EEP16 v Minister for Immigration

[2018] FCCA 3831

FEDERAL CIRCUIT COURT OF AUSTRALIA

EEP16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3831

Catchwords:
MIGRATION – Application for judicial review – protection visa – whether the Tribunal erred in considering evidence before it – application allowed.

Legislation:

Migration Act 1958 (Cth) s.424A

Applicant: EEP16

First Respondent: MINISTER OF IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1 of 2017

Judgment of: Judge Riethmuller

Hearing date: 30 October 2018

Date of Last Submission: 21 November 2018

Delivered at: Melbourne

Delivered on: 21 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Lake

Solicitors for the Applicant: Luat Lawyers

Counsel for the First Respondent: Ms Campbell

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 5 December 2016.

2. A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.

3. The First Respondent pay the Applicant’s costs in the sum of $6,918.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1 of 2017

EEP16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant arrived in Australia on 18 May 2013 as an irregular maritime arrival.  He was 20 years of age at that time.  The applicant is a Vietnamese citizen.  In July 2013, he attended an entry arrival interview.  At that interview, the applicant claimed he became involved in welfare activities for young people, which led to him being arrested twice and being beaten by officials in Vietnam.  The applicant said that the welfare protection group was also part of a Catholic students group.  The applicant expressed the view that he was arrested because he and others had advocated for the prohibition of abortion and that they had gathered some unburied foetuses and interned them. 

2. In June 2014, when the applicant applied for a protection visa, he attached a written statement setting out that he was concerned that he would be harmed because he was Catholic, he had been beaten in the past by the police for being a member of a life protection organisation with other Catholic students, and that the authorities knew that he had left Vietnam to seek asylum.

3. The applicant was interviewed on 11 October 2014.  In post-interview submissions, his representative provided confirmation that the applicant claimed harm as a result of his Catholic religion, his political opinion, and his membership of a social group being failed asylum seekers. 

4. Importantly, at the post-interview submission, the applicant’s representative also made a claim on a sur-place basis as a result of two events that occurred during his period of immigration detention; firstly, a privacy breach in February 2014 on the internet and secondly, a visit by Vietnamese police to detention centres in Australia in August 2013. 

5. The delegate refused the application for the visa and the applicant sought review by the Tribunal.  The applicant had a hearing before the Tribunal in September 2016.  At the hearing, the Tribunal asked the applicant to comment upon information concerning his participation in protests in Canberra in April 2016, and various other matters.  Further written submissions were provided to the Tribunal after the hearing by the applicant’s representative.  On 5 December 2016, the Tribunal refused to alter the decision of the delegate, save as to make a determination not to grant the applicant a Protection (Class XD) visa.

6. The grounds for judicial review focus upon the findings of the Tribunal with respect to the applicant’s participation in protests in Canberra (Australia).  The relevant passages in the Tribunal’s decision are at [43] to [47], where the Tribunal said:

   43.  I now turn my mind to whether the applicant's activities in Australia would lead to the applicant facing a real risk of significant harm as legislated through Complementary Protection. During the protest in 2015 the applicant raised the old Republic of Vietnam flag and was interviewed on a television program uploaded onto YouTube in which he claimed to be against the government of Vietnam. That the video has had over 15,000 hits would suggest that it is widely known within the Vietnamese community and I base my decision upon an assumption that government officials have had an opportunity to review its content.

   44.  In Vietnam punishment has recently been handed out for flying the Republic of South Vietnam flag. In one case three women received prison terms of three and four years with two years' probation for flying the flag [FN: Radio Free Asia, ‘Vietnam Jails Blogger, 3 Land Activists for ‘Anti-State Propaganda’ available at [accessed on 19 September 2016]]. As such I accept that the severity and harm faced by the applicant were he to have publicly waved the Vietnamese flag in Vietnam and was tried in a Vietnamese court would amount to serious and/or significant harm.

   45.  Country information collated by the Tribunal suggests that the Vietnamese government posts Ministry of Public Security personnel to embassies and consulates with the task of monitoring the activities of overseas Vietnamese citizens. But the same source distinguishes between 'anti-regime activities' and 'critical views' by noting that 'Vietnamese citizens who have been critical of their government whilst living overseas are not usually treated in this fashion. There is a tolerance of "critical views" but not anti-regime activity.” [FN: Thayer, C. A. 2005, 'Comments for the Australian Refugee Review Tribunal', 18 March, cited in Refugee Review Tribunal 2007, RRT Research Response VNM31954. <CISNET RRT Q and A RR2821>. Emeritus Professor Thayer's current profile: University of New South Wales n.d. [current], 'Carlyle A. Thayer' < [accessed 11 November 2016]. Folio [114-115]].

   46.  I now proceed to address whether the applicant faces a real risk of significant harm were he to return to Vietnam on the basis of his actions in Australia. As I could not find evidence that the Vietnamese government would or would not try citizens for the specific action of flag waving while abroad, but that country information suggests that there is a tolerance of criticism of the government by citizens while abroad I find that there isn't a real risk of significant harm as a result of his participation in protests in Australia.

   47.  As to whether the applicant would upon return seek to participate in non-religious political activities I note that the applicant has not participated in any other protest in Australia before or after the visit to Canberra, that he hasn't conducted any online political activity while in Australia and that he has had no political activism in Vietnam (I treat his religious activism separately below) I find that were he free of fear the applicant would not continue to protest politically in the reasonably foreseeable future were he to return to Vietnam.

Ground 1

1. Ground 1 of the applicant’s claim is expressed as follows:

   1. The Tribunal failed to accord the Applicant procedural fairness in its use of information leading to its finding of fact that the Applicant was in two places in Canberra on the one day.

2. With respect to this part of the applicant’s claim, the Tribunal addressed the issues (at [33]) saying:

   33. The applicant also claims to have been involved politically in Australia. Specifically that he participated in a demonstration in Canberra on the weekend of the 26 April 2015 against the visit to Australia of Vietnam's Prime Minister, Nguyen Tan Dung. The applicant claimed that about 200 people were present at the protest (independent reporting notes that the protest was on the 18 March and that it had 100 in attendance [FN: SBS, Canberra protesters rally against Vietnamese PM, 18 March 2015 available at [accessed on 21 September 2016]]). The applicant was interviewed by an Australian Vietnamese television program which was subsequently posted online and has over 15,000 hits on YouTube [FN: Screen shot of the Youtube report, folio 65, and additional photos, folio 62-64]. The YouTube post states that the interview with the applicant was on the 18 March. He claims that he was asked by the interviewer what he thought about the Vietnamese community in Australia and what his wishes were by participating in the protests, to which he responded that the Vietnamese community is very united and that they all wanted to protest against the government in Vietnam. One of the reasons he claims that he took part in the demonstration was that he wanted to do his part to contribute to a change of government. In addition, he also claims that he protested in front of the Vietnamese Embassy in Canberra alongside 400 others at around the same time [FN: Photo of protest in front of Vietnamese embassy in Canberra, folio 58]. I asked whether he had been involved in any other protests as he had mentioned that the Vietnamese community gathers in Canberra every 30 April to protest against the government, to which he responded that he had not and in particular for the 2016 event he noted that he was feeling tired and as such didn't go. In a post-hearing submission the applicant suggested that he had attended separate protests, one on the 18 March and the second on the 30 April. I note that in the pictures provided of his two protests he is wearing the same tracksuit and shoes in both [FN: Folio 65-67], which while not unusual considering the circumstances of an asylum seeker, is more closely aligned with the information provided at the hearing namely that it was a single trip during which he protested in two locations. As such I accept that the applicant had protested in two locations on a single trip to Canberra with at least one being on the 18 March 2015 as described above.

3. It is clear that the Tribunal considered whether or not the applicant had protested on two separate occasions, and whether or not they were on the same weekend, or on different weekends.  The Tribunal clearly accepted that the applicant had protested in two separate locations, but concluded that it was during a single visit to Canberra.  Importantly, later in the decision (at [42]), the Tribunal concluded:

   42. I now consider the applicant's participation in protests in Canberra and specifically whether the motivation was genuine and not undertaken in bad faith as per Section 91R(3) of the Migration Act. I have found earlier that since being released into the community in December 2014 the applicant had participated in a single trip to Canberra to protest against the Vietnamese regime. I also note that he has no online political activism. Furthermore, his prior protest in Vietnam was related to religious freedom and not overtly anti-government, in other words, he has not shown any ongoing commitment to the ideals of the type being pursued at the protest he participated in while in Canberra. As a result I find that his participation in the Canberra protests was undertaken in bad faith and solely for the purpose of strengthening his claim to be a refugee. As such I disregard the above discussed conduct engaged in by the applicant when considering Refugee Convention claims.

4. The applicant argued that a letter sent to him under s.424A of the Migration Act 1958 (Cth), seeking further comment referred to the protests as the ‘April 2015 protests’. However, the applicant argues that the protests question and the letter pursuant to s.424A (at court book p.273) was not addressing the issue as to whether there were protests on separate days or separate weekends, which was the subject of a determination by the Tribunal, but rather the question of whether or not it was for the purpose of strengthening the applicant’s claim.

5. In the s.424A letter, the Tribunal said:

   1) Regarding your participation in the April 2015 protests in Canberra, can you please explain your motivation for participating?

   This information is relevant to the review because the Tribunal is required to consider whether your participation in the protest was solely for the purpose of strengthening your protection claim.

   …

   This information is relevant to the review because it will help assess whether your participation in the protest was for the purpose of strengthening your claim.

   If we rely on this information in making our decision, we may decide to affirm the decision of the Minister's delegate to reject your protection visa application.

   You are invited to give comments on or respond to the above information in writing.

   Your comments or response should be received by 5 October 2016. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

   If you cannot provide your written comments or response by
   5 October 2016, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 5 October 2016 and you must state the reason why the extension of time is required.

   We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

   If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information.

   If you have any questions, please email mrdivisionaaatmov.au or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

   Yours sincerely

   …

6. It was not a requirement that the Tribunal express to the applicant its thought process as to whether or not the applicant attended Canberra on two occasions.  Clearly, this was an issue discussed with the applicant, as the Tribunal notes in the post-hearing submissions, two separate dates were set out. 

7. I am not persuaded that these matters show a lack of procedural fairness on the part of the Tribunal, and, therefore, this ground is not made out.

Ground 2

1. Ground 2 is set out as follows:

   2. The Tribunal failed to give proper, genuine and realistic consideration to the Applicant’s claim of a real risk of significant harm as a consequence of his activities in Australia.

2. As set out above, the relevant passages to which the applicant refers are [43] to [47].  It is said, under this ground, that the Tribunal did not properly assess the applicant’s claims, or failed to provide adequate reasons. 

3. It is difficult to conclude that the Tribunal did not have regard to these issues, as this has been discussed at some length in the decision. Reasons have clearly been provided that address the core issues raised by the applicant. Ultimately, the difficulty for the applicant was that the Tribunal found that he was not at real risk of significant harm as a result of his activities in Australia: see [46].

4. What emerged from argument was a potential difficulty with the reasoning process, and whether it was logical or legally reasonable in the course of these paragraphs.  As a result, I have granted leave for the applicant to amend and add a further ground for judicial review. 

Ground 3

1. Ground 3 is set out as follows:

   3. The Tribunal fell into jurisdictional error from legal unreasonableness in its findings at paragraph [46] of its reasons.

2. In support of this ground, the applicant argues that any reasoning process was illogical or unreasonable.  The reasoning as set out in the relevant passages appears to follow the following logical process:

   a)That there is a difference between anti-regime activities and critical views: see [45].

   b)Whilst the regime may tolerate critical views, it does not tolerate anti-regime activities.

   c)The flying of the old Republic of Vietnam Flag, at least within Vietnam, or the Republic of South Vietnam Flag, has resulted in significant prison terms for those involved in such activities: see [44].

   d)There are no specific pieces of evidence as to the attitude of the regime to people who fly flags from alternative regimes outside of Vietnam.

   e)The Tribunal concluded that as there was not specific evidence in light of the other country information, that there would be tolerance and criticism by the Government.

3. As the Tribunal proceeded on the basis that it was only a criticism of the Government and not an anti-regime activity, without specifically addressing why it would find such, it appears that the reasons are either illogical or fail to meet the standards of legal reasonableness in the reasoning process.  That is, the decision relies upon the finding that the activity is simply a criticism of government, not anti-regime, and would be seen as such by the government of Vietnam. 

4. Throughout history, the activity of flying the flag of an alternative regime is a strong symbol of anti-regime sentiment. It was not the symbol of a cause (for example, the purple, white and green flag of the suffragette movement compared with Lafayette’s Tricolor that was adopted as a symbol of the French revolution).  The fact that it was done outside the country is not sufficient to alter its symbolism

5. In the absence of some other fact or circumstance, a finding that the flag of another regime is not ‘anti-regime’ is illogical in the legal sense

6. It is clear, by ordinary definition, that the flying of an alternative flag, either from the old Republic of Vietnam or South Vietnam is an anti-regime activity, rather than a critical view of Government policy or Government action.  If there were doubt about whether flying the flag was an anti-regime activity, the heavy sentences handed out within Vietnam for such activities are confirmation that it is an anti-regime activity, or likely to be seen as such. The fact that there is tolerance of critical views does not assist in this case where the activity appears to be anti-regime. 

7. In the circumstances, I therefore find that this ground has been made out.

8. There is no reason that costs should not follow the event and I so order.

I certify that the preceding twenty–five (25) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 21 December 2018