DRT17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 416
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DRT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 416
File number(s): SYG 2588 of 2017 Judgment of: JUDGE LAING Date of judgment: 23 May 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal erred in its consideration as to whether the applicant faced a real chance of serious harm or real risk of significant harm – whether the Tribunal failed to consider integers of the applicant’s claims – application dismissed Legislation: Migration Act 1958 (Cth) Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503
BSL15 v Minister for Immigration and Border Protection [2018] FCA 1898; (2018) 76 AAR 574
CFK16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 470
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 6 April 2023 Place: Sydney Date of last submissions: 21 April 2023 Counsel for the Applicant: Ms N Maddocks Solicitor for the Applicant: Varess Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2588 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DRT17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
23 May 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
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 LAING
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a protection visa.
BACKGROUND
The applicant is a citizen of Vietnam. He arrived in Australia by boat on 19 May 2013.
On 14 April 2014, the applicant applied for a protection visa. Whilst the application was originally made for a Class XA protection visa, this was subsequently taken to have been an application for a Class XD (temporary) protection visa on account of legislative amendments.
The Delegate refused the application on 5 August 2015.
On 19 August 2015, the applicant applied to the Tribunal for review of the Delegate’s decision. The applicant appeared before the Tribunal on 3 April 2017.
On 14 July 2017, the Tribunal affirmed the Delegate’s decision not to grant the applicant a protection visa.
THE TRIBUNAL’S DECISION
The Tribunal accepted that the applicant was a citizen of Vietnam: at [23].
However, the Tribunal found aspects of the applicant’s evidence to be “lacking in detail, implausible, contradictory and unconvincing”. The Tribunal considered that a number of issues impacted upon its finding that the applicant was “not a reliable or credible witness”. These included the Tribunal’s concerns that the applicant had “made significant new claims during the hearing” and that there were “a number of inconsistencies in his evidence which raise[d] issues in relation to the veracity of his claims”: at [25].
In relation to the applicant’s claims, the Tribunal found as follows:
(a)Catholic religion: The Tribunal accepted that the applicant and his family were Catholic and that the applicant regularly attended Church and a Youth Group in Vietnam. The Tribunal did not accept that the applicant was bullied or discriminated against at school on account of his religion, although accepted that he may have been subjected to some discrimination in the community. The Tribunal did not accept that this discrimination amounted to serious or significant harm. The Tribunal did not accept that the Youth Group undertook any political activities. Nor did the Tribunal accept that the applicant was mistreated by the authorities for his religion or prevented from practising it freely in Vietnam. The Tribunal did not accept the applicant’s claims regarding an incident in which the authorities were claimed to have beaten and arrested members of the Youth Group. It did not accept that the applicant faced a real risk of relevant harm on account of his religion if he returned to Vietnam (at [71]-[79]).
(b)Illegal departure: The Tribunal accepted that the applicant left Vietnam illegally and that his mother and aunt made the arrangements (at [88]). After considering available country information, the Tribunal did not accept that the applicant’s cumulative circumstances gave rise to a real chance of being arrested, charged and imprisoned on his return to Vietnam in relation to leaving Vietnam unlawfully and without the permission of the authorities. The Tribunal therefore did not accept “any of his claims that flow[ed] from that”. Accordingly, the Tribunal did not accept that there was a real chance that the applicant would be at risk of relevant harm due to his illegal departure from Vietnam and/or because he left Vietnam without the permission of the authorities (at [79]-[90]).
(c)Failed asylum seeker/Returnee from the West: The Tribunal accepted that the applicant accessed social media and had a Facebook account in a different name. However, the Tribunal did not accept that he participated in political activities on social media or that he had an adverse political profile for this reason. After considering information before it, including country information, the Tribunal was not satisfied that there was a real chance of the applicant facing relevant harm by reason of being a failed asylum seeker and/or a returnee from the West and/or someone who is considered to be Westernised and/or someone who has lived in the West for a considerable period of time (at [91]-[114]).
(d)Actual or imputed political opinion – Anti-government and anti-Communist/In favour of the West: The Tribunal was not satisfied that the applicant held political opinions that would motivate him to become involved in anti-government, anti-Communist or pro-democracy activities on his return. Nor was the Tribunal satisfied that the applicant would be imputed with political opinions that may expose him to a real chance of harm on account of his having been involved with the Catholic Church, a Youth Group, or social media, or on account of his cumulative profile as an asylum seeker returning from the West who was affected by a data breach and had not registered for or undertaken military service. In respect of the latter issue, the Tribunal did not accept that the applicant had evaded or refused to undertake military service or that he would do so on return to Vietnam (at [115]-[128]).
(e)Compulsory military service: The Tribunal considered this aspect of the applicant’s claims at [129]-[146] of its decision. The Tribunal accepted that the applicant would be required to undertake compulsory military service on his return to Vietnam and that he would prefer not to do so as he considered that this would not benefit him (at [143]-[146]). The Tribunal then reasoned as follows:
144.The Tribunal does not accept that the applicant has a conscientious objection to military service. The Tribunal does not accept that he came to Australia for the purpose of avoiding military service or that he will seek to evade military service if he returns to Vietnam. The Tribunal does not accept that he has refused to undertake military service or that he will do so on his return to Vietnam. The Tribunal does not accept that he has failed to report for military service or that he will do so on his return to Vietnam. The Tribunal is not satisfied that there is a real chance that he will be prosecuted for refusing to undertake military service or evading military service on his return to Vietnam.
145.The Tribunal is not satisfied, on the evidence before it, that the applicant is at risk of serious harm or significant harm because he has not registered for military service. The Tribunal is not satisfied that he will be imputed with an anti-government and anti-Communist political opinion or that he will be perceived as being a political dissident on the basis that he failed to register for military service.
146.For the reasons given above, the Tribunal is not satisfied that there is a real chance that the applicant would be at risk of serious harm for reason of his failure to register for military service if he returns to Vietnam now or in the reasonably foreseeable future.
(f)Data breach: The Tribunal accepted that some of the applicant’s personal information was inadvertently published on the Department’s website for a short period of time in February 2014. The Tribunal accepted that this information may have been accessed by the Vietnamese authorities and that they may infer that he had applied for asylum. However, the Tribunal did not accept that this or the information disclosed would result in the applicant being imputed with an adverse profile of such a nature as to give rise to a real chance of relevant harm (at [147]-[159]) and [167]).
Having regard to the above, the Tribunal concluded that the applicant was unable to meet the criteria for the grant of the visa (at [170]-[171]). Accordingly, the Tribunal affirmed the Delegate’s decision (at [172]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 16 August 2017. He ultimately relied upon an amended application filed on 6 April 2023 containing the following grounds:
1. The Tribunal erred in its consideration as to whether the applicant faced a real chance of serious harm or real risk of significant harm if he returned to Vietnam due to his status as a failed asylum seeker and/or his illegal departure.
Particulars
a. At [101]-[105], the Tribunal set out country information which it discussed with the applicant and to which the Tribunal had regard (Country Information).
b. The Country Information recorded that “Vietnamese nationals who depart the country unlawfully may be subject to a fine upon return” (see [103]) and that “some returnees may be briefly detained and interviewed” (see [105]).
c. The Tribunal accepted this Country Information, at [106].
d. Notwithstanding the Tribunal’s acceptance of this Country Information, the Tribunal gave no consideration to whether the payment of a fine, and/or any brief detention and interviewing, amounted to serious and/or significant harm.
2. The Tribunal failed to consider an integer of the applicant’s claim that he feared harm on the basis that he has failed to report for military service.
Particulars
a. In a submission to the Tribunal dated 13 April 2017, it was claimed that “[the applicant] is concerned that once he is in the custody of the authorities, under the auspices of this "questioning", he will be taken to enlist for military service” (CB 189).
b. The Tribunal gave no consideration to whether any brief detention and questioning amounted to serious and/or significant harm.
c. In failing to consider whether the applicant would be detained and questioned, the Tribunal thereby failed to consider whether the applicant would be taken to enlist for military service as a result of any such questioning, and whether the applicant faced a real chance of serious harm or real risk of significant harm on this basis.
3. The Tribunal failed to consider integers of the applicant’s claim to fear harm as a person with an actual and/or imputed anti-government political opinion.
Particulars
a. In a submission to the Minister’s Department dated 5 December 2014, it was claimed that an anti-government political opinion would be imputed to the applicant:
i. because of his home province (CB 103); and
ii. on the basis that the Youth Group were praying for political prisoners and advocating for a greater religious freedom (CB 105).
b. The Tribunal did not accept that the Youth Group were accused of being against the government simply because they prayed for people, at [52].
c. However, the Tribunal failed to consider whether an anti-government political opinion would be imputed to the applicant because of his home province or for reason that the Youth Group were advocating for greater religious freedom.
Ground 1
Ground 1 contended that the Tribunal failed to consider whether the payment of a fine, and/or any brief detention and interviewing, amounted to serious and/or significant harm. This was notwithstanding its acceptance of country information indicating that a fine, brief detention and interviewing were potential consequences of the applicant’s unlawful departure from Vietnam. The applicant contended that the Tribunal therefore did not fully consider the applicant’s illegal departure and failed asylum seeker claims by not making findings regarding the treatment and sanctions that he may face. This was contended to have resulted in the Tribunal failing to perform its statutory task and failing to form the state of satisfaction required for the review: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [46] and BSL15 v Minister for Immigration and Border Protection [2018] FCA 1898; (2018) 76 AAR 574 at [62]-[67].
At [82] of its decision, the Tribunal considered the following country information (footnotes omitted):
The Tribunal discussed with the applicant country information that indicates as follows:
Vietnamese nationals who depart the country unlawfully, including without travel documents, may be subject to a fine upon return under Article 21 (regarding 'Violations of the regulations on exit, entry and transit') of the Decree on Sanctions against Administrative Violations in the Sector of Security and Social Order. A fine of between VND 2 million and VND 10 million (approximately AUD$120-600) is specified for leaving Vietnam without a passport or equivalent, departing without undergoing official exit procedures, or departing using another person's documents.
At [84], the Tribunal had regard to country information indicating that policy in relation to those who had travelled to Australia illegally by boat was “to facilitate return through diplomatic channels and treat returnees as victims rather than criminals”. That country information indicated that “Post is not aware of any changes to this policy and has received no information of returnees being subject to penalties or mistreatment”.
The Tribunal had regard to the fact that the applicant was a minor at the time that he left Vietnam and had never claimed to have organised for people to leave Vietnam illegally. The Tribunal considered that the country information it had set out at [84] of its decision indicated “that he will be treated as a victim rather than as an offender” (at [85]).
At [89], the Tribunal concluded that in light of the country information before it, it was “not satisfied that there [was] a real chance that the applicant will be arrested, charged and imprisoned on his return to Vietnam because he left Vietnam illegally”. The Tribunal concluded that it was not satisfied that the applicant faced a real chance of serious harm on this basis (at [90]).
At [103] and [105], the Tribunal had regard to the following country information:
103.… Vietnamese nationals who depart the country unlawfully may be subject to a fine upon return (as described under 'Returning political activists' above). Notwithstanding these fines, DFAT understands that people who have paid money to organisers of people smuggling operations are generally viewed by the government as victims of criminal activity rather than as criminals themselves. We understand that in the past some returnees have been held for a brief period upon return for the purpose of interview by the Ministry of Public Security in order to obtain information relevant to the investigation of people smuggling operations…
…
105.… While some returnees may be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people smuggling operations.
At [106], the Tribunal stated that it had accepted the country information that was before it. That information was said to indicate that failed asylum seekers who were returned to Vietnam “were not charged with leaving Vietnam illegally” and that the few returnees who were charged under Article 275 of the Vietnamese Penal Code were charged for being the organisers of illegal activities. At [107], the Tribunal stated that it was not satisfied that there was a real chance that the Vietnamese authorities would “arrest, charge and imprison” the applicant in relation to his illegal departure. The Tribunal concluded that it was not satisfied that the applicant would face a real chance of relevant harm as a failed asylum seeker (at [114] and [165]-[169]).
Having regard to the above, I do not accept that the Tribunal failed to engage with the evidence regarding the potential consequences that the applicant may face due to his illegal departure and/or whether they were capable of amounting to a real chance of relevant harm.
As was submitted by the Minister, the Tribunal did not accept that the applicant would be “arrested, charged and imprisoned” upon return to Vietnam on account of his illegal departure (at [89] and [107]). This was in circumstances where, although the Tribunal accepted country information indicating that (a) “some returnees may be briefly detained and interviewed” (at [105]) and (b) “Vietnamese nationals who depart the country unlawfully… may be subject to a fine upon return under Article 21” of around AUD$120-600 (at [105]), it also relied upon country information indicating that previous returnees from Australia had been subject to a policy facilitating their return through diplomatic channels and that there was no information indicating that such returnees had been “subject to penalties or mistreatment” (at [84] and [106]). The Tribunal therefore does not appear to have accepted that the applicant would be detained for any period in custody or that he would be charged or subjected to any penalties or mistreatment (including a fine).
I therefore do not accept that the Tribunal failed to make findings regarding whether the applicant would be detained (during which he may be interviewed) or fined. Whilst the Tribunal may have expressed its findings with greater clarity, it does not appear to have accepted that these consequences would occur in the applicant’s case.
Even if the Tribunal had not rejected that the applicant would be “arrested” and/or “charged”, I would still have likely regarded the Tribunal’s reasoning at [82]-[90] and [103]-[114] as dispositive in this case: see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593 at [47]. In this regard, it would have been open to the Tribunal to have acknowledged the possibility of the applicant receiving a fine of around AUD$120-600, and the possibility that he may be briefly detained and questioned (through its acceptance of country information to this effect) and yet to have concluded as it did (at [90], [114] and [165]-[169]) that the applicant would not face a real chance of relevant harm on account of his illegal departure and/or as a failed asylum seeker. This was in circumstances where the applicant had not claimed that a fine in the order of AUD$120-600 would, in his particular circumstances, result in any effect capable of amounting to serious or significant harm and it has not been demonstrated that such a potential consequence “clearly emerge[d]” in the sense considered in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 (AYY17) at [18] and [26]. The information that was relied upon by the Tribunal also did not indicate that someone in the applicant’s position may be mistreated during any brief period of questioning (at [82]-[84] and [102]-[105]).
Having regard to the above, I accept the Minister’s submission that the Tribunal lawfully formed its state of satisfaction that the applicant would not face a real chance of relevant harm upon return to Vietnam.
It follows that ground 1 is unable to succeed.
Ground 2
Ground 2 contended that the Tribunal failed to consider an integer of the applicant’s claim that he feared harm on the basis that he had failed to report for military service. Specifically, the applicant contended that the Tribunal failed to consider his claim that “once he is in the custody of the authorities, under the auspices of this "questioning", he will be taken to enlist for military service”. The Tribunal was submitted to have failed to consider whether the applicant would therefore be exposed to increased risk during questioning for the reason that he had failed to undertake military service, or would be “taken to enlist” for military service.
For the reasons given above, I do not accept that the Tribunal failed to consider whether the applicant would be detained and questioned. The Tribunal does not appear to have accepted that this would occur (at [89] and [107]).
In any event, the Tribunal accepted that the applicant would be required to undertake compulsory service on return to Vietnam (unless granted an exemption) (at [143]). However, the Tribunal did not accept that the applicant had any conscientious objection to military service, or that he would seek to evade it (at [144]). The Tribunal therefore did not accept that the applicant faced a real chance of relevant harm for evading or failing to register for military service. Nor did the Tribunal accept that the applicant would be imputed with any adverse political profile on this basis (at [143]-[146]).
Having regard to the above, it is apparent that the Tribunal did not accept that the applicant would face an increased risk that was capable of resulting in a real risk of relevant harm, during any interactions with the authorities or otherwise, on account of not having undertaken or registered for military service (at [145]-[146] and [165]).
I accept that the Tribunal did not specifically consider whether the applicant having to undertake military service on return to Vietnam would itself result in a real chance of relevant harm. However, I am not persuaded that it was obliged to do so. The applicant appears to have made no claim of this beyond his claims to face harm as a conscientious objector who had not registered. Those claims were not accepted by the Tribunal (at [129]-[146]). I am not satisfied that a claim that military service would otherwise amount to relevant harm “clearly emerge[d]” on the materials. As was submitted by the Minister, there appears to have been no evidence before the Tribunal capable of demonstrating that the imposition of military service otherwise met the requirements of ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth). Attention has not been drawn to such evidence by the applicant and, in any event, the fact that a claim might be said to have arisen from materials would have been insufficient: see AYY17 at [18].
It follows that ground 2 is unable to succeed.
Ground 3
Ground 3 contended that the Tribunal failed to consider integers of the applicant’s claim to fear harm as a person with an actual and/or imputed anti-government political opinion. Specifically, the ground contended that the Tribunal failed to consider whether an anti-government political opinion would be imputed to the applicant because of his home province or for reason that the Youth Group were advocating for greater religious freedom.
In written submissions, the applicant stated that he did not press particular (a)(i) of the ground and conceded that the claim that the applicant would be imputed with an adverse political opinion due to his home province was dealt with by the Tribunal at [119] of its decision. However, the applicant pressed that the Tribunal had failed to consider whether he would be imputed with such an opinion on the basis of activities he had undertaken as a member of the Youth Group, which had included praying for people and advocating for greater religious freedom. Although the applicant acknowledged that the Tribunal did not accept that the Youth Group were accused of being against the government simply because they prayed for people (at [52]), he submitted that the Tribunal failed to consider whether the Youth Group advocated for religious freedom or whether he would be imputed with an adverse political opinion as a result of having undertaken such activities as a member of the Youth Group.
The Minister submitted that even if a “substantial, clearly articulated” claim was made that the Youth Group were “advocating for greater religious freedom” (which was disputed), then this claim was abandoned in the sense considered in cases such as CFK16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 470 at [59]-[73]. This was in circumstances where the Delegate did not refer to the Youth Group “advocating for greater religious freedom” and the applicant did not submit to the Tribunal that this aspect of his claims was overlooked.
I am unable to accept this. The applicant’s submissions made to the Tribunal after the Delegate’s decision repeatedly emphasised that the applicant continued to rely upon the previous information and documents provided for the purposes of his claims for protection (at CB 166, 174 and 186). I am therefore not persuaded that any claim that the applicant made in this regard was abandoned simply because it was not specifically referenced in later submissions.
However, the difficulty with this aspect of the applicant’s claims is that it appears to have been devoid of further content. The applicant did not say how the Youth Group were “advocating for greater religious freedom” beyond their activities such as supporting the Church and praying. The Tribunal did not accept that such activities resulted in the imputation of an adverse political opinion that was capable of resulting in a real chance of relevant harm (at [52], [78], [119] and [169]).
In any event, at [73] of its decision the Tribunal stated that although it accepted that the Youth Group helped out at the Church, performed charitable works in the community and prayed, it did “not accept that they undertook any political activities”. This finding was dispositive of the applicant’s claim that the Youth Group “advocated for greater religious freedom” in any manner that may be regarded as a political activity, which was not accepted by the Tribunal.
Having regard to this and to the Tribunal’s rejection at [119] that the applicant would be imputed with an adverse political opinion on account of his involvement with the Youth Group, I am not persuaded that ground 3 is able to succeed. In particular, I am not persuaded that this aspect of the applicant’s claims was overlooked by the Tribunal. Instead, I find that it was dealt with in the Tribunal’s reasoning at [52], [73], [78] and [119] and [169].
CONCLUSION
For the above reasons, I have not found that the Tribunal’s decision was affected by jurisdictional error.
It follows that I am obliged to dismiss the application. I will hear from the parties in relation to costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Laing. Deputy Associate:
Date: 23 May 2023
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