DUR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1379
•11 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DUR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1379
File number(s): MLG 3591 of 2019 Judgment of: JUDGE J YOUNG Date of judgment: 11 December 2024 Catchwords: MIGRATION – application for judicial review – Safe Haven Enterprise (Subclass 790) visa – where Immigration Assessment Authority affirmed decision of first respondent that first applicant is not a person in respect of whom Australia has protection obligations – whether the Authority’s findings were illogical or unreasonable – whether the Authority’s decision lacked an evident or intelligent justification – found the Authority’s reasoning was intelligent and its conclusion was open to it – whether the Authority failed to consider certain country information – found the Authority did not expressly refer to the country information but did consider the substance of the information in its reasons – found no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2), 473CB, 474, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2
Cases cited: AFX17 v Minister for Immigration and Border Protection [2018] FCAFC 103
AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317; [2018] FCAFC 103
Craig v South Australia (1995) 184 CLR 163
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 97
EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167
King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 2 December 2024 Place: Melbourne Counsel for the Applicants: Mr Bhasin Solicitor for the Applicants: Oxford Law Group Solicitor for the First Respondent: Mr Mintz of Clayton Utz Second Respondent: Submitting appearance save as to costs ORDERS
MLG 3591 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DUR19
First Applicant
DUS19
Second Applicant
DUT19
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
11 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The Amended Application filed on 9 July 2024 be dismissed.
3.The Applicants pay the First Respondent’s costs fixed in the sum of $8,371.30.
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 J YOUNG
Before the Court is an Amended Application filed on 9 July 2024, in which the applicants seek judicial review of a decision of the second respondent (Authority) dated 18 September 2019. By that decision, the Authority affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicants a Safe Haven Enterprise (Subclass 790) visa (Visa).
CONTEXT
The applicants are citizens of Vietnam. The first and second applicant are husband and wife, respectively, and the third applicant is their daughter.
On 17 March 2013, the first and second applicant (Applicants) arrived in Australia by boat as unauthorised maritime arrivals.
On the same day, entry interviews were conducted with the Applicants by the Department of Immigration and Citizenship (Entry Interview). The Applicants were assisted by an interpreter in the Vietnamese and English languages at the Entry Interview.
On 15 August 2016, the Department of Immigration and Border Protection (Department) sent the Applicants an invitation to apply for a Temporary Protection (Subclass 785) visa or a Safe Haven Enterprise (Subclass 790) visa.
On 28 August 2017, with the assistance of a migration agent, the Applicants applied for the Visa. The first applicant was the primary applicant, whilst the second and third applicants were included in the Visa application as members of the first applicant’s family unit. The Applicants each advanced claims for protection in separate Statutory Declarations both dated 28 August 2017 and attached to the Visa application. Relevantly, the Applicants’ claims for protection can be summarised as follows:
(1)the Applicants are of Kinh ethnicity and are Catholic;
(2)the Applicants were married in September 2011 and registered their marriage in March 2012. On 19 April 2012, the Applicants first child was born;
(3)on 1 July 2012, the Applicants and the first applicant’s father attended a church in Con Cuong to practice their Catholic faith and demonstrate against the government. There were thousands of people in attendance. During the mass, a large group of police officers and criminal thugs came into the church and attacked the churchgoers, including the Applicants. The Applicants suffered injuries and were arrested and taken to Con Cuong police station where they were interrogated. The Applicants were accused of opposing the government’s communist regime and told that they were not allowed to attend mass again;
(4)on 10 July 2012, the Applicants received a police summons to report to the station on 12 July 2012. The Applicants reported to the police station where they were held for approximately four hours, questioned and again warned not to attend mass or participate in further church activities. The Applicants were told that they would be imprisoned for acting against the government if they did not adhere to this direction. The first applicant’s father was also summoned, detained and warned not to practice his faith;
(5)the first applicant’s father ceased his activities as a member of the church committee and prayed at home. The Applicants continued to attend church but believed they were being monitored by police in plain clothes. They made plans to leave Vietnam;
(6)sometime in January 2013, the Applicants received another police summons but did not report as directed as they were fearful of being arrested and imprisoned;
(7)in January 2013, with the assistance of people smugglers, the applicants fled Vietnam due to their fear of persecution, leaving behind their 11 month old daughter and arriving in Australia in March 2013; and
(8)the Applicants fear that they will be arrested, beaten and imprisoned due to their previous resistance against the police, their religion and persistent practice of faith, their political opinion, fleeing the country illegally by boat and being failed asylum seekers.
Annexed to the Statutory Declarations were several documents, including a copy of a Vietnamese police summons for the first applicant and translation document.
On 8 July 2019, the Department invited the Applicants to attend an interview on 31 July 2019 to discuss their Visa application (Visa Interview). The Applicants further expanded upon their claims at the Visa Interview.
On 9 August 2019, the Delegate refused to grant the Applicants the Visa (Delegate’s Decision).
On 13 August 2019, the Delegate’s Decision was referred to the Authority for review.
On 23 August 2019, the Applicants appointed a registered migration agent as their representative (Representative).
On 2 September 2019 the Applicants’ Representative provided the Authority with a submission and supporting documentation on behalf of the Applicants (IAA Submission). The IAA Submission can be summarised as follows:
(1)the Delegate’s Decision was made without full and proper enquiry and without sufficient consideration of the Applicants’ personal circumstances;
(2)the Delegate’s adverse findings with respect to the Applicants’ testimony were irrational and held to such a high standard of proof that ultimately debilitated their chances of success;
(3)the Delegate unreasonably relied on general country information to dismiss the risk profile of the Applicants’ religious faith and failed to allow the Applicants an opportunity to respond to adverse country information; and
(4)the Delegate mischaracterised the Applicants’ claims relating to their risk of harm as failed asylum seekers because the Delegate failed to acknowledge their existing political profile and applied an overly simplistic and misinformed view.
On 3 September 2018, the Applicants’ Representative provided the Authority with further supporting documentation in support of the IAA Submission.
On 18 September 2019, the Authority affirmed the Delegate’s Decision not to grant the Applicants the Visa.
AUTHORITY DECISION
The Authority issued its statement of decision and reasons on 18 September 2019 (Authority Decision).
Information considered by the Authority
At paragraph [3] of the Authority Decision, the Authority stated that it had regard to the material referred to it by the Secretary under s 473CB of the Migration Act 1958 (Cth) (Act).
At paragraph [4], the Authority stated that it had received the IAA Submission and to the extent that it contained legal submission and matters which were before the Delegate, it had considered it. The Authority noted that the IAA Submission also contained new country information, a copy of an online newspaper article regarding the treatment of returned asylum seekers and Facebook material and photographs which it considered to be new information.
At paragraph [5], the Authority considered the new country information contained in IAA Submission. Given the Applicants had been represented at the time of lodging the Visa application and noting that there was ample country information also from authoritative sources before it, the Authority was not satisfied that exceptional circumstances existed to justify considering the new information.
At paragraph [6], the Authority considered the Facebook posts and photographs of the first applicant attending protests in Australia contained in the IAA Submission. The Authority could not be satisfied as to whom the Facebook pages belonged nor its contents, as it had not been translated. In any event, the Authority noted that the first applicant’s attendance at these events was accepted by the Delegate and thus was not satisfied that exceptional circumstances existed to justify considering the new information.
Consideration of claims
At paragraphs [11] – [15] of its decision, the Authority summarised the Applicants’ claims for protection.
At paragraphs [16] – [18] of its decision, the Authority made a number of factual findings regarding the Applicants, including that they are of Kinh ethnicity and Catholic, that they practiced their religion in Vietnam and continue to practice in Australia and that they have two children, one of which remains in Nghe An province with the Applicants’ extended family.
At paragraphs [19] – [25] of its decision, the Authority considered the Applicants’ claim regarding the incident on 1 July 2012. The Authority found that the evidence provided by the Applicants was inconsistent with independent country information from contemporaneous news articles relating to the event. The Authority did not accept that the Applicants or the first applicant’s father were present at the demonstration against the Vietnamese government at the Catholic church in Con Cuong on 1 July 2012.
At paragraphs [27] – [34] of its decision, the Authority considered the Applicants’ claim to fear harm on the basis of their religion. The Authority referred to the DFAT 2017 Country Information Report on Vietnam dated 21 June 2017 (DFAT Report) and considered it indicated that Catholics did not face a real chance of harm on the basis of their religion alone. While the Authority accepted that the Applicants were Catholic and would therefore continue to follow their faith on return to Vietnam, the Authority did not accept that they would face a real chance of harm on that basis. Further, the Authority did not accept that the Applicants participated in any other protests in support of Catholicism which may cause agitation. The Authority found that there was no material to suggest that the Applicants had ever experienced past harm or adverse attention as a result of their Catholic faith or church attendance.
At paragraph [35] of its decision, the Authority accepted that the first applicant had attended several political protests against the Vietnamese government in Australia but that his attendance at these events would not be known to the Vietnamese authorities. The Authority found that the first applicant’s participation in these events was that of a low-level supporter. The Authority accepted that the first applicant would continue to participate in political protests on his return to Vietnam, however the Authority was not satisfied that such engagement in political activity as a low-level protester or supporter would attract a real chance of harm now or in the reasonably foreseeable future.
At paragraphs [36] – [42] of its decision, the Authority considered the Applicants’ claim to fear harm on return to Vietnam as failed asylum seekers. The Authority accepted that the Applicants may be briefly detained and interviewed on return but that they do not hold adverse profiles and as such would not face a real chance of harm on their return despite being identified as failed asylum seekers.
At paragraphs [43] – [44] of its decision, the Authority considered the Applicants’ personal and financial circumstances and was satisfied that the Applicants would be able to regain steady employment, pay for education related fees for the third applicant and that the Applicants would not face a real chance of harm on their return for any other reason associated with their long-term residence in Australia or absence from Vietnam should they return to Vietnam.
Cumulatively, having regard to independent country evidence such as the DFAT Report and the Applicants’ circumstances and accepted claims, the Authority was not satisfied that the Applicants faced a real chance of harm on return to Vietnam now or in the foreseeable future for any of the reasons claimed. The Authority found that the Applicants did not have a well-founded fear of persecution.
Accordingly, the Authority was not satisfied that the Applicants met the criteria in sections 36(2)(a) or (aa) of the Act and thereby affirmed the Delegate’s Decision.
APPLICATION FOR JUDICIAL REVIEW
The applicants applied for judicial review of the Authority’s decision on 18 October 2019.
The applicants filed an Amended Application on 9 July 2024 which contains the following ground for judicial review (without amendment):
The IAA’s decision that the first applicant did not face a real chance of harm by reason of his likely political activity and Catholic faith was legally unreasonable and/or illogical and/or irrational and displays jurisdictional error.
(a)The IAA accepted that the applicants were Catholics and that they will continue to follow their faith on return to Vietnam: [32].
(b)The IAA accepted that the first and second applicants hold views in support of freedom of expression and religion, and that they strongly follow their Catholic faith, and that they hold views opposed to the Vietnamese government: [34].
(c)The IAA accepted that the first applicant would continue to engage in political activity (in the form of political protests) if returned to Vietnam: [35].
(d)The DFAT country information report (2017) before the IAA stated that the religious observance and practice of Catholics “only becomes an issue when it is perceived to challenge the authority or interests of the CPV and its policies”: [3.10].
(e)The DFAT country information report (2017) before the IAA stated that serious incidents of violence perpetrated by the authorities against Catholics were “related to other activities such as protesting against land confiscation and anti-government activities”: [3.13].
(f)The DFAT country information report (2017) before the IAA stated that individuals and groups who protest against the Government or openly criticise the CPV “are likely to attract adverse attention from the authorities”.
(g)Nevertheless, the IAA found that it was not satisfied that the first applicant would face a real chance of harm in the process of engaging in any future political activity in Vietnam or that he would have a profile that would attract adverse attention from the authorities on return: [35].
(h)In light of the DFAT country information report (2017), the IAA’s decision lacked an evident or intelligible justification and was legally unreasonable, illogical and irrational.
The applicants filed the following further material in support of the Amended Application:
(1)an affidavit annexing a copy of the Authority Decision filed on 18 October 2019;
(2)written submissions filed on 4 November 2024; and
(3)an affidavit annexing a copy of the DFAT Report filed on 27 November 2024.
The Minister filed a Response on 14 November 2019. The Response sought orders that the application be dismissed and orders as to costs on the ground that the Authority Decision is not affected by jurisdictional error.
The Minister also filed written submissions on 18 November 2024.
The Hearing
The hearing took place on 2 December 2024.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
As already set out, the task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Ground 1
Applicants’ submission
By Ground 1 the applicants submit that the findings made by the Authority in relation to the risk of harm posed to the first applicant as a result of the combination of his political activity and his Catholic faith lacked a logical or rational basis and/or were based on a legally unreasonable process of reasoning.
The applicants rely on the DFAT Report which the Authority also relied on in its decision. The applicants submit that the DFAT Repot contained various “critical passages” to which the Authority failed to refer, as follows:
…
[3.10]DFAT has observed that Catholics are able to practise freely at registered churches and that bibles and other religious texts are readily available in cities and towns. DFAT assess that religious observance and practice only becomes an issue when it is perceived to challenge the authority and interests of the CPV and its policies.
…
[3.13]DFAT assesses that Catholics in remote areas who practise at unregistered churches can be subject to periodic incidents of harassment and intimidation. DFAT is aware of more serious incidents of violence, such as local authorities beating citizens; however, this generally appears to be related to other activities such as protesting against land confiscation and anti-government activities rather than merely due to a person’s religion.
…
[3.28]Individuals and groups who protest against the Government or openly criticise the CPV are likely to attract adverse attention from authorities. Credible in-country contacts stated that actively protesting against land confiscation, human rights issues or the government’s handling of issue will result in protests being shut down, police intimidation and harassment.
…
[3.29]DFAT assess low-level protesters and supporters often feel intimidated by police presence and are sometimes detained and released the same day by authorities. There have been a few reported cases of uniformed and plain-clothes officers using violence to break up protests in 2016, such as beating protesters with batons to disperse crowds.
…
The applicants submit that the DFAT Report therefore made clear that Catholics were at risk when engaging in political or anti-government activities, even at the level of supporter. Whilst the applicants do not take issue with the Authority’s refusal to consider other country information, they submit that having done so the Authority was required to grapple with the obvious matters contained in the DFAT Report on which it did rely.
The applicants submit that the Authority’s reasoning was as follows:
(a)The first applicant was a Catholic and would continue to practise his Catholic faith on return to Vietnam but did not face a risk of harm as a result of his Catholic faith.
(b)The first applicant had genuinely engaged in protest activity against the Vietnamese government in Australia and would continue to do so on return to Vietnam. However, this was at the level of a low-level protestor or supporter and as a result the first applicant did not face a risk of harm as a result of his protest activity.
(c)The first applicant did not face a risk of harm as a result of any combination of his protest activity and his Catholic faith.
The applicants submit that the Authority did not set out any reasoning to explain its “critical” conclusion in (c) above. In light of the extracted DFAT Report passages as set out in paragraph [38] above, the applicants submit that the Authority’s decision lacked an evident or intelligent justification and was arbitrary and legally unreasonable.
Consideration
The applicants submit that, in making its decision, the Authority was required to identify an evident and intelligible justification for its decision: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), [76]; EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167, [69]; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, [66]. It was necessary for there to be probative evidence for findings and for those findings to have a rational basis: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 , [34]. The Authority’s findings could not be arbitrary or abandon common sense: King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152, [54]. In considering the question of whether the decision is legally reasonable, the applicant submits that the Court must consider the legality of the Authority’s approach by reference to the reasons it gave for its decision: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, [47]. Further, that the Court should treat what the Authority said as a complete explanation for the approach and should not go beyond that explanation: AFX17 v Minister for Immigration and Border Protection [2018] FCAFC 103, [60] - [61]. The applicants submit an absence of reasoning justifying a conclusion in the Authority’s reasons will lead to the result that there is no evident or intelligible justification for the decision and thus that it is unlawful.
The correctness of the above is not contested by the Minister.
To the above authorities, the Minister added the following, the correctness and applicability of which is not contested by the applicants:
(a)the threshold for establishing legal unreasonableness amounting to jurisdictional error is high. The applicable standard had been described as “stringent”, and as involving more than mere disagreement (even “emphatic” disagreement) with the manner or outcome of the exercise of the power: Li, [30], [108]-[109], [113]; Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW) at [11], [135]; DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DNK17);
(b)there is an area of “decisional freedom” within which reasonable minds may reach different conclusions about the correct or preferable decision: Li at [28], [66]; and
(c)legal unreasonableness includes, but is not limited to, a decision that is so unreasonable that no reasonable decision-maker could ever have come to such a decision, or a decision that lacks any “evident and intelligible justification”, where it is not apparent how the decision could have been reached: Li, [68]; SZVFW, [82]; DNK17, [70].
The applicants also submitted that AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317; [2018] FCAFC 103 at [61] and NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55] are applicable by analogy. I reject that submission. Those authorities are directed to the question of whether the Administrative Appeals Tribunal failed to consider claims made either expressly or impliedly by the applicants. At the hearing, the applicants expressly stated that they did not contend that the Authority had failed to consider a claim made by them, either expressly or impliedly. Their contention is that the Authority failed to provide reasons for its conclusion that the first applicant did not face a risk of harm as a result of the combination of his Catholic faith and protest activity. As such, the Authority lacked an evident and intelligible justification for its decision. It was therefore legally unreasonable and/or irrational.
The characterisation, as irrational or illogical, of a finding made as part of the reasoning process underpinning a conclusion on a jurisdictional fact, is not easily made. The applicants must do more than merely disagree with the reasoning or resulting finding: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [124] per Crennan and Bell JJ. Engaging in a process of reasoning that is illogical or irrational is taken to refer to “extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [148].
Relevant findings of the Authority
It is useful to first set out the specific relevant findings of the Authority.
As already set out, at paragraph [18] of its decision, the Authority accepted that the Applicants are Catholic, practiced their religion in Vietnam and have continued to practice their religion in Australia.
At paragraph [32] the Authority said:
In this case, I accept the applicants have claimed that in May 2017, the police arrested their priest, Father Thuc Dinh Nguyen, due to his political activism. However, a news article relating to these events, provided by the applicants, does not support this claim (Prisoners of Conscience May 2017). Firstly, it indicates that the priest was from a different parish to that identified by the applicants’ as their parish, which raises doubts he was their parish priest. Secondly, the articles states that the authorities arrested a high-profile blogger and political activist who was travelling in the same car as the priest. The priest did not appear to have been harmed in the incident. I am not satisfied that the first and second applicant’s priest was arrested as claimed, and nor am I satisfied that this incident in any way evidences a future real chance of harm to the applicant on return to Vietnam.
At paragraph [34] the Authority said:
I accept that the first and second applicants have resided in Australia since 2013, that the third applicant was born here, and that all of the applicants have embraced Australia’s culture during that time. I accept that the first and second applicants hold views in support of freedom of expression and religion, that they strongly follow their Catholic faith, and that they hold views opposed to the Vietnamese government. I have rejected that the first and second applicant attended any protests at Con Cuong or otherwise in Vietnam. The second applicant stated and I accept that she did not attend any protests in Australia. Noting she has not attended protests in Vietnam or Australia when she had the opportunity to do so, I consider she will not have any interest in doing so on return to Vietnam. I am not satisfied that she will attend protests of any kind on return to Vietnam now or in the reasonably foreseeable future. I am not satisfied that the first, second or third applicants face a real chance of any harm for any reason associated with the political activity or opinions of the second applicant on return to Vietnam now or in the reasonably foreseeable future.
At paragraph [35] the Authority said:
I accept that in 2017 and 2018 the first applicant attended several political protests against the Vietnamese government here in Australia. The evidence does not indicate that his attendance at these events is known to the Vietnamese authorities or that there is a real chance it will become so in the reasonably foreseeable future. In any event, his evidence does not indicate he was an organiser or leader of any of these events, and nor does his activity here indicate he is a high-profile blogger or activist. I find his participation in these activities and is, at best, that of a low-level supporter. I am not satisfied that he, or the second or third applicants, face a real chance of any harm on return to Vietnam due to the first applicant’s political activity in Australia. I accept the first applicant will continue to engage in political activity in Vietnam. However, having regard to his activities in Australia, I am not satisfied that that he will become a leader or organiser of such activities; rather I find he would continue to participate at the same low-level at which he is currently engaged. I find that at most he will have a profile as a low-level protester or supporter, that he will not be a high profile blogger or activist, and having regard to the above country information and his particular profile discussed above, including his Catholic religion, that he is from Nghe An, and his activities in Australia, I am not satisfied that he will face a real chance of harm in the process of engaging in any future political activity in Vietnam or that he will otherwise have a profile that will attract adverse attention from the authorities or anyone else on return. On the totality of the evidence before me, I am not satisfied that the first, second or third applicants face a real chance of harm now or in the reasonably foreseeable future for any reason associated with the first applicant’s political opinion or any future political activity he undertakes on return to Vietnam.
At paragraph [45] the Authority concluded as follows:
On all the totality of the evidence before me, including the independent information and the applicants’ particular circumstances and accepted claims taken individually and cumulatively, I am not satisfied that the applicants face real chance of serious harm or persecution due to their illegal departure from the Vietnam. Nor am I satisfied that they otherwise face a real chance of harm on return to Vietnam now or in the reasonably foreseeable future for any of the reasons claimed. They do not have a well-founded fear of persecution.
Country information
It is uncontested that the Authority referred to the DFAT Report at paragraphs [26] - [30], [37], [39], [41], [43] and [44] of its decision.
As set out above, the applicants assert that the Authority failed to consider [3.10], [3.13], [3.28] and [3.29] of the DFAT Report (Disputed Paragraphs) and submit that these paragraphs of the DFAT Report made clear that Catholics were at risk when engaging in political or anti-government activities, even at the level of a supporter. I reject those submissions.
Firstly, while I accept that the Authority did not expressly refer to the Disputed Paragraphs by number, I consider that the Authority did consider the substance of the Disputed Paragraphs. The full text of the Disputed Paragraphs is set out in paragraph [38] above. In relation to:
(a)[3.10] of the DFAT Report, I consider the substance of this paragraph was considered by the Authority at paragraph [27] of its decision. The Authority noted that the Vietnamese Constitution enshrines a right to freedom of belief and religion but remained intolerant of open political expression against the Communist Party of Vietnam (CPV) and that laws are used to curb political dissent and limit religious freedom;
(b)[3.28] and [3.29] of the DFAT Report, I consider the substance of these paragraphs were also considered by the Authority at paragraphs [27], [28] and [29] of its decision. As set out above, at [27] the Authority noted that the government remained intolerant of open political expression against the CPV and that laws in relation to undermining peace, national independence and unity are routinely used to curb political dissent. At [28] the Authority noted that serious incidents of violence occur in relation to activities such as protesting against land confiscation and anti-government activities. At [29] the Authority noted that persons known to authorities as active organisers or leaders of political opposition are at high risk of being subject to surveillance, detention, arrest and prosecution and that “in contrast”, low level protesters and supporters may be injured in crowd disbursement, feel intimidated by police and in some cases may be detained and released the same day. It is to be noted that [3.28] and [3.29] of the DFAT Report are included under the heading “Political Opinion (Actual or Imputed)” and under the sub-heading “Supporters and Protesters” and make no reference to the relevance of religious belief to political protest; and
(c)[3.13] of the DFAT Report, I consider the substance of this paragraph was considered by the Authority at paragraph [28] of its decision, in so far as was relevant to the circumstances of the Applicants. The Authority noted that there had been reported incidents of harassment, intimidation of Catholics and the forcible closures of house churches in Nghe An, some with assaults against priest and parishioners. The Authority also noted at paragraph [28] that there has been concerns in relation to unregistered church groups in ethnic minority communities and that serious incidents of violence are related to other activities such as protesting against land confiscation and anti-government activities. [3.13] of the DFAT Report is included under the heading “Unregistered churches” and provides that Catholics in remote areas who practice at unregistered churches can be subject to periodic incidents of harassment. The Applicants’ evidence was that they had not attended a house church in the past and the Authority found that on return to Vietnam they would continue to practice their religion in the same manner as they had in the past. Further, the Authority found that the Applicants (as persons of Kinh ethnicity) were not an ethnic minority community. No issue is taken with those findings.
At hearing, the applicants submitted that there is no evidence that a house church is to be equated with an unregistered church as that term is used in the DFAT Report. I reject that submission. As set out above, [3.11] - [3.13] of the DFAT Report are included under the heading “Unregistered churches”. Those paragraphs provide as follows:
[3.11] Credible in-country contacts and human rights advocates reported that several parishes in remote area with majority ethnic minority congregations faced difficulty with registering churches. Local authorities often ignored, or were unaware of, national laws with respect to church registration. The US Department of State’s international religious freedom report for 2015, reported the case of 22 unregistered Catholic house churches scheduled for demolition in the Central Highlands province of Kon Tum in 2015. The demolition was halted following involvement by the church leadership, after which authorities and the church entered into dialogue regarding construction of new worship facilities.
[3.12] In Nghe An province, which is one of three provinces that constitutes the Diocese of Vinh, credible contacts reported a slight improvement compared to previous years due to the increasing strength of the Catholic community and leadership. Local and provincial authorities reportedly continued to harass and forcibly close known house churches; however, in-country contacts reported an increase in registered churches with the exception of a few in ethnic minority dominated area.
[3.13] DFAT assess that Catholics in remote areas who practise at unregistered churches can be subject to periodic incidents of harassment and intimidation. DFAT is aware of more serious incidents of violence such as protesting against land confiscation and anti-government activities rather than merely due to a person’s religion.
(Court’s emphasis).
Accordingly, I consider that when the Authority refers to a house church and when that term is referred to in the DFAT Report, it is to be equated with an unregistered church. I therefore consider that the Applicants’ evidence that they had not attended a house church in the past is evidence that they had not attended an unregistered church in the past.
Accordingly, I consider that the substance of the Disputed Paragraphs were considered by the Authority, in so far as they are relevant to the Applicants’ circumstances and contrary to the applicants’ submissions the Authority did “grapple with” the matters raised by the DFAT Report. I consider that the Authority Decision demonstrates that the Authority gave detailed consideration to the DFAT Report, along with other relevant country information. Finally, I note that the Applicants’ did not provide the DFAT Report to the Authority, nor did they make any specific submissions in relation to it. While the Applicants’ representative made reference to the DFAT Report in the IAA Submission, no specific provisions of the DFAT Report were referred to or relied upon.
Secondly, also for the reasons set out above, I do not consider that the Disputed Paragraphs “made clear that Catholics were at risk when engaging in political or anti-government activities” as asserted by the applicants. No such assertion is contained in any of the above referred to paragraphs (or elsewhere) of the DFAT Report. In my view, properly construed, the DFAT Report provides that religious observance only becomes an issue when it is perceived to challenge authority or the interests of the CPV. Accordingly, it is the perceived anti-government activities that create the chance of harm, not that these activities are engaged in by Catholics. Further, unregistered church groups in ethnic minority communities are of particular interest to the government because of their real or perceived activism.
Combined claim
I also reject the applicants’ submission that the Authority failed to provide reasons for its conclusion that the first applicant did not face a risk of harm as a result of the combination of his Catholic faith and protest activity.
The applicants concede that at paragraph [35] of its decision the Authority expressly refers to the first applicant’s Catholic faith in the context of his political activity but submits it is a passing reference.
I consider when the decision is read as a whole, the Authority’s reasoning discloses a chain of logic and an evident and intelligible justification for its conclusion that the first applicant did not face a risk of harm due is his combined Catholic faith and protest activity.
As set out above, at paragraph [32] the Authority found that:
·upon return to Vietnam the Applicants would practice their faith in the manner they previously had;
·the Applicants had not and would not attend a house church;
·the Applicants had not suffered any past harm in the course of the regular church attendance or activities or otherwise face adverse attention or harm from authorities or anyone else due to the faith; and
·the Applicants are not members of an ethnic minority and country information does not indicate Catholics face a real chance of harm.
On those bases the Authority found the Applicants could practice their faith upon return to Vietnam and did not face a real chance of harm in doing so.
In light of the above, I consider that the Authority’s reasoning as to the Applicants chance of harm based on their Catholic faith is evident and intelligible and its conclusion was open to it for the reasons it gave.
As also set out above, at paragraph [34] the Authority found:
·the Applicants hold views in support of freedom of expression and religion and opposed to the CPV; and
·as the second applicant’s evidence was that she had not attended protests in Vietnam or Australia, she would not attend any protests on return to Vietnam.
On those bases the Applicants did not face any real chance of harm for any reason associated with the political activity of the second applicant.
In light of the above, I consider that the Authority’s reasoning as to the Applicants chance of harm based on the second applicant’s political activity is evident and intelligible and its conclusion was open to it for the reasons it gave.
As also set out above, at paragraph [35] the Authority found that:
·in 2017 and 2018 the first applicant attended several political protests against the Vietnamese government in Australia;
·the evidence did not disclose that his attendance at these events was known to Vietnamese authorities or that it will become so;
·he was not an organiser or leader of any events, nor was he a high-profile blogger or activist; and
·the first applicant’s participation was at best that of a low-level supporter.
On these bases the Applicants did not face a real chance of harm on return to Vietnam based on the first applicant’s political activity in Australia.
The Authority also found at paragraph [35]:
·the first applicant will continue to engage in political activity in Vietnam;
·having regard to his activities in Australia, he will not become an organiser or leader of any events, high-profile blogger or activist; and
·the first applicant will have a profile as that of a low-level supporter or protester.
In light of the above and having regard to the country information and the first applicant’s particular profile, including his Catholic faith, that he is from Nghe An and his activities in Australia, the Authority concluded that the first applicant would not face any real chance of harm from engaging in future political activities in Vietnam or otherwise have a profile that will attract adverse attention from the Authorities.
Accordingly, the Authority first concluded that the first applicant had no real chance of harm as a result of his Catholic faith; secondly, it concluded that the first applicant had no real chance of harm due his political activities in Australia; thirdly, it concluded that the first applicant had no real chance of harm due to his political activities if he were to return to Vietnam. Having concluded that the first applicant faced no real chance of harm on any of these bases, the Authority then considered whether the applicant’s particular profile, including his Catholic faith gave rise to a risk of harm, and concluded he did not. The reasons for that finding as to the first applicant’s combined claim are clearly drawn from the findings in paragraphs [32], [34] an [35]. Further, as set out earlier, I reject the submission that the DFAT Report makes clear that Catholics were at risk when engaging in political or anti-government activities. I consider that the approach taken by the Authority to the above findings demonstrates a clear chain of logic and reasoning and, contrary to the applicants’ submissions, does disclose an evident and intelligible justification. In addition, paragraph [45] of the Authority’s decision also makes it clear that it considered the first applicant’s claim both individually and cumulatively.
DISPOSITION
It follows from the above that the Amended Application must be dismissed.
The Minister seeks that the applicants pay its cost in the amount of $8,371.30. I note that this is in accordance with sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I shall order accordingly.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 11 December 2024
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