FEDERAL COURT OF AUSTRALIA

DEO17 v Minister for Home Affairs [2018] FCA 1174

ORDERS

THE COURT ORDERS THAT:

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.

REASONS FOR JUDGMENT

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”.

The FCCA

15    The appellant had legal representation in both the FCCA and in the appeal.

16    His two grounds of judicial review as set out in the amended application in the FCCA were as follows (without alteration):

1.    The Tribunal failed to give proper, genuine and realistic consideration to the question of whether the Applicant would need to modify his conduct of religious activities upon his return to Vietnam, as the Tribunal did not engage in an active intellectual process with respect to the question, instead basing its conclusion solely upon the Applicants past conduct and perceived present state;

2.    The Tribunal made a legally unreasonable finding of fact with respect to the question of whether the Applicant would need to modify his conduct of religious activities upon his return to Vietnam, as the Tribunal merely identified the Applicant’s past conduct and perceived present state without properly evaluating the Applicants’ future conduct.

17    The first ground of review was rejected by the primary judge on the basis that the appellant’s reliance upon Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 (S395) was misplaced because this was not a case where it was claimed that the person would refrain from particular conduct of a kind giving rise to a fallacy or assumption of the type identified in S395. The primary judge found at [31] that the AAT had made a “dispositive finding” that the appellant 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. The primary judge emphasised that the AAT had made an express finding that the appellant would not need to alter his behaviour to avoid persecution in Vietnam. Essentially for these reasons the primary judge rejected the appellant’s contention that the AAT had failed to engage in an active intellectual process in assessing his claims to fear future harm. The primary judge also concluded that the AAT’s finding was not legally unreasonable and was open to it for the reasons given by the AAT.

18    In respect of ground 2 and the appellant’s claim that there was legal unreasonableness in the AAT’s finding that he did not face a real chance of persecution in Vietnam if he were to practice his religion there, the primary judge rejected this ground for substantially similar reasons to those applying to ground 1. In particular, the primary judge emphasised at [36] that the AAT had made an express finding that the appellant would not need to alter his conduct in order to avoid persecution in Vietnam and that it was open to the AAT to make the findings which it did for the reasons given by it. The express finding is that set out in [50] of the AAT’s reasons for decision.

Appeal

19    The two grounds of appeal are as follows:

1.    The primary judge erred in holding that the second respondent had not failed to give proper, genuine and realistic consideration to the question of whether the visa applicant would need to modify his conduct of religious activities upon his return to Vietnam, as the second respondent did not engage in an active intellectual process with respect to the question, instead basing its conclusion solely upon the visa applicant's past conduct and perceived present state;

2.    The primary judge erred in holding that the second respondent had not made a legally unreasonable finding of fact with respect to the question of whether the visa applicant would need to modify his conduct of religious activities upon his return to Vietnam, as the second respondent had merely identified the visa applicant’s past conduct and present state without properly evaluating the visa applicant's future conduct.

Consideration and determination

20    The appellant acknowledged that the AAT made the finding which it did at [50] of its reasons for decision.

21    For the following reasons, both grounds of appeal are rejected. First, contrary to the appellant’s submission, the AAT made an express finding that he will engage in evangelism to the extent that his limitations allow. That finding is at [46] of the AAT’s reasons for decision. It accompanies the finding at [50] to the effect that the appellant would not need to alter his behaviour to avoid persecution. The relevant findings were made not only on the basis of the appellant’s past conduct and “perceived present state”, but also by reference to the AAT’s acceptance of the appellant’s own evidence as to what he proposed to do if he were returned to Vietnam (see BTP16 v Minister for Immigration and Border Protection [2018] FCA 585 at [37] per Griffiths J).

22    The appellant contended, however, that these findings revealed jurisdictional error because there was no proper assessment by the AAT of his apprehended future conduct beyond an assessment of his past conduct and presently perceived state. He contended that while it was open to a decision-maker to use past or present matters to predict the future, there has to be a process of reasoning to indicate why those past or present matters provide a reliable basis to predict future conduct to avoid persecution in Vietnam. The appellant submitted that the AAT’s reasons did not “actively engage with, or provide the requisite justification” for the relevant finding.

23    In my respectful view, there plainly was an active engagement by the AAT with the appellant’s “apprehended future conduct”. This is evident from the AAT’s extensive consideration of relevant country information but also by reference to the appellant’s own statements as to what he intended to do if he returned to Vietnam. In circumstances such as those here, where the appellant converted to Christianity after he left Vietnam, the AAT’s focus necessarily was directed to the nature and extent of the appellant’s conduct as a Christian in Australia and how those matters informed a prediction of his future conduct if he were returned to Vietnam, taking into account relevant country information concerning constraints, if any, on practicing Christians in that country. The need for caution in applying epithets such as “active intellectual engagement” and “proper, genuine and realistic consideration” was emphasised by the Full Court in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [31]-[34].

24    The appellant has not established that the AAT made a legally unreasonable finding of fact on the question whether or not he would need to modify his conduct. It may be accepted that, as a matter of general principle, findings of fact are amenable to judicial review on various grounds, however, I am not satisfied that the appellant has established that the AAT did not give rational and intelligible reasons for this finding or that it was not reasonably open to it to make that finding based on the material before the AAT. That finding of fact was supported inter alia by the country information which is described in [18] to [29] of the AAT’s reasons for decision, as well as in [38] and [39].

25    I respectfully agree with the primary judge’s reasons at [36] for rejecting the appellant’s claim of legal unreasonableness for the reasons given by the primary judge. In coming to this view, I have applied the High Court’s recent decision in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 to determine that the AAT’s finding was not legally unreasonable.

Conclusion

26    For these reasons, time is extended for the bringing of the appeal but the appeal should be dismissed, with costs.

Associate:

Dated:    10 August 2018