Federal Court of Australia

APD21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1035

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant do pay the first respondent's costs of the appeal, to be assessed on a lump sum basis by a registrar if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The appellant seeks a protection visa. The decision to refuse his visa application was upheld by the Administrative Appeals Tribunal. With legal assistance, he sought review in the Federal Circuit and Family Court of Australia (Circuit Court). A single ground was advanced to the effect that the Tribunal misconstrued or misapplied s 36(2)(aa) of the Migration Act 1958 (Cth) in making its decision. Section 36(2)(aa) specifies a criterion for a protection visa in terms that require that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the visa applicant being removed from Australia to a receiving country, there is a real risk that the person will suffer harm (Criterion).

2    In the Circuit Court, it was determined that there was no jurisdictional error of the kind alleged. The appellant now appeals against that decision. He acts on his own behalf in the appeal. The grounds of appeal are expressed in very general terms and fail to identify with any particularity any error by the primary judge (or jurisdictional error by the Tribunal that might be the subject of an application for leave to enable the point to be raised in this Court even though it was not raised before the primary judge).

3    As I have observed before, it will rarely be appropriate to simply dismiss an appeal ground in a migration case for lack of particularisation where the appellant seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784. That is the course that I followed in this matter.

4    It emerged that the grounds in the notice of appeal had been prepared by someone seeking to assist the appellant and were not allegations that the appellant sought to support. In the submissions advanced orally, the appellant said that the Tribunal did not explain clearly why his visa application was refused. He also said, in effect, that he did not understand how the evidence he gave was not accepted as a proper basis for his visa application to be granted. I understand these submissions to raise an issue about the adequacy of the reasons given, particularly whether they deal with the evidence. There were no oral submissions addressed to the reasons of the primary judge in dismissing the application for review in the Circuit Court despite the appellant being invited to express any such matters. Nevertheless, I have considered those reasons to see whether they disclose any obvious error.

5    In its reasons, the Tribunal provided a succinct and clear summary of the version of events given by the appellant. To the extent that those matters were addressed by the appellant in the appeal, the same version was given.

6    The case advanced before the Tribunal relied upon two matters; the appellant's alleged participation in a demonstration in Vietnam before he came to Australia and his alleged participation in the Viet Tan party since he has been in Australia. The Tribunal said that it was prepared to accept that he attended a demonstration in Con Cuong in Vietnam in July 2012. However, the Tribunal did not accept the remainder of his evidence about what occurred in Vietnam which concerned his arrest and the issue of a summons in January 2013. The Tribunal accepted that the appellant had attended demonstrations and private meetings of Viet Tan in Australia but found that he had never been a member.

7    Reasons were given by the Tribunal for not accepting the evidence of the appellant concerning what occurred in Vietnam. The task of evaluating and assessing that evidence is a matter entrusted to the Tribunal. There is no evident jurisdictional error in the way in which that task was approached. No error as to the Tribunal's fact finding process was alleged before the primary judge (in proceedings where the appellant was legally represented). Nor was any submission made in the appeal which exposed any such claim.

8    On the basis of the findings made by the Tribunal, the appellant was found not to be a refugee. On that basis, the Tribunal also found that the Criterion was not met.

9    A broader claim based upon the appellant's Catholic beliefs was also not accepted. It was rejected based upon identified country information. In the above circumstances, I am satisfied that the Tribunal provided adequate reasons for its decision. Therefore, there is no basis upon which leave might be sought to raise such a ground in the appeal.

10    It is well established that the Criterion requires an estimation of the likelihood that future events will give rise to the person suffering harm. It does not require a finding that harm will probably occur. Rather, it requires a view to be formed on the available evidence as to what has occurred and the present circumstances as to whether there is a real chance of future harm to the person if removed to a receiving country. A future event that is assessed to be an unlikely but possible, necessary and foreseeable consequence of removal may found a belief that there is a real risk for the purposes of the Criterion. It needs to be a prospect that is not remote or far-fetched. As to these matters see: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; and CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 at [22]-[23] (Murphy, Mortimer and O'Callaghan JJ).

11    Before the primary judge, the legal requirements of the Criterion were properly described: at [57]-[59]. Ultimately, the primary judge reasoned as follows (APD21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 185 at [67]-[70]):

Contextually, the Tribunal found that there was no evidence before it to satisfy it that there were 'substantial grounds for believing that there is a real risk' that the applicant's attendances at rallies or private meetings would have come to the attention of the authorities in Vietnam (at 46]).

Relevantly, the Tribunal:

(a)    accepted that the applicant attended Viet Tan demonstrations in the company of many others (at [30]);

(b)    accepted that the applicant had attended an unspecified number of private meetings (at [30]);

(c)    accepted that the Vietnamese government has the technology and apparatus to track its opponents and uses that apparatus for that very reason (at [44]);

(d)    acknowledged that the Vietnamese government can track opponents outside of Vietnam, including monitoring of overseas activities (at [44]); and

(e)    accepted that, if the authorities knew of his attendance at Viet Tan rallies or meetings, the applicant would face a real risk of harm upon his return (at [46]).

Ultimately, however, the Tribunal was not satisfied that there were substantial grounds for believing that the applicant's attendance at those rallies or meetings had come to the attention of authorities. In the absence of any 'substantial grounds' for believing so, the Tribunal lacked one of the elements identified in DQU16 (and needed for it to be satisfied of any prospective harm).

The Tribunal's reasoning here is sound. The Tribunal completed its statutory task in relation to the application of s 36(2)(aa) of the Act.

(original emphasis)

12    I can discern no error in the reasoning of the primary judge. The case advanced before the Tribunal depended upon the Tribunal accepting the appellant's version of events. The factual findings made by the Tribunal supported the conclusion that there are no grounds for believing there was a real risk of harm.

13    It follows that the appeal must be dismissed. There being no reason advanced as to why costs should not follow the event there should be an order that the appellant pay the Minister's costs.

Associate:

Dated:    5 September 2022