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…
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- AGLC
- EAO17 v Minister for IMMIGATION [2018] FCCA 3319
- Case
- [2018] FCCA 3319
- Decision Date
CaseChat Overview and Summary
This case concerned an application for judicial review of a decision by the Migration Review Tribunal (the Tribunal) which affirmed a delegate of the Minister for Immigration's decision to refuse the Applicant a protection visa. The Applicant, who had been convicted of two murders in Australia, claimed he feared persecution if returned to Vietnam based on his past criminal conduct. The Applicant argued that the Tribunal's decision involved a jurisdictional error.
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.
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
Orders of the court
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Background
Background to the litigation
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.Background2) 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; andc) 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 Tribunal3) 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 review4) 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. SubmissionsGround 15) 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 37) 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. Conclusion17) The application should be allowed with costs.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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