EPF17 v Minister for Immigration

[2018] FCCA 1398

FEDERAL CIRCUIT COURT OF AUSTRALIA

EPF17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1398

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Administrative Appeals Tribunal – Protection (Class XA) visa – whether Authority considered all integers of applicant’s claim.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA, 91R(3)(b), 36(2)(a), 36(2)(aa)

Cases cited:

BZAID v Minister for Immigration & Anor [2015] FCCA 3490
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549

First Applicant: EPF17

Second Applicant: EPE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1030 of 2017

Judgment of: Judge Jarrett

Hearing date: 25 May 2018

Date of Last Submission: 25 May 2018

Delivered at: Brisbane

Delivered on: 8 June 2018

REPRESENTATION

Solicitors for the Applicants: Essen Lawyers Pty Ltd

Counsel for the First Respondent: Ms Forder

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 20 December, 2017 be dismissed.

2. The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1030 of 2017

EPF17

First Applicant

EPE17

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application to review a decision of the second respondent dated 28 September, 2017.  By that decision, the Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant the applicants Protection (Class XA) visas.

2. In summary, the applicants argue that the second respondent committed jurisdictional error because it did not comply with ss.424A or 424AA of the Migration Act 1958 (Cth) (“the Act”) and did not take into account certain aspects of the evidence and claims made by the first applicant.

3. The first respondent opposes the application.  He argues that the application is a thinly veiled attempt to engage the Court in impermissible merits review.  The second respondent has entered a submitting appearance.

4. On 21 November, 2017 directions were made to prepare the matter for hearing.  The applicants were given the opportunity to file an amended application setting out complete particulars of their grounds of review.  The parties were also directed to file written submissions. 

5. The applicants have filed an amended application on 20 December, 2017.  By their representative, they have also filed written submissions.  The first respondent has filed written submissions.  I have had regard to the parties’ written submissions.  Neither party made any oral submissions to advance those set out in their written documents.

6. The first and second applicants are wife and husband.  For the sake of convenience and ease of reference, throughout these reasons, I will refer to the first applicant as “the applicant” and the second applicant as her “husband”.

Background

1. The applicant is a citizen of Vietnam who accompanied her husband to Australia on 29 January, 2007.  He entered Australia on a subclass 457 visa.  She had a visa that was dependent upon her husband’s visa.  In due course, those visas expired.

2. On 18 October, 2013 the applicant lodged an application for a Protection (Class XA) visa.  Her husband also sought a visa but only on the basis that he was part of the applicant’s family unit.  He advanced no separate claims of his own.

3. The applicants’ application was refused on 25 February, 2014 and they applied for review by a refugee review tribunal.  The tribunal affirmed the decision of the delegate to refuse the visas on 27 March, 2014.  The applicants applied to this Court to review that decision.

4. On 24 December, 2015 I dismissed that application: BZAID v Minister for Immigration & Anor [2015] FCCA 3490. The applicants appealed to the Federal Court. The appeal was allowed and the application for review was remitted for reconsideration on 17 May, 2016.

5. On 13 April 2017, following remittal, the applicants’ representative provided an additional written submission and a final statutory declaration by the applicant. The applicant attended a rescheduled hearing on 25 May, 2017. The Tribunal (which has supplanted the refugee review tribunal) was subsequently reconstituted. The first applicant attended another hearing before the Tribunal on 21 August, 2017.  The applicant’s representative provided a post-hearing written submission on 28 August, 2017. The first applicant attended a final hearing before the Tribunal on 8 September, 2017.

6. On 28 September, 2017 the Tribunal again affirmed the decision not to grant to the applicants’ protection visas.  It is from that decision that the applicant now applies for judicial review by this Court.

The applicant’s claims

1. The applicant claims that she has a well-founded fear of persecution based on:

   a)her political opinion against the Vietnamese government;

   b)her political opinion in relation to her views on government programs;

   c)non-payment of party memberships;

   d)the police interrogation in relation to her alleged political activities since her arrival in Australia;

   e)her raised profile as a failed asylum seeker who has been imputed with western views who departed Vietnam legally but promising to return after the expiry of her husband’s visa; and

   f)her activities in Australia, such as claiming asylum and participating at an anti-China protest in Brisbane.

2. In her visa application and before the Tribunal, the applicant claimed that:

   a)She was a past member of the Vietnamese Communist party.  She worked for the Communist radio station in her home town, Van Hai village, as a presenter and broadcaster. She was a well-known member of the Communist party and government officials in her home town.

   b)She feared that she will be harmed by the Vietnamese authorities upon return. She claims that she has an adverse profile in Vietnam as an asylum seeker and an ex-Communist member who had been accused of having a secret political agenda.

   c)The reason for her departure from Vietnam was her fear of being persecuted by Communist party officials. The Vietnamese authorities treated her as a person with a secret political agenda due to her criticism of their economic plans.

   d)She held various positions in committees and associations of the Communist regime. She was the president of the Women’s Association in Van Hai Village from March, 2003 to January, 2007 and a member of the Women’s Association of Kim Son district from August 2006 to January 2007. She was also the secretary of the People’s Committee of Van Hai Village from April, 2004 to January, 2007.

   e)At the commencement of the applicant’s work at the Van Hai Radio Station, she was a part time presenter and editor. She was required to obtain the Communist Party membership to obtain permanent employment at the radio station. After she obtained her Communist Party membership, she began to express her independent views more often in her programs. The authorities then began to scrutinize her work more. They did not like her expressing views on government programs. She was expected to do more propaganda work.

   f)The applicant was secretly monitored by the government authorities in Vietnam. She was approached by police who warned her not to broadcast her “reasons for political reform” on local radio.

   g)The applicant felt pressured in all her activities and resigned from her job at the radio station.

   h)She sought the husband’s work visa as an avenue to seek protection from Australia. She applied for protection as soon as she learned that the husband will not be able to stay in Australia under his work visa.

   i)Whilst in Australia she received multiple phone calls from various communist organisations requesting that she paid her membership fees.

   j)She had to return to Vietnam for six weeks in March and April of 2011 to see her sick father. Although she stayed home most of the time to avoid attention from authorities, they found her during a visit to local market. She was subjected to interrogation. She was questioned about her “political activities” in Australia and warned not to publish any anti­government material in Australia. She returned to Australia soon after that fearing arrest.

3. The applicant’s case is that the contents of her programs were not anti-communist. However, the government officials did not tolerate her proposals for economic and social reforms which included:

   a)expansion of a Swedish HIV program that was operating in parts of Vietnam;

   b)expansion of foreign investments in Vietnam;

   c)cutting the red tape by empowering local government to approve programs giving freedom of expression; and

   d)transparency of funding arrangements of “People’s Committee”.

The Tribunal’s decision

1. The Tribunal set out the applicant’s claims as they appeared in:

   a)her statutory declaration dated 17 October, 2013;

   b)a supplementary statutory declaration addressing the issue of the date of her joining the Communist Party;

   c)an additional statutory declaration on 17 September, 2014;

   d)a letter from her father dated 5 September, 2014;

   e)a further statutory declaration submitted on 10 April, 2017;

   f)written submissions were also lodged by the applicant’s representative.

2. The Tribunal recorded that:

   40.    …The applicant neatly summarised her fears in paragraph 39 of the Declaration as follows:

   ·I believe that I have a real and genuine fear that I would be subject to punishment by the Vietnamese authorities upon my return for the following reasons:

   oI was monitored by the authorities as a person who held opposing views to the Vietnamese government and a person with a hidden political agenda;

   oDuring my visit to Vietnam in 2011 I was warned by the local police not to write or publish articles detrimental to the Vietnamese government as the police had knowledge of my background as a presenter and editor of the local Van Hai radio station;

   oThe authorities in Vietnam had been monitoring my activities in Vietnam for a significant time;

   oThe authorities were planning to fabricate charges against me to arrest me during my visit in 2011. I managed to escape from Vietnam as I secretly organised my departure;

   oAfter I left Vietnam in 2011, the police visited my parents’ home looking for my whereabouts;

   oI have participated in a candlelight vigil for free Vietnam in Australia that would offend the Vietnamese Government.

3. It is not suggested that the Tribunal’s summary of the applicant’s claims and her case generally was inaccurate.

4. The Tribunal found aspects of the applicant’s evidence to be lacking in detail, implausible, contradictory and unconvincing and was of the view that whilst the core of her experiences had been honestly related, her claims of fear had been exaggerated making her an unreliable witness.

5. In respect of her claims concerning her role as a broadcaster and a member of the Women’s Association People’s Council and Party, the Tribunal accepted that:

   a)the applicant became a radio announcer at Van Hai village radio in April, 2002 and remained so until she resigned in December, 2015;

   b)she became a member of the Vietnamese Communist Party in March, 2003;

   c)the applicant was elected President of the Women’s Association in 2003 and remained as such until January, 2007 when she departed Vietnam;

   d)the applicant became a member of the Kim Son Women’s Association from 2006 and remained as such until January, 2007 when she departed Vietnam;

   e)the applicant became the secretary of the People’s Council of her village in April, 2004 and remained as such until January, 2007 when she departed Vietnam;

   f)the Women’s Association, the People’s Council and the radio station were all supporters of the Communist Party;

   g)after the applicant became a party member, she was required to have her articles approved by the Communist Party before they were broadcast;

   h)censorship of her articles would have been a foreseeable consequence of her membership of the party and that the applicant had accepted this position for nearly two years after joining the party and until she resigned from the radio station.

6. The Tribunal was not satisfied that the censorship or requirement to have her articles approved by the party would put her at risk of serious harm or significant harm if she returns to Vietnam.

7. The Tribunal did not accept that the applicant’s views on certain subjects nominated by her (education equality, the streamlining of ID card processing, foreign investment, an eight-hour work day, transparency and AIDS) would impute her with anti-government opinion or garner her adverse attention by the Communist Party or puts her at risk of serious harm or significant harm if she returns to Vietnam.

8. The Tribunal found that the applicant is a supporter of the Vietnamese Government. The organisations that she joined were supporters of the party and the government.  Although the applicant claimed that she was ridiculed for proposing ideas that were not accepted by the organisations of which she was a member and she said that the Party did not accept all ideas proposed by the Women’s Association and People’s Council, the Tribunal accepted that it is in the nature of people’s groups that ideas are proposed, some are accepted and some are rejected. The Tribunal did not accept that ridicule within a public forum put the applicant at risk of serious harm or significant harm if she returns to Vietnam.

9. As to the applicant’s claims that she was harassed for the payment of outstanding membership fees by the Women’s Association, the Tribunal found that:

   a)the applicant stopped paying the fees because she felt she didn’t owe them; and

   b)the fact that she had returned to Australia and not paid the fees, signals an intent that she doesn’t intend to pay the fees.

10. The Tribunal was not satisfied that there is a real chance that the applicant would be at risk of serious harm or significant harm for reason of the requests to pay her outstanding membership fees or not having paid the fees in the past.

11. Further, the Tribunal was not satisfied that the requirement to have her articles approved by the Party, the views she held in relation to education equality, HIV/AIDS, eight-hour working day, transparency, streamlining ID card processing or foreign investment, being subjected to ridicule within a meeting for proposing different ideas, resigning from the radio station, or the requests for outstanding fees would put her at risk of serious harm or significant harm if she returned to Vietnam. The Tribunal was not satisfied that there is a real chance that the applicant would be at risk of serious harm for these reasons if she returns to Vietnam now or in the reasonably foreseeable future.

12. As to her temporary return to Vietnam in 2011, the Tribunal accepted that:

    a)the applicant travelled to Australia with her family lawfully pursuant to her husband’s work visa;

    b)the applicant returned to Vietnam lawfully in 2011 and returned to Australia lawfully some six weeks later;

    c)the applicant was intercepted by police at a market while on her visit back to Vietnam, but most likely in a random sweep, and when asked to produce her ID at the police station, the police were able to identify her and ask her about her outstanding fees;

    d)during that conversation it would have emerged that the applicant was visiting from Australia, that she was/had been a Party member and worked on the radio and that the police may have warned her against publishing anti-government views.  Upon the applicant promising to pay her fees, the police allowed her to go;

    e)the applicant may have decided to return home earlier than planned.  It was nevertheless three weeks after the police visit that she actually returned home; and

    f)the police may have again asked her about her fees before she left Vietnam, may have again reminded her not to express or publish anti­government views and may even have discussed her in her presence. But the police again allowed her to leave without arrest, threat or attempt to detain her.

13. The Tribunal considered the applicant’s explanation for her delay in applying for a protection visa and said:

    121.  The Tribunal was troubled by the applicant’s explanation for the reasons it took her seven years from arrival in Australia to make a protection claim. She claimed she believed she could not make a claim until her husband’s appeal processes in relation to his visa applications had been exhausted. Given the close knit community in which she lives, the availability of advice, the applicant’s apparent intelligence and her background as an inquiring reporter, the Tribunal does not accept that the applicant believed she could not make an earlier protection application. She claims to have held the fears she holds from the time she left Vietnam and that her husband was aware of them, yet she made no claim on arrival. She claims to have received phone calls that caused her fear within the first year of arriving, yet she made no claim. She made no claim upon her return from Vietnam in 2011 when she was questioned by the police twice, she made no claim after the police visited her parents. If her reasoning is plausible, she could have made a claim upon the expiry of her husband’s first visa, when her husband’s second visa application was rejected, or when that visa application was refused upon review by the AAT. The Tribunal noted that the applicants were being represented during the review processes of the husband’s work visas. The Tribunal is of the view that it would have expected the applicant to make application for a protection visa much earlier than she did if she genuinely held the fears she claims. Her application instead sends an imputation that it is very much of last resort.

14. The Tribunal was not satisfied that the requests for payment of fees by the police, the requests not to publish anti-government views, the visits to the police station, or the visits by the police upon her parents would put her at risk of serious harm or significant harm if she returned to Vietnam. The Tribunal was not satisfied that there is a real chance that the applicant would be at risk of serious harm for reason of the requests for payment of fees by the police, the requests not to publish anti-government views, the visits to the police station, or the visits by the police upon her parents if she returned to Vietnam now or in the reasonably foreseeable future.

15. As to her attendance at the candlelight vigil, the Tribunal was satisfied that the reason the first applicant had not expressed anti-government views in Australia prior to attending the candlelight vigil (some seven years after she arrived) was that she did not have any anti-government views. It also did not accept that she would express anti-government views if she returned to Vietnam. The Tribunal did not accept as plausible that the government would have seen the first applicant amongst the hundreds of attendees, as it was dark and lit only by candles. However, in any event, the Tribunal was satisfied that the first applicant’s attendance at the candlelight vigil was solely for the purpose of strengthening her visa application and disregarded it pursuant to s.91R(3)(b) of the Act.

1. In relation to her claim as a failed asylum seeker, the Tribunal accepted country information to the effect that failed asylum seekers who were returned to Vietnam were not charged with leaving Vietnam illegally or for seeking asylum in another country, although a few returnees were charged for having been the organisers of illegal activity. The Tribunal was not satisfied there was a real chance the Vietnamese authorities would arrest, charge and imprison the first applicant in relation to her seeking asylum.

2. The Tribunal was not satisfied that the first applicant left Vietnam for any of the reasons claimed or that she fears returned to Vietnam for any of the reasons claimed. It found there is no real chance the first applicant will suffer persecution on the grounds of failing to pay her membership fees, any imputed political views, her membership of a particular social group, or any other Refugee Convention reason now or in the reasonably foreseeable future. Accordingly, the Tribunal was not satisfied she met the criterion in s.36(2)(a) of the Act.

3. In light of those findings, the Tribunal was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Vietnam, she faced a real risk of significant harm such that it was not satisfied she met the criterion in s.36(2)(aa) of the Act.

The grounds of review

1. The amended application filed on 20 December, 2017 contains three grounds of review.  I will deal with each in turn.

Ground One

1. This ground is in the following terms:

   The Tribunal has breached s.424 A and 424AA of the Migration Act 1958 (Cth)

   Particulars

   (a)     the Tribunal was of the view that the visa applicant has not expressed anti-government views in Vietnam in her radio programmes.

   (b)     it did not give applicant an opportunity to express the contents of her programmes and to give evidence as to how the contents of her programmes offended the government. at page 67 it said:

   “the Tribunal indicated that it appeared the applicant’s pro foreign investment policies were supported by the government.

   Further, at page 68 it simply went on to state: “the Tribunal indicated that it appeared the foreign HIV programs were supported by the government.”

   (c) at [ 85] the Tribunal said it does not accept that the applicant’s views on the contents of her radio programmes would impute her with antigovernment opinion, at [86] it further said it finds that the applicant is a supporter of the Vietnamese government and that it accepts that the applicant was subject to normal criticism in a group of people.

   (e) the Tribunal did not accept that the applicant returned to Vietnam secretly. That was based on its finding that the party had not hurt and had not tried to terminate her membership and had not tried to have her arrested or incarcerated. However, the applicant was not required to give evidence on the level of monitoring and surveillance she had been subjected prior to her departure. At [116] it said that the Tribunal does not accept that the applicant had said things in the past that the party did not like. (citations removed, otherwise faithfully reproduced)

2. The applicant argues (footnotes omitted, otherwise faithfully reproduced):

   28.    Paragraphs 67-68 and 85 of the Tribunal decision record refer to the two articles it considered relevant and material to its finding that the contents of the applicant’s programs/ writings were not offended by the Vietnamese government. That finding was adverse as the applicant had claimed otherwise.

   29.    The Tribunal also said that the applicant was subject to normal criticism within a group and that she did not return to Vietnam secretly. The applicant was not given an opportunity to rebut these findings or comment on these findings.

   30. Under ss 424 A and 424 AA of the Migration Act 1958 (Cth), the applicant should have been given an opportunity to comment on those adverse findings and that was not occurred. The applicant was not given an opportunity before, after or at the hearing to comment on or respond to that information.

3. The first respondent submits that these submissions misunderstand the operation of ss.424A and 424AA of the Act, both of which apply to “any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. For the purposes of ss. 424A and 424AA of the Act, information does not include the Tribunal’s “subjective appraisals, thought processes or determinations”: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 at [24]; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]. It is plain that the Tribunal was not required to give the applicants the opportunity to comment on any adverse finding it proposed to make.

4. Further, and again as the first respondent argues, even if this ground was seen as an allegation that the applicants were not given an opportunity to comment on the two articles in question, the submission is not sustainable because:

   a)the articles were excluded from the operation of ss.424A and 424AA by s.424A(3)(a), as information ‘that is not specifically about the applicant or any other person and is just about a class of persons of which the applicant or other person is a member’. The articles engaged s.424A(3)(a) of the Act;

   b)the Tribunal put the articles to the applicant at the hearing before the Tribunal. The Tribunal’s decision expressly states that it “mentioned to the applicant the article by Nguyen Tan Dung, Prime first respondent of Vietnam, dated 23 May 2014” and “indicated that it appeared the applicant’s pro-foreign investment policies were supported by the government”.  The Tribunal also records that it “mentioned to the applicant an article appearing in Vietnam News, described as “the National English Language Daily” and “indicated that it appeared that foreign HIV programs were supported by the government”.  The Tribunal also asked the first applicant “why she thought she was not allowed to broadcast” the articles she wished to write.  Further, the applicants’ representative was given the opportunity to, and did, file a post-hearing submission dated 28 August, 2017.

5. I accept the first respondent’s argument that to the extent that one might see the applicants’ argument that the applicant was not given an opportunity to give evidence about how the contents of her programmes offended the government, the submission is not sustainable because the Tribunal’s reasons and the record more generally demonstrates that the first applicant had plenty of opportunity to include this information in her numerous statutory declarations. The Tribunal discussed with the first applicant at the hearings before it “what stories there were that she wanted to write” and “why she thought she was not allowed to broadcast those articles”. The first applicant expressly stated that she believed it was because “the authorities had suspicions of [her] having a secret agenda”, particularly in relation to local government finances, because she would argue for transparency and the government would say that was acting against the government.

6. As the first respondent points out, the applicants have not contradicted this summary of the applicant’s evidence, explained why this opportunity was insufficient, or identified what different evidence the applicant would have given had she been given a further opportunity to do so.

7. I accept the first respondent’s submissions that this ground does not reveal jurisdictional error.

Ground Two

1. Ground two in the amended application states as follows (faithfully reproduced):

   2.  The Tribunal has made an illogical or unreasonable decision by failing to consider country information /considered irrelevant information in relation to the claim.

   Particulars

   (b)    The contents of the First applicant’s programs were material to the First applicant’s claims.

   (b)    the Tribunal had issues about the contents of the First applicant’s programs. In making its finding on that issue, it used the same country information used by the previous Tribunal. At [66] the Tribunal referred to the articles referred to in the decision of the previous Tribunal in 2014. The decision record from [67]- [68] shows that the Tribunal relied on this information.

   (c)     It failed to consider the First applicant’s evidence that the government was offended by the contents of her programs as they did not expect her to put her independent views on the government agenda as they thought the First applicant had a political agenda of her own.

2. The applicants’ submissions in support of this ground do not seem to address the ground directly.  There is no attempt to explain the ground further or demonstrate the underlying error in the Tribunal’s approach.

3. They argue that the Tribunal “did not consider the fresh country information in assessing the applicant’s claim that she will be persecuted upon return as a failed asylum seeker, a former communist party member who lived in a western country who was under investigation for having a secret political agenda. In considering her fear of return as a failed asylum seeker, it only considered the fact that she left legally and lived in Australia for four years “without incident’. The Tribunal ignored the fact that the applicant departed due to increased monitoring by the authorities and her genuine fear that she would be harmed by the party officials”.

4. It is difficult to see how these arguments relate to the particulars of ground 2.

5. The applicants submit that the “Tribunal’s unreasonable fact findings lead to an erroneous conclusion that the applicant will not be harmed upon return”.  But the erroneous facts said to have been found by the tribunal have not been identified.

6. To the extent that the applicants argue that the erroneous factual finding is that identified in paragraph 28 of their written submissions, the argument cannot be accepted.  The applicants argue that: “Paragraphs 67-68 and 85 of the Tribunal decision record refer to the two articles it considered relevant and material to its finding that the contents of the applicant’s programs/ writings were not offended by the Vietnamese government. That finding was adverse as the applicant had claimed otherwise.” Paragraph 85 of the Tribunal’s decision is as follows:

   85.    The Tribunal asked the applicant about some of the views she would have liked to have expressed were she not constrained by the party. She listed off stories about education equality, the streamlining of ID card processing, foreign investment, an eight-hour work day, transparency and AIDS. The Tribunal noted, as had the previous Tribunal at which she appeared, that articles by the Prime Minister appeared to support the foreign investment policies she herself was espousing. Another article suggested that the government was supportive of foreign HIV programs. The Tribunal does not accept that the applicant’s views on these subjects would impute her with anti-government opinion or garner her adverse attention by the Communist Party or puts her at risk of serious harm or significant harm if she returns to Vietnam.

7. However, there was no factual finding by the Tribunal that could be described as erroneous as the applicant contends. The Tribunal did not accept that the applicant’s views on the matters that she brought to the Tribunal’s attention were anti-government because on the material before the Tribunal, they seemed to the Tribunal to be consistent with the government’s approach. That reasoning was open to the Tribunal on the material before it. There is nothing illogical about the Tribunal’s reasoning because:

   a)it is clear from the Tribunal’s reasons that it discussed with the first applicant what stories she wanted to write and why she thought she was not allowed to write them;

   b)the decision records her evidence that she proposed publishing articles about education equality, streamlining of ID card processing, foreign investment, an eight-hour work day, transparency and AIDS but had not been allowed to publish them;

   c)it specifically referenced her evidence that she believed the authorities suspected that she had a secret agenda, particularly when local government finances were being discussed;

   d)the Tribunal referred the first applicant the two articles the subject of her submissions in this case and had she disagreed with the Tribunal’s view of them, she had the opportunity to disagree with them.

8. I accept the first respondent’s argument that the two articles in question were logically probative and supported the conclusion reached by the Tribunal. It was appropriate for the Tribunal to have regard to the articles.

9. The Tribunal’s decision cannot, in my view, be said to be unreasonable in the sense described in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 or Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210.

Ground 3

1. This ground is in the following terms:

   Tribunal has made an error of law by failing to consider the claim / integers of claim of the applicant (sic)

   Particulars

   (a)     The Tribunal has failed to consider applicant’s claim that the contents of her programmes were considered as offensive

   (b)     it failed to consider that the applicant was subjected to harassment and constant monitoring during her time in Vietnam and that is the sole reason for her decision to come to Australia.

   (c) It failed to consider her claim that she was having a profile in Vietnam as a journalist with a political agenda and a prominent local communist party member who denounced her membership of the Communist party.

   (d)     The Tribunal did not investigate her claim that she expressed anti-government programmes, it relied on evidence relied on by the previous Tribunal in that regard.

   (e)     The Tribunal did not investigate whether the applicant would suffer real and significant harm from Vietnamese authorities having an increased profile in Vietnam should she is forced to return to Vietnam:

   (i) she lived in Australia for 10 years.

   (ii)     during her last visit she was questioned by the local police on the alleged suspicions that she is engaged in anti-communist activities in Australia.

   (iii)   she stopped payment of party membership which amounts to desertion of the party.

   (iv)    Her attendance ant candle light vigil also be seen as an anti-communist act which can come into authorities attention through their secret agents in Vietnam.

   At [155], the Tribunal said that the Tribunal does not accept as plausible that the government would have seen her amongst hundreds of others that attended as “it was in the dark and lit only by candles, even if they were bright candles etc”

2. The applicant argues that the Tribunal relied heavily on the previous Tribunal’s decision on the content of the applicant’s radio programs in this matter.  She argues that the Tribunal did not consider her claim that the contents of her programs were considered offensive.  But, properly analysed, that matter was clearly considered by the Tribunal to the extent that it was able to do so.  It simply rejected her claim.  It did so because, having regard to the applicant’s evidence about the views she wished to express and the articles and other information to which the Tribunal had regard, it decided that the applicant’s views were consistent with those of the Vietnam Government.  The applicant did not expressly claim that the content of her radio programmes were offensive to the government.  She did not give to the Tribunal any evidence about the precise content of any particular programme, although she did specifically mention one article about education equality.  The content of her radio programs was expressed in a general way and was assessed by the Tribunal as such.  It considered that the applicant’s views were consistent with those of the government.    

3. The applicant claims that the Tribunal failed to consider that the applicant was subjected to harassment and constant monitoring during her time in Vietnam and that is the sole reason for her decision to come to Australia.  But that argument cannot be made out.  As the first respondent points out, the Tribunal extracted the first applicant’s claims in full in its reasons for decision.  It asked the first applicant how she was monitored by the authorities in Vietnam.  It considered her evidence that the requirement to report in was not unique to her. 

4. Although the Tribunal did not make an explicit finding on this claim, its failure to do so is not itself a jurisdictional error. As the first respondent submits, the Tribunal ultimately made a broad finding that subsumed this claim, in that it did not accept that the first applicant left Vietnam for any of the reasons claimed or that she feared returning to Vietnam for any of the reasons claimed.  The Tribunal said:

   151. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, the Tribunal does not accept that the applicant left Vietnam for any of the reasons claimed or that she fears returning to Vietnam for any of the reasons claimed. The Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of her failing to pay membership fees, any imputed political views, her membership of a particular social group, or any other Refugee Convention reason if she returns to Vietnam now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Refugee Convention reason. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.

5. The applicant argues that the Tribunal’s finding that the applicant was subjected to normal criticism of a group and only ridiculed by the authorities was not open to it on the evidence.  However, the Tribunal did not make any such finding.  What the Tribunal said at [86] of its reasons is as follows (my emphasis):

   86.    The Tribunal finds that the applicant is a supporter of the Vietnamese Government. The organisations that she joined were supporters of the party and the government. She claimed that she was ridiculed for proposing ideas that were not accepted. She said that the party did not accept all ideas proposed by the Women’s Association and People’s Council. The Tribunal accepts that that is the nature of people’s groups - ideas are proposed, some are accepted and some are rejected. The Tribunal does not accept that ridicule within a public forum puts her at risk of serious harm or significant harm if she returns to Vietnam.

6. Whilst the applicant had claimed to the Tribunal that she was suspected of having a secret political agenda, that evidence was, by implication at least, rejected by the Tribunal finding that the applicant was a supporter of the Communist Party who does not hold anti-government views.

7. This ground also seeks to cavil with the Tribunal’s finding that the applicant will not face any issues as a failed asylum seeker.  This matter was comprehensively considered by the Tribunal.  It set out her claims and the material considered by the Tribunal at [137] – [147] of its reasons.   The Tribunal then made the following findings, all of which were open on the evidence before it:

   148.  The Tribunal accepts the country information above. The country information referred to above indicates that the failed asylum seekers who were returned to Vietnam were not charged with leaving Vietnam illegally or for seeking asylum in another country. It indicates that a few returnees were charged under article 275 of the Vietnamese Penal Code for being the organizers of illegal activities. This is consistent with the assessment made by DFAT above.

   149.  The Tribunal is not satisfied that there is a real chance that the Vietnamese authorities will arrest, charge and imprison the applicant in relation to her seeking asylum in another country.

   The Tribunal is not satisfied that there is a real chance that the applicant will be at risk of serious harm for reason of her membership of a particular social group, being failed asylum seekers, if she returns to Vietnam now or in the reasonably foreseeable future.

1. The applicant argues that the Tribunal did not consider that the applicant has been living in Australia for a significant time without a visa, claiming asylum and the fact that she did not return after the expiry of her husband’s visa as promised at the time of departure from Vietnam.  But the Tribunal considered each of these matters.  So much is apparent from [137] – [147] of the Tribunal’s reasons.

2. The applicant also argues that the Tribunal failed to consider the applicant’s claim that her attendance at a candle light vigil would come to the attention of the authorities.  The Tribunal set out the applicant’s claims and other material relevant to this issue at [123] – [129] of its reasons.  It then made a number of findings, which relevantly included:

   132.  The Tribunal is satisfied that the applicant has not expressed any anti-government views since living in Australia, does not have any anti-government views, and will not express any anti-government views if she does return to Vietnam.

   133.  After receiving the delegate’s decision in late February 2014, the applicant, notwithstanding never having attended such a vigil in the past, never having expressed any anti-government views in the past, and having been warned not to express anti-government views by the police in 2011, decided to attend a candlelight vigil in support of Free Vietnam. She positioned herself in the front row of the vigil and maintained that as the vigil was broadcast, she would have been seen and the government would have seen her, been able to identify her, and conclude that she has anti-government views.

   134.  The Tribunal does not accept as plausible that the government would have seen her amongst hundreds of others that attended, as it was in the dark and lit only by candles, even if they were bright candles, and even if she did appear on the broadcast, would not be able to be clearly identified.

   135.  But in any event, the Tribunal is satisfied that the applicant’s attendance at the vigil was solely for the purpose of strengthening her protection visa application. The Tribunal does not accept the applicant’s explanation that she felt helpless and unable to do anything. The Tribunal does not accept as plausible that the applicant, never having attended such a vigil in the past, never having expressed any anti-government views in the past, and having been warned not to express anti-government views by the police in 2011, would decide to attend a candlelight vigil in support of Free Vietnam and position herself in the front row of the vigil for any reason other than seeking to enhance her protection claims.

3. The applicant argues that her evidence about her attendance at the vigil was not considered.  But plainly it was.  It was simply not accepted.  Further, as the tribunal’s decision makes clear, the Tribunal found that the applicant’s attendance at the vigil was solely for the purpose of strengthening her protection visa application.   That finding was clearly open on the evidence.

4. This ground of review does not disclose any jurisdictional error.

Conclusion

1. The applicants’ grounds of review reveal no jurisdictional error on the part of the Tribunal. The amended application must be dismissed with costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  8 June 2018