CZE17 v Minister for Immigration, Citizenship and Multicultural Affairs

The Appellant's claim to protection 8 The appellant made the following claims in his Visa Application, namely that: (1) he is an orphan, with no siblings or other relatives; (2) he is an adherent of the Catholic faith and, before leaving Vietnam, had suffered discrimination from local authorities because of his religion; (3) his personal circumstances - in particular, his having no family, no support and being threatened by the authorities for practising his religion - contributed to his decision to leave Vietnam; (4) from ten years old, teachers and other students discriminated against him because of his religion; (5) undercover police in Vietnam had arrested and questioned people who attended his church (or other churches); (6) Catholics were harmed by authorities, which caused him to be concerned for his safety; (7) if he returns to Vietnam, he will face three to five years of imprisonment, during which he may be tortured or killed; (8) if he is returned to Vietnam - no matter what part - he would be discriminated against, homeless and unable to obtain employment or study; and (9) if he is returned to anywhere in Vietnam, authorities would not protect him. 9 Subsequent to (and by reason of) the Data Breach, the appellant submitted that asylum seekers sent back to Vietnam from Australia were being persecuted, and that he faced the very real threat of serious harm if he were returned to Vietnam. 10 The appellant attended an interview, during which he re-iterated and expanded upon his written claims. 11 The appellant later made further submissions to the Department, including that, if returned to Vietnam, he would suffer persecution and significant harm at the hands of Vietnamese authorities, in each case on account of: (1) his status as a failed asylum seeker; (2) his status as a person who has departed Vietnam without the permission of authorities; (3) his status as a returnee from the West; (4) his Catholic religion; (5) his status as an orphan without family or other support; (6) his being a person who is unable to safely receive household registration papers; (7) his actual and/or imputed political opinion as anti-government and anti-communist; (8) his failure to register for military service, which heightens his profile as anti-government, anti-communist and a political dissident; (9) his actual and/or imputed political opinion in favour of the West; and (10) the Data Breach (which, he contended, had alerted Vietnamese authorities to his application for protection, heightened his profile, and brought him to the direct attention of Vietnamese authorities).

The Statutory framework 12 The Act establishes a class of visas known as "protection visas": the Act, s 35A. It is not controversial that the Visa Application was an application for such a visa. In order that it might succeed, the appellant needed to satisfy the criteria identified in what was, at the time, s 36(2) of the Act, as read with s 36(2A) and (2B). Together, those provisions read (relevantly) as follows: 36 Protection visas - criteria provided for by this Act … (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or … (2A) A non‑citizen will suffer significant harm if: (a) the non‑citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non‑citizen; or (c) the non‑citizen will be subjected to torture; or (d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non‑citizen will be subjected to degrading treatment or punishment. (2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that: (a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or (b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or (c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally. … 13 The reference to "protection obligations" in s 36(2)(a) described a person who is a refugee within the meaning of art 1 of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954), as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (together, the "Refugees Convention"): NAGV and NAGW of 2022 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161, 176 [42] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ; Kirby J agreeing on a narrower footing). Article 1A of the Refugees Convention provides as follows: Article 1 DEFINITION OF THE TERM "REFUGEE" A. For the purposes of the present Convention, the term "refugee" shall apply to any person who: … (2) …owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it…

The Tribunal's decision 14 The appellant submitted to the Tribunal that he would face serious and/or significant harm if returned to Vietnam because: (1) as an orphan with no support, he would become homeless, which in turn would see him placed in prison or another form of detention; (2) Vietnamese authorities would believe him to be anti-Government, and may detain, question or imprison him, because of his: (a) Catholic religion; (b) not wanting to serve the Communist government and therefore not wanting to join the military, his conscientious objection to which would see him be sent to prison; (c) illegal departure from Vietnam; (d) having sought asylum in Australia; (e) having joined the activities of the Viet Tan party on a few occasions; and (f) refusal to support the Vietnamese Government; and (10) while in prison or otherwise detained, he would be targeted for additional harm and face austere conditions. 15 The Tribunal found aspects of the appellant's evidence to be vague, implausible, contradictory and unconvincing. The Tribunal found that he made new claims during the hearing and that there were a number of inconsistencies in his evidence. It took the view that he was not a reliable or credible witness for reasons including that: (1) the Tribunal found it implausible that the appellant was discriminated against at school by teachers and students because of his religion when the majority of the students were Catholic; (2) the appellant was unable to provide any details substantiating his claim that he had any problems practising Catholicism, and gave evidence conflicting with evidence previously given in an interview with the Department and with his Visa Application; (3) the Tribunal found it implausible that incidents occurring in 2005 contributed to his decision to leave Vietnam in 2013; (4) the appellant claimed that there had been occasions in which police had gone into the homes of practising Catholics, but did not mention this claim in his Visa Application or interview with the Department; (5) the appellant could provide no specific details how he claimed to know that police in Vietnam hire people to threaten those who go to church; (6) the appellant gave evidence about how often he attended church in Vietnam that was inconsistent with the evidence that he had previously given to the Department; (7) despite his stated wish to attend church more than two to three times per week in Vietnam, he only attended church in Australia once per week, even though he had the freedom to do so daily; (8) in his initial interview with the Department, the appellant stated that his main reason for leaving Vietnam was that he had no relatives, no one to support him financially and no future, and he wanted the opportunity to study in Australia, with no mention of leaving Vietnam because he was persecuted as a Catholic; and (9) when concerns about the credibility and veracity of his claims were raised, the appellant maintained that the content of his evidence was unchanged, but that he was previously unable to say things. 16 The Tribunal did not accept the appellant's explanations, nor his claims that he had been discriminated against or that he did not have freedom and human rights because the authorities did not respect his religion. In concluding that the appellant did not satisfy any of the criteria in s 36(2) of the Act, the Tribunal: (1) did not accept that the appellant left Vietnam for any of the reasons claimed, nor that he feared returning to Vietnam for any of the reasons claimed; (2) took the view that, if the appellant had a contentious objection to undertaking military service or feared the treatment that he would receive in the military, he would have made those claims in his Visa Application - and that his failure to do so raised issues about his credibility; (3) concluded that there was no real chance that the appellant would suffer persecution on the grounds of his religion, his actual or imputed political opinion, his membership of a particular social group or any other Refugee Convention reason if he returned to Vietnam at that time or in the reasonably foreseeable future; (4) concluded that the appellant did not have a well-founded fear of persecution for a Refugee Convention reason, and did not satisfy the criterion in s 36(2)(a) of the Act; (5) was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Vietnam, there was a real risk that he would suffer significant harm as defined in s 36(2A) of the Act; and (6) concluded, therefore, that the appellant did not satisfy the criterion in s 36(2)(aa) of the Act.

The FCFCOA judgment and the present appeal 17 The appellant sought judicial review in what was then the FCCA. The application proceeded on two grounds, both of which feature in the grounds of appeal now before this court, namely: 1. The Tribunal erred in failing to apply the correct test in relation to the question of internal relocation. Particulars a. One of the Applicant's claims was that he would be unable to practise .his religion 'wherever he lives in Vietnam'. b. The country information which the Tribunal referred to stated that problems exist in relation to the free practice of religion in some parts of Vietnam (see eg [48] and [52] of the Tribunal's decision). There was no country information before the Tribunal that stated the contrary, that there were no problems anywhere in Vietnam. c. The Tribunal concluded at [58] that it did 'not accept that wherever he lives in Vietnam he will be unable to freely practice (sic) Catholicism and will be subjected to harm', without either: i. identifying a particular safe locality or localities where the Applicant could reasonably relocate without being subjected to harm; or ii. delimiting a local area of risk and finding that the Applicant could reasonably relocate to a locality or localities outside the delimited area of risk. 2. The Tribunal erred in unreasonably finding that the Applicant was not a conscientious objector. Particulars One of the Applicant's claims for protection was that he was a conscientious objector. The unreasonableness arises from the Tribunal's rejection of the conscientious objection claim solely on the basis that he failed to mention it at his entry interview, being an interview primarily for the purposes of eliciting 'information about so-called "people smuggling" and at which the Applicant was 'asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent', rather than an interview for the purposes of determining whether the Applicant engaged Australia's protection obligations. 18 It is not necessary to set out the reasons of the FCFCOA (as it had, by then, become). If the Tribunal Decision was attended by jurisdictional error as is alleged, it will follow that the FCFCOA's conclusion to the contrary was in error and that the appeal should succeed. If it wasn't, then it will also follow that the FCFCOA did not err and that the appeal must fail. Either way, the court's focus should fix upon the Tribunal's Decision. 19 The present appeal proceeds on three grounds, namely (errors original): The Federal Circuit and Family Court erred by failing to find that: 1. The Tribunal erred in failing to apply the correct test in relation to the question of internal relocation; 2. that the Tribunal erred in unreasonably finding that the Applicant was not a conscientious objector; and 3. the Tribunal erred by not giving due consideration to refoulment and complementary protection from being an orphan. 20 The third ground was not raised in the proceedings before the FCCA and the appellant therefore requires leave to agitate it on appeal: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588, 598 [46] (Kiefel, Weinberg and Stone JJ - hereafter, "VUAX"). I shall return to that question momentarily.

Preliminary matters 21 The appeal was heard on 15 August 2023 with the assistance of an interpreter and a McKenzie friend. The appellant sought (and was given) leave to have the interpreter read aloud a pre-prepared English version of a statement. It is not necessary to recite the statement here. It suffices to say that, while the statement did not always marry with the appeal grounds, its effect was that the Tribunal was wrong to reject various components of the case that the appellant had advanced in support of his Visa Application. The statement also made two further requests, in that the appellant asked: (1) for the court's judgment in this appeal not to be published because doing so would jeopardise or further jeopardise his safety were he returned to Vietnam; and (2) that he be given two to three months to obtain a report from a clinical psychologist that could be produced so that the court would be informed about the factors that had caused the appellant to be at greater risk of persecution in relation to conscription. 22 I shall address each in turn.

Request for non-publication order 23 In respect of the publishing of the court's judgment in this appeal, the appellant stated that, as a result of the Data Breach, his name had become known to Vietnamese authorities. 24 No formal application for a suppression or non-publication order was made, but I shall address what was said nevertheless. The appellant had not, at the time of the Data Breach, been given a pseudonym pursuant to s 91X of the Federal Court Act 1976 (Cth) (hereafter, the "FCA Act"). There is, therefore, no realistic prospect of identifying the appellant by way of combining these reasons (which do employ a pseudonym) with the information released in the Data Breach (which did not). None of the grounds for making a suppression or non-publication order under pt 5AA of the FCA Act is enlivened: FCA Act, s 37AG(1). 25 To the extent that the submission should be treated as an application for an order pursuant to ss 37AF or 37AH of the FCA Act, it stands dismissed.

Request for adjournment 26 In respect of his request for further time to obtain a psychological report, the appellant was asked to explain why, in the time since the primary judgment was delivered, he had not already obtained one. The appellant stated that he had only recently been able to secure an appointment with such a psychologist. 27 No formal application for an adjournment was made; but, as it happens, none is required. The appellant has since obtained the report that he foreshadowed and has provided it to the court. It speaks to the appellant's mental state and the difficulties that he has endured in navigating the processes of the court; but it does not assist in identifying any error on the part of the primary judge or any jurisdictional error on the part of the Tribunal. 28 Nothing more need be said of it. 29 With those preliminary matters addressed, I proceed to address the individual appeal grounds.

Ground one 30 By his first ground, the appellant submits (and, before the FCCA, submitted) that the Tribunal failed to apply the correct test in relation to the question of his relocation within Vietnam, and that the FCFCOA erred by failing to so find. The appellants submissions before this court included that: (1) the FCCA and Tribunal did not give sufficient weight to the difficulty of internal relocation, more so because of his views and associations made after his lengthy residence in Australia; (2) the FCCA (and, it is presumed, the Tribunal) erred in not giving sufficient weight to the issue of refoulement and complementary protection given his regular involvement in Viet Tan activities; (3) the FCCA and the Tribunal had a duty to consider that government attacks against Vietnamese citizens practising their faith are, quoting the United Nations Human Rights Office, "perpetuated against innocent and unarmed people, including women and children"; (4) secondary releases of data pursuant to the Data Breach place him under a greater likelihood of jail and persecution should he be returned to Vietnam; (5) Vietnam stipulates lengthy imprisonment for leaving the country without authorisation; (6) the Tribunal erred in stating that it was unable to access country information that supports the submissions made by the appellant's representative; and (7) the Vietnamese government has sentenced returning asylum seekers to between three and twelve years of imprisonment. 31 In substance, the appellant's submissions invite the Court to review the Tribunal's Decision on its merits. In order to make a finding favourable to the appellant, it is necessary for this court to form the view that the Tribunal (and - by extension - the FCFCOA) improperly considered the matter of relocation. However, there was no requirement for the Tribunal to consider the matter of relocation pursuant to s 36(2B) of the Act because it found that the appellant was not at real risk of significant harm if he were to be returned to Vietnam. It was only incumbent upon the Tribunal to consider any test in relation to relocation if it had first found that the appellant faced a real risk of significant harm in the place to which he would return. 32 Even had the Tribunal failed to apply the correct test in relation to the question of relocation, any misunderstanding that attended such a consideration would be insufficient to taint the Tribunal's Decision as the product of jurisdictional error. 33 As it was, the Tribunal properly considered the country information supplied by the appellant, which included references to or extracts of: (1) the United States Commission on International Religious Freedom 2014 Annual Reports on Vietnam (which the Tribunal supplemented with the 2017 Annual Report); (2) reports from Human Right Watch (which referred to a January 2015 Report from the UN Special Rapporteur on Freedom of Religion or Belief) and Minority Rights Group International and Amnesty International; (3) the Minority Rights Group International's State of the World's Minorities and Indigenous Peoples 2016 - Vietnam Report; (4) the 2016/2017 Amnesty International Report on Vietnam; and (5) an article from Christianity Today. 34 The Tribunal also considered a Country Information Report on Vietnam produced by the Department of Foreign Affairs and Trade. The Tribunal did not accept that the appellant would be unable to freely practice Catholicism or would be subjected to harm through the whole of Vietnam, nor that if he returned to Vietnam he would be imprisoned and tortured because he is Catholic. It was open to the Tribunal to not be satisfied that there was a real chance that the appellant would be at risk of serious harm for reasons of his religion if he were to return to Vietnam now or in the foreseeable future. The Tribunal was not required to - and correctly did not - apply any test in relation to the question of relocation pursuant to s 36(2B) of the Act. 35 The Tribunal's reasoning was not a product of jurisdictional error as alleged by this ground and, with respect, the learned primary judge's conclusion to that effect was not reached in error.

Ground two 36 By his second ground, the appellant submits (and, before the FCCA, submitted) that the Tribunal's finding that he was not a conscientious objector was legally unreasonable. Insofar as it failed so to find, he charges the FCFCOA with having erred. 37 Before the FCCA, the appellant submitted that unreasonableness arose because the Tribunal rejected his conscientious objection claim "solely on the basis that he failed to mention it at his entry interview". 38 In support of his second ground of appeal, the appellant stressed that: (1) he did not want to serve in the Vietnamese military because of his belief that the government uses the army to suppress people; (2) he did not mention that opposition when interviewed by the Department because he was not asked about military service and, due to his age, he was not at that point required to serve; (3) the Tribunal and FCFCOA had erred by not accepting that he was in need of complementary protection, given his associations in Australia, his views about the Vietnamese army and his opposition to military service; and (4) his association with the Viet Tan in Australia would put him at greater risk of persecution. 39 The Tribunal did not accept that the appellant had a conscientious objection to military service or that he would refuse to serve if he were returned to Vietnam. It was led so to conclude because: (1) the appellant had made no mention of not wanting to perform military service when asked by the Department why he had left Vietnam; (2) when the Tribunal suggested that this might lead to the conclusion that he had fabricated his claim for the purpose of enhancing his prospects of obtaining a protection visa, he did not comment or respond; (3) if the appellant had a contentious objection to undertaking military service or if he feared the treatment he would receive whilst doing so, he would have made those claims in his Visa Application, or in his subsequent interview; and (4) the Tribunal was not satisfied that the mere fact that he was not in the country at the time that he became eligible to register for military service amounted to a refusal to undertake (or an evasion of) military service. 40 Respectfully, the FCFCOA was correct to find that the Tribunal did not confine its consideration of the appellant's "conscientious objector" claim solely to his having failed to make it at the time of his entry interview. It was, I think very plainly, open to the Tribunal to question the credibility of the appellant's claim. 41 The Tribunal was simply not satisfied that the appellant would be prosecuted for refusing to undertake military service or evading military service, or that he would be forced to renounce his faith in the military. It found that he was not a member of the Viet Tan and did not know its policies. It was not satisfied that he was at real risk of serious harm because he was a conscientious objector. 42 All of those findings were open to be made on the material that was before the Tribunal. The Tribunal's conclusion that the appellant was not a conscientious objector was one to which a logical or rational decision maker could reasonably have come: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, 649 [135] (Crennan and Bell JJ). It cannot be impugned as unreasonable to a point that bespeaks jurisdictional error. Respectfully, the FCFCOA was correct so to find. 43 It follows that the second ground of appeal is not made good.

Ground three 44 By his third ground, the appellant submits that the Tribunal "…erred by not giving due consideration to refoulement and complementary protection from being an orphan", and that the FCFCOA erred by failing to so find. 45 Intending no disrespect, the appellant's third ground of appeal is difficult to follow. It seems to have been best distilled in the following passage of his written submissions on the appeal: I am concerned that the department and courts did not have a psychological report on me, and my vulnerability as an orphan when determining my claim for protection. This means they were not fully informed when they made their decision about relocation. The lack of family support as an orphan and lack of a household registration certificate means I am at risk of abuse and exploitation as a failed asylum seeker if I were returned. Given my religious and political views and practices, my concern is related to the increased impacts of refoulment on me due to trauma experienced as an orphan, developmental issues, and detention. I have been told by my teacher, who read my psychological report, that I presented as having below average cognitive ability, limited consequential thinking, diminished maturity and delayed development; this may be due in part to my difficult time as an orphan. Due to these vulnerabilities, I am less able to avoid persecution and exploitation than could be expected of others if I had to relocate internally or serve in the military. The Tribunal erred in not finding similar cases.. Without a household registration certificate, I would not be able to find employment in Vietnam and would be more open to exploitation. 46 As a preliminary observation, it was not possible for the FCFCOA to err by failing to make a finding that it was not asked to make. Putting that infelicity in the application aside, I treat this as a new ground of appeal that charges the Tribunal with having erred by not giving due consideration to the appellant's vulnerabilities and consequent need for protection. 47 As has been identified, the appellant requires leave to advance this ground. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: VUAX, [46]. The Court may grant leave if the ground clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated: VUAX, [48]. 48 It is plain enough that the Tribunal did address the appellant's claims to complementary protection. It did not use the phrase "refoulement"; but I do not consider that much can be made of that. Section 36(2)(aa) of the Act codifies Australia's interpretation of its non-refoulement obligations under art 33 of the Refugees Convention. The Tribunal considered whether the appellant was in fact an orphan, as well as his submissions in relation to relocation and conscientious objection. It concluded that he was not at real risk of suffering significant harm if removed from Australia. It did so in the context of its assessment of his claim to complementary protection under s 36(2)(aa) of the Act. 49 The Minister submits that it would not be expedient and in the interests of justice to allow this new ground to be raised when it was not argued in trial proceedings. That was said to be so because: (1) the appellant provided no explanation for why the proposed ground was not run at first instance; (2) it would fail to maintain the integrity of the appellate process (see PXYJ v Minister for Home Affairs [2018] FCAFC 193, [16] (Barker, Banks-Smith and Colvin JJ)); (3) the Minister would be denied a right of appeal because any further appeal lies only by grant of special leave to the High Court (see AAM15 and Others v Minister for Immigration and Border Protection and Another (2015) 231 FCR 452, 455 [14] (Perram J)); (4) the newly-proposed ground does not have sufficient merit to warrant the grant of leave; (5) it was for the appellant to provide evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts; and (6) the appellant's submissions amount to impermissible merits review. 50 I respectfully agree. As in VUAX (at [48]), there was no adequate explanation for the appellant's failure to take the point that he now seeks to prosecute. Moreover, the ground is of doubtful merit (in fact, wholly without merit). At its core, the ground involves an attack on the weight that the Tribunal saw fit to give to various considerations. That is unquestionably a matter for the Tribunal and is not nearly sufficient to bespeak the presence of jurisdictional error: Abebe v Commonwealth of Australia (1999) 197 CLR 510, 580 [197] (Gummow and Hayne JJ). That being so, leave to advance the new ground should be (and is) refused.

Disposition 51 None of the grounds of appeal is made good and the appeal should (and will) be dismissed on that basis. The first respondent sought an order for costs fixed in the amount of $4,000.00. That sum is reasonable and proportionate to the nature and complexity of the application. There shall be orders accordingly. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.