Federal Court of Australia

BDF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 547

Appeal from:

BDF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 174

File number:

NSD 1179 of 2021

Judgment of:

ABRAHAM J

Date of judgment:

13 May 2022

Catchwords:

MIGRATION – protection visa – appeal from the Federal Circuit and Family Court of Australia – where the primary judge found that the appellant had not established any error in the decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of the delegate of the first respondent to reject the appellant’s claim for a protection visa – where the appellant alleged that the Tribunal had erred in failing to consider a claim arising on the evidence before it that if the appellant were to resume his drug addiction on return to Vietnam he would face police harassment and forced incarceration – no error established in the primary judge’s or Tribunal’s reasons – appeal dismissed

Legislation:

Migration Act 1958 (Cth) ss 5, 5J, 36, 501

Cases cited:

BDF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 174

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280

Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67

Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

SZTAL v Minister for Immigration Border Protection [2017] HCA 34; (2017) 262 CLR 362

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

22

Date of hearing:

26 April 2022

Counsel for the Appellant:

Mr L Karp

Solicitor for the Appellant:

My T Nguyen Solicitors

Counsel for the First Respondent:

Mr T Reilly

Solicitor for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

The second respondent filed a submitting notice save as to costs.

ORDERS

NSD 1179 of 2021

BETWEEN:

BDF21

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

ABRAHAM J

DATE OF ORDER:

13 May 2022

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the costs of the first respondent to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    This is an appeal from BDF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 174 (primary judgment), dismissing an application seeking review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 13 April 2021, affirming a decision of a delegate of the first respondent (respondent) refusing the appellant a protection visa.

2    The appellant is a citizen of Vietnam who arrived in Australia in 2012. On 15 June 2013, he was granted permanent residency on a Class BC Subclass 100 Partner visa, as a dependant of his mother. On 24 March 2020, the appellant’s partner visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) on the basis that he did not pass the character test pursuant to s 501(6)(a), due to being sentenced to two years imprisonment on 19 December 2019 for a number of offences. On 10 June 2020, the appellant applied for a Class XA - Protection (subclass 866) visa. On 25 June 2020, the delegate of the respondent refused the visa. The appellant sought review by the Tribunal and on 13 April 2021, it affirmed the decision under review.

3    The appellant appeals on a single ground of appeal, which is essentially the same as the ground before the primary judge, which alleges:

The Court erred in finding that the second respondent (the Tribunal) lawfully considered a claim, and evidence in support of that claim, that if the applicant were to return to drugs of addiction upon return to Vietnam, he may face harassment by the police and forced incarceration in what are effectively labour camps.

4    For the reasons below, the appeal is dismissed.

The primary judge

5    In summary, the appellant’s claim for protection was that he claimed to fear harm in Vietnam because of his mental illness (schizophrenia), and his political opinions and Catholic religion. As the primary judge summarised at [6], the appellant provided additional evidence before the Tribunal which included evidence that about 3 years before the hearing the appellant developed a mental problem; he burned his property, and was taken to hospital; he received medication by injection every four weeks, although he could not identify the medication he had taken; the appellant had been convicted of some criminal offences, including possession of a prohibited drug (heroin); the appellant had been using drugs for around 4 years; and, save for a period of approximately 2 months the appellant had not received any regular treatment for his addiction. The appellant claimed, among other things, that his mental health will pose a danger for him if he returns to Vietnam.

6    The primary judge accurately summarised the Tribunal’s reasons at [7]-[9]. Before the primary judge, the appellant relied on an amended application containing one ground, claiming the Tribunal failed to address a claim clearly arising on the material before it, being that the appellant faced police harassment or detention in Vietnam if he resumed his drug addiction. The appellant relied upon statements in the article by Dr James Windle titled ‘A Slow March from Social Evil to Harm Reduction: Drugs and Drug Policy in Vietnam’ (Windle article), cited by the Tribunal, and the Department of Foreign Affairs and Trade (DFAT) country information quoted by the Tribunal at [2.29] of Annexure A of its decision. The primary judge dismissed the ground.

Submissions

7    This appeal is based on the contention that the Tribunal did not give ‘consideration’ to the evidence or a claim in this case that the appellant may face persecution or significant harm by being incarcerated in an 06 Centre (a compulsory treatment centre) if he relapsed into drug use on return to Vietnam. In particular, reliance was placed on extracts from the Windle article, which it was contended clearly raised such a claim. The appellant relied on the authorities which address the requirement that consideration requires active intellectual engagement with the evidence and claims, including a focus on the effect of the claim on the individual, citing for example, Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao) at [36]-[46]; Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387 at [73]-[74]; and Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3]. He also referred to the Full Court’s decision in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [37]-[38], which it was said supports the proposition that the Tribunal must undertake a conscious consideration of the submissions, evidence and material advanced by the appellant so as to give the Tribunal an accurate picture of the ongoing circumstances in the country of origin.

8    The appellant submitted that the difficulties with the Tribunal’s reasoning on these topics are as follows. First, the Tribunal at [96] referred to policies in contravention of international human rights laws as having occurred in the past, whereas the Windle article refers to them existing at the time of writing the article. It was submitted that the DFAT report annexed to the Tribunal decision refers to 06 Centres operating, and going strong, at least in mid-2018. Second, the Tribunal referred at [97] to drug treatment being available and the appellant being entitled to such treatment, ignoring the available information that such treatment often involves compulsory incarceration and conditions as described in the Windle article and the DFAT report. Third, the Tribunal then reasoned at [97] that, treatment for drug abuse being available, any harm that the appellant may suffer resulting from his use of illicit drugs lacks systematic and discriminatory conduct pursuant to s 5J(4) of the Migration Act. It was submitted that the reasoning process is obscure and ignores the kinds of harm reported to be commonplace in 06 Centres. The Tribunal’s mention of such harm was not referenced to incarceration in 06 Centres. Fourth, s 5J is only relevant to consideration of protection claims within s 36(2)(a), and not s 36(2)(aa). It was submitted that s 5J is not relevant to the issue of complimentary protection relevantly canvassed in the Tribunal decision.

9    It was submitted that the information as to 06 Centres and the abuses that occur therein are very clear in the Windle article and in the DFAT report and can reasonably be expected to have been specifically mentioned in the Tribunal’s reasons if they were in fact considered, citing Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [34]. It was submitted that although the Tribunal did refer to parts of the Windle article it did not direct an active intellectual process at parts of that article and to the DFAT report which raised claims of persecution and serious harm which may be faced by the appellant if he were to succumb to drug addiction if returned to Vietnam.

10    The respondent submitted that, as the primary judge held, on a fair reading of the Tribunal’s reasons, it accepted that the appellant may possibly face incarceration as described in the Windle article if he resumes his drug addiction, found that he would not be denied treatment and that “any harm” the appellant may suffer as a result of use of drugs in Vietnam “would lack the systematic and discriminatory conduct necessary for it to be considered persecution for the purposes of s 5J(4) of the Act”. It was submitted that the Tribunal’s reasoning essentially was that there would not be any discriminatory treatment of the appellant in Vietnam if he resumed his drug addiction as he would be treated like any other Vietnamese citizen. There is no error in such reasoning, citing Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610 at [76]-[77]. It was submitted that nor is there any error in the Tribunal’s treatment of complementary protection. There is nothing in the country information cited by the Tribunal to indicate that those working in drug treatment centres in Vietnam intend to cause “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” as defined in s 5 of the Migration Act: see SZTAL v Minister for Immigration Border Protection [2017] HCA 34; (2017) 262 CLR 362 (SZTAL) at [28]-[29]. Such centres are intended to treat drug use rather than to inflict such harm.

Consideration

11    The ground relied on in this Court is the same as that relied on before the primary judge.

12    The primary judge rejected the submission, concluding at [16]-[20] (footnotes omitted):

[16]    The questions that arise are whether the Tribunal considered the material in question and, if so, whether the Tribunal actively engaged with the material in question in the sense of giving that material “proper, genuine and realistic consideration” in relation to the question the Tribunal in fact determined; and that was whether, given the possibility the applicant could become a drug addict on his return to Vietnam, there is a real risk that the applicant will suffer “serious harm” within the meaning of s 5J(4) and s 5J(5) of the Act.

[17]    I am satisfied the Tribunal did consider the material in question. The Tribunal referred to the 06 Centres; and the inference is available to be drawn, and I find, that the Tribunal obtained its information about the 06 Centres from the material in question. It is also reasonably open to infer, and I find, that in acquainting itself with the 06 Centres from the material in question, the Tribunal became acquainted with the features of the 06 Centres as revealed in the operation of the centres; and that is because those features formed part of the 06 Centres described in the material in question.

[18]    It is true the Tribunal did not specifically refer to that part of the material in question that described the attitudes and behaviour of police towards persons facing drug addiction and towards those who attempt to support them. I am not prepared to find, however, the Tribunal did not do so because it failed to acquaint itself with, and consider, those parts of the material in question. First, the references in the material in question to police attitudes and behaviour, to which the Tribunal did not refer, appear together with information to which the Tribunal did refer. The likelihood, therefore, is that the Tribunal read the information. Second, and more significantly, the Tribunal accepted the applicant would be at risk of harm if, on his return to Vietnam, the applicant were to become a drug addict again. It is reasonable to infer, and I find, that the harm the Tribunal had in mind the applicant would be at risk of suffering if, on his return, he were to resume his drug addiction, is the harm the material in question identified occurs to drug users who are detained in 06 Centres, and who may otherwise be exposed to the police harassment and behaviour revealed in the material in question (Harm). The Tribunal, however, was not satisfied this risk of Harm fell within s 5J(4) of the Act; and that is because the Tribunal was not satisfied that the Harm would arise from conduct that is systematic and discriminatory.

[19]    I am also not satisfied the Tribunal did not actively engage with the material in question. I am satisfied it did actively engage with that material. As I have already noted, the Tribunal referred to the material in question; and the Tribunal accepted the applicant would be exposed to the risk of Harm if he were to resume his drug addiction after he returns to Vietnam. The Tribunal, however, did not stop there; it considered, and it actively considered, whether the risk of Harm would satisfy s 5J(4) of the Act. Although the Tribunal accepted the applicant would be exposed to the risk of Harm, the Tribunal was not satisfied the risk of Harm would be persecution that would involve serious systematic and discriminatory conduct. The basis of that finding is the Tribunal’s acceptance of country information it found revealed two classes of responses to drug addiction in Vietnam, one of which involved the 06 Centres and police harassment, and hence a class of response that would give rise to the risk of Harm, and the other which would not give rise to the risk of Harm; and the absence of any evidence that satisfied or could satisfy the Tribunal that the two classes of responses, and in particular that class of response that would give rise to the risk of Harm, were applied systematically and discriminatorily to persons suffering from drug addiction.

[20]    In his oral submissions counsel for the applicant submitted that the Minister’s reliance on what was said at paragraphs 74 and 75 of Minister for Immigration and Border Protection v WZAPN is misplaced because the material in question showed there was discriminatory conduct against drug users, and the Tribunal ignored or did not engage with this aspect of the material in question. I disagree. As I have already noted, the material in question, together with the other material to which the Tribunal referred, revealed to the Tribunal two classes of responses to drug addiction in Vietnam, one of which would give, and the other of which would not give, rise to the risk of Harm; and the Tribunal was not satisfied that the class of response that would give rise to the risk of Harm has been or would be applied systematically and discriminatorily to persons suffering from drug addiction.

13    The appellant’s submission is focussed on the reasoning in the Tribunal and essentially repeated those submissions made before the primary judge. In addition, the appellant submits that the primary judge, in effect, read into the Tribunal’s reasons matters not apparent from those reasons.

14    I note at the outset that the reasons of the Tribunal should not be construed minutely and finely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [38].

15    The appellant’s submissions do not reflect a fair reading of the Tribunal’s reasons and do not properly grapple with the content of the Tribunal’s reasons. Indeed, the submission is premised on a plain misreading of [97] of the Tribunal’s reasons. In that context it is appropriate to recite [95]-[97] of the Tribunals’ reasons (footnotes omitted):

[95]    The applicant's evidence was that [he] had been using drugs for approximately four years. The medical report dated 23 June 2017 stated that he reported that he had used 'heroin four years ago. His evidence was that, except for a period of approximately two months, he had not received any regular treatment for his addiction. He was not able to say when he received the treatment but nevertheless indicated that he was no longer addicted to heroin. There was no evidence that indicated he was likely to become addicted to drugs again if he was returned to Vietnam.' While the Tribunal accepts that he had been addicted to heroin, based on the medical report and the applicant's own evidence it finds that he is no longer addicted to the drug.

[96]    The country information reports that the Vietnamese government in the past engaged in policies designed to supress the consumption and trade of drugs. Its reported that these policies at times, contravened international human rights law. They included the incarceration of drug users in compulsory treatment centres and the stigmatization and abuse of drug users by the police. However, since the 1990's and with the advent of the HIV epidemic, the government has switched to policies that reduce the level of harm to drug users in an attempt to reduce the level of needle sharing. As a result its reported that Vietnam transformed it drugs policy by incorporating harm-reduction approaches. In 2013, it declared its intention to reduce the number of compulsory treatment centres, known as 06 Centres and to increase resources for community based voluntary treatment centres. While it does maintain compulsory treatment for drug dependence, the Vietnamese Government has scaled up voluntary and diversified services for drug dependence treatment and care at the provincial level. Methadone maintenance treatment (MMT) has proven to be effective in treating opioid dependence with MMT services being provided primarily by public clinics.

[97]    While the Tribunal accepts its possible that upon his return to Vietnam the applicant may become addicted to drugs once again, it notes that there is treatment available to the applicant if he starts abusing drugs upon his return. There is no evidence that the applicant would be denied treatment for his drug addiction on systematic and discriminatory manner. As a citizen of Vietnam, he would be entitled to treatment on the same basis as other citizens of the country. As such, in circumstances where treatment for drug abuse is available to the applicant, any harm that the applicant may suffer as a result of his use of drugs on his return to Vietnam would lack the systematic and discriminatory conduct necessary for it to be considered persecution for the purposes of s.5J(4) of the Act. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to Vietnam as a result of his addiction to drugs as claimed.

16    The appellant, it appears for the first time in this appeal, submitted during the hearing that the sentence in [97] of the Tribunal’s reasons, which refers to any harm suffered by the appellant, is referring to harm that may be inflicted by the appellant on himself if he were to resume taking drugs. That is a misreading of that sentence. Rather, as the respondent contended, the harm referred to in that sentence is the negative aspects of the drug rehabilitation treatment in Vietnam, as referred to by the Tribunal in [96] and the references cited thereto (and the DFAT report annexed to the reasons).

17    As the primary judge correctly identified at [18], the Tribunal accepted the appellant would be at risk of harm if, on his return to Vietnam, the appellant were to resume his addiction to drugs. As recited above, the primary judge concluded that it “is reasonable to infer, and I find, that the harm the Tribunal had in mind the [appellant] would be at risk of suffering if, on his return, he were to resume his drug addiction, is the harm the material in question identified occurs to drug users who are detained in 06 Centres, and who may otherwise be exposed to the police harassment and behaviour revealed in the material in question”. That is a reasonable inference to be drawn. Indeed, if that were not the case it is difficult to see the basis for the Tribunal’s conclusion. If that is so, it undercuts the premise of the appellant’s submission. That conclusion reflects not just that the Tribunal has read the material, but has actively and genuinely engaged with it: see, for example, Carrascalao. That appellant did not address the primary judge’s reasoning, as his argument proceeded on a misinterpretation of the Tribunal’s reasons. This illustration reflects the artificiality of aspects of the appellant’s approach to the Tribunal’s reasons.

18    I note also, as the respondent observed (and the appellant accepted), that the appellant did not advance any claim before the Tribunal based on drug addiction. Rather, this issue arose on the evidence and was considered by the Tribunal accordingly. It was the Tribunal who located the various relevant country information in this regard, the Windle article being just one example (as is apparent from the footnote references). That, in light of the Tribunal’s reasons, tends to support the contention that the material was actively considered. I note also that the DFAT report was annexed to the Tribunal’s reasons, which at [2.29]-[2.30], refers to the material which the appellant alleges was not taken into account. In that context, [96] of the Tribunal’s reasons summarises that (and other) material. Moreover, contrary to the appellant’s contention, the last sentence in [20] of the primary judgment does reflect the effect of the Tribunal’s reasons.

19    The primary judge applied the correct legal principles in determining the issue, and the appellant does not suggest otherwise.

20    A consideration of the Tribunal’s reasons, read fairly, reflects that there is no error demonstrated in the conclusion of the primary judge.

21    I note that in the appellant’s written submission, he raises, it appears for the first time, that s 5J, which is referred to by the Tribunal in [97], only applies to s 36(2)(a) and not s 36(2)(aa), and is, therefore, not relevant to the complimentary protection claim. This does not appear to have been raised before the primary judge (which is consistent with the amended ground of appeal before him which makes no complaint about the complimentary protection claim). As referred to above, the ground of appeal in this Court alleges the same error. The appellant did not advance any oral submission in support. Aside from the reference to complimentary protection as recited in the first sentence of this paragraph, the appellant did not refer to it, or any aspect of the Tribunal’s consideration of the complimentary protection claim at [118]-[123] and no error is pointed to in that consideration, including the conclusion in [123]. There appears to be no error in the reasoning process. I note the Tribunal had earlier also referred to the relevant legal principles: at [6]-[11]. In any event, as the respondents written submission observes, there was nothing in the country information before the Tribunal to satisfy the criteria as required by SZTAL at [28]-[29]. The appellant did not address or challenge that submission.

Conclusion

22    As no error is established, the appeal must be dismissed, with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.

Associate:

Dated:    13 May 2022