SZWAM v Minister for Immigration

[2018] FCCA 1873

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWAM v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1873

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal had failed to consider one of the applicant’s available claims.

Legislation:

Migration Act 1958, ss.36, 91R, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SBTF v Minister for Immigration & Citizenship [2007] FCA 1816

Applicant: SZWAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 178 of 2015

Judgment of: Judge Cameron

Hearing date: 29 June 2018

Date of Last Submission: 29 June 2018

Delivered at: Sydney

Delivered on: 29 June 2018

REPRESENTATION

Solicitors for the Applicant: Mr G. Potkonyak of Capellia Legal

Solicitors for the Respondents: Ms S. Sangha of Mills Oakley

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 178 of 2015

SZWAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Vietnam who arrived in Australia on 15 June 1999.  On 16 October 2013 he lodged an application for a protection visa with what is now the Department of Home Affairs, alleging that he feared persecution in Vietnam because of his religion and his father’s military service there.  On 19 February 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. On 31 May 2018 the applicant was granted an extension of time within which to bring this proceeding. 

3. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

BACKGROUND FACTS

Claims for protection

1. The applicant’s claims for protection were summarised by the Minister in his written submissions in the following terms, which I adopt:

   16.… The applicant claimed to fear harm on the basis that his father was a pilot for the Republican Army and worked for the United States military during the Vietnam War. As a result, the applicant had difficulty finding a job in Vietnam and he and his mother were not respected in the community. The applicant also claimed to fear harm given his lengthy absence from Vietnam.

2. The applicant also claimed that he had a daughter who was born in Australia to an Australian mother.  He made various claims relating to his relationship with his daughter, particularly that his daughter bears his surname, that he was not listed on her birth certificate, that he had a court order for access and that he had last seen his daughter for the first time in five years on 21 September 2014.

3. On 7 August 2014 the applicant provided a number of documents to the Tribunal in support of his claims, including those related to family law proceedings regarding parenting arrangements for his daughter.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act.

2. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I also adopt:

   23.The Tribunal noted that the applicant conceded he did not face “serious harm” in Vietnam but wanted to stay in Australia given his lengthy absence from the country and in order to be close to his Australian daughter. Despite this, the Tribunal proceeded to consider his claims in their entirety, including his claims to fear discrimination due to his association with the previous regime, his claims of harm as a result of his extended absence from Vietnam, being a Buddhist and the prospect of a possible war between China and Vietnam.

   24.The Tribunal found the applicant faced no serious harm or discrimination in Vietnam prior to arriving in Australia and that he was able to receive an education and obtain employment in Vietnam and faced no issues with the authorities. He was also issued his original and recent passports with no difficulties and departed Vietnam legally.

   25.The Tribunal found, on the basis of country information, that although some individuals might face discrimination for reasons of their association with the previous regime, this did not include the applicant as he had not served in the military himself and left Vietnam at a young age. The Tribunal found there was no real chance that the applicant would face discrimination for reasons of his association with the previous regime and its American allies.

   26.In relation to his extended absence from Vietnam, the Tribunal relied on country information that indicated even persons who had departed Vietnam illegally, lived in Australia and had returned to Vietnam, were able to live, work or set up businesses. The Tribunal noted that the applicant departed Vietnam legally and had been issued a new passport recently by the authorities. Accordingly, the Tribunal found there was no real chance that the applicant, given his lack of political profile, would face persecution for any Convention reason or because of his lengthy absence from Vietnam.

   27.In relation to the applicant’s claim of a possible war between Vietnam and China, the Tribunal found the applicant’s concerns were “at best speculative”, noting that Vietnam was not presently engaged in any military conflict. The Tribunal was not satisfied there was a real chance that the applicant would suffer serious harm as a result of a future war between Vietnam and China.

   28.The Tribunal also considered whether there was a real chance that the applicant would face persecution in Vietnam as a Buddhist. It relied on country information that indicated Vietnamese citizens, in general, were able to practice their religion without serious restrictions. It also found that although the applicant had attended temple in Australia, it did not accept that due to the “strength of his convictions regarding freedom of religion or for reasons of political opinion” that there was a real chance that he would face persecution for reasons of his Buddhist religion.

   29.The Tribunal found the applicant had never expressed his opposition to the communist regime and had not publicly criticised the Vietnamese regime and, on this basis, found there was no real chance that he would face persecution in Vietnam now, or in the reasonably foreseeable future, for reasons of opposition to the communist regime.

   30.The Tribunal accepted that the applicant’s friends or some relatives may not accept him in Vietnam but did not accept that his concerns about reintegration, or his assertion that there were no human rights or rights for persons in Vietnam. The Tribunal was not satisfied there was a real chance that the applicant would face persecution in Vietnam for any Convention reason.

   31.The Tribunal then went on to consider whether there was a real risk that the applicant would suffer significant harm. The Tribunal relied on its earlier findings for rejecting the applicant’s claim to fear harm (for example, the fact that he departed from Vietnam legally, that persons who returned after an extended absence were able to live, work or set up businesses, that Vietnamese citizens were able to practice [sic] their religion without serious restriction, the fact that the applicant had never expressed his opposition to the communist regime and had not publicly criticised the Vietnamese regime). The Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm if returned to Vietnam.

   (References omitted)

PROCEEDINGS IN THIS COURT

1. In his amended application filed 28 May 2015 the applicant alleged:

   3.The Tribunal has not considered, or if it did so, it interpreted s 91R of the Migration Act 1958 too narrowly by limiting the definition of serious harm to the terms expressly mentioned in subsection (2) without taking into account realistic likelihood of the applicant suffering serious mental harm as a consequence of the treatment to which he would be subjected as referred to in ground (1).

2. Grounds 1, 2, 4 and 5 were abandoned at the hearing. 

Consideration

Relevant findings

1. The Tribunal referred in para.53 of its reasons to the applicant’s claims for protection being based on the following matters:

   a)his father being killed in action during the Vietnam war, having served on a helicopter gunship;

   b)his extended absence from Vietnam;

   c)him being a practising Buddhist; and

   d)the possible consequences to him of a war between Vietnam and the People’s Republic of China. 

2. In paras.54 to 58 of its decision record, as was summarised in paras.24 to 28 of the Minister’s written submissions, the Tribunal decided those claims adversely to the applicant.

3. The Tribunal also considered the issue of the applicant’s political position in Vietnam and his capacity to reintegrate were he to return, matters being referred to in paras.29 and 30 of the Minister’s written submissions quoted earlier. 

Applicant’s submissions

1. The applicant submitted at the hearing of this application that the Tribunal had erred because it had failed to consider whether a return to Vietnam might lead him to suffer psychological harm of a sort which would amount to serious harm pursuant to what at the time was provided in s.91R(2) of the Act, namely:

   (2)  Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)  a threat to the person’s life or liberty;

   (b)  significant physical harassment of the person;

   (c)  significant physical ill‑treatment of the person;

   (d)  significant economic hardship that threatens the person’s capacity to subsist;

   (e)  denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)  denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

2. It was submitted, and is the case, that the definitions of serious harm set out in s.91R(2) are non-exhaustive and so serious harm can be constituted by psychological harm: SBTF v Minister for Immigration & Citizenship [2007] FCA 1816. In his submissions to the Court, the applicant referred to what was recorded in para.33 of the Tribunal’s decision, in particular, his claim that he would have no future were he to return to Vietnam, arguing that this pointed to the making of a claim that psychological harm would befall him if he were to return there.

3. The applicant also contended that he would not be able to find a proper job in Vietnam and so his capacity to subsist, a matter referred to in s.91R(2)(d), would be compromised, but this point was not much developed as a separate issue.

Discussion

1. The issue of the applicant’s potential reintegration into Vietnamese society had been raised by him during the course of the Tribunal’s hearing.  In para.33 of its reasons, the Tribunal referred to those submissions in the following terms:

   The applicant fears returning to the SRV as he would have no future, and that he would not be accepted by the authorities and friends.  Life in the SRV is not like life in Australia.  There is no freedom, he would have no stable job and would be considered for one only if he had money.  He fears he will face a different society.  There is no freedom and freedoms are not respected.  He fears return for reasons of his father’s past.  He can see no future given his long absence.  There would not be enough opportunity to help his mother financially.  His youngest uncle in the SRV could not find a proper job due to his uncle’s family’s background but then indicated that over a certain age one cannot find a job in Vietnam and it was not because of his uncle’s family background.

2. What the Tribunal found, in substance, was that all of the applicant’s claims to fear harm for Convention-based reasons were not made out. That included the applicant’s claims of inability to integrate. It is important to keep in mind in this connection that s.91R(2) only applied to claims with a Convention nexus.

3. The Tribunal might have found persecution in the form of psychological harm if the applicant had made such a claim, but it was acknowledged at the hearing of this application that he had not expressly done that.  However, even if he had, it is hard to see how the Tribunal could or would have made such a finding, given its reasoning concerning the improbability of the applicant’s circumstances inviting Convention-related action. 

4. The fact that the claim was not expressly made does not exclude the possibility that its availability was sufficiently apparent on the materials before the Tribunal such that the Tribunal should have nevertheless considered it.  However, I do not believe that such a claim was evident in that way.  In my view, the applicant sought to stretch the words in para.33 of the Tribunal’s decision further than they can reasonably be extended.  While it is plain that the applicant expressed a view that might suggest a degree of hopelessness on his part if he were to return to Vietnam, that is a long way from the sort of psychological harm that would need to be alleged in order to lead one to perceive that he had a claim based on potential psychological harm which would engage Convention-related protection obligations. 

5. As to whether the applicant could subsist, in para.56 of its reasons, summarised in para.26 of the Minister’s submissions, the factual issue of the applicant’s ability to reintegrate sufficiently into Vietnam and start a new life there was sufficiently addressed by the Tribunal. 

6. No other or alternative Convention-related grounds for potential persecution were demonstrated to the Tribunal’s satisfaction. 

CONCLUSION

1. For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

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

Associate: 

Date:  13 July 2018