FEDERAL CIRCUIT COURT OF AUSTRALIA
| EAO17 v MINISTER FOR IMMIGATION & ANOR | [2018] FCCA 3319 |
| Catchwords: MIGRATION – Applicant convicted of two murders in Australia – fear of possible persecution if he is returned to Vietnam based on the crimes he has committed in Australia – claims of “unreasonable” decision by the Tribunal – no grounds of review established – Application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65 |
| Applicant: | EAO17 |
| First Respondent: | MINISTER FOR IMMIGATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 75 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 9 April 2018 |
| Date of Last Submission: | 9 April 2018 |
| Delivered at: | Canberra |
| Delivered on: | 6 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jones |
| Solicitors for the Applicant: | Kikkert Law |
| Counsel for the Respondents: | Ms Pham |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Further Amended Application, filed 8th March 2018, be dismissed.
The Applicant is to pay the First Respondent’s costs as per Schedule 1 of the Federal Circuit Court Rules 2001, in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 75 of 2017
| EAO17 |
Applicant
And
| MINISTER FOR IMMIGATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant currently is in detention on Christmas Island. Although born in Vietnam in 1980 (making him 38 years old), he has never held a Vietnamese passport, or a valid Vietnamese birth certificate or family registration. In the course of its reasons, the Administrative Appeals Tribunal (“the Tribunal”) confirmed (at par.23 of its Reasons) that the Applicant was a Vietnamese national. Most of the Applicant’s extended family live in Australia.
On 3rd May 2002, the Applicant was convicted of murder and sentenced to 14 years’ gaol, with a non-parole period of nine (9) years. He received a further sentence of 12 months’ gaol for unlawful imprisonment. On 18th June 2002, the Applicant was convicted of a second murder for which he received a further term of imprisonment of 10 years.
Among other things, the Applicant seeks a protection visa on the grounds (generally stated) that (a) his mental health is very fragile, (b) his concern at his risk of being an “outcast” should he return to Vietnam, (c) his family’s former links to the former South Vietnamese government, (d) his inability to subsist in Vietnam, and (e) his relatively recent adherence to the Cao Dai religion which might result in him being persecuted in Vietnam should he return because of a newly-passed law on “belief and religion”, which came into effect in January 2018. The Applicant also raised as a ground of review before this Court the prospect of him facing “indefinite detention” in Australia.
On 22nd May 2017, the Delegate of the Minister refused to grant the Applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (“the Act”). On 29th August 2017, the Tribunal affirmed the Delegate’s decision.
Grounds of Review
Pursuant to a Further Amended Application, filed 8th March 2018, the Applicant’s Grounds of Review were as follows:[1]
[1] Formally, the Applicant requires leave to rely upon the additional Ground 3. The Minister opposes such leave being granted.
Grounds of application
1) The Tribunal fell into jurisdictional error by failing to take into account a mandatory consideration, namely the legal consequences of the Tribunal’s decision to affirm the decision not to grant the applicant a protection visa.
Particulars
1.1) The applicant applied to the Federal Court of Australia seeking a writ of certiorari to quash the Minister of Immigration and Border Protection’s decision on 21 June 2015 not revoke the cancellation of his visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act). The applicant’s Class BB Subclass 155 Resident Return (Permanent) visa had been cancelled under s 501(3A) of the Act;
1.2) In his further amended application before the Federal Court, the applicant submitted that the Minister was obliged to take into account the legal consequences of her decision to not revoke the cancellation of his visa, namely that the applicant would be indefinitely detained;
1.3) On 5 October 2016, the Federal Court of Australia handed down judgment dismissing the applicant’s application (please see BMX15 v Minister for Immigration and Border Protection [2016] FCA 1183);
a) In that judgment, the Federal Court found that the Minister was not required to consider the prospect of the applicant’s indefinite detention as the applicant remained entitled to apply for a protection visa;
b) In paragraph [85] of that judgment, His Honour Justice Bromberg stated as follows: “It is clear that on the facts of this case and the principles enunciated in MIBP v Le, that the applicant may apply for a protection visa and that a consideration of that application must involve regard being paid to the prospect of indefinite detention if the application for that visa is refused. In those circumstances, the application of the principles enunciated in MIBP v Le requires me to reject the applicant’s contention that the Minister was bound to consider Australia’s non-refoulement obligations and the prospect of indefinite detention in making the non-revocation decision.”
1.4) The applicant subsequently applied for a protection visa under s 65 of the Act. On 22 May 2017 a delegate of the Minister refused his application for a protection visa;
1.5) The applicant then sought review of this decision before the Administrative Appeals Tribunal;
1.6) In both his written and oral submissions, the applicant submitted that the legal consequences of a decision to affirm the decision under review would be that the applicant is confined to indefinite detention as he would not be able to return to Vietnam in the event that his review application is unsuccessful (please see paragraph [20-21] and [103] of the AAT decision);
1.7) However the Tribunal did not consider whether or not the applicant would face the prospect of indefinite detention. At paragraph [105] the Tribunal found that “the question of whether or not the applicant faces the prospect of indefinite detention in Australia if his visa is refused is not a criterion in relation to the applicant’s protection visa and therefore the Tribunal is not required to consider it.”
2) The Tribunal failed to give proper, genuine and realistic consideration to the question of whether the Applicant would need to modify his conduct of religious activities upon his return to Vietnam, as the Tribunal did not engage in an active intellectual process with respect to the question, instead basing its conclusion solely upon the Applicant's past conduct and perceived present state.
Particulars
2.1) At paragraph [105] the Tribunal stated as follows:
"102. The Tribunal acknowledges country information indicates a level of restriction on religious freedom in Vietnam and concerns about continued restrictions on the right to freedom of religion and belief as codified in the new law on Belief and Religion as submitted. However, as discussed at hearing, whilst country information indicates a level of restriction on religious freedom in Vietnam, religious observance and practice usually only become an issue when it is perceived to challenge the authorities or interests of the CPV and its policies. As well, whilst the treatment of religious groups varies widely across Vietnam, it is further dependent upon their relationship with the government and those groups the government continued to monitor the activities of are mainly unregistered church groups in ethnic minority communities due to their real or perceived political activism. DFAT assesses that individuals who engage in open criticism of the government face a high risk of harassment, among other things, but followers who practice their faith at home and within government sanctioned boundaries are unlikely to attract adverse attention from the authorities. The applicant did not claim to be involved in activities for Cao Dao rights or that he would be on return and expressed no intention of getting involved in religious activism on return to Vietnam. There is no indication that Cao Dai followers are persecuted for practising their faith per se. Given these considerations the Tribunal is satisfied the applicant will be able to practice his Cao Dai religion as he claims he has in the past – by praying and wearing a jade necklace – and finds the applicant does not face a real chance of persecution. . ."
2.2) At no point did the Tribunal make a finding of fact that the Applicant would not engage in conduct attracting relevant harm for reasons unrelated to fear of such harm;
2.3) There was no proper assessment by the Tribunal of the Applicant's apprehended future conduct beyond this assessment of his past conduct and presently perceived state;
2.4) This amounted to a failure to undertake the requisite level of intellectual engagement with the question of the Applicant's future conduct.
3) The Tribunal made a legally unreasonable finding of fact with respect to the question of whether the Applicant would need to modify his conduct of religious activities upon his return to Vietnam, as the Tribunal merely identified the Applicant's past conduct and perceived present state without properly evaluating the Applicant's future conduct.
Particulars
3.1) At paragraph [105] the Tribunal stated as follows:
"102. The Tribunal acknowledges country information indicates a level of restriction on religious freedom in Vietnam and concerns about continued restrictions on the right to freedom of religion and belief as codified in the new law on Belief and Religion as submitted. However, as discussed at hearing, whilst country information indicates a level of restriction on religious freedom in Vietnam, religious observance and practice usually only become an issue when it is perceived to challenge the authorities or interests of the CPV and its policies. As well, whilst the treatment of religious groups varies widely across Vietnam, it is further dependent upon their relationship with the government and those groups the government continued to monitor the activities of are mainly unregistered church groups in ethnic minority communities due to their real or perceived political activism. DFAT assesses that individuals who engage in open criticism of the government face a high risk of harassment, among other things, but followers who practice their faith at home and within government sanctioned boundaries are unlikely to attract adverse attention from the authorities. The applicant did not claim to be involved in activities for Cao Dao rights or that he would be on return and expressed no intention of getting involved in religious activism on return to Vietnam. There is no indication that Cao Dai followers are persecuted for practising their faith per se. Given these considerations the Tribunal is satisfied the applicant will be able to practice his Cao Dai religion as he claims he has in the past – by praying and wearing a jade necklace – and finds the applicant does not face a real chance of persecution. . ."
3.2) At no point did the Tribunal make a finding of fact that the Applicant would not engage in conduct attracting relevant harm for reasons unrelated to fear of such harm;
3.3) There was no proper assessment by the Tribunal of the Applicant's apprehended future conduct beyond this assessment of his past conduct and presently perceived state;
3.4) There was a failure to provide a legally reasonably basis for a conclusion as to the Applicant's future conduct.
The Tribunal’s Decision
After dealing briefly with some matters of background, including his country of nationality, the Tribunal first considered what it described as the Applicant’s “mental health issues” (pars.25 – 26).
Among other things, the Tribunal noted that the Applicant (on his own evidence) has not been diagnosed with any mental health conditions; nor does he currently take any medication. He does experience some anxiety and frustration, since being transferred to Christmas Island away from family and friends in Melbourne. He has experienced “situational anxiety” arising out of his “immigration status”, and a concern for his [now adult] daughter.
In the most recent report from a psychologist he is nonetheless described as “resilient.”
The Tribunal formed the view, in the light of the psychological evidence, and that of the Applicant himself, that he could meaningfully participate in the review process.
The next section of the Tribunal’s reasons (pars.27 – 37) dealt with the “refugee assessment”. As outlined in par.27, the Tribunal noted:
The Applicant seeks to invoke Australia’s protection obligations on the basis of his family members being connected to the former South Vietnamese government, because he departed Vietnam illegally, and because of his criminal history in Australia. … The Tribunal has also considered if he faces a well founded fear of persecution on return to Vietnam as a failed asylum seeker and in respect of his Cao Dai religion.
The Tribunal recorded that the Applicant’s representative provided a written submission (dated 5th March 2017) to the Department, which was in turn provided to the Tribunal. The Applicant also provided the Tribunal with a typed letter, dated 11th July 2017, as well as letters of support from relatives and community members in Australia. His representative provided country information from a range of sources.
In his oral evidence before the Tribunal, the Applicant said that his Mother, for a time, until she was too old, was given a “hard time” by authorities because of her family’s links to the former political regime in South Vietnam.
The Applicant confirmed that he returned to Vietnam on three occasions, the first in 1994, and twice more in 2000. He confirmed that he speaks Vietnamese, but not as well as his English. The Applicant has a criminal past and he is fearful that if he returns to Vietnam he will be treated as an outcast. He said that he has no place to go in Vietnam, has no support, and would be homeless.
At pars.38 – 46, the Tribunal outlined its considerations regarding the Applicant’s family links to the former South Vietnamese regime. This included consideration of significant country information about the treatment of supporters of that regime. In short, the Tribunal said (par.39) that there was some discrimination but overall (in my words) there is no indication that such supporters and their families have experienced discrimination that amounts to the level of serious or significant harm as defined in the Act.
According to DFAT, and the UK Home Office on Vietnam, the Tribunal said that those at risk of attracting adverse attention from authorities are political and human rights activists, who openly criticise the Government, the Communist Party, and its policies.
The Applicant also noted that the region of Ca Mau, from which he (and his family) came, was known as an area that had resisted the Viet Cong. Accordingly, it was said, that his return would likely mean that his family’s past would be investigated, which included his Uncle having been executed by the North Vietnamese communists. At this time the Applicant also noted that his family followed the Cao Dai religion.
In response to these matters, the Tribunal noted that the Applicant’s Uncle was executed approximately 27 years ago. He was a member of the South Vietnamese Army. The Tribunal did not see that this would cause the Applicant to now be of any relevant interest to the authorities in Vietnam. The Tribunal noted that nothing had happened to the Applicant’s now-elderly Mother, who continues to live in Vietnam.
While the Tribunal noted that there were concerning aspects, based on country information, regarding the “poor human rights situation” in Vietnam, the Applicant’s profile does not mark him out as likely to attract any relevant attention from the authorities in that country.
At pars.47 – 61, the Tribunal considered the Applicant’s “criminal convictions in Australia”, for which his criminal sentence expires on 5th January 2019, and the implications for him should he return to Vietnam.[2]
[2] A copy of a judgment relating to the Applicant’s second conviction for murder was provided to the Tribunal: R v Tnt [2002] NSWSC 537.
The Applicant claimed that if he was returned to his native country he would be sent to gaol. He said that this would be because of him having left the country illegally and because of the execution of his Uncle. The Tribunal noted (par.50) that, according to information from DFAT, Vietnam applied the principle of “double jeopardy”, and because the Applicant has served virtually all his sentence, he will not be pursued in Vietnam on the basis of crimes committed in Australia.
Further, the Tribunal said that, based on country information regarding the treatment of “returnees” to Vietnam who have been convicted of offences overseas, it considered there to be only a remote possibility of the Applicant facing “serious or significant harm” from the authorities in Vietnam if he returned home for this reason. The Tribunal further found (par.58) that, again based on country information, the Applicant’s criminal record would not be likely to hamper him in registering to access basic services.
The Tribunal acknowledged that the Applicant’s murder victims were originally from Vietnam. The Applicant claimed that he was involved in certain “gangs” in Australia, and that some members of rival gangs have been sent back to Vietnam, and in particular to Ca Mau, the region from which the Applicant originally came. He is fearful that these gang members, upon learning of his convictions in Australia, will effectively seek retribution against him should he return to his native land.
The Tribunal determined (at par.61) that the Applicant’s assertion that his murder victims were from Ca Mau was pure speculation. It doubted that the local community in Ca Mau would know of the Applicant’s convictions. It noted further that nothing untoward had happened to the Applicant’s Mother who has lived in that region for many years. And even if members of the local community learnt of his convictions, the Tribunal considered that the Applicant would be unlikely to face any serious or significant harm.
At pars.62 – 79, the Tribunal considered the Applicant’s claim that, if he returned to Vietnam, he would be unable to subsist. This claim was based essentially on him having no family in Vietnam (other than his Mother, with whom, he said, he had lost contact) and thus no support, no place to live, and no employment.
While the Tribunal accepted the basic propositions outlined by the Applicant, the Tribunal determined (at par.64) that they did not amount to, or constitute, a real chance of persecution. The Tribunal noted that the Applicant had acquired some work skills as a panel beater and cabinet maker in Australia. As already noted, the Applicant speaks Vietnamese.[3]
[3] See here the Tribunal’s extensive discussion, at pars.69 – 79 regarding, for example, detailed country information in relation to household registration, including those returning from overseas.
At pars.80 – 88, the Tribunal discussed the Applicant being a “failed asylum seeker” and its possible impact on his return to Vietnam.
Evidence was provided that because of the timing and nature of his departure, the Applicant would be considered to be a “traitor and anti-communist” by the authorities upon his return to Vietnam. As such, his life would be made more difficult. In response to this, the Tribunal set out (at par.83) country information (dated 21st June 2017) from DFAT regarding the treatment of returnees. In short, DFAT said that it is unaware of any cases where a returnee has faced action under the Vietnamese Penal Code, or mistreatment on return to Vietnam.
Based on the information provided to it, the Tribunal concluded that any adverse action taken by authorities in Vietnam was against those who had participated in or had facilitated the organisation of “illegal” departures to Australia, otherwise known as “people smuggling”. In its view, the Tribunal said (at par.87) that it did not consider the Applicant to be, nor would he be regarded by authorities in Vietnam as, a people smuggler. Accordingly, in its view, the Applicant would not face a real chance of persecution on his return to Vietnam as a failed asylum seeker.[4]
[4] A similar conclusion was reached in relation to the Applicant’s claim arising out of him having left Vietnam “illegally”. See pars.89 – 96 of the Tribunal’s reasons.
The Applicant’s representative at the hearing before the Tribunal said that Amnesty International had confirmed that without household registration a returnee (including a failed asylum seeker) would not be able to live or travel in Vietnam. It was also advised to the Tribunal that the human rights situation was worsening in Vietnam.
Two other conclusions reached by the Tribunal have been challenged by the Applicant, the first being its finding that the Applicant would not face a real risk of harm due to his Cao Dai religion (see pars.97 – 102), and secondly, its conclusion that the prospect of indefinite detention faced by the Applicant is not relevant to the Tribunal’s decision (pars.103 – 106).
The Tribunal accepted that the Applicant is an adherent of the Cao Dai religion (par. 101). It also accepted that there is “a level of restriction on religious freedom in Vietnam”, though it also found that “there is no indication that Cao Dai followers are persecuted for practising their faith per se” (par. 102). Rather, the Tribunal found that the treatment of religious groups was “dependent upon their relationship with the government… [and] their real or perceived political activism” (par. 102). Given the Applicant had not claimed to partake in any political activism on behalf of followers of the Cao Dai religion, the Tribunal found that there would be no impediment to him continuing to practice his religion, which he presently does by praying and wearing a jade necklace, and that he could do so without facing any fear of persecution (par. 102).
The Applicant argued that the Tribunal must consider the prospect that he would face indefinite detention, were his Application for review unsuccessful, because he does not have a Vietnamese passport, identity card or family registration (par. 103). This submission arises out of a comment made by Bromberg J in BMX15 v Minister for Immigration and Border Protection, in which the Applicant’s visa cancellation decision was upheld. Bromberg J, who is quoted in the Tribunal’s decision (at par. 104), stated:
It is clear on the facts of this case and the principles enunciated in MIBP v Le, that the applicant may apply for a protection visa and that a consideration of that application must involve regard being paid to the prospect of indefinite detention in the application for that visa is refused.
The Tribunal, however, stated the following (par. 105):
The question of whether or not the applicant faces the prospect of indefinite detention in Australia if his visa is refused is not a criterion in relation to the applicant’s protection visa and therefore the Tribunal is not required to consider it. Such a consideration is relevant when considering discretionary factors under Departmental policy to consider in relation to a visa cancellation decision (with respect to taking into account the legal consequences of the cancellation decision), not a criterial for a protection visa.
At pars.109 – 114, the Tribunal considered whether the Applicant might otherwise satisfy the requirements or criteria set out in s.36(2)(aa) of the Act regarding complementary protection. It found that the Applicant did not meet the relevant criteria under this section.
Legislative Provisions
For current purposes, it is sufficient to set out ss.36, 36(2)(aa) and 65 of the Act:
Section 36: Protection visas--criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia's security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Ineligibility for grant of a protection visa
(2C) A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a) the Minister has serious reasons for considering that:
(i) the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii) the non-citizen committed a serious non-political crime before entering Australia; or
(iii) the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b) the Minister considers, on reasonable grounds, that:
(i) the non-citizen is a danger to Australia's security; or
(ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
Determining nationality
(6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
Section 65: Decision to grant or refuse to grant visa
(1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Submissions on behalf of the Applicant
The Applicant’s submissions, filed 8th March 2018, were as follows:
1) There is before the Court an application for judicial review of a decision of the Second Respondent (Tribunal). The Tribunal affirmed a decision of a delegate of the First Respondent (Minister) not to grant the Applicant a protection visa (visa). The Applicant submits that the decision of the Authority involved a jurisdictional error.
Background
2) The following events are critical:
a) 6 March 2017 – Applicant applies for the visa;
b) 22 May 2017 – Delegate decides to refuse the Applicant the visa; and
c) 29 August 2017 – Tribunal decides to affirm the Delegate’s decision to refuse the Applicant the visa;
d) 8 September 2017 – Applicant files an application for judicial review of the Tribunal’s decision.
Reasons of Tribunal
3) The reasons of the Tribunal, so far as they are relevant to the judicial review, are as follows (references omitted):
102. The Tribunal acknowledges country information indicates a level of restriction on religious freedom in Vietnam and concerns about continued restrictions on the right to freedom of religion and belief as codified in the new Law on Belief and Religion as submitted. However, as discussed at the hearing, whilst country information indicates a level of restriction on religious freedom in Vietnam, religious observance and practice usually only become an issue when it is perceived to challenge the authorities or interests of the CPV and its policies. As well, whilst the treatment of religious groups varies widely across Vietnam, it is further dependent on their relationship with the government and those groups the government continued to monitor the activities of are mainly unregistered church groups in ethnic minority communities due to their real or perceived political activism. DFAT assess that individuals who engage in open criticism of the government face a high risk of harassment, among other things, but followers who practice their faith at home and within government sanctioned boundaries are unlikely to attract adverse attention from the authorities. The applicant did not claim to be involved in activities for Cao Dao rights or that he would be on return and expressed no intention of getting involved in religious activism on return to Vietnam. There is no indication that Cao Dao followers are persecuted for practising their faith per se. Given these considerations, the Tribunal is satisfied the Applicant will be able to practice his Cao Dao as he claims he has in the past – by praying and wearing a jade necklace – and finds the applicant does not face a real chance of persecution …
…
104. Having regard to BMX15 v Minister for Immigration and Border Protection, which was an appeal by the applicant of the Minister’s decision not to revoke his visa cancellation decision, Bromberg J found, among other things, that the applicant remained entitled to apply for a protection visa, which he subsequently did and is the subject of this review. Bromberg J also stated (at [85]) that:
It is clear that on the facts of this case and the principles enunciated in MIBP v Le, that the applicant may apply for a protection visa and that a consideration of that application must involve regard being paid to the prospect of indefinite detention if the application for that visa is refused.
105. However, the question of whether or not the applicant faces the prospect of indefinite detention in Australia if his visa is refused is not a criterion in relation to the applicant’s protection visa and the Tribunal is not required to consider it. Such a consideration is relevant when considering discretionary factors under Departmental policy to consider in relation to a visa cancellation decision (with respect to taking into account the legal consequences of the cancellation decision), not a criteria for a protection visa decision.
Grounds of judicial review
4) The Applicant seeks leave to file a further amended application for judicial review based on the following grounds:
1) The Tribunal fell into jurisdictional error by failing to take into account a mandatory consideration, namely the legal consequences of the Tribunal’s decision to affirm the decision not to grant the applicant a protection visa.
2) The Tribunal failed to give proper, genuine and realistic consideration to the question of whether the Applicant would need to modify his conduct of religious activities upon his return to Vietnam, as the Tribunal did not engage in an active intellectual process with respect to the question, instead basing its conclusion solely upon the Applicant’s past conduct and perceived present state;
3) The Tribunal made a legally unreasonable finding of fact with respect to the question of whether the Applicant would need to modify his conduct of religious activities upon his return to Vietnam, as the Tribunal merely identified the Applicant’s past conduct and perceived present state without properly evaluating the Applicant’s future conduct.
Submissions
Ground 1
5) The Tribunal flatly refused to take into account a mandatory relevant consideration identified by Bromberg J in BMX15. There should be no debate that the Tribunal is bound by single judges of the Federal Court (Federal Commissioner of Taxation v Salenger (1988) 19 FCR 378 at 387-388 per French J). In any event, Bromberg J in BMX15 was applying the following passage of the Full Federal Court in Minister for Immigration and Border Protection v Le [2016] FCAFC 120 at [61] per Allsop CJ, Griffiths and Wigney JJ:
… in determining whether or not to exercise the powers [with respect to cancellation of visas] Australia’s non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations in circumstances where it is open to the person whose visa has been refused or cancelled on character grounds to apply in Australia for a protection visa or some other visa (which visa application the decision-maker is legally bound to consider and determine) and the consideration of the visa application must involve regard being paid to the prospect of indefinite detention if the visa is refused.
6) It follows that the Tribunal was required to consider whether the Applicant faced the prospect of indefinite detention as the legal consequence of a decision by it to affirm the Delegate’s decision to refuse the protection visa. The Tribunal was also wrong to conclude that this was a matter which instead arose in the context of powers with respect to the cancellation of the Applicant’s visa. As BMX15 and Le indicate, it was not. Indeed, in relation to the Applicant, the non-mandatory status of indefinite detention in the context of cancellation was the basis for the Minister’s success in BMX15 (see at [84]). This was subject to the proviso that it would be relevant to any subsequent application for a protection visa – a matter which the Tribunal was wrong to disavow.
Grounds 2 and 3
7) In Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, Kenny, Tracey and Griffiths JJ held (at [82]-[83], referring to Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473 (S395)):
As McHugh and Kirby JJ observed in S395 at [43] (to similar effect, see Gummow and Hayne JJ at [82]):
43. The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many - perhaps the majority of - cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
Based on the IAA’s own findings, which flowed from the material before it, it had to consider whether the first respondent would not practice his faith more often and be more politically active on return to Iran because he feared the harm that would follow. Its failure to address these matters involves jurisdictional error.
8) The relationship between S395 and a subsequent High Court authority, Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 (NADV) was addressed by another Full Federal Court, constituted by Flick, Robertson and Griffiths JJ, in Minister for Immigration and Border Protection v SZSCA [2013] FCAFC 155 (SZSCA). Robertson and Griffiths JJ said (at [61]):
We accept the respondent’s submissions that the relevant principles arising out of S395 and NABD are:
(a) the Tribunal cannot require an asylum seeker to behave in a particular manner; but
(b) it is permissible for the Tribunal to conclude that an asylum seeker would not in fact behave in a particular manner upon his or her return.
9) The judgment of the Full Court was affirmed, albeit on different grounds, by the High Court: Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 at [19]-[20].
10) The requirement that a decision-maker is required, as matter of law, to give “proper genuine and / or realistic consideration” to the matter before him or her has recently been summarised as requiring the decision-maker to “engage in an active intellectual process directed at” the relevant claim or criteria (Taulahi v Minister for Immigration and Border Protection [2017] FCAFC 107 (Taulahi) at [45] per Griffiths, White and Bromwich JJ).
11) The jurisdictional error of legal unreasonableness means that the Tribunal’s findings may be impugned according to whether or not they have an evident and intelligible justification (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [76]).
12) Another possibly relevant formulation in the context of legal unreasonableness is whether the Authority’s state of satisfaction must was one which “could be formed by a reasonable person”. The Court should be “slow, although not unwilling, to interfere in an appropriate case”. To succeed, the Applicant must establish that the decision is “one at which no rational or logical decision maker could arrive on the same evidence” (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [124], [130]; see also, for example, SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at [10], [59]).
13) Drawing the threads of these authorities together, the Applicant submits that four relevant principles may be identified:
a) It is open to the Tribunal to conclude that, as a matter of fact, a person will not engage in conduct which would attract relevant harm (SZSCA);
b) The Tribunal makes no jurisdictional error where, in concluding that the person will refrain from particular conduct, the Tribunal finds reasons for the person refraining from doings so which are unrelated to a fear of relevant harm (BBS16);
c) The findings of fact referred to in (a) and (b) must be the result of an active intellectual process (Taulahi);
d) The findings of fact referred to (a) and (b) must have an evident and intelligible justification (Li / SZMDS).
14) It is submitted that the above principles yield a jurisdictional error in the present case. At no point did the Tribunal make a finding of fact that the Applicant would not engage in conduct attracting relevant harm for reasons unrelated to fear of such harm. Put another away, the Tribunal failed to find that the Applicant would have no individual need to engage in the kind of behaviours which could attract relevant harm.
15) In any event, there would have been no basis for any finding by the Tribunal to this effect. The Tribunal referred to the fact that the Applicant showed no present intention regarding religious activism and merely prayed and wore a jade necklace. There was no proper assessment by the Tribunal of the Applicant’s apprehended future conduct beyond this assessment of his past conduct and presently perceived state.
16) This amounted to a failure to undertake the requisite level of intellectual engagement with the question of the Applicant’s future conduct. It was also a failure to provide a legally reasonably basis for a conclusion as to the Applicant’s future conduct. There is nothing remiss with a decision-maker using past or present matters to predict the future. However, there must be a process of reasoning to indicate why those past or present matters constitute a reliable basis for the prediction of future questions. There was no such justification put forward by the Tribunal in the present case.
Conclusion
17) The application should be allowed with costs.
Submissions on behalf of the Respondent
The Respondent’s Submissions, filed 29th March 2018, were as follows:
1) The applicant applies for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), which affirmed a decision of a delegate of the Minister for Immigration and Border Protection (Minister) to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (Migration Act).
2) On 20 November 2017, the applicant filed an amended application for review of the Tribunal’s decision. In short, both grounds of review in the application argued that the Tribunal fell into jurisdictional error by failing to take into account a mandatory relevant consideration, namely whether the applicant faced the prospect of indefinite detention as the legal consequence of the Tribunal’s decision to affirm the delegate’s decision.
3) On 7 March 2018, the applicant filed a further amended application for review. The further amended application retains a ground of review in relation to mandatory relevant considerations, and seeks to add two new grounds of review directed to the Tribunal’s reasoning in relation to the applicant’s claim of religious persecution. The applicant argues that the Tribunal either failed to give “proper, genuine and realistic consideration” or made a legally unreasonable finding of fact in relation to the applicant’s future conduct on return to Vietnam.
4) In summary, the Minister submits that the Tribunal did not fall into jurisdictional error:
a) in relation to the mandatory relevant consideration ground of review, the Minister submits first, that the prospect of indefinite detention is not a mandatory relevant consideration under s 65 of the Migration Act; and secondly, that in any case the applicant would not face indefinite detention if his protection visa application were rejected.
b) with respect to the religious persecution grounds of review, the Minister opposes leave to further amend the application on the basis that the amended grounds have insufficient merits. In the alternative, if leave is granted, the Minister submits that there was no error in the Tribunal’s reasoning, having regard to the evidence before the Tribunal.
BACKGROUND
5) The applicant, who was born in 1980, claims to be a Vietnamese citizen (see the Tribunal’s decision record (DR) at [2], CB at 485).
6) The applicant arrived in Australia in 1993 on a Class BF Subclass 200 Refugee (Permanent) visa. On 21 July 2000, he was granted a Class BB Subclass 155 Resident Return (Permanent) visa (DR at [16], CB at 487).
7) On 3 May 2002, he was sentenced to 14 years’ imprisonment for a conviction of murder; and on 18 June 2002, he was sentenced to a further 10 years imprisonment for another conviction of murder (DR at [16], CB at 487).
8) On 12 January 2012, the applicant’s permanent residency visa was cancelled on character grounds, and a decision was made not to revoke the original cancellation decision pursuant to s 501CA(4) of the Act. An appeal against this decision was dismissed by the Federal Court on 5 October 2016: BMX15 v Minister for Immigration and Border Protection [2016] FCA 1183 (BMX15).
9) On 5 March 2017, the applicant applied for the protection visa the subject of these proceedings (CB1). The application was refused by a delegate on 22 May 2017 (CB4).
10) On 23 May 2017, the applicant applied for review by the Tribunal (CB5). On 25 July 2017, there was an oral hearing before the Tribunal, at which the applicant gave evidence via video-link and other witnesses also gave evidence (CB20). The applicant was represented in relation to the review by his registered migration agent, who appeared at the hearing.
Tribunal’s decision
11) On 29 August 2017, the Tribunal affirmed the delegate’s decision (CB23).
12) The applicant claimed to fear harm from the Vietnamese authorities and/or the community on a number of different grounds. However, the Tribunal was not satisfied on the evidence and material before it that there was a real chance the applicant would face serious harm for the reasons claimed by the applicant, or for any other reason, if he were returned to Vietnam.
13) Under each sub-heading the Tribunal reasoned as follows:
a) Country of nationality: Although the applicant claimed to be currently stateless, the Tribunal was satisfied on the basis of relevant country information that the applicant remains a Vietnamese national. Although the applicant did not register with Vietnamese authorities and never had a Vietnamese passport, this would not affect his ability to have his Vietnamese nationality recognised (DR at [20]-[24], CB at 487-488).
b) Mental health considerations: Although the Tribunal accepted that the applicant may be experiencing anxiety and frustration in detention, it was satisfied that his mental health issues were not so severe they would result in a real chance of serious harm or a real risk of significant harm on return to Vietnam (DR at [25]-[26], CB at 488-489).
c) Family links to the former South Vietnamese government: The Tribunal accepted that the applicant’s uncle was a member of the South Vietnamese army and was killed by the communists. However, the Tribunal found that there was a remote chance that the applicant would be seriously harmed by the Vietnamese authorities or imputed with an anti-government political opinion on return to Vietnam (DR at [38]-[46], CB at 491-493).
d) Criminal convictions in Australia: The Tribunal considered the implications of the applicant returning to Vietnam with a criminal record in Australia, but did not find that the applicant faced a real chance of serious harm from the Vietnamese authorities because of his Australian criminal record (DR at [47]-[61], CB at 493-495).
e) Inability to subsist: The Tribunal accepted that it would be difficult for the applicant to adjust to life in Vietnam. However, the Tribunal was satisfied that he would be financially supported at least initially by his relatives, until he could secure a place to live and obtain household registration to access services, and therefore would not be destitute and/or unable to subsist on return to Vietnam (DR at [62]-[79], CB at 495-499).
f) Failed asylum seeker: The Tribunal found, on the basis of country information, that the applicant would not face a real chance of persecution on return to Vietnam as a failed asylum seeker (DR at [80]-[88], CB at 499-500).
g) Illegal departure: Although the applicant departed Vietnam illegally and may be subject to a fine on return, the relevant law was not discriminatory and the applicant’s relatives could help him pay the relevant fine. There was also no evidence or information to indicate that the applicant’s profile as a refugee who was resettled in Australia would result in persecution (DR at [89]-[96], CB at 501-502).
h) Cao Dai religion: The Tribunal accepted that the applicant followed the Cao Dai religion, and that relevant country information indicated a level of restriction of religious freedom in Vietnam. However, the country information indicated that religious observance and practice usually only become an issue when it is perceived to challenge the authorities or interests of the government and its policies. The applicant did not claim to be involved in activities for Cao Dai rights or that he would be on return, and expressed no intention of getting involved in religious activism on return to Vietnam. As such, the applicant did not face a real chance of persecution for his religion or any imputed political opinion based on his religion (DR at [97]-[102], CB at 502-504).
i) Other matters: The Tribunal considered a submission that, in addition to assessing whether or not Australia has non-refoulement obligations in respect of the applicant, the Tribunal was required to consider the prospect of indefinite detention. However, the Tribunal found that this was not a criterion in relation to the applicant’s protection visa and therefore the Tribunal was not required to consider it (DR at [103]-[105], CB at 504).
14) Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that the applicant would face a real chance of persecution for the purposes of the Refugees Convention, and therefore the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act (DR at [107]-[108], CB at 505). The Tribunal was also not satisfied that the applicant would face a real risk of suffering significant harm for the purposes of the complementary protection criterion in s 36(2)(aa) of the Act (DR at [109]-[114], CB at 505-507).
15) The only aspects of the Tribunal’s decision that are the subject of challenge in this Court are its reasoning in relation to the applicant’s Cao Dai religion, and in relation to whether the Tribunal was required to consider the prospect that the applicant might be indefinitely detained were his protection visa application to be refused. These aspects are addressed in further detail below.
SUBMISSIONS
Ground 1: Failure to take into account relevant mandatory consideration
16) The applicant submits that the Tribunal erred in failing to take into account a relevant mandatory consideration, namely that the applicant faces the prospect of indefinite detention in Australia as a legal consequence of the refusal to grant the protection visa. The Tribunal considered that it was not required to take this into account (DR at [105], CB at 504).
17) The Minister submits that the Tribunal did not err in failing to take the prospect of indefinite detention into account: first, the prospect of indefinite detention was not a mandatory relevant consideration for the Tribunal in determining whether to grant a visa under s 65 of the Act; and secondly, the prospect of indefinite detention did not arise on the facts.
Prospect of indefinite detention was not a mandatory relevant consideration
18) The applicant relies on the decision of Bromberg J in BMX15 at [85], and on the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Le (2016) 244 FCR 56; [2016] FCAFC 120 (Le) at [61] (AS[5]-[6]).
19) However, the applicant’s argument fails to distinguish between the different powers that may be exercised in deciding whether to grant or refuse a protection visa. In particular, the power to grant or refuse to grant a visa under s 65 of the Act is to be contrasted with the discretionary decision-making power to refuse to grant a visa under s 501 of the Act.
20) Section 65 of the Migration Act is headed “Decision to grant or refuse to grant a visa”. It provides that, after considering a valid application for a visa, the Minister must grant the visa if satisfied that certain requirements are met (s 65(1)(a)); and must refuse to grant the visa if not so satisfied (s 65(1)(b)). One of the matters of which the Minister must be satisfied is that the criteria for the visa prescribed by the Act or regulations have been satisfied (s 65(1)(a)(ii)). For a protection visa, those criteria relevantly include whether the person is someone in respect of whom Australia has protection obligations, either because they are a refugee or on complementary protection grounds (s 36(2)).
21) Under s 65, the only question is whether the decision-maker is satisfied that the relevant criteria are met or not met. There is no discretion involved. In BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; [2017] FCAFC 96 (BCR16), Bromberg and Mortimer JJ explained the task required by s 65 as follows (at [49]):
49. In the task required by s 65, the Minister or his delegates are to be “satisfied” of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be “satisfied” to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa.
(See also Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24 at [34].)
22) Section 501 of the Migration Act deals with refusal or cancellation of visas on character grounds. Section 501(1) provides that “The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
23) In contrast to s 65, the decision-making power to refuse or cancel a visa under s 501 involves the exercise of a wide discretion. It is clear that, in the exercise of that discretion, a decision-maker is obliged to take into account the legal consequences of the decision as a mandatory relevant consideration (which may include the prospect of indefinite detention): see, eg, NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38. It is to that power that the statements in BMX15 and Le relied on by the applicant were directed.
24) If the Tribunal had decided to refuse the applicant’s application on character grounds under s 501, then the legal consequences of the decision would have been a relevant mandatory consideration. However, the decision-maker is free to decide the manner in which a protection visa application is considered, including the order in which the criteria for a protection visa are evaluated: BCR16 at [36]-[37].
25) Here, the Tribunal reached its decision by considering, and reaching a state of satisfaction about, whether Australia had protection obligations to the applicant under ss 36(2)(a) and (aa) of the Act. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations. That being the case, the Tribunal was required by s 65(1)(b) of the Act to refuse to grant the visa. In exercising that power, the Tribunal was not required – and indeed, was not entitled – to consider the legal consequences of its decision.
No prospect of indefinite detention on the facts
26) Further and in any event, there was no factual basis to consider the prospect that the applicant might be subject to indefinite detention.
27) In circumstances where the applicant had his visa cancelled, and had now had his protection visa application refused, he was prevented from making any further protection visa application while in the migration zone: see s 48A and 501E of the Act. As an unlawful non-citizen ineligible to apply for another substantive visa, the applicant would be subject to mandatory detention and removal from Australia “as soon as reasonably practicable”: ss 189, 196 and 198.
28) The only reason put forward by the applicant before the Tribunal as to why removal might not be reasonably practicable was that the applicant would not be able to return to Vietnam because he has no identity card, family registration or Vietnamese passport (DR at [103], CB at 504). However, contrary to that submission, the Tribunal had earlier found that the applicant remains a Vietnamese national and will be able to have his Vietnamese nationality recognised (DR at [23], CB at 488). That finding has not been challenged by the applicant in this Court. There is no other basis to suggest that the applicant may be indefinitely detained.
29) The applicant’s first ground of review should be rejected.
Grounds 2 and 3: Assessment of future behaviour by reference to past behaviour
30) The applicant seeks leave to file a further amended application raising two new grounds. Although put in different ways, the crux of these grounds is that the Tribunal erred in the way in which it approached the applicant’s future conduct of religious activities on return to Vietnam, in particular by failing to make a finding as to whether the applicant would need to modify his conduct.
31) The Minister submits that leave to amend the application for review should be refused on the basis that there are insufficient merits. If leave is granted, the Minister submits that there was no error in the Tribunal’s reasoning and the grounds should in any case be rejected.
No error in the Tribunal’s reasoning
32) The applicant claimed that he would suffer persecution because of his Cao Dai religion. It may be noted that this claim was raised for the first and only time at the hearing before the Tribunal. The applicant provided additional material to the Tribunal before and after the hearing, including country information, but the only evidence as to the applicant’s practice of his religion was that given in oral evidence before the Tribunal.
33) The Tribunal accepted that the applicant followed the Cao Dai religion (DR at [101], CB at 504). The critical paragraph of the Tribunal’s reasoning is at [102] (CB at 504):
a) First, the Tribunal noted that country information indicates a level of restriction on religious freedom in Vietnam, however religious observance and practice usually only become an issue when it is perceived to challenge the authorities or interests of the government and its policies. However, the applicant did not claim to be involved in activities for Cao Dai rights or that he would be on return, and expressed no intention of getting involved in religious activism on return to Vietnam.
b) Secondly, the Tribunal noted that there was no indication that Cao Dai followers are persecuted for practising their faith per se. As such, the Tribunal was satisfied that the applicant would be able to practice his religion as he claimed he had in the past – by praying and wearing a jade necklace.
34) Contrary to the applicant’s submissions, and given the evidence before it, the Tribunal was not required to make an express finding of fact that the applicant would not engage in conduct attracting harm for reasons unrelated to fear of such harm.
35) The applicant relies on BBS16 v Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (BBS16). In that case, a Full Court of the Federal Court found that the Independent Assessment Authority (IAA) had erred by failing to consider whether the visa applicant would not practice his faith more often and be more politically active on return to Iran because he feared the harm that would follow (at [82]-[83]).
36) The Full Court’s reasons were based on the following passage from Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473 (S395) at [43] (McHugh and Kirby JJ):
The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly. (See also Gummow and Hayne JJ at [82].)
37) As the opening words of that passage make clear, the error arises where a Tribunal proceeds on the basis that “it is reasonable for a person to take action that will avoid persecutory harm”. In Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 (SZSCA) at [17], French CJ, Hayne, Kiefel and Keane JJ similarly explained that “[t]he essential reasoning in S395 was that the [Refugee Review Tribunal] had diverted itself from the task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided.”
38) The Tribunal in the present matter did not commit an error of the kind identified in S395 and SZSCA. The Tribunal did not proceed on the basis that the risk of persecution could be avoided, and did not make any specific finding that the applicant would not be exposed to harm because he would (or should) modify his behaviour to avoid the risk of persecution. Instead, it found that he would not be exposed to a real risk, because the activities which he had identified meant that he did not have (and would not have) any adverse profile with the Vietnamese authorities.
39) Further, the present case is distinguishable from BBS16. In that case, the obligation to consider why the respondent had not practised his religion more extensively in the past, and why he would not alter his past behaviour if returned to Iran, arose from the findings that it had made. However, there were no such findings here to provide the basis for such an obligation:
a) First, the applicant in BBS16 had claimed to have left Iran because of the discrimination he faced as a result of his religion. However, the applicant here did not make any claim that he had previously faced discrimination which might have affected his past conduct.
b) Secondly, the evidence as to the way in which the applicant in BBS16 had previously exercised his religion was in relation to his conduct in Iran. It was in those circumstances that the IAA was required to consider whether that past conduct was affected by a fear of persecution. Here, however, the applicant had lived in Australia since 1993, and it can be inferred that his evidence as to the way in which he practiced his religion was in relation to his conduct in Australia. There could be no suggestion that his past conduct in Australia had been influenced by the fear of persecution.
c) Thirdly, whereas the IAA in BBS16 found that the religious group of which the applicant was a member faced harassment and discrimination, the Tribunal here found that Cao Dai followers were not persecuted simply for practicing their faith.
40) The applicant accepts that it is open to the Tribunal to conclude (as a matter of fact in a particular case) that a person will not engage in conduct which would attract relevant harm (AS [13(a)]). The applicant also accepts that there is nothing remiss with a decision-maker using past or present matters to predict the future (AS [16]). That is precisely what the Tribunal did here: the Tribunal concluded that the applicant would not engage in future conduct that would attract harm, based on past events (the applicant’s history) and in the absence of any evidence to suggest that the applicant had modified his behaviour in the past or any claim that he wished to do so in the future.
41) The Tribunal’s conclusion was clearly open to the Tribunal on the evidence before it. Its reasoning did not involve any failure to “engage in an active intellectual process”, or lack an “evident and intelligible justification” (cf AS [14]-[15]). These grounds should be rejected.
CONCLUSION
For the reasons above, the application should be dismissed with costs.
Consideration & Disposition
At the outset of its reasons (par.1), the Tribunal made plain that the Application before it related to a decision of the Delegate to refuse to grant the Applicant a protection visa under s.65 of the Act. Put another way: the decision under review does not involve a consideration of s.501 of the Act and the discretionary matters that arise under that section.
In relation to Ground 1 of the Application to Review, the Applicant said that this Court is bound by the comments of the Full Court in Minister for Immigration and Border Protection v Le, and the more recent comments of Bromberg J in BMX15 v Minister for Immigration and Border Protection.[5] It was submitted that these authorities require the Tribunal to take into account, as a mandatory relevant consideration, the prospect of indefinite detention if the visa was refused.
Summarised, the Minister submitted that there was a difference between the operation of the requirements under s.65 of the Act (as is/was the case here) compared to the discretionary considerations that apply regarding the cancellation of a visa under s.501 of the Act. The Minister here relied upon the Full Court decision in BCR16 v Minister for Immigration and Border Protection.[6] Further, the Minister submitted that in any event, the issue of “indefinite detention” did not arise on the facts of the matter here.
In my view, for the following reasons, Ground 1 is not made out and must be rejected:
(a)The Tribunal clearly outlined, at par.105 of its reasons, why there was no requirement to consider whether the Applicant risked being held in indefinite detention;
(b)There is no factual basis for the claim made by the Applicant that he faces, either in Australia or in Vietnam, “indefinite detention;”
(c)The cases relied upon by the Applicant (Le and BMX) relate to decisions made under s.501 of the Act, rather than s.65. The same general comment applies to other similar cases, such as Ayoub v Minister for Immigration and Border Protection, and NBMZ v Minister for Immigration and Border Protection (both of which are referred to and discussed in Le), which also deal with the cancellation of a visa under s.501 of the Act.[7] As such, these cases are not directly relevant to the matter before this Court and its consideration of the Tribunal’s decision regarding the refusal of a visa under s.65 of the Act;
(d)The Full Court decision relied upon by the Minister, BCR16 v Minister for Immigration and Border Protection (“BCR16”) is directly relevant and in my view is determinative of the matter in relation to Ground 1. In that case, in the majority judgment of Bromberg and Mortimer JJ, at [48] and [49], their Honours said:
[48] We also accept the appellant’s submissions that the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s.65 of the Migration Act. The revocation power is discretionary, and the risk of significant harm to the appellant in Lebanon (whether for a Convention reason or otherwise, both may be relevant) would be a matter to be weighed in the balance by the Assistant Minister. That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion.
[49] In contrast, both in terms of text and of authority, s 65 involves a qualitatively different exercise. In the task required by s.65, the Minister or his delegates are to be “satisfied” of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be “satisfied” to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa. In the discretionary exercise for which s.501CA(4) calls, as we point out elsewhere in these reasons, the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s.36(2)(a) and (aa). In the process for the exercise of the s.501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s.65.
Otherwise I accept the Minister’s submissions in relation to Ground 1.
In relation to Grounds 2 and 3, I note the following. For current purposes I will grant the Applicant leave to rely upon Ground 3 notwithstanding it was filed very late and was the third attempt of the Applicant to formulate his Grounds of Review.
First, in Carrascalao v Minister for Immigration and Border Protection, at [32] – [34], the Full Court (Griffiths, White and Bromwich JJ) cautioned (emphasis in original):[8]
[32] The Court is mindful of the necessity to avoid straying into a review of the merits of the Minister’s decisions (see the frequently cited statements of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-37). The Court acknowledges that an expression such as “proper, genuine and realistic consideration” can, if taken out of context, encourage a “slide” into an impermissible merits review (see the observations of the High Court in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 (SZJSS) at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, who referred with apparent approval to Basten JA’s comments on this matter in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]).
[33] The provenance of the expression was identified by the High Court in SZJSS at [26] as Gummow J’s judgment in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292. There his Honour was addressing the ground of judicial review relating to the exercise of a discretionary power in accordance with a rule or policy and without regard to the merits of a particular case. In the context of describing what was required of the Minister’s delegate in considering all relevant material placed before him, Gummow J said that the delegate was required to “give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy”. In SZJSS, the High Court did not indicate that it was inappropriate to use the expression in that particular context. Naturally, when doing so, the limits of the judicial review function still need strictly to be observed.
[34] The danger of using that or similar expressions has been emphasised in many cases in other contexts. For example, when the expression has been used in conjunction with the ground of judicial review relating to the failure to take into account a mandatory relevant consideration, Courts have acknowledged that its use carries the risk of creating “a kind of general warrant, involving language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised” (see Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 (Ayoub) at [24] per Flick, Griffiths and Perry JJ, Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 442 per Heerey, Goldberg and Weinberg JJ and Anderson v Director-General of the Department of Environment & Climate Change [2008] NSWCA 337 at [51] – [58] per Tobias JA, with whom Spigelman CJ and Macfarlan JA agreed).
Secondly, accepting that they are somewhat lengthy, the very helpful comments/instruction by the Full Court (Allsop CJ, Griffiths and Wigney JJ) in Minister for Immigration and Border Protection v Eden at [55] – [65] are important to record here, given the Applicant’s claim of alleged “legal unreasonableness” in Ground 3 (emphasis added):[9]
[9] Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 (“Eden”). More recently still, see the High Court’s comments and discussion in relation to “unreasonableness” in Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 at
[55] First, there was no substantial disagreement between the parties in relation to the relevant principles. The main points of contention involved whether the primary judge applied, or correctly applied, those principles.
[56] Second, the relevant principles were the subject of detailed analysis, in a relevantly similar context, in the recent decision of this Court in Stretton. Like this matter, Stretton concerned the question whether the Minister’s exercise of power under s 501(2) of the Act to cancel a visa was legally unreasonable. In that context, both the judgments of Allsop CJ and Griffiths J (with whom Wigney J agreed) distilled a number of statements of principle concerning legal unreasonableness derived, for the most part, from the decision of the High Court in Li and the decision of this Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Singh).
[57] For the purposes of this appeal, it is sufficient to reduce the relevant principles into a few short propositions. This short summary is not intended to supplant or derogate from the detailed analysis and explication of the relevant principles in Li, Singh and Stretton.
[58] First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Li at 350[26] and 351[29] (French CJ), 362[63] (Hayne, Kiefel and Bell JJ) and 370[88] (Gageler J); Singh at 445[43]; Stretton at [4] (Allsop CJ) and [53] (Griffiths J).
[59] Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at 363[66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at 203 [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).
[60] Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified: Li at 350[27]-351[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ).
[61] This appeal is primarily concerned with whether the outcome of the Minister’s exercise of power was legally unreasonable. That said, some of the primary judge’s reasons for concluding that the decision was unreasonable, and some of the appeal grounds and submissions, are directed at the Minister’s reasons and alleged errors in the decision-making process.
[62] Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion: Li at 351[29] (French CJ),
363[66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at 375[105] (Gageler J); Stretton at [11] (Allsop CJ).[63] Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at 349[24] (French CJ), 363[67]-364[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in
decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at 445[42].[64] Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at 446[45]-447[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at
[47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at 367[76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ).[65] Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at 445[42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
In addition, I note the following from the recent High Court decision in Minister for Immigration and Border Protection v SZVFW.[10] For current purposes it is sufficient to note the following comments of Kiefel CJ, at [11], (internal citations omitted; emphasis added):[11]
Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion….
[11] See also the extended discussion by Gageler J in SZVFW at [51] – [60].
For the following reasons, in the light of the principles to which I have referred, Grounds 2 and 3 are not made out and should be refused.
In relation to Ground 2, the Applicant referred to par.102 of the Tribunal’s reasons. Summarised, the Applicant complained that (a) the Tribunal did not make a finding of fact that he would not engage in conduct attracting relevant harm … and (b) there was no proper assessment by the Tribunal of the Applicant’s future conduct beyond this assessment of his past conduct and presently perceived state. This, said the Applicant, meant that the Tribunal did not relevantly engage in the requisite intellectual engagement regarding his future conduct.
A fundamental problem with the Applicant’s Ground 2 is its failure to have proper regard to a range of other parts of the Tribunal’s reasons, in addition to par.102. For example, none of the following paragraphs of the Tribunal’s reasons are referred to by the Applicant, each of which (and collectively), in my view, confirm the Tribunal’s proper and reasonable consideration of the Applicant’s claims:
(a)Par.28 refers to the Applicant’s evidence regarding his initial claims for protection. There is no reference to anything to do with possible religious persecution;
(b)At par.36, the Applicant’s evidence was that he had returned 3 times to Vietnam, in 1994 and twice in 2000, without incident;
(c)At par.44, the Tribunal noted that the Applicant’s Mother has continued to reside in Vietnam, essentially without incident;
(d)At par.97, the Tribunal noted that the Applicant’s Mother was also a follower of the Cao Dai religion, as are many of the maternal relatives (par.101). There was no claim by the Applicant, or otherwise, that his Mother or any of his relatives on his Mother’s side had ever suffered any persecution or other impediment arising out of their practice of, or adherence to, the Cao Dai religious tradition.
Having regard to each and all of these paragraphs, in my view it cannot reasonably be said that the Tribunal did not properly consider any possible risk of adverse attention to the Applicant arising from his adherence to the Cao Dai religion.
Moreover, there was no relevant evidence, other than what was recorded by the Tribunal (at pars.97 – 101) provided by the Applicant regarding any possible risk he might suffer from his religious adherence. The onus was on the Applicant to provide evidence in support of his claims. This would necessarily have included any potential proposal, at some time in the future, to become some form of religious activist who would thereby attract the attention of the authorities. On the contrary, the Applicant’s evidence was to the effect that he would (a) not be so minded (e.g. in relation to any political activity, or to bring attention to his criminal conduct in Australia), and (b) be much more likely to lead as quiet and unobtrusive a life as possible, precisely so as not to attract any attention from any authority.
Otherwise I accept the Minister’s submissions in relation to Ground 2, which otherwise must be dismissed.
The comments already noted, particularly in relation to the paragraphs of the Tribunal’s decision earlier referred to, in my view, readily establish the thorough and detailed examination by the Tribunal of the claims made by the Applicant. Such matters go to Ground 3, which I also reject.
In my view, the reasons of the Tribunal make plain that:
(a)The Tribunal performed the statutory task it was required to undertake (Robertson J in Minister for Immigration and Citizenship v SZRKT at [97])[12];
(b)In considering each claim raised by the Applicant, even those made only before the Tribunal that were not raised before the Delegate, the Tribunal showed that it weighed the evidence put before it, preferring some over the other (Full Court in Minister for Immigration and Border Protection v MZYTS at [38], [46] and [50]);[13] and
(c)Having regard to the Full Court’s instruction in Eden, at [65], noted earlier in these reasons, and in particular the following in relation to the process of the Court and its findings regarding the Applicant:
… it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
Having regard to what the Full Court said in Eden at [65], and the reasons outlined here, in my view, Ground 3 has no evidentiary or procedural basis. It must be rejected. Again I accept the Minister’s submissions.
The Further Amended Application, filed 8th March 2018, must be dismissed with costs in the Minister’s favour in accordance with Schedule 1 to this Court’s Rules, fixed in the sum of $7467.00.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 6 December 2018
- AGLC
- EAO17 v Minister for IMMIGATION [2018] FCCA 3319
- Case
- [2018] FCCA 3319
- Decision Date
CaseChat Overview and Summary
The Applicant raised three grounds for judicial review. First, it was argued that the Tribunal committed a jurisdictional error by failing to consider a mandatory consideration, namely the legal consequences of its decision, specifically the prospect of indefinite detention in Australia. Second and third, the Applicant contended that the Tribunal failed to give proper, genuine, and realistic consideration to whether he would need to modify his religious activities upon return to Vietnam, and that its finding on this issue was legally unreasonable.
The Court dismissed the application. Regarding the first ground, the Court found that the prospect of indefinite detention was not a mandatory consideration for a protection visa application, but rather relevant to visa cancellation decisions. The Court noted that while previous case law indicated this prospect could be relevant to a protection visa application, it was not a criterion for the visa itself. On the second and third grounds, the Court held that the Tribunal's assessment of the Applicant's religious practice was based on the evidence before it, including the Applicant's stated intentions and past conduct. The Court found no jurisdictional error in the Tribunal's reasoning that the Applicant would likely continue to practice his faith within government-sanctioned boundaries and would not engage in activities that would attract adverse attention, as he had not claimed to intend to engage in religious activism upon return. The Court concluded that the Tribunal had engaged in an active intellectual process and its findings were not legally unreasonable.
Orders
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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