MZYRO v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 321
•20 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYRO v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 321 |
| MIGRATION – Review of Independent Merits Review – refusal of a protection visa – no matter of principle – application dismissed. |
| Migration Act 1958 (Cth) |
| Minister for Immigration v Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367; (2010) 84 ALJR 369; (2010) 115 ALD 248 |
| Applicant: | MZYRO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | THE INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1441 of 2011 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 20 March 2012 |
| Date of Last Submission: | 20 March 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 20 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Karapanagiotidis of Counsel |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Rebikoff of Counsel |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | There being no appearance by or on behalf of the Second Respondent |
ORDERS
The amended application filed on 28 February 2012 be dismissed.
The Applicant pay the First Respondent’s costs fixed at $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1441 of 2011
| MZYRO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| THE INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Background
The Applicant in this matter is a citizen of Vietnam and he is a Roman Catholic.
On 22 June 2012 the Applicant arrived in Australia. Following a Refugee Status Assessment (“RSA”) the RSA officer on 28 April 2011 found that the Applicant did not meet the definition of a “refugee” as set out in the Convention.
On 17 May 2011 the Applicant applied for an Independent Merits Review. On 30 June 2011 the Reviewer found the Applicant was not a refugee and recommended that the Applicant not be recognised as a person to whom Australia owed protection obligations under the Convention.
On 5 October 2011 the Applicant filed an application for judicial review at the Federal Magistrates Court and by 28 February 2012 he filed an amended application.
The Reviewer summarised the Applicant’s claims (at paragraph [62] of the decision) as follows:
[62] Essentially, the claimant claims to fear persecution in Vietnam for the following reasons:
· He is a Roman Catholic and his religion, combined with some of his actions in Vietnam deemed to be political, will cause him to face serious harm.
· He was involved in 3 Catholic demonstrations in Vietnam concerning land confiscation issues: in July 2009 he attended the Tam Toa church vigil/demonstration; on 23 May 2010 he attended the Cau Ram church vigil/demonstration; and on 31 May 2010 he attended the Mai Lin church vigil/demonstration.
· After the Cau Ram church vigil/demonstration he was watched and threatened by police and gangsters. His ability to work was curtailed and he lived in fear an d anxiety.
· On 25 May 2010 he was assaulted by men wearing balaclavas.
· He believes he will be killed by police because of a combination of his Catholic religion and his presence at the church vigil/demonstrations that are deemed to be anti-government and political. He believes he will be killed by the gangsters who assaulted him.
[63] The claimant also stated he does not wish to return to Vietnam because of lack of employment, and Australia respects human rights.
The Reviewer’s findings
The Reviewer had “serious concerns with the claimant’s evolving story concerning the reasons he departed Vietnam”, having originally indicated his departure was for economic reasons and later linking it to his Catholicism (see paragraph [70] of the Reviewer’s decision). The Reviewer rejected the Applicant’s explanation that he had thought the Australian Government was like the Vietnamese Government and that he feared the Australian Government would report him, saying (see paragraph [71] to [72] ):
[72] However, I do not accept his and his agent’s explanation for the reasons that follow. In the introduction of the interview on 26 July 2010 the interviewing officer gave the claimant comprehensive advice. He was advised to provide true and correct answers to questions, and advised that if he gave different information in the future then this might raise doubts about the information. He was also advised that the Department was careful to protect the privacy of all the information given by him during the interview, and what he said would not be given to the Vietnamese authorities. He then signified he had understood all of this. The recording of the interview shows he was made fully aware of the Australian government’s expectations and procedures in the interview’s introduction. He was not told he would have an additional opportunity to tell his story, nor has he claimed he thought this. (emphasis added)
The Reviewer also found that the Applicant’s stated concept of Australia, being a country that respects human rights, undermined his alleged initial fears of the Australian Government. The Reviewer rejected the Applicant’s failure to give a full and accurate account of his life in Vietnam being due to his tiredness, anxiety or illness. The Reviewer noted that the interview took place several days after his arrival at Christmas Island and that there was no indication of the Applicant’s inability to express himself as a result of illness or any other reason (see paragraph [73] of the decision).
In summary the Reviewer found:
[74] In sum, he was open about his Catholicism but made no claims at all about: attending Catholic church vigils/demonstrations/Masses concerning church land disputes; subsequent adverse attention by Vietnamese authorities; an assault by unidentified thugs; or a fear of return for these reasons. I reject the explanations put forward to explain this. The later claims are not just a matter of not being asked a certain question, or vagueness or inconsistencies in telling peripheral details or of providing additional detail and explanation. I conclude the claimant has fabricated these later claims in order to seek Australia’s protection, and I reject them. I do not accept that he was: involved in the 3 Catholic demonstrations in Vietnam concerning land confiscation issues and assaulted; subsequently watched and threatened by police and gangsters; unable to work and lived in fear and anxiety; assaulted by men wearing balaclavas. I do not accept, as he claims, that he fears in Vietnam he will be killed by police or thugs. [emphasis added]
The Reviewer went on to consider whether the Applicant’s Catholic beliefs and religious observance would cause him serious harm upon his return to Vietnam. At paragraph [76] the Reviewer stated:
[76] Country information concerning Vietnam shows that many Catholics and Protestants reported Christians experienced unofficial discrimination when applying for government positions. However, the claimant has not claimed, despite ample opportunity, that the mere fact of being Catholic has impeded or prevented him from working. His observations about poor employment prospects in Vietnam have concerned the general lack of well-paying jobs in Vietnam and not discrimination when he seeks work. He has indicated a variety of work since 1986, including recent work in a brother-in-law’s welding shop. His evidence does not show he has been denied the capacity to earn a livelihood of any kind where the denial threatens his capacity to subsist. I do not accept that the claimant will experience ‘serious harm’ in the future for the reason of denial of employment, including on the basis that his capacity to subsist would be threatened. [emphasis added]
The Reviewer did not accept, on the material before him, that the Applicant would be hindered or prevented from seeking work upon his return to the country. The Reviewer noted the Applicant’s evidence that he had been employed and had worked at his brother-in-law’s welding shop prior to coming to Australia (see paragraph [78] of the decision). The Reviewer stated:
[77] …
His evidence is that he was free to attend church and exercise his religion with relative freedom. He has not claimed, despite ample opportunity, that he or his family were unable to attend church and worship in Vietnam. I conclude he has been open about his Catholicism, and worshipped openly at home. I do not accept his minority religion means that in Vietnam in the reasonably foreseeable future, he faces a real chance of serious harm amounting to religion or political opinion. I conclude that on his return to Vietnam he will be free to follow his religion and worship and perform other religious ceremonies in the way that he desires. Also, in the light of the foregoing, I do not accept that he will be motivated to become a religious and political activist on behalf of the Catholic church. [emphasis added]
The Reviewer did not accept that the “mere fact of seeking asylum would cause [the Applicant] to face harm on his return to Vietnam” (see paragraph [79] of the decision). The Reviewer noted that the Vietnamese constitution provides for freedom of movement within the country, foreign travel, emigration and repatriation. The Reviewer further noted that country information did not show that failed asylum seekers faced persecution upon their return to the country (see paragraph [70]). The Reviewer also stated that prosecution for illegally departing from the country would be for reason of breaching laws of general application in Vietnam and there was no evidence that there was selective enforcement for a Convention reason (see paragraph [80] of the decision).
In conclusion, the Reviewer did not accept that the Applicant would face a real chance of persecution as a result of his religion, political opinion (real or imputed) or membership of a particular social group, or for any Convention reason. Accordingly, the Reviewer was not satisfied that Australia owed protection obligations to the Applicant under the Convention (see paragraph [82] of the decision).
Grounds
The Applicant relies upon four grounds in support of his application. They are set out in the applicant’s amended application.
1. The second respondent denied the applicant procedural fairness by failing to take into account relevant considerations and/or the applicant’s advisers submission of 2 June 2011.
Particulars
(a) The second respondent and the applicant’s adviser had agreed that the second respondent would take into account country information put forward in a submission provided for another Vietnamese client with similar claims to the applicant.
(b) The information contained in the submission was significant and relevant to the applicant’s claims.
(c) The second respondent failed to take into account the submission and/or the country information contained in it.
2. The second respondent failed to consider whether the applicant would face a real chance of persecution for reasons of his imputed political opinion.
Particulars
(a) The second respondent failed to consider whether the applicant was at risk of future persecution on the grounds of an imputed political opinion.
(b) The second respondent only considered whether the applicant would be at risk of persecution for reasons of his actual political opinion and religion.
(c) On all the material before it, the second respondent was required to consider whether practicing the religion would cause the applicant to be imputed with an anti-government political opinion.
3. The second respondent failed to consider whether the applicant was at risk of serious harm as a “returnee from the West” and/or “failed asylum seeker returning from a Western country”.
Particulars
(a) The second respondent failed to consider whether the applicant was at risk of serious harm as a returnee from a Western country or a failed asylum seeker from a Western country.
(b) Instead, the second respondent confined its inquiry to whether the “mere fact of seeking asylum” would cause the applicant to face harm on return to Vietnam.
4. The second respondent’s rejection of the applicant’s factual claims concerning his involvement in Catholic demonstrations in Vietnam was unreasonable.
Particulars
(a) A central aspect of the applicant’s claim was that he was involved in three (3) Catholic demonstrations in Vietnam.
(b) The second respondent made a finding that the claim was a fabrication because it did not accept the reasons advanced by the applicant for failing to mention this claim at his initial entry interview.
(c) The second respondent’s finding was unreasonable.
Ground 1
In support of ground 1, the Applicant pointed to written submissions that were contained within the supplementary court book. These submissions had been forwarded to the Reviewer’s administrative support office by email. The submissions themselves were not with respect to this particular Applicant, but another person, who sought a protection visa in similar circumstances. The relevant part of the submissions was the references to the country information contained therein.
The Reviewer did not specifically refer to having received the submissions by email. However, there are a number of references to submissions in the Reviewer’s decision. For example:
a)at paragraph [3] the Reviewer recounted that they would consider all available information and any information provided by or on behalf of the complainant;
b)at paragraph [8] the Reviewer specifically stated:
[8] Evidence before me, relevant to my findings of fact, include:
· Relevant material from the IPAO/Department’s papers relating to the claimant.
· The claimant’s claims to engage Australia’s protection obligations under the Refugees Convention.
· Submissions from the claimant/claimant’s agent. [emphasis added]
c)at paragraph [48], under the heading “Country Information” the Reviewer said:
Country information concerning Vietnam follows. I have had regard to country information specifically referred to and cited in the submissions provided on behalf of the claimant and in the RSA. [emphasis added]; and
d)at paragraph [53] of the decision reference is made to the “World Report 2011” by Human Rights Watch, the same report that was referred to in the written submissions contained in the email (although a different passage was referred to).
It is also clear that the agent for the Applicant made submissions with respect to country information during oral submissions to the Reviewer (see paragraph [44] of the decision).
Counsel for the Applicant developed the argument on the basis that there are a number of matters that indicated that the Reviewer had not taken the written submissions into account. Oral submissions were made with respect to the fact that the written submissions were contained in a supplementary court book, however ultimately it was agreed that the case should be approached on the basis that the written submissions were with the file that the Reviewer had access to (as there was no notice that there was any issue that the written submissions had not been placed with the file, nor any evidence that the written submissions had actually been forwarded to the Reviewer prior to the decision).
Counsel also sought to rely upon the fact that there are a number of headings in the review decision from pages 4 through 7 dealing with various items of evidence and events, but not the actual written submissions. Counsel also pointed to the fact that there was no direct reference to the Applicant’s written material in the section of the review decision dealing with country information. Similarly it was said that there was nothing within the section headed “Movement Within Vietnam” that shows specific reference to the written submissions.
With respect to the headings in the Reviewer’s decision, it appears that they are headings which conveniently divide up the decision dealing with the different events that took place prior to the interview. It does not seem to me to be out of the ordinary that written submissions, following oral submissions at the end of an interview, would not be the subject of a separate heading within a decision.
Counsel for the applicant was unable to identify within the written submissions specific references which bore directly upon the issue the Reviewer had to determine. Relevant passages appeared to be in very general terms, such as a previous delegate accepting that the 1992 Vietnamese Constitution and 2004 Ordinance outline provisions which could put restrictions on the organised activities of religious groups, such as Catholics (see page 6), and a passage from the World Report 2011 indicating that writers, political activists and other peaceful critics had been the subject of harassment, arrest and gaol by the government, and that excessive force had been used by police, sometimes routinely torturing suspects in custody, following public protests over evictions and confiscation of church properties.
In this case the Reviewer did not accept that the Applicant was involved in any demonstrations or anti-government activity. The central question was whether there was persecution of Catholics generally. This material was not directly relevant to the central question. In this context it is not surprising that direct reference was not made to material contained within the written submissions.
With respect to the return to Vietnam after the unlawful departure, there is reference in the written submissions to the lack of impartiality and independence of the courts in Vietnam, harsh prison conditions and police torture, but nothing to indicate discrimination for a Convention reason with respect to a person who sought asylum elsewhere or returned after an unlawful departure.
The question of a return was specifically addressed by the Reviewer at paragraph [80]:
[80] Although the claimant indicated that he had been granted a passport in the past, he claims to have misplaced it. I accept that the claimant may well have departed Vietnam illegally, and I accept that as a result he might be questioned, prosecuted and monitored on his return. However, prosecution and subsequent monitoring for illegal departure, if any, would be for reason of breaching laws of general application in Vietnam, and not show systematic and discriminatory conduct against the claimant.There is no evidence before me that suggests illegal departure laws are selectively enforced for a Convention reason or that the claimant would receive an unduly harsh penalty for a Convention reason. I do not accept that there is a real chance that the punishment the claimant might receive on his return to Vietnam for having illegally departed, would amount to ‘serious harm’. (emphasis added)
Viewing the material as a whole I am not persuaded that it could be said that it was more probable than not that the Reviewer failed to take the material into account. On a review of the terms of the decision and the contents of the written submissions, it appears to me to be more probable than not that a reasonable reviewer would have been of the view that the references in the written submissions were not so germane to the issues to be determined that they warranted specific references in the decision.
Ground 2
Counsel for the Applicant said that the Reviewer failed to determine an integer, that is, a claim that the Applicant may be at risk because he would be imputed to hold a particular political opinion. This claim was identified at paragraph [65] of the decision where the Reviewer said:
[65] His claims to fear persecution come within the Convention ground of political opinion (real or imputed) and religion. I have also considered his claims under the Convention ground of membership of a particular social group such as: returnees from a Western country; or failed asylum seekers returning from a Western country. I have considered cumulatively all of his claims to be a refugee. (emphasis added)
This appears to have been directly addressed in the context of an imputed political opinion as being anti-government and pro-church, (at paragraph [77]), where the Reviewer said:
[77] Country information shows that land confiscation and land ownership issues cause friction in Vietnam and that ‘While the government and the Catholic Church agreed to the return of four properties in 2009, the status of many other properties remained unresolved’. As well, there is occasional harassment and excessive use of force by local government officials against religious groups in some locations, including at times, Catholics. In the light of the foregoing, however, I do not accept that the claimant was involved in any religious-inspired events or that the government’s reaction to the 3 vigils/demonstrations/Mass specifically referred to by the claimant, caused him or his family any difficulties at all. Indeed, in his statement of 28 January 2011 the claimant said:
3. I am Vietnamese of Kinh racial back-ground and I am a Catholic – Christian. I was born Catholic and I hold Catholic beliefs. Three or four generations of my family have been Catholic. I would attend church every night if I was given the opportunity and our church was open. I would attend at least once a week. I would listen to the priest and obey the teachings – love one another, respect teachers/elders. My family are also devout. We were able to exercise our religion with relative freedom.
His evidence is that he was free to attend church and exercise his religion with relative freedom. He has not claimed, despite ample opportunity, that he or his family were unable to attend church and worship in Vietnam. I conclude he has been open about his Catholicism, and worshipped openly at home. I do not accept his minority religion means that in Vietnam in the reasonably foreseeable future, he faces a real chance of serious harm amounting to religion or political opinion. I conclude that on his return to Vietnam he will be free to follow his religion and worship and perform other religious ceremonies in the way that he desires. Also, in the light of the foregoing, I do not accept that he will be motivated to become a religious and political activist on behalf of the Catholic church.
Ultimately the Reviewer’s conclusions are set out at paragraph [82]:
[82] Based upon the evidence that I do accept, I have considered the claimant’s claims cumulatively. In the light of the foregoing I do not accept that in Vietnam he will face a real chance of persecution for reason of his religion, political opinion (real or imputed), or membership of a particular social group, or for any other Convention reason. I am not satisfied that he is a person to whom Australia has protection obligations under the Refugees Convention.
It does not appear that any imputed political opinion was specifically raised with the Reviewer beyond that which would be inferred from the Applicant’s claims that he was a Catholic and his rejected claim that he had been involved in protests with other Catholics against government confiscation of church property. In his written statement (at page 54 of the court book) he explains his case as being:
I believe that I will be killed by the Police because of a combination of my religion (Catholic) and some of my acts that could have been deemed to be political.
This particular issue was specifically referred to as part of the claims at paragraph [62].
It appears that the Reviewer did have regard to the fact that the Applicant’s religion, had he been involved in church protests, could have resulted in him being perceived to be acting politically, in supporting the church against the state. Beyond this it does not appear that it was the case that any further political opinion could be said to have been imputed.
I therefore find that the second ground has not been established and that the Reviewer did deal with the issue of the Applicant’s political opinion to the extent that it was raised before the Reviewer.
Ground 3
The Reviewer identified this ground at paragraph [65] saying:
[65] His claims to fear persecution come within the Convention ground of political opinion (real or imputed) and religion. I have also considered his claims under the Convention ground of membership of a particular social group such as: returnees from a Western country; or failed asylum seekers returning from a Western country. I have considered cumulatively all of his claims to be a refugee.
At paragraph [79] of the decision this ground was rejected with the Reviewer stating:
[79] I do not accept that the mere fact of seeking asylum would cause him to face harm on his return to Vietnam. Country information (see above) shows that the Vietnamese constitution provides for freedom of movement within the country, foreign travel, emigration, and repatriation. Country information does not show that failed asylum seekers face persecution on their return to Vietnam. In 2005, Professor Carlyle A. Thayer of the Australian Defence Force Academy, University of New South Wales, who is a noted authority on the Socialist Republic of Vietnam, provided an opinion concerning returnees that in Vietnam there is a tolerance of “critical views” but not anti-regime activity. However, the claimant has not undertaken anti-regime activities outside Vietnam.
Counsel for the Applicant referred specifically to the country information not showing that failed asylum seekers face “persecution” on their return to Vietnam. Counsel argued that this was not entirely consistent with the terms of the country information cited by the Reviewer at paragraph [59] where the Reviewer said:
[59] In 2005, Professor Carlyle A. Thayer of the Australian Defence Force Academy, University of New South Wales, who is a noted authority on the Socialist Republic of Vietnam, provided an opinion on the general situation of returned asylum seekers, among other subjects:
Question 2: How are Vietnamese citizens who have been involved in anti-regime activity overseas and who have been critical of the Vietnamese regime treated on return by the Government? Does this also apply to failed asylum seekers, and would the authorities’ reaction be any different in these circumstances?
Answer: Vietnamese citizens who have been involved in anti-regime activities overseas are very likely to be interviewed by security officials on their return. Security officials also are very likely to contact their families in a subtle form of intimidation. Vietnamese citizens who have been critical of their government whilst living overseas are not usually treated in this fashion. There is tolerance of “critical views” but not anti-regime activity. As for failed asylum seekers, the regime exercises some circumspection especially if their treatment is monitored by outside agencies such as foreign embassies or human rights groups.
Situation of returned boat people.
Question 3. Are you aware of any reports of prosecution of returned asylum seekers by the Vietnamese authorities on the grounds that they sought asylum in Australia?
Answer: No.
It appears that the argument turns upon the careful reading of the term “prosecution” and the term “persecution” within the documents. In many contexts there is a significant difference between prosecution and persecution. Within the Australian community it is expected that the police will prosecute those reasonably suspected of committing crimes, however persecution is entirely unacceptable. In the context of the quote of Professor Thayer it appears that the Professor was talking about persecution when one reads the earlier question and answer. Given the context of the quote, it seems unlikely that prosecution, in the technical sense that the term is understood in Australia, would have been the subject of the discussion.
Ground 4
In this ground the Applicant seeks to challenge the fact finding of the Reviewer. The relevant law is set out in Minister for Immigration v Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367; (2010) 84 ALJR 369; (2010) 115 ALD 248. In that decision Gummow and Kiefel JJ said:
[38] In dealing with that question two distinctions must be made. They are foreshadowed in what has been said earlier in these reasons. The first is that the first respondent does not assert any general ground of jurisdictional error of the kind disfavoured by Mason CJ[42] where there were alleged deficiencies in what might be called "intra-mural" fact finding by the decision maker in the course of the exercise of the jurisdiction to make a decision. The apprehensions respecting "merits review" assume that there was jurisdiction to embark upon determination of the merits. But the same degree of caution as to the scope of judicial review does not apply when the issue is whether the jurisdictional threshold has been crossed. There the imperatives are the separation of powers considerations to which Justice Selway referred.
[39] The second distinction concerns attacks upon the exercises of discretionary power which are said to be unreasonable in the sense attributed to Associated Provincial Pictures Houses Ltd v Wednesbury Corporation[43]. The concern here is with abuse of power in the exercise of discretion, again on the assumption that the occasion for the exercise of discretion had arisen upon the existence of any necessary jurisdictional facts[44]. Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review[45] will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view.
After extensive review Crennan and Bell JJ said:
[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
The relevant passages in the decision ought to be considered in full. The Reviewer stated:
[69] The claimant’s story concerning vigils/demonstrations in July 2009 and 2010 is consistent with country information that shows such demonstrations did occur, that some protestors came to the adverse attention of the Vietnamese authorities, and that excessive use of force by local government officials against religious groups in some locations did occur. The Tam Toa demonstration was described in a Christian Solidarity Worldwide report on 30 July 2009: “The Catholic News Agency reported that armed police attacked a group of priests and lay people, arresting seven, on 20 July as they tried to erect a cross and altar at the ruins of Tam Toa Church in the coastal city of Dong Hoi. Police reportedly used stun guns, tear gas and batons…”. Also, the Cau Ram church vigil was described in the US Department of State’s International Religious Freedom Report 2010 on Vietnam (17 November 2010): “In Nghe An Province, local officials sold a portion of the land on which the disputed ruins of the Cau Ram Church were located, to build an apartment complex…In May 2010 several thousand Catholics celebrated Mass at the site, as a protest against the government sale of the land for development”.
[70] However, I have serious concerns with the claimant’s evolving story concerning the reasons he departed Vietnam and why he does not wish to return. At his interview on 26 June 2010 he stated he was a Catholic, but his answers and evidence showed that he departed Vietnam for economic reasons, and not for any reason linked to his Catholicism. He spoke of his poor family, and his desire to work in Australia and financially assist his family back in Vietnam. He indicated that Australia respects human rights, but said this in a general way where his concept was that in Australia people are respectful of each other, work is plentiful and life is happy. He did not link these concepts to any specific occurrence in Vietnam at all. Indeed, in answer to specific questions the claimant indicated: he had not been involved with any political group, or any protests against the government; he was not a member of any particular social or religious group; the police, security and intelligence organisations had no impact on his day-to-day life; and he had never been arrested or detained. It was only after the initial screening action had been undertaken, that he made the new and significant claims summarised above.
[71] The claimant has given explanations for the late nature of these claims. At my interview when I put this to him, the claimant explained that he had not spoken about any of this as he thought the Australian government was like the Vietnam government, and that this government would report him to the Vietnamese government. He explained this is why he just said ‘no’ to all of the questions he had been asked. In addition, he stated he had been tired and worried. The agent added that the claimant had not been well and had been very scared.
[72] However, I do not accept his and his agent’s explanation for the reasons that follow. In the introduction of the interview on 26 July 2010 the interviewing officer gave the claimant comprehensive advice. He was advised to provide true and correct answers to questions, and advised that if he gave different information in the future then this might raise doubts about the information. He was also advised that the Department was careful to protect the privacy of all the information given by him during the interview, and what he said would not be given to the Vietnamese authorities. He then signified he had understood all of this. The recording of the interview shows he was made fully aware of the Australian government’s expectations and procedures in the interview’s introduction. He was not told he would have an additional opportunity to tell his story, nor has he claimed he thought this.
[73] Additionally, the claimant expressed his warm regard for Australia: how Australia respects human rights and is humane; and the people are happy and have mutual respect. His stated concept of Australia at the interview undermines his later explanations that he was fearful of the Australian government and interviewer. Nor do I accept he failed to give a full accurate and truthful account of his life in Vietnam because of tiredness, anxiety or illness. He showed that he understood the questions he was asked and gave coherent answers. He was provided ample opportunity to talk about his reasons for leaving Vietnam and his wish to not return. Also, the interview took place several days after his arrival at Christmas Island and there is no indication he was unable to express himself because of illness or any other reason.
[74] In sum, he was open about his Catholicism but made no claims at all about: attending Catholic church vigils/demonstrations/Masses concerning church land disputes; subsequent adverse attention by Vietnamese authorities; an assault by unidentified thugs; or a fear of return for these reasons. I reject the explanations put forward to explain this. The later claims are not just a matter of not being asked a certain question, or vagueness or inconsistencies in telling peripheral details or of providing additional detail and explanation. I conclude the claimant has fabricated these later claims in order to seek Australia’s protection, and I reject them. I do not accept that he was: involved in the 3 Catholic demonstrations in Vietnam concerning land confiscation issues and assaulted; subsequently watched and threatened by police and gangsters; unable to work and lived in fear and anxiety; assaulted by men wearing balaclavas. I do not accept, as he claims, that he fears in Vietnam he will be killed by police or thugs.
Importantly, this passage must be seen in light of what was said at paragraphs [36] to [37]:
[36] I indicated that I had a very significant concern with his story and with his credibility as a witness. I then discussed in detail his first interview on 26 July 2010: the questions and his answers. I pointed out it is reasonable to think he would’ve mentioned these claims had the incidents actually happened and caused him to fear to return to Vietnam.
[37] The claimant stated that he had first landed at Christmas Island he had thanked the Australian government for rescuing him. He was treated fairly and well. He did not suspect there could be such a good government. He was born in Vietnam and had not seen that before. He was questioned by Australian officials and was very worried and concerned. He thought this government was like the Vietnam government, that he would be reported, so he did not tell the truth. He repeated he did not dare tell the truth; he feared this government would report him to the Vietnamese government. He said no to all of the questions, so he was rejected. Then he asked for a review to tell the truth. He has now told his claims as he respects the Australian government.
At paragraphs [13] to [14] the Reviewer specifically set out a summary of the statements of the Applicant when he first arrived in Australia:
[13] When asked if he had any reason for not wishing to return to Vietnam, he discussed a lack of education in Vietnam, without which he could not get a [illegible] job. If he returns to Vietnam he will still not have a job. Australia respects human rights. Life is happy here and so he wants to live here. Everybody treats everyone else in a good manner. He indicated there were no other reasons for him not wishing to return.
[14] Additionally, he indicated:
· He had not been involved with any political group or organisation.
· He had not been involved in any protests against the government.
· He was not a member of any particular social or religious group.
· The police, security and intelligence organisations had no impact on his day-to-day life.
· He had never been arrested or detained by the police or security organisations.
It appears clear that the claims ultimately pursued by the Applicant emerged between his initial interviews and January 2011. The precise date is not clear, as borne out by a letter that he wrote which was undated.
In substance the question boils down to a determination of whether or not it was illogical or not reasonably open to a decision maker to reject the applicant’s evidence in light of the fact that he did not raise the claims initially but sought to raise them some time later.
In protection visa application cases such a finding must be approached carefully as there are often many reasons why a person may not give the full details of their version of events initially (many arriving after traumatic journeys, suffering illness, and being unable to speak English, and coming from countries where it is rational to be genuinely fearful of government agencies and public servants).
In this case, as the quotes above demonstrate, the Reviewer specifically turned his mind to the explanation that was given for the claims being raised later, but ultimately concluded that the Applicant was not accepted on his version of events. I find nothing irrational or unreasonable in the Reviewer not accepting the Applicant’s version of events in the circumstances that arose in this case. In these circumstances the Applicant was not able to establish this ground of review.
Conclusion
As the Applicant has not established a ground of review in this case, the application must be dismissed.
It was agreed that costs ought to follow the event, fixed at the court scale.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 20 April 2012
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