AFU17 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-11-28|Before: Moshinsky J

The applicant have leave to rely on the amended draft notice of appeal annexed to the affidavit of Navid Koushke Baghi filed 7 August 2018 and to rely on the submissions dated 7 August 2018.
The application for leave to appeal from the orders of the Federal Circuit Court of Australia be dismissed.
The applicant pay the first respondent's costs of the application (including the applicant's interlocutory application dated 7 August 2018), to be fixed by way of a lump sum.
Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent's costs.
In the absence of any agreement pursuant to paragraph 4 of these orders, within 21 days the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court's Costs Practice Note (GPN-COSTS).
Within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).
In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent's costs be referred to a Registrar for determination. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background facts 3 The following statement of the background facts is based on the statement of decision and reasons of the Tribunal (Tribunal decision) and the reasons for judgment of the Federal Circuit Court (the Reasons). Although the Court Book from the proceeding before the Federal Circuit Court was not before this Court at the hearing of the application, as discussed at the hearing a copy of the Court Book was subsequently obtained and regard has been had to the documents in the Court Book. 4 The applicant is a woman from Vietnam. She arrived in Australia in January 2008 on a student visa. Her student visa ended in January 2013. During the period from 2008 to 2013, the applicant travelled overseas on three occasions. 5 In November 2012, the applicant applied for a skilled visa. This was refused by a delegate of the Minister in April 2013. In January 2014, the Migration Review Tribunal affirmed the decision to refuse the applicant a skilled visa. 6 On 14 February 2014, the applicant applied for a protection visa. She claimed to fear harm if returned to Vietnam because she had converted to the Church of Jesus Christ of Latter-Day Saints. 7 On 1 May 2015, a delegate of the Minister refused the application for a protection visa. 8 The applicant applied to the Tribunal for review of the delegate's decision. The applicant was represented by a migration agent. The applicant relied on a statutory declaration dated 8 November 2016 in support of her claims. The applicant raised a new claim based on her political activities in Australia - this claim had not been made in her application for a protection visa and was not raised in the process before the delegate. 9 On 16 November 2016, the applicant appeared before the Tribunal to give evidence. 10 On 22 December 2016, the Tribunal decided to affirm the decision to refuse the applicant a protection visa. 11 At [20]-[23] of its decision, the Tribunal summarised the applicant's claims. 12 The Tribunal outlined the applicant's claims and made certain findings of fact at [25]-[32]. The Tribunal found, at [29], that the applicant's conversion to the Church of Jesus Christ of Latter-Day Saints was for the sole purpose of furthering her refugee claims. Nevertheless, the Tribunal accepted that, if she were to return to Vietnam, the applicant would continue to practice her faith. The Tribunal stated, at [30], that the applicant claimed to have been involved in various political movements in Australia, beginning in 2012 with Bloc 8406. The Tribunal noted that the applicant's protection visa application did not include a mention of any involvement with Bloc 8406. The Tribunal stated that it did not accept that the applicant had been politically involved since 2011, but accepted that she had been involved since 2015. The Tribunal accepted, at [31], that the applicant had contributed to Bloc 8406 by participating in protests where she waved the South Vietnamese flag, by organising a petition, and by contributing to the running of a musical performance raising awareness of the case of a human rights activist. The Tribunal accepted, at [32], that the applicant had been a member and was (at the time of the Tribunal's decision) an office holder of Prisoners of Conscience Fund (POCF), a group that supported families of prisoners who stood for human rights in Vietnam, and that the applicant had been involved since some time after February 2014. 13 The Tribunal then considered the consequences of the applicant's conversion to the Church of Jesus Christ of Latter-Day Saints. The Tribunal found, at [41], that the applicant did not face any harm for the Refugee Convention reason of religion or under complementary protection were she to return to Vietnam in the reasonably foreseeable future while continuing to practise her faith. 14 The Tribunal considered the claims based on the applicant's political engagement in Australia at [42]-[51]. In summary, the Tribunal referred to country information that suggested a distinction between 'anti-regime activities' and 'critical views'. The country information stated that there was a tolerance by the Vietnamese government of critical views but not anti-regime activity. The Tribunal found, at [47], that through the applicant's participation at protests (including waving the South Vietnamese flag) she might be considered as holding critical views, but not as having undertaken anti-regime activities. As such, the Tribunal found that there was not a real chance of serious harm or a real risk of significant harm as a result of the applicant's participation in protests in Australia. 15 In relation to the applicant's participation in the POCF, the Tribunal found, at [50], that the chance or risk of the applicant facing serious or significant harm from being an office holder of the POCF and involved since 2014 was remote and not real. 16 Further, in relation to social media posts, the Tribunal accepted, at [51], that the applicant had posted material that was critical of the government (largely by way of sharing other people's posts), but found that posting such material did not constitute anti-regime activities. 17 At [52]-[56], the Tribunal considered whether the applicant would continue to seek to express a political opinion critical of the government were she to return to Vietnam. Taking into account various matters (including the applicant's delay in lodging the protection visa application and her lack of political engagement with Bloc 8406 until after the lodgement of the protection visa application), the Tribunal found at [56] that the applicant's participation in political activities was not genuine and was solely for the purpose of furthering her protection claims. The Tribunal was not persuaded that her commitment had shifted to be a genuinely held motivation. As such, the Tribunal did not accept that the applicant would continue to seek to express a political opinion critical of the government were she to return to Vietnam even if she were free from fear. 18 The Tribunal considered another claim (namely that the applicant had sought asylum) and considered the totality of the circumstances faced by the applicant. 19 Ultimately, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention. The applicant therefore did not satisfy the criterion in s 36(2)(a) of the Migration Act 1958 (Cth). Further, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa).

The proceeding in the Federal Circuit Court 20 The applicant applied to the Federal Circuit Court for judicial review of the decision of the Tribunal. The applicant relied on a single ground, namely that the "Tribunal decision has jurisdictional error". As the primary judge noted at [5] of the Reasons, there was nothing on the face of the application to provide any hint of the true basis of the claim. 21 Although the Reasons do not expressly state this, it is common ground between the parties that the hearing before the primary judge (on 10 November 2017) was a 'show cause' hearing. 22 The applicant appeared for herself at the hearing before the primary judge. 23 The primary judge summarised the findings of the Tribunal at [7]-[12] of the Reasons. The primary judge referred at [13]-[16] to certain matters raised by the applicant at the hearing. The primary judge did not consider these to give rise to an arguable case. The primary judge concluded at [17] that, as the applicant had not been able to identify any arguable ground for judicial review, nor a matter that would warrant further inquiry that could not have been undertaken before the time of the hearing, the application was to be dismissed.

The application for leave to appeal to this Court 24 As the orders of the Federal Circuit Court are interlocutory, the applicant requires leave to appeal. The applicant filed an application for leave to appeal on 24 November 2017, identifying three grounds in the application. Together with the application, the applicant (who had obtained legal representation) filed an affidavit dated 23 November 2017. 25 The applicant has also filed an interlocutory application dated 7 August 2018 seeking leave to amend her draft notice of appeal and to rely on an outline of submissions dated 7 August 2018. 26 On 7 August 2018, an affidavit of Navid Koushke Baghi of the applicant's solicitors was filed (the affidavit has the date 7 August 2018 on the front page but 26 July 2018 alongside the signature). This annexed a number of documents including an amended draft notice of appeal. This document deleted the grounds in a previous version of the notice and substituted two new grounds as follows: 1. The Tribunal failed to comply with s 425(1) of the Migration Act 1958 (Cth) Particulars a. See applicant's submissions, [16]-[29] 2. The Tribunal did not comply with s 424(1) of the Migration Act 1958 (Cth), or … its decision is affected by illogicality or irrationality. Particulars a. See applicant's submissions, [30]-[34] 27 Also on 7 August 2018, the applicant filed an outline of submissions dealing with the proposed new grounds. These submissions accepted that the grounds were not raised before the primary judge and therefore the applicant needs leave to rely on the grounds. 28 At the hearing of the application, it was arranged that the Minister would respond to the proposed new grounds by filing written submissions after the hearing. The Minister did so by filing supplementary submissions on 27 August 2018. The applicant's solicitors indicated by email dated 1 October 2018 that the applicant relied on material already provided to the Court and would not be filing any further material. 29 The applicant relies on the affidavit of the applicant dated 3 August 2018 (which goes to the fact that the applicant was self-represented in the Federal Circuit Court and reasons why the new grounds were not raised earlier) and certain material annexed to the affidavit of Navid Koushke Baghi filed 7 August 2018 and a separate affidavit filed 26 July 2018. The Minister does not object to the reliance on the new material. The applicant also relies on an affidavit of Timothy Nguyen dated 13 August 2018.

Consideration 30 In determining whether leave to appeal should be granted the relevant considerations are: whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by the Court; and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. 31 I will consider the question whether leave to appeal should be granted by reference to the proposed new grounds of appeal. 32 By proposed ground 1, the applicant seeks to contend that there was a failure to comply with s 425(1) of the Migration Act, because the applicant was not aware of an issue arising in relation to the decision under review and so was deprived of the opportunity to give evidence and present arguments relating to that issue: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [36]-[40]. The applicant contends that the "issue" was the question whether the applicant's political activities in Australia constituted 'anti-regime activity' or were merely the expression of 'critical views'. The applicant contends that this was a critical issue in the review, but the applicant was not given notice of the issue. 33 Section 425(1) of the Migration Act provides that the Tribunal must invite the applicant to appear before the Tribunal "to give evidence and present arguments relating to the issues arising in relation to the decision under review". In SZBEL, the High Court stated at [36] that, unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application would identify the issues that arise in relation to that decision. 34 In the present case, the applicant had not raised a claim based on political activity in Australia in her application for a protection visa or in the process before the delegate. The claim on this basis was raised in the applicant's statutory declaration, filed for the purposes of the review by the Tribunal. There is no question that whether the applicant had established her claims based on political activity in Australia thus became an issue in the review. The question is whether the issue is to be stated at this level of generality or, as the applicant contends, more narrowly. 35 In my view, the applicant's contention is not sufficiently arguable in the circumstances of this case to warrant a grant of leave to appeal. The Tribunal in the course of responding to the claims based on political activity in Australia referred to country information that drew a distinction between 'anti-regime activity' and 'critical views': see the Tribunal decision at [45]. It appears that the Tribunal had before it Refugee Review Tribunal Research Response VNM31954 (2 July 2007) (the RRT Note), which referred in turn to CA Thayer, "Comments for the Australian Refugee Review Tribunal" (18 March 2005) (the Thayer Report). There is generally no requirement that the Tribunal give notice to an applicant that it may have regard to country information: see s 424A(3)(a) of the Migration Act. In this case, the distinction drawn in the country information did not rise to the level of an issue in the review. Rather, the country information simply formed part of the basis upon which the Tribunal assessed whether there was a real chance of serious harm or a real risk of significant harm as a result of the applicant's participation in political activity in Australia. 36 I note for completeness that the applicant relies on ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 at [20]-[33] and [59]. I do not consider the approach I have taken to be inconsistent with the principles discussed in that case. Each case will, of course, turn on its own facts. 37 I turn now to consider proposed ground 2. By this ground the applicant seeks to contend that the Tribunal did not comply with s 424(1) of the Migration Act, alternatively, the Tribunal's decision is affected by illogicality or irrationality. The applicant submits that: the RRT Note contains nothing that gives any meaningful content to the distinction between 'critical views' and 'anti-regime activity'; the Thayer Report may explain what is meant, in real-world terms, by the distinction, but that report does not appear to have been before the Tribunal; and in circumstances where the Tribunal accepted the distinction in the Thayer Report, but did not have before it any indication of the content of each side of the dichotomy, the Tribunal could not reach a state of satisfaction that the applicant's conduct was merely 'critical views' rather than 'anti-regime activity'. The applicant submits that the Tribunal misunderstood or misconceived the RRT Note such that it did not consider the information and so did not comply with s 424(1) of the Migration Act or did not perform the review required by the Act: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63]; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431. Alternatively, the applicant submits that the Tribunal acted irrationally or illogically: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. 38 In my view, the applicant's contention is not sufficiently arguable to warrant a grant of leave to appeal. It was open to the Tribunal to have regard to the country information in considering whether the applicant's claims based on political activity in Australia were made out. The Tribunal did not misunderstand or misconceive that material. Rather, it formed the view that the country information (which made the distinction between anti-regime activities and critical views) together with the other material before the Tribunal did not suggest that there was a real chance of serious harm or a real risk of significant harm as a result of the applicant's participation in political activity in Australia. The absence of definitions of 'anti-regime activities' or 'critical views' did not make it illogical or irrational to rely on the distinction in assessing the applicant's claims. 39 In light of the above, I will grant the applicant leave to rely on the amended draft notice of appeal and to rely on the submissions dated 7 August 2018. I will order that the application for leave to appeal be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will order that the applicant pay the Minister's costs of the application (including the applicant's interlocutory application dated 7 August 2018), to be fixed by way of a lump sum. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.

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