BZAHN v Minister for Immigration and Border Protection

PROCEEDINGS IN THE CIRCUIT COURT 3 On 4 September 2014, the applicant applied, pursuant to s 477 of the Migration Act, for an extension of time in which to make an application pursuant to s 476 of that Act, seeking the issue of constitutional writs directed to the Tribunal. Section 477 required that any such application be made on or before 1 May 2014. 4 The applicant seems to have submitted that his application to the Minister had, in effect, suspended the operation of s 477(1). However he had been told that he should not suspend any proceedings for judicial review in the expectation of a favourable ministerial decision. His Honour observed that even after receipt of the Minister's decision, there was further delay. The Circuit Judge concluded that the overall delay was effectively unexplained. His Honour did not, however, reject the application merely by reference to the delay in making application for judicial review. His Honour recognized that if time were not extended, the applicant would have no further avenue for seeking a protection visa in Australia and therefore addressed the merits of the case. 5 The primary Judge identified the proposed ground of review as being that the Tribunal breached "its statutory obligation" under s 36(2)(aa) of the Migration Act, because it "failed to analyse and or examine the relevant information o[r] facts". Such failure was said to have had three aspects: that the Tribunal did not adequately consider country information, particularly the 2013 report by the United States Commission on International Religious Freedom; that the Tribunal placed upon the applicant an undue burden in requiring him to produce independent material to support his view of the behaviour of Khanh Hoa provincial authorities, and that too heavy a weight was ascribed to this matter in concluding that he would not be subject to harm; and that in considering the fact that Vietnamese nationals who return to Vietnam are entitled to have household registration reinstated, the Tribunal inadequately considered the impact of the applicant's history upon his return to Vietnam. 6 The Circuit Judge correctly identified the fact that the applicant had misconceived the effect of s 36(2)(aa). Sections 36(2)(a) and 36(2)(aa) set out alternative criteria for the grant of a protection visa. They impose no procedural duties upon a relevant decision-maker. However his Honour proceeded on the basis that the applicant had sought to raise two issues, namely: that the Tribunal did not conduct a review of the delegate's decision; and that the Tribunal did not give, "proper, genuine and realistic" consideration to the application. 7 The Circuit Judge concluded that the Tribunal had understood and considered the applicant's claims, accepting some of them. His Honour gave detailed consideration to the applicant's submissions concluding, in effect, that the applicant was really seeking merits review. He concluded that the delay in seeking judicial review was not explained, and that the proposed grounds lacked merit. These findings inevitably led to rejection of the application.

PROCEEDINGS BEFORE THE PRIMARY JUDGE 8 There was no right of appeal from the decision of the Circuit Court: s 476A(3) of the Migration Act. On 11 August 2015 the applicant applied to this Court under s 39B of the Judiciary Act 1901 (Cth) for writs of certiorari and mandamus directed to the Circuit Court. On 24 March 2016, the primary Judge dismissed that application. 9 Before the primary Judge the applicant relied upon two grounds which were particularized as follows: (1) The [Circuit Court] misapprehended the test to be applied under s 477(2)(b) of the [Migration Act] in determining whether there was a discretion to extend the time for an application for a remedy under s 476 of the Act. Particulars: (a) His Honour Judge Jarrett erred in law by not considering that there is strong merit in the grounds in the application such as to establish jurisdictional error. (b) His Honour Judge Jarrett erroneously concluded that the grounds in the review application sought merits review. (2) His Honour Judge Jarrett erred in law by failing to recognise that the [Tribunal] did not assess the Applicant's claims under s 36(2)(aa) of the Act. Particulars: (a) His Honour Judge Jarrett failed to recognise that the [Tribunal] did not consider that as a perceived Catholic who has sought asylum in Australia, and as a person who was subjected to imprisonment and torture for 8 months, the Applicant faces a real risk of significant harm upon return. (b) His Honour Judge Jarrett failed to recognise that the Tribunal made findings in relation to the complementary protection criterion based on evidence and findings considered in the context of Refugees Convention Claim, but made no attempt to distinguish the different tests posed by s 36(2)(a) and s 36(2)(aa) of the Act. (c) His Honour Judge Jarrett failed to consider that the [Tribunal] made a jurisdictional error by not considering the relevant evidence and materials before it in arriving in its decision that the situation in Vietnam has greatly improved since applicant's departure. (Errors in original, footnotes omitted.) 10 As to the first ground, the primary Judge found that in considering the application for an extension of time, the Circuit Judge had identified and applied the proper test. His Honour considered that the Circuit Judge had correctly recognized that the Tribunal's reasons for dismissing the s 36(2)(a) case also applied to the s 36(2)(aa) case. Hence there was no basis for the applicant's claim that his case under s 36(2)(aa) had not been understood or considered. These findings might well have disposed of the application before the primary Judge. However, as did the Circuit Judge, his Honour went on to consider various other matters, eventually upholding his Honour's decision.

THE PRESENT APPLICATION 11 The applicant now seeks an extension of time in which to appeal against that decision. On the best view of it for the applicant, any notice of appeal should have been filed on or before 14 April 2016. The present application was filed on or about 22 June 2016, almost 10 weeks after the expiry of the prescribed period. I identify the relevant considerations in determining the application to be: the length of the delay; any explanation for such delay; whether any respondent would be prejudiced by the granting of leave, and the extent of such prejudice; and the viability of the proposed grounds of appeal. 12 Although the Minister submitted that the applicant's delay is of some significance, when considered in light of his history of delay, he conceded that he would suffer no prejudice were an extension of time granted. 13 In paras 31-36 of his affidavit the applicant seeks to explain the delay as follows: 31. I was desperate to lodge the appeal, however, I lodged another Ministerial Intervention request. 32. I then waited again for a favourable decision. I believed that the Minister will use his public interest power to intervene. Unfortunately He did not intervene in my matter. 33. I have instructed my legal representatives to appeal to review the decision. However, I did not have financial means to fund for another application. 34. It took a long time for me to organise funds from the support of my friends and relatives. 35. I was then taken into detention. 36. I was therefore prevented from lodging an appeal within the statutory time of 21 days. 14 Once again, the applicant has taken it upon himself to ignore a relevant time limit, notwithstanding his apparently having legal advice. Clearly, the delay is not explained. However I note the absence of any prejudice to the Minister. The application will be resolved by reference to the applicant's prospects of success in pursuing the proposed grounds of appeal. 15 The draft notice of appeal identifies the following proposed grounds of appeal and particulars: Grounds of appeal 1. [The primary Judge] erred in law in failing to find that the decision of the Federal Circuit Court judge was affected by jurisdictional error. Particulars: (i) At paragraph 48 His honour said "there is no discernible basis for the applicant's assertion that the primary judge misapprehended the test to be applied under s477 (2) of the Act. (ii) At paragraph 47 His Honour erroneously said the Appellant's substantive application did not raise any arguable case of jurisdictional error. (iii) His Honour failed to consider the Federal Circuit Court judge has made an error of law in failing to consider the Tribunal's breach of s 36(2) (aa) of the Migration Act 1958 (Cth). 2. His Honour has erred in law in failing to find that the Judge in the Federal Circuit Court had failed to consider the Tribunal's failure to assess the appellant's application under the complementary protection criteria. Particulars (a) The Federal Circuit Court unreasonably failed to give due weight to an error of the Tribunal namely its failure to properly consider the Appellant's circumstances: (i) Appellant's significant presence ( more than 24 years) Australia. (ii) Consequences of his returning to Vietnam as a "failed asylum seeker". (b) At para 52 of the judgement, [the primary Judge] incorrectly said that in this case there was no suggestion that the Tribunal had insufficient information or material to make a decision. His Honour failed to recognise that the Tribunal had insufficient evidence and materials to decide if the Appellant's real chance of persecution as a Catholic or as a failed asylum seeker upon return and that amounts to a failure to make an obvious inquiry about a critical fact. 16 To the extent that these proposed grounds say anything at all about the errors allegedly made by the primary Judge, they are easily dismissed. Proposed ground 1 simply repeats the misconception that the applicant's case under s 36(2)(aa) was not considered by the Tribunal. As both the Circuit Judge and the primary Judge have made clear, that case was considered. Pursuant to s 36(2)(a) protection obligations will arise only if the applicant fears persecution for a Convention reason, and is therefore a refugee. Section 36(2)(aa) has nothing to do with refugees. It focusses rather upon the Minister's being satisfied that Australia has protection obligations to a person because there are substantial grounds for believing that if he or she returns to his or her country of origin, there is a real risk that he or she will suffer significant harm, for whatever reason. Where an applicant applies for a protection visa, he or she may advance grounds which, at face value, satisfy either the requirements of s 36(2)(a) or those of s 36(2)(aa). If that fear is of persecution for a Convention reason, the applicant will be a refugee and will be granted a protection visa pursuant to s 36(2)(a). If the decision-maker is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason, but is satisfied that there are substantial grounds for believing that he or she will face the risk of serious harm, the visa will be granted under s 36(2)(aa). If the decision-maker is simply not satisfied that there is any risk of serious harm for any reason (as here), then the reasons for dismissing the application, as it relies upon s 36(2)(a) and as it relies upon s 36(2)(aa), may well be substantially the same, (as here). The applicant may not understand that proposition, but one might have expected that his legal advisers would understand it. There is nothing in this proposed ground. 17 Proposed ground 2 seems also to be associated with s 36(2)(aa), or so I would infer from the reference to the "complementary protection criteria". However the particulars seem rather to raise claimed fears based upon the length of time during which the applicant has been in Australia and the "consequence of his returning to Vietnam as a failed asylum seeker". There is a further criticism of the primary Judge's reasons at [52]. I shall return to that matter. 18 The Tribunal certainly dealt with the applicant's claims to fear ill-treatment upon his return to Vietnam, attributing that fear to the length of time that he has been in Australia. I am not sure whether the applicant has previously sought to attribute any anticipated ill-treatment to his being a failed asylum seeker. In any event, the Tribunal dealt with his concerns about ill-treatment, and was not satisfied that he would face "persecution" for any reason. I take the Tribunal's use of the word "persecution" to include significant harm for the purposes of s 36(2)(aa). 19 The further point of criticism identified in proposed ground 2(b) is said to arise at [52] which reads as follows: The claim that the Tribunal failed to fully investigate was underpinned by an assumption that the Tribunal was under a duty to investigate. Before this Court, the applicant submitted in his written submissions that "the Tribunal has clearly failed its statutory duty to make inquiries" and the Tribunal was required "to make proper inquiries into the situation of Catholics in Vietnam". However, the Tribunal is under no general duty to make inquiries. The duty imposed upon the Tribunal, elucidated in SZIAI at [18]-[25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), is a "duty to review, not necessarily a duty to make inquiries." The exception is that a failure to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained, may constitute a failure to review. 20 The applicant submits that his Honour, in that paragraph, erroneously said that there was no suggestion of insufficient information to make a decision, presumably concerning the risk of persecution for reason of his religion or his status as a failed asylum seeker. No such statement appears at [52]. However a statement to that effect appears at [54] where the primary Judge pointed out that no point was taken before him as to the adequacy of the information before the Tribunal. His Honour also pointed out that in the applicant's written submissions he had complained about the Tribunal's interpretation of country information and its weighting of the evidence, rather than the adequacy of the available material. In any event, the primary Judge carefully considered the Tribunal's use of country information, including that relating to religious matters, and detected no error. His Honour concluded that the applicant was seeking merits review. 21 In oral argument before me, the applicant again canvassed the use made by the Tribunal of the report by the United States Commission on International Religious Freedom. The report certainly identified improvements in the relations between the Vietnamese government and Roman Catholics in that country, but it also identified a negative side to the situation: Catholicism continues to grow rapidly in Vietnam, and the church has expanded both clerical training and charitable activities in recent years. Hanoi and the Vatican continue to discuss resuming diplomatic relations. Nevertheless, the relationship between the Vietnamese government, some members of the Church's hierarchy, Catholic laity, and members of the Redemptorist Order continue to be tense. Over the past several years, including in the past year, Catholics have been detained for participating in peaceful prayer vigils and demonstrations at properties formerly owned by the Catholic Church. In addition, government officials have employed "contract thugs" to assault and intimidate Catholics from engaging in both private study and worship at "unregistered" locations. ... Nevertheless, Hanoi continues to discuss with the Holy See conditions for the normalization of relations. Nguyen Phu Trong, the general secretary of the Communist Party, had a private audience with Pope Benedict XVI in January 2012. The government maintains veto power over appointments of bishops, but often cooperates with the Vatican in the appointment process. Catholic leaders in Ho Chi Minh City reported that they often move ahead with ordinations and placement of priests without seeking government approval. All students must be approved by local authorities before enrolling in a seminary and again prior to their ordination as priest. In October 2012, authorities in Quang Binh province returned property formerly owned by the Catholic Church after decades of petitions from parishioners. In November 2012, the Ho Chi Minh City People's Committee granted a Catholic orphanage for AIDS-affected children permission to operate, the first time the government has allowed religious control of a social, health, or educational entity. 22 The Tribunal dealt with this matter at para 33 as follows: The Tribunal notes that information about the Diocese of Nha Trang on the Catholic Hierarchy website is that the Catholic population of the Diocese grew from 128,082 (8.3% of the population) in 1990 to 185,064 (11.8% of the population) in 2004. The number of priests in the Diocese grew from 79 to 144 in the same period. More recent figures on this Diocese, which covers the area from which the applicant comes in Vietnam, were not available on that website, but another source stated that as of 31 December 2008 there were 194,275 Catholics (11.8%) of the population of the Diocese. This same source noted: In the beginning of the year 2004, the Vietnamese government relented its restrictive policy somewhat and gave permission that some priests who were ordained without government permission may continue to exercise their ministry openly when they have completed an additional two-year theology course. Bishop Paul Nguyen Van Hoa of Nha Trang, then president of the Catholic Bishops' Conference of Vietnam inaugurated the first course of 38 candidates with government approval in Jan. 2004 in Sao Bien in Nha Trang diocese. (Footnotes omitted.) 23 At paras 40-48, the Tribunal observed: 40. The Tribunal is aware of numerous reports of police extorting money from Vietnamese citizens who either returned from overseas or have relatives overseas are from the 1980s until the mid-1990s. A report prepared for the Tribunal in 2002 noted that 'more recent reports are scarce. This is not of course to suggest that the practice has disappeared.' On the basis of this country information, the Tribunal accepts that it is likely that the applicant's claims as to the harassment and extortion that he suffered prior to his departure from Vietnam are true. 41. The reason for this harassment is less clear. As noted above, it is clear from the country information that such harassment of Catholics by the Vietnamese government was not uncommon in Vietnam before the applicant's departure in 1992. However, the Tribunal notes that in his evidence at the hearing the applicant made no reference to being harassed due to his religion prior to his departure until the Tribunal put to him that he had made such claims in the statutory declarations submitted to the Department and to the Tribunal. Until the claims from his statutory declarations were raised with him, he said a number of times that the harassment and extortion demands he suffered were because he had relatives in Australia and he had himself sought to flee by boat. 42. The Departmental file contains a letter purporting to from a Parish Priest in Hoa Thanh Parish in Vietnam that states that he was a member of the Church and was baptised and received the sacrament of confirmation on 18 November 1981. Notwithstanding the anomalies in his evidence, the Tribunal is prepared to accept on the basis of this evidence that the applicant is a Catholic, and also accepts for the purposes of this decision that he suffered harassment for that reason prior to leaving Vietnam in 1992. 43. The Tribunal notes, however, that the applicant did not claim either at the hearing or in his statutory declarations which are set out above that he feared persecution on the basis of religion should he return to Vietnam now. He made no reference to any intention of practising his religion on his return. He said that his fears related to his concern about the local authorities in his area harassing him because when he left in 1992 he said that he would return to Vietnam within three months and he did not do so, and also that they would be concerned about him having been illegally in Australia for more than 20 years. 44. Again, notwithstanding that the applicant has not made any claim that he would practice his religion should he return to Vietnam, the Tribunal is prepared to accept for the purposes of this decision that that would be the case. 45. The country information referred to above includes reports that particular adherents of the Catholic faith continue to face problems from time to time in some areas of Vietnam. The Tribunal has been unable to locate any reports of problems for Catholics in the area in which the applicant's family lives at least in the last decade, however, and notes that the evidence in the form of the country information referred to above indicates that the situation for Catholics in Vietnam generally and in the Diocese of Nha Trang specifically has greatly improved since the 1980s and early 1990s. Accordingly, and taking into account the country information referred to above, the Tribunal is satisfied there is no real chance that the applicant would face persecution in Vietnam because of his religion. 46. It is clear from the country information that the situation m Vietnam has changed considerably since the applicant' s departure .in 1992. The applicant has recently been granted a new passport by the Vietnamese authorities in Australia, and as noted above the country information available to the Tribunal is that he will also be able to have his household registration reinstated upon his return to Vietnam. While the applicant claimed that the local authorities in his area were continuing today to behave in a much more harsh way than the picture painted by this country information, he was unable to produce any independent information to support this claim, and the Tribunal does not accept that it is true. 47. The Tribunal notes that the applicant made no claim in his evidence that his family have been harassed in any way by the local authorities since his departure apart from the one visit to his mother's home in 1992. 48. The Tribunal is satisfied, therefore, that there is no real chance that the applicant would face persecution upon his return whether because of his religion or indeed for any other reason. 24 Clearly, the Tribunal considered both the positive and negative aspects of the report and reached a considered view as to the risk of significant harm or persecution for reason of the applicant's religion, should he return to Vietnam. Its conclusion was fairly open. 25 Finally, counsel for the Minister submitted that the grounds advanced by the applicant could not, in any event, demonstrate an error going to the jurisdiction of the Circuit Court. See Craig v South Australia (1995) 184 CLR 163, Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; SZTSU v Federal Circuit Court of Australia [2015] FCA 224, and, on appeal, [2015] FCAFC 129. It is not necessary that I consider that matter. Any appeal on the foreshadowed grounds would have no prospects of success.

ORDERS 26 The application for an extension of time in which to appeal must be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.