was the case;
(c)the Tribunal focuses on the fact that the first applicant had spent so long outside of Vietnam, had only attended “a few RSL events each year” and would not be identified publicly;
(d)the Tribunal essentially says that the first applicant was not political in Vietnam and, whilst accepting that he has “anti-government opinion”, his conduct whilst outside of Vietnam (by simply volunteering at commemoration services for the RSL once or twice a year and posting online) suggests that the first applicant would “do the same” upon his return;
(e)the Tribunal’s reasons (at [112]) essentially capture the Minister’s position. The Tribunal pointed out to the first applicant that he had “not taken any public action that would provide him with a public profile” and queried why it should accept that the first applicant would do anything in the future to “create such a public profile”;
(f)the Tribunal’s scepticism is “driven” by the first applicant’s delay in seeking protection in Australia (some 10 years after his arrival) and the fact that he has “otherwise done very little politically whilst here”;
(g)it was open to the Tribunal to base its scepticism of the first applicant’s claims on the fact that he has “not done things whilst outside of Vietnam because the context is not the same” and the first applicant’s “fear of harm is by the Vietnamese government in Vietnam” (and not in Australia);
(h)the Tribunal (at [179]) simply does not accept that the first applicant was “a particularly political person” or that “his concealment in the past had been motivated by fear”; and
(i)the Tribunal does (at [179]) set out a summary of the first applicant’s claims (noting that he claimed to have held back his political views because of fear) and states that it does not accept that claim or the claim about how the first applicant would act upon his return.
Whether the Tribunal’s decision in this matter was affected by jurisdictional error
Before considering the findings made by the Tribunal at [179] (outlined above at [21]), it is useful to first set out some of the other comments made by the Tribunal in relation to the first applicant’s feared harm, political profile and past activities in Vietnam.
The Tribunal outlined the first applicant’s evidence in relation to his claimed fear of harm as follows:
40.The first named applicant stated that he would like to ask for political asylum for himself and his family. If he returned to Vietnam and publicly expressed his political view against the current regime, he was really fearful that he would be arrested and persecuted by the Vietnamese government.
…
43.The first named applicant claimed that if he had to return to Vietnam, he would have two choices. The first choice was his conscience, and he needed to express his political dissent and support activities that would help to change the current regime. But, based on what happens to public political dissenters, if he did that he would certainly be persecuted by the government. The methods of persecution by the government would be kidnapping, arresting, torturing physically and mentally. In addition, they could threaten his family and make it difficult for his family to earn a living. He claimed that these methods had been used by the government to deal with political dissenters in Vietnam for many years.
44.The first named applicant claimed that his second choice, for the safety of his family and himself, would be to lead a lying life. He had to keep silent and conceal his true political views to survive. He claimed that this would be against his will and his conscience. He stated that both these choices would take away his basic human rights.
The Tribunal accepted that the first applicant’s family “would have a profile in Vietnam” and, as a result, the first applicant would also be linked to that profile, as follows:
140.The Tribunal accepts, on the basis that his parents were known to have been active in the Republic of Vietnam army, that the first named applicant's family would have a profile in Vietnam as holding an actual or imputed (or both) political opinion in support of the old regime and, therefore as being opposed to the current government of Vietnam. The Tribunal also accepts that this actual and imputed political opinion would equally apply to the first named applicant, as well as to all other member of his parents’ family.
The Tribunal then detailed its discussion with the first applicant about his past political activity in Vietnam as follows:
90.The Tribunal asked the first named applicant what actions he had taken in the past to promote his political views and his political inclination. The first named applicant responded that when he was in Vietnam, he didn’t advance his ideas because he knew he would be in trouble. He stated that since he moved overseas, he started to participate in different occasions celebrating the history of Vietnam and in particular the history of the Republic of Vietnam. He mentioned that he had attended the events commemorating 30 April and the day to celebrate the history of the Republic of Vietnam Armed Forces. He stated that he was not a member of the organisations that were organising these events, but he tried to help at the gatherings. He stated that he also participated in the Vietnam Day events on 18 August.
…
94.The Tribunal asked the first named applicant if he had ever made any critical public comments about the Vietnamese government or the political situation in Vietnam. He responded that he had presently not dared to do so as yet because he was afraid.
As outlined above, the Court emphasises the findings made by Justices McHugh and Kirby in Appellant S395/2002 that:
43…In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
Justices Gummow and Hayne characterised the error made by the Tribunal in Appellant S395/2002 as follows:
88.This reveals the error made by the Tribunal. The Tribunal did not ask why the appellants would live “discreetly”. It did not ask whether the appellants would live “discreetly” because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well‑founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention…
The Court also notes Justice Gageler’s summary of the issue in Appellant S395/2002 in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 as follows (citations omitted):
35.The definition of “refugee” in Art 1A(2) of the Refugees Convention contains four cumulative elements: (1) the person concerned must fear “persecution” in the country of his or her nationality; (2) the persecution so feared must be “for reasons of race, religion, nationality, membership of a particular social group or political opinion”; (3) that fear of persecution for one or more of those Convention reasons must be “well-founded”; and (4) the person must be outside the country of his or her nationality “owing to” that well-founded fear.
36.Appellant S395/2002 v Minister for Immigration and Multicultural Affairs was concerned with the third element of the definition. The principle for which that case stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution. The rationale for the principle was encapsulated by Dyson JSC as a member of the Supreme Court of the United Kingdom which adopted the principle in HJ (Iran) v Secretary of State for the Home Department:
“If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him. The Convention would be failing in its purpose if it were to mean that a gay man does not have a well-founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country.” (emphasis in original)
As outlined by Judge Smith (then of this Court) in CRP16 v Minister for Immigration & Anor [2017] FCCA 2957 (“CRP16”) at [25], the principle in Appellant S395/2002 is “not limited to findings about expectations, but also goes to circumstances where a putative refugee ‘would … hide’ some characteristic that is protected by the Convention”.
As set out above, the Tribunal here found (at [179]) that:
…Given his past behaviour in Vietnam and given his low level of engagement in political activities in Australia, the Tribunal is not satisfied that if the first named applicant returned to Vietnam now or in the reasonably foreseeable future that he would voice his political opinion publicly and openly.
It is evident that what the Tribunal has failed to do is consider why the first applicant would not voice his political opinion publicly or openly. It simply assumed that the first applicant would do so. As was the case in CRP16, the Tribunal’s finding here was based on what the first applicant had done in the past. However, the first applicant had explained that he had not voiced his political opinion in the past in Vietnam because he feared that he would be harmed.
It is not disputed that the first applicant claimed that he had modified his behaviour in order to avoid harm in Vietnam (and, to a lesser extent, in Australia). The Tribunal itself (in paragraphs referenced above) noted the first applicant’s evidence that he had not promoted his political views when he was in Vietnam because he “knew he would be in trouble” and had “not dared to do so”.
The Court considers that the Tribunal’s ultimate finding (at [179]) was based on the assumption that the first applicant’s conduct upon return to Vietnam would be “similarly constrained”.
This approach is problematic. Importantly, the Tribunal has erred (in the manner described in Appellant S395/2002) by failing to consider why the first applicant would “live discreetly” (by not voicing his political opinions) and whether that “was a voluntary choice uninfluenced by the fear of harm” if he did not do so: Appellant S395/2002 at [35]. By not doing what was required of it, the Tribunal has “failed to [properly] address the question of whether the [first] applicant’s fear of persecution was well-founded” and has “constructively failed to exercise its jurisdiction”: CRP16 at [30].
Jurisdictional error on the part of the Tribunal has been established.
The parties in this matter were in agreement that, in the event that the Court found that the Tribunal had erred in the manner claimed by the applicants (as the Court has done above), any such error would be material (see [10] in applicants’ submissions filed in this Court on 26 April 2023 and footnote to [36] in the Minister’s submissions filed in this Court on 10 May 2023).
The Court agrees. Having viewed the Tribunal’s decision as a whole, it cannot be said that the Tribunal’s failure to consider why the first applicant would not voice his opinion publicly or openly could not have made a difference to the outcome. Where an error is material or could have realistically deprived an applicant of the opportunity for a successful outcome, that error is jurisdictional: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [27] [30]; SZMTA at [4], [45] & [50] and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [38]-[39].
CONCLUSION
The applicants’ amended application for judicial review filed in this Court on 26 April 2023 has identified jurisdictional error on the part of the Tribunal.
The Tribunal’s decision will be set aside and the matter remitted for reconsideration according to law.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 July 2023
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