DYX17 v Minister for Home Affairs
[2018] FCA 1377
•7 September 2018
FEDERAL COURT OF AUSTRALIA
DYX17 v Minister for Home Affairs [2018] FCA 1377
Appeal from: DYX17 v Minister for Immigration & Anor [2018] FCCA 323 File number: WAD 151 of 2018 Judge: MCKERRACHER J Date of judgment: 7 September 2018 Catchwords: MIGRATION – protection visa – previous permanent visa cancelled mandatorily on character grounds – application for a protection visa refused – where the Tribunal affirmed the decision to refuse the appellant a protection visa – application for judicial review to the Federal Circuit Court – primary judge considered whether the Tribunal made a finding on the appellant’s health without evidence or whether the Tribunal overlooked a particular social group claim – primary judge found no jurisdictional error – appeal from the primary judge’s findings on health care access for the appellant and the appellant’s citizenship
Held: appeal dismissed
Legislation: Migration Act 1958 (Cth) ss 36(2)(aa), 424A, 501 Date of hearing: 6 August 2018 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 36 Counsel for the Appellant: The Appellant appeared in person via video-link Counsel for the First Respondent: Mr J Edwards Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to the question of costs ORDERS
WAD 151 of 2018 BETWEEN: DYX17
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
7 SEPTEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCKERRACHER J:
The appellant appeals from a decision of the Federal Circuit Court of Australia: DYX17 v Minister for Immigration & Anor [2018] FCCA 323. The primary judge dismissed the appellant’s application for judicial review of an Administrative Appeals Tribunal decision refusing to grant him a protection visa.
The appellant arrived in Australia from Vietnam in 1983. Although he obtained a permanent visa, it was mandatorily cancelled in 2015 on character grounds pursuant to s 501 of the Migration Act 1958 (Cth). He was unsuccessful in seeking a revocation of the mandatory cancellation. The appellant applied for a protection visa in January 2017. This was the decision rejected by the Tribunal in March 2017 and which is the subject of this appeal.
BACKGROUND
The undisputed background was set out in detail by the primary judge in his reasons (at [3]-[12]):
3.The [appellant] was born on 24 December 1959 in Khanh Hoa Province, Vietnam.
4.The Tribunal accepted that the [appellant] witnessed the murder of his mother and sister in about 1971 by Communist Party forces and that he was shot in the legs at the same time and survived by pretending to be dead. It accepted that his father was an officer in the South Vietnamese army who was killed by Communist Party forces when the [appellant] was a baby. It accepted that the [appellant] attempted to flee Vietnam in 1979 but was detained during the attempt and held for three years in a “re-education camp”, and that he left Vietnam on a stolen boat in 1982.
5.The [appellant] arrived in Australia on a Class 200 Refugee (Vietnamese K4011) visa on 31 October 1983.
6.On 4 June 2015, the [appellant’s] Class BF Transitional (Permanent) visa was cancelled under s.501(3A) of the Migration Act 1958 (Cth) (Migration Act). In November 2016, the [appellant’s] application for revocation of the cancellation decision was unsuccessful.
7.On 10 January 2017, the [appellant] applied to the Minister’s Department (Department) for the protection visa.
8.On 2 March 2017, the delegate refused to grant the protection visa to the [appellant].
9.On 6 March 2017, an application was lodged with the Tribunal for review of the delegate’s decision.
10.On 29 June 2017, the [appellant] appeared before the Tribunal via video-link from Christmas Island to give evidence and present arguments.
11.On 17 August 2017, the Tribunal made a decision affirming the delegate’s decision not to grant the [appellant] the protection visa.
12.On 4 September 2017, the [appellant] lodged an application in this Court for judicial review of the Tribunal’s decision.
(Citations omitted.)
IN THE TRIBUNAL
As noted by the primary judge, in addition to the appellant’s protection visa application, the delegate’s decision record and other documents from the Department, the Tribunal had before it a statutory declaration from the appellant and a detailed submission from the appellant’s migration agent that attached numerous documents in support of the review.
The issues on review before the Tribunal were whether the appellant was a person to whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds.
The Tribunal found that the appellant is a Vietnamese national. The Tribunal also addressed a submission that the appellant suffers from poor mental health owing to his experiences in Vietnam as a child and that returning him to Vietnam would cause psychological harm that could not be adequately treated and from which he would not recover. The Tribunal considered all the information referred to in the submission, including a report from a clinical psychologist, Dr Ruth Rudge. The Tribunal accepted that the appellant may be suffering from mental health conditions, including PTSD. However, the Tribunal concluded it was not satisfied that these conditions were so severe that they would result in a real chance of serious harm or a real risk of significant harm upon his return to Vietnam. It also concluded that the appellant was able to participate meaningfully in the hearing and was able to understand the Tribunal’s questions and respond clearly.
The primary judge also summarised the appellant’s claims as identified by the Tribunal (at [20]):
a)the [appellant] fears for his life and liberty if he returns to Vietnam because:
i)of his family’s past support for democracy prior to 1975;
ii)his father was a high-ranking officer in the South Vietnamese army;
iii)the boat he stole to escape Vietnam in 1982 belonged to the Communist government;
iv)he assaulted police officers who were on board and imprisoned them in the hold; and
v)he had been living illegally and unregistered in Vietnam for a long time prior to escaping;
b)the [appellant] fears that he will be classed as a foreigner by the Vietnamese authorities because he has not lived there for 33 years;
c)the [appellant] experienced mental trauma after witnessing the murder of his mother and sister and was himself shot;
d)the [appellant] will experience severe difficulty living in Vietnam because he has lost all contact with family there and he has lived more than half his life in Australia.
(citations omitted)
The Tribunal found that the chance the appellant would be seriously harmed by the Vietnamese authorities because of an imputed anti-communist party political opinion, arising from his family’s support for the previous regime, was remote. It found that his fear of persecution for this reason was not well-founded. In this respect, the primary judge summarised (at [23]):
a)the Tribunal mostly accepted the [appellant’s] claims about his family and their fate in Vietnam. It also accepted that he was detained between 1979 and 1982, noting that this was for attempting to steal a boat to escape Vietnam;
b)the Tribunal relied on country information about the treatment of supporters of the former South Vietnamese regime that indicated that they and their families were not persecuted;
c)the Tribunal said that country information did not indicate that the [appellant] would be a person of interest to the Vietnamese authorities because of his father, noting that his father was killed around 57 years ago;
d)in relation to the [appellant’s] fear of ongoing reprisals connected with the murder of his mother and sister the Tribunal noted that he lived in Vietnam for another decade without anything happening to him; and
e)the Tribunal did not accept that the [appellant] was hiding from the authorities for the period after the murder of his mother and sister.
(citations omitted)
Further, the Tribunal found that the chance the appellant would be arrested, jailed and possibly harmed on return to Vietnam because he stole a government boat 35 years ago was remote. It concluded that his fear of persecution for this reason was not well-founded.
The Tribunal also considered the implications of the appellant returning to Vietnam with a serious criminal record in Australia. It found that the chance the appellant would face serious harm on return to Vietnam because he had been convicted of drug related or other crimes in Australia was also remote. In this respect, the primary judge noted (at [25]):
a)the Tribunal referred to country information from DFAT [Department of Foreign Affairs] stating that the principle of double jeopardy applies in Vietnam and noted that it had raised this with the [appellant] in the review hearing;
b)the Tribunal accepted that the [appellant] had a criminal history in Australia and it was likely the Vietnamese authorities would be aware of this fact upon his return; and
c)the Tribunal relied on DFAT country information in making the finding.
Importantly to the ground of appeal in this Court, the Tribunal gave consideration to the appellant’s claim that he will experience severe difficulty living in Vietnam. It mostly accepted all the reasons advanced by the appellant as to why it will be difficult for him to live in Vietnam, but found that these reasons, considered separately and cumulatively, did not result in him facing a real chance of persecution. This was considered by the primary judge who noted (at [26]):
a)the Tribunal was not satisfied that the [appellant] would be denied medical treatment or would not be able to access treatment for his Hepatitis C;
b)the Tribunal found that he would be able to find work in Vietnam eventually;
c)the Tribunal found that he would be able to obtain household registration eventually, which would enable him to access various services; and
d)the Tribunal found that his family in Australia would be able to provide him with the support he needs while he is establishing himself in Vietnam.
The Tribunal reached these findings having detailed regard to country information supplied by the appellant’s migration agent, information from the Vietnam government supplied to DFAT and reports, particularly one co-authored by the World Bank Group and Vietnam Academy of Social Sciences.
The Tribunal rejected the suggestion the appellant would face serious harm from the Vietnamese authorities on return to Vietnam on the ground he was a ‘failed asylum seeker’ or due to membership of a similarly comprised social group. The Tribunal also did not find the appellant would face a real chance of persecution due to his illegal departure without a passport.
The Tribunal also rejected the suggestion of persecution as a UNHCR mandated refugee.
Importantly to the present ground, the Tribunal considered the appellant’s claim that he will be denied access to medical treatment in Vietnam. It concluded it did not accept the appellant would be refused medical treatment.
The Tribunal was also satisfied that the appellant did not fall within the complementary protection criterion under s 36(2)(aa) of the Migration Act.
IN THE FEDERAL CIRCUIT COURT
The grounds of review in the Federal Circuit Court were differently cast from the present ground of appeal. They were:
(1)The Tribunal erred in making a finding that an appellant would be refused medical treatment because he had Hepatitis C as the finding was not founded on an adequate evidentiary basis; and
(2)The Tribunal committed jurisdictional error when it failed to properly identify, assess and address the risk of harm in respect of the appellant’s particular social group, in this case, a person who has Hepatitis C.
In addition to the grounds advanced by the appellant before the Federal Circuit Court, the primary judge also raised two other issues with the parties. The first was whether the Tribunal had complied with s 424A of the Migration Act in respect of information gained from letters of support from the appellant’s children; and secondly, given that the appellant was a heroin user, whether the Tribunal needed to consider if he could be treated for his addiction issues in Vietnam.
Through his legal advisors, the appellant accepted that there had been compliance with s 424A of the Migration Act.
The primary judge did not appear to make a specific determination on the second point, although, on one view, the Tribunal’s conclusion that he would have access to health care, in the absence of any other specific submission from the appellant on the addiction issue, was sufficient to address the second point.
In relation to the first ground of review, the primary judge concluded that the Tribunal’s reasoning was supported by evidence and that there was no duty on the Tribunal to inquire about treatment of Hepatitis C sufferers in Vietnam because this was not a critical factor into which it was required to inquire. This was because the appellant’s claim that he would be denied medical treatment for his Hepatitis C was based on his submissions as to the way the authorities would view him, which submissions and evidence were rejected. There was no general issue and no material before the Tribunal indicating that people with Hepatitis C in Vietnam are denied treatment.
As to the social group, the primary judge was satisfied that the Tribunal had considered whether the appellant would suffer harm because of his infection with Hepatitis C, both in relation to the refugee criterion and in relation to complementary protection. Having reached a conclusion on that topic, there was no further need to consider whether the appellant would suffer harm as a member of a class of persons with the same attribute.
GROUND OF APPEAL
The ground of appeal in this Court is as follows:
The [Federal Circuit Court] erred in finding that the [appellant] would have access to basic health care in Vietnam on the basis of his citizenship because the [appellant] does not have Vietnamese citizenship automatically. The [Federal Circuit Court] made this finding by relying on the Tribunal finding that the [appellant] is a citizen of Vietnam. However, this finding of the Tribunal is also erroneous because it cannot be assumed that the [appellant] has or will be permitted by the Vietnamese government to hold Vietnamese citizenship if he were to make an application which can be considered by the authorities. The decision is therefore subject to legal error and the [appellant] was denied procedural fairness in the manner in which the Merits appeal was conducted because not all of the relevant information was properly considered.
THE APPELLANT’S CONTENTIONS
The appellant’s Hepatitis C and need for health care is pivotal to his claims for protection. The appellant’s fear of medical treatment being denied or made prohibitively expensive was the thrust of his concern. The ground of appeal now advanced appears to relate to the Tribunal’s finding that the appellant would be able to obtain household registration, and the attendant eligibility to access basic social services (including, relevantly, health care and subsidised medical care) on return to Vietnam, even if only after some time. The Tribunal made this finding in response to the appellant’s claim that he would not be able to subsist in Vietnam, contending that he would be unable to obtain household registration because he does not have Vietnamese nationality.
Beyond the notice of appeal the only further material filed by the appellant in this appeal was an affidavit annexing the primary judge’s decision. There was no elucidation of his ground of appeal.
At the hearing before me, the appellant, despite several opportunities to do so, said absolutely nothing about citizenship, nationality, health issues, heroin addiction or Hepatitis C. He focussed entirely on his tragic history, contending that it would be unsafe for him to return to Vietnam because he had stolen a boat from the authorities to escape and that his father was in the army and had been shot and killed by the Communists. They had also killed his mother and sister and shot him in the leg from which he suffers an injury. His emphasised that he wished to stay in Australia with his three children who had been born in Australia, including his oldest daughter born in 1987, his second daughter born in 1989 and his son born in 1993. He lived in fear of recrimination by the government for his father’s past and having been in Australia for over 20 years, had never returned to Vietnam. He expressed his apologies to the (Australian) government for what he had done wrong in the past. He confirmed that he had received the Minister’s written submissions.
Clearly, none of these submissions directly or indirectly support the ground of appeal as cast. It is not at all surprising that a litigant in person, neither fluent in English, nor familiar with legal procedure, is not familiar with the desirability of addressing submissions in support of a ground of appeal. That said, there can be little doubt that the issue of the appellant’s health and the ability to obtain medical treatment was certainly not at the forefront of the appellant’s mind in contrast with the other matters that he did raise.
CONSIDERATION
Leave is required to advance as a ground of appeal an argument not advanced as a ground of judicial review in the Federal Circuit Court. Leave should not be granted if the ground has no prospects of success.
Contrary to the appellant’s contentions, no finding was made by the primary judge that the appellant would have access to basic health care in Vietnam on the basis of his Vietnamese citizenship. There is a reference to citizenship in his Honour’s reasoning, but only in the context of summarising the submissions for the appellant. The Tribunal also made no such finding, but rather found that the appellant would be able to access medical treatment to treat his Hepatitis C if he returned to Vietnam. Although the Minister refers to [108] in asserting health care was unconnected with citizenship, health care related findings are also made at [83] of the Tribunal’s decision where the Tribunal notes:
The country information referred to above indicates that once a person returns from outside Vietnam, finds a household and provides evidence of Vietnamese citizenship, then the process for registration is reasonably straightforward. The Tribunal is satisfied that the [appellant] will be able to obtain household registration on return to Vietnam. Through his household registration (ho khau), the [appellant] will be eligible for basic social services, including education, poverty assistance and health care, as well as access to subsidised medical care and national targeted programs for poverty reduction. The Tribunal does not accept that the [appellant] would be denied or unable to obtain household registration.
(Emphasis added.)
It may not be accurate to say the finding about health care was ‘unconnected’ with citizenship. Nonetheless, the Tribunal’s consideration, as observed by the primary judge, was directed to the broader question of whether, for any reason, the appellant would be denied medical treatment.
As noted, it was the case that the Tribunal found that the appellant was a national of Vietnam in order to assess his refugee claims against Vietnam as his country of nationality and also against his assertion that he would be unable to subsist in Vietnam. The nationality of the appellant arose before the Tribunal because his representatives submitted that the appellant did not hold Vietnamese nationality, according to the 2009 Law on Vietnamese Nationality (part of the legislation of Vietnam) because the appellant has never been registered as such. The representative also referred to a five year time limit in which a person can register. The Tribunal considered the Law on Vietnamese Nationality, together with country information about the application of the Law on Vietnamese Nationality. The Tribunal noted that the Law on Vietnamese Nationality permitted overseas Vietnam nationals to apply for restoration of their nationality and that there were no time limits on making such an application. The Tribunal was satisfied that the appellant was a Vietnamese national because he had been born in Vietnam to Vietnamese parents and that there did not appear to be any relevant intervening events resulting in his loss of that nationality. The Tribunal accepted that the appellant did not register with the Vietnamese authorities before coming to Australia, but was satisfied that he could apply to the authorities to restore his nationality. The Tribunal concluded that the appellant would be able to obtain household registration on return to Vietnam, even if only after some time and, therefore, would be able to access basic services.
That conclusion was supported by the Tribunal’s interpretation of country information about the process of household registration. There is no apparent lack of logic in the process of reasoning arrived at by the Tribunal.
When the matter was dealt with in the Federal Circuit Court, the appellant was represented by counsel and a solicitor, who did not cast the present draft ground of appeal in the format now sought to be advanced.
I am not satisfied that leave should be granted to raise this new ground.
I am mindful, as the Minister has drawn to the attention of the Court, that the primary judge did not expressly direct findings to the second topic which he raised with the parties. In the circumstances discussed above, I do not consider it was necessary for his Honour to do so given the parties had not advanced the addiction contention. But, in any event, not only is that point not raised on appeal, but it was clear that the Tribunal did consider, as the primary judge noted, the question of addiction and health care generally. In those circumstances, no additional finding was required of the primary judge.
CONCLUSION
The proposed ground of appeal is misconceived for the reasons stated. As it would not have prospects of success, leave to rely upon the new ground of appeal should not be granted. There is no other ground of appeal. The matters raised orally by the appellant have been fully considered by the Tribunal, reviewed by the Federal Circuit Court and go impermissibly to the merits. The appeal must be dismissed with costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 7 September 2018
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