DEO17 v Minister for Home Affairs

1. The application for an extension of time is allowed.
2. The appeal be dismissed.
3. The appellant pay the first respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GRIFFITHS J: 1 This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA). The decision is dated 7 March 2018 and is reported as DEO17 v Minister for Immigration and Border Protection [2018] FCCA 540. 2 The FCCA dismissed the appellant's judicial review challenge to a decision dated 22 June 2017 of the Administrative Appeals Tribunal (AAT). The AAT affirmed a decision of the delegate not to grant the appellant a protection visa. 3 The appellant is a citizen of Vietnam who arrived in Australia on 24 October 2012 holding a student visa. On 9 July 2014 he lodged an application for protection claiming to fear harm and persecution in Vietnam because of his conversion to Christianity while he was in Australia. He stated that he was a baptised evangelical and a committed Christian and that he feared that if he were to return to Vietnam he could not practice his faith as he would wish and that he would be subjected to significant restrictions. In a statutory declaration provided after the lodgement of his protection visa application, the appellant stated that he was a member of a Christian evangelical church and that, as such, if he were to return to Vietnam he would be banned from preaching the Gospel in any manner or form. He provided extensive material in support of these claims. 4 In rejecting the protection visa application on 20 May 2015, the delegate dismissed the appellant's claims as not being credible and, in any event, found that even if the claims were accepted the appellant's claimed fear was not credible having regard to country information concerning the practice of the Christianity in Vietnam. 5 The appellant applied to have the delegate's decision reviewed by the then Refugee Review Tribunal. The appellant's agent provided further extensive material concerning the practice of Christianity in Vietnam. 6 The AAT accepted that the appellant had been baptised in an evangelical Christian church in Australia. 7 The AAT noted the appellant's claim that he would be harassed and persecuted by Vietnamese authorities if he practised his Christian religion in Vietnam. He also claimed that he would have to alter his behaviour there in order to avoid persecution and that this would amount to a self-imposed curtailment of his fundamental human right to practice his religion. The AAT summarised country information concerning the attitude of Vietnamese authorities to the practice of Christianity and evangelism in Vietnam, including material provided by the appellant. The AAT noted in [38] that it put to the appellant that there were indications in independent reports that evangelical activities were increasingly tolerated in Vietnam and that the appellant respondent by describing the material as "state propaganda". 8 The AAT did not accept the appellant's claims. With specific reference to the appellant's claim that he would not be able to evangelise in Vietnam, the AAT noted that the Catholic Church had reported that Protestantism is thriving in Vietnam and to the extent that evangelising is treated as being illegal in Vietnam, this was the case only by some authorities and in some localities. The AAT referred to country information which indicated that the relevant laws were being relaxed in Vietnam and that this would be particularly advantageous to newly created Protestant churches, including evangelical faiths. The AAT noted that there was country information which indicated that there had been some conflict with evangelical churches in the central highland regions of Vietnam but the appellant was not from those regions. The AAT also referred to country information which indicated that there had been very successful public evangelical initiatives in large cities with the permission of both city and national authorities. 9 At [17], the AAT noted that, at his protection visa interview with the delegate, when country information was put to the appellant to the effect that he would be free to attend churches in Vietnam, he responded that "he would still not be permitted to evangelise". 10 After noting the appellant's response that he might join the Catholic Church, the AAT put to the appellant that there was independent evidence that Catholics were not persecuted in Vietnam. In response to the appellant's remark that Catholic demonstrators who opposed the government in land disputes were persecuted, the AAT commented that while Christians were not persecuted, there might be a reaction at a local level to participation in protests relating to land disputes. The AAT then added that the appellant had not shown any personal interest in any such disputes. 11 The AAT concluded that whether the appellant remained a member of an evangelical Protestant church or became a Catholic, he did not face a real chance of persecution in Vietnam for identifying, professing, praying or worshipping as a Christian in Vietnam, or for engaging in outreach or evangelical activities there. Moreover, the AAT found that it was not satisfied on the evidence before it that the appellant would need to alter his behaviour to avoid persecution in Vietnam. Accordingly, the AAT found that the appellant's fear of religious-related persecution was not well-founded. 12 In [46] of the AAT's reasons for decision, there is a finding that the appellant "will engage in the evangelical life and activities of [a protestant] church to the extent that his self-described abilities allow and under the guidance of his pastor or priest, just as he has been doing in Australia". 13 The reference to "self-described abilities" is a reference to the appellant's own evidence that he was still exploring his place in Christian life and the AAT's finding at [49] that, for the appellant to engage in a life of evangelism he would have "to undertake a lot more learning than he claims to have undertaken". 14 At [50] the AAT member stated that he was not satisfied that the appellant "would need to alter his behaviour to avoid persecution in Vietnam, let alone in such a way or to such a degree as would infringe upon his freedom of conscience and religion".