BNT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2021-11-17|Before: Rares J

The application be dismissed.
The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RARES J: 1 This is an application for an extension of time in which to file a notice of appeal. The applicant is a citizen of Vietnam. He was seven days late in seeking to file his notice of appeal because he was acting for himself and mistook the period in which he could do so, thinking it was 35, not 28, days. Since then, the applicant has been able to secure representation by counsel who drafted an amended notice of appeal from the decision of the Federal Circuit Court that dismissed his application for review of the decision of the Immigration Assessment Authority given on 28 March 2017 to affirm the delegate's decision not to grant the applicant a protection visa (BNT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 272). 2 The draft notice of appeal proposes to raise a single ground not advanced before the trial judge, namely, that the Authority made a jurisdictional error in relation to the applicant's religious and political activity by either arriving at findings that were illogical, irrational or lacking a basis founded on inference or facts supported on logical grounds, or failing to give proper consideration to, or actively engaging with, his case. The applicant's draft notice of appeal does not challenge any finding of the trial judge. The Minister does not object to the applicant seeking to rely on this ground, however, he contended that the ground had no merit and therefore the extension of time should be refused.

Background 3 The applicant is an unauthorised maritime arrival who entered Australia in May 2013. He claimed that he and his family were practising Catholics and that he had been so all his life. He claimed that, in June 2010, the government had used armed forces and police to seize land in his home town, including land that originally belonged to his father, but which had been transferred to him, as well as other land belonging to relatives. He claimed that he and his family members asked for their land and homes to be protected from seizure. He claimed that when he and others organised a rally in their town and tried to block bulldozers being used to develop the land, the government sent in armed forces and police who used batons and electric prods to beat and harm them and that police had hit him on the head with a baton. He claimed that he needed medical attention, including stitches, for the wound and that he had also sustained an injury to his leg. He claimed that, after these assaults, the authorities confiscated his and his family's land, built a bus terminal on it and did not pay any compensation. He claimed to have been jailed for two months and that, when released, he found that everything had died down, there were no more protests, and that his parents had had to pay a significant bribe to cover the cost of a meal for officials (the land incident). 4 The applicant claimed that local authorities had arrived at other villages and assaulted or otherwise set out to harm Catholics. He claimed that this conduct had provoked the bishop of the diocese to call on Catholics to respond in order to support the victims of the assaults. The applicant claimed that, in response to the bishop's call, he and others joined together to march towards one of the villages concerned, that was about 60 kilometres from his home village in a procession comprised of about 60 parishioners from his village. He claimed that police stopped the procession about five to seven kilometres away from the parish church of the village concerned, questioned the members of the procession, including himself, and alleged that the procession was causing trouble. He claimed that there was some pushing and shoving. The applicant claimed that the police confiscated his driver's licence and forced the procession to turn back and return home (the village incident). 5 He claimed that, a few days afterwards, he received a summons telling him to attend the police station, which he did, and that he found himself to be one of a group of people questioned together concerning their roles in the protest. He claimed that, about seven days later, he was summonsed again to the police station and underwent further questioning in which the police accused him and others of causing trouble in the community and that, when he denied this, they hit him with batons across his stomach and hands. He claimed that the police had used violence to try and force a confession from him and that, after about 30 minutes and for no apparent reason, they let him go. 6 He claimed that about three days later when he was driving to sell bonsai plants at a market, his wife telephoned and told him that there was another summons to go to the police station waiting for him and that the police had also summoned many others. He claimed that, because he then was a long distance from his home, he could not go to the police station but, later that night, his wife phoned him and told him that others had not returned from the police station and that his wife and father advised him to hide to avoid imprisonment. He claimed that, while living in hiding, the police issued many summonses for him and came looking for him, but he had not returned home. 7 The applicant claimed that, early in 2012, a cousin had died in jail and that, although the police had said that his death was a suicide, everyone in the community knew that the cousin had been killed by beatings. 8 He claimed that, after the land incident in 2010, he had suffered many punishments and, after hearing that his friends had not returned from the police station and what had happened to his cousin, he was extremely fearful of how the authorities would treat him, so that he could not return home. 9 He also claimed that in 2013 he was forced to interact with Vietnamese government officials while in detention at Yongah Hill Immigration Detention Centre when they visited there and gave him a laissez-passer travel document. The applicant fears that he will be harmed by the authorities if he is returned to Vietnam.

The Authority's decision 10 The Authority had serious concerns about the veracity of the applicant's claims, including aspects of them relating to the village incident and subsequent summonses that he allegedly received suggesting that the authorities were interested in him. It explained, coherently, why it held those concerns. It accepted aspects of the applicant's account of how the village incident had occurred, namely, that he and other parishioners from his prayer group had travelled towards the village in which the authorities had acted adversely to Catholics, and on their way were stopped by the police and prevented from going any further. It found that the applicant was then detained for approximately 20 to 30 minutes and his driver's licence was confiscated. The Authority found that he was then released and returned to his home village, and that those aspects of his claims were broadly consistent with country information. 11 However, the Authority did not accept that, after the village incident, the applicant was of ongoing interest to the authorities or that he went into hiding. It rejected his claims about what subsequently had happened to him. It noted, among other things, that the applicant had provided no detail regarding any summonses, his attendance at the police station on two occasions or the continued attendances of authorities at his home, finding that: Given that these events appear to have been the catalyst for him to go into hiding and his departure from Vietnam, I do not accept that he would omit any mention of them. No copies of any of the summonses that the applicant claims to be issued have been provided. 12 Based on the Department of Foreign Affairs and Trade's (DFAT) country information, the Authority found that people who engaged in religious activity in Vietnam, which was perceived actively to oppose government policy or pose a threat to the State, faced a high risk of being subject to close monitoring and government actions to curtail those activities in public and that this applied also to persons with an anti-government agenda who organised large numbers of people in public spaces or promoted civil activism. The Authority stated that, while it accepted the applicant had two encounters with the authorities, namely the land incident and the village incident, it was not satisfied that his actions or the nature of his encounters were such that the State would perceive him to be a person engaged in religious or political activism. It was not satisfied that he was of interest to, or was being sought by, Vietnamese authorities on the basis of an actual or imputed political opinion as a result of the land incident or the village incident. It was not satisfied that the applicant faced a real chance of harm for that reason on his return to Vietnam then or in the reasonably foreseeable future. 13 The Authority found that the applicant was a Catholic who had regularly attended mass, religious services and celebrations since his birth, and that his father had held a prominent position in the parish church for six years. It found that the applicant would continue to practise his Catholic faith on return to Vietnam. Based on country information, it found that the treatment of Vietnamese Catholics at the hands of government officials depended on whether they practised their religion in a registered or unregistered church and whether that church or its members were outspoken or critical of the government. It found that there was a low risk of official interference for Catholics who worshiped in a manner conforming to government policy, but that there were reports of past harm against Catholic activists and those seeking to practice in unregistered churches. 14 It accepted DFAT's overall assessment that there were no credible claims of societal abuse or systemic discrimination based on religious practices. It found religious adherence and practice in Vietnam, including by Catholics, was tolerated if the believers acted within State sanctioned boundaries and did not challenge the interests or authority of the government and that this was so even for religions not officially recognised. 15 The Authority was not satisfied that the applicant's past activities or the past position of his father would result in the Vietnamese authorities identifying the applicant as a political or religious activist. It was not satisfied that there was any credible evidence to indicate that he would participate, or had any interest in participating, in any conduct which would be perceived to be that of a political or religious activist upon return to Vietnam. The Authority found that the applicant would return to his home area, continue to be a regular member of his Catholic church participating in masses and religious celebrations and his prayer group. Moreover, based on country information, it found that he would be able to practise his Catholic faith freely and in a manner that would not involve him curtailing his religious practices or modifying his behaviour, including by restricting the practise of his religion to avoid harm. It was not satisfied that any discrimination or disadvantage had occurred to members of religious groups in Vietnam. It was not satisfied that any employment barriers to government roles would threaten the applicant's livelihood, impact his capacity to subsist or otherwise constitute serious harm. 16 The Authority found that the applicant had not provided any example as to what travel or identity documents he or his family had been prevented from accessing. Rather, based on his own evidence, he had been able to travel twice to Laos in 2008 and 2011 using two travel documents and numerous other documents issued by the Vietnamese government. It found that in 2013 the applicant applied for, and was issued, a passport by the Vietnamese authorities on which he travelled to Australia. It was not satisfied there was any credible basis for his claims that he had been prevented from accessing documents or that he faced a real chance of harm as a Catholic on his return to Vietnam at that time or in the reasonably foreseeable future. 17 The Authority accepted that the applicant might believe that his cousin's death had been due to acts of the police rather than to suicide, but there was no independent information on which it could make any finding. It was not satisfied that the applicant would be considered to be a political or religious activist or otherwise would be viewed adversely merely because of his knowledge of his cousin's death. 18 The Authority found that the applicant departed Vietnam lawfully. It was not satisfied he would face a real chance of serious harm because of being identified as having sought asylum unsuccessfully. It found that he did not have any adverse political profile as a Catholic. It was not satisfied that he would be perceived to be a political activist on return or that the Vietnamese authorities would impute him with an adverse opinion or profile. 19 Accordingly, the Authority was not satisfied there was a real chance that the applicant would face serious harm for the reasons he had claimed, either then or in the reasonably foreseeable future, were he to return to Vietnam and he did not satisfy the requirements of s 36(2)(a) of the Migration Act 1958 (Cth). The Authority also found that, in relation to the complementary protection ground, the applicant would be able to continue to practice his faith in the same manner as he had done so before, if he returned, although he might experience a degree of discrimination, including some employment barriers to Government roles, but that such conduct would not constitute significant harm within the meaning of s 36(2A). It concluded that the applicant was not entitled to complementary protection under s 36(2)(aa).

The applicant's submissions 20 Relevantly, the applicant argued that the proposed ground of appeal can be made out because of the way in which the Authority made findings about the village incident and his imputed profile as, so he claims, an activist or religious practitioner whose practise of religion and expression of religious faith would expose him, if he were returned to Vietnam, to serious or significant harm within the meaning of ss 5J(5) or 36(2A) of the Act for the purposes of assessing his claims to protection under s 36(2)(a) and (aa) of the Act. He contended that the Authority made factual findings that were illogical, irrational or lacked proper consideration. 21 He submitted that the Authority had arrived at illogical findings in relation to the risk of him suffering serious or significant harm were he to return to Vietnam because it confined its consideration of such a risk to conduct on his part as an activist, without considering whether such harm might befall him simply by reason of his Catholicism. He contended that the Authority should have recognised that because of its findings as to how the village incident had occurred, his detention for 30 or so minutes and the confiscation of his driver's licence, would have suggested that he was at risk of some form of serious or significant harm in any event were he to return to Vietnam. 22 The applicant noted that the Minister accepted that the extension sought was short and that there would not be any substantive prejudice if the extension were granted.

Consideration 23 An application for an extension of time challenges the respondent's vested right to obtain the benefit of the judgment that is the subject of the appeal, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4], and see also at 539-543 [66] per Kirby J. The Court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in Regina v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F (and see also FFM20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 156 at [19] per Rares, Stewart and Abraham JJ), namely: We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard in fairness to the parties, we may think it proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but do like to know something about the case before deciding whether or not to extend the time. 24 In my opinion, there is no substance to the applicant's arguments in support of the proposed ground of appeal. They are flimsy and weak. The Authority's reasons appear to be logical, structured, and to have considered not only the applicant's position if he were an activist but also his claims to fear harm based on the actual or imputed profile he had with Vietnamese authorities by reason of each of his Catholicism, the land and the village incidents, although the applicant focused his attack on the Authority's findings only on the latter. The proposed ground of appeal is lacking in any substantive merit and ought not be allowed to be raised.

Conclusion 25 In those circumstances the application for an extension of time must be refused. The applicant must pay the Minister's costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.

Migration Act 1958(Cth)ss 5J, 36

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