Aav21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1027
•13 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AAV21 v Minister For Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1027
File number(s): SYG 46 of 2021 Judgment of: JUDGE D HUMPHREYS Date of judgment: 13 November 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Migration Act 1958 (Cth) – applicant seeks juridical review – whether the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claims and/or acted in the legally unreasonable manner and/or irrationally and/or a logically in determining the applicant had decided not to attend a protection visa interview – whether the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claims and/or acted in the legally unreasonable manner and/or irrationally and/or logically in failing to make any findings as to the credibility of the supporting evidence provided by NGP and HAL – whether the Tribunal fell into jurisdictional error – the application is dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 65, 423A. Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration v Li (2013) 297 ALR 225
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNGP [2010] FCAFC 51
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
Singh v Minister for Home Affairs (2019) 267 FCR 200
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submission/s: 9 November 2023 Date of hearing: 9 November 2023 Place: Parramatta Counsel for the Applicant: Mr Jones of Counsel Solicitor for the Applicant: Oxford Law Group Counsel for the Respondents: Ms Hooper Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 46 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AAV21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
13 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.
2.The application is dismissed.
3.Costs are to be paid by the Applicant, as assessed, or agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
The applicant is a citizen of Vietnam. The applicant arrived in Australia in 1999 and has not left Australia since that time. On 26 November 2015, the applicant applied for a protection visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).
A delegate of the Minister for Immigration refused to grant the applicant a protection visa. The applicant sought merits review at the Administrative Appeals Tribunal (the Tribunal). In a decision dated 14 December 2020, the Tribunal affirmed the delegates decision not to grant the applicant a protection visa.
The applicant now seeks judicial review of the Tribunal’s decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
After setting out the relevant background [1]-[3], the Tribunal then instructed itself to the relevant criteria for the grant of a protection visa, including mandatory considerations under Ministerial Direction No 84.
The Tribunal noted that the applicant provided a statutory declaration, dated 26 November 2015, setting out her protection claims. The applicant claimed that since her arrival in Australia, she had experienced freedom that democracy offers. The applicant did not have that freedom in Vietnam. The applicant now fears if she returns, she will come into conflict with authorities because of her free thinking and will be unable to restrict her desire to speak up about political affairs.
The applicant stated that she had not experienced harm so far, but fears upon return she would possibly face being harmed. The applicant was also concerned that the time she had spent in prison in Australia would be known to Vietnamese authorities and she would be targeted as a criminal upon her return. In a submission lodged with the applicant’s application, by her then representative, it was argued that the applicant had claims on the basis of her political opinion as a Vietnamese citizen who objects to Communist ideology and the oppressive regime of controlling their citizen’s free-spirited thinking and expression of thought.
The Tribunal noted at [14] that the applicant was invited to attend an interview before the Department, but on 18 November 2016, her then legal representative, on her behalf, declined the offer of the interview and requested a decision be made on the papers.
On 12 August 2020, in response to a request to provide submissions and evidence, the applicant provided the following further and new information. First, a statutory declaration dated 12 August 2020, in which the applicant referred to her association and membership of the Viet Tan Vietnam Reform Party. The applicant claimed to have participated in many anti-Communist regime activities along with other active members since 2015.
Second, letter from Mr NGP, attesting to the fact that the applicant is known to him and listed “anti-Communist regime in Vietnam” activities she had participated in since 2015. Also enclosed were photos claiming to show the applicant and the activities in association with these activities.
At the Tribunal hearing, the applicant stated she was living in premises owned by her brother with her 18-year-old son. The applicant worked at a nail salon owned by her sister.
The applicant confirmed she had made various visa applications since she arrived in Australia in 1999, including a partner visa application and later a parent visa application. The partner visa application was refused because the husband was found to be already married. His further marriage to her was found to be invalid. When she found out about his previous relationship, the relationship ended.
Subsequently the applicant married again but divorced this husband. He did not sponsor her for a visa. The applicant claimed her son had tried to sponsor her for a parent visa, but she was told she had to be offshore for such an application to be made.
With regard to her application before the Department, at [24] the Tribunal noted the applicant claimed that her previous representative did not inform her about the Departmental interview, and she did not know she had been invited to one. The Tribunal noted that her recent statement to the Tribunal did not state that she had been involved with the Viet Tan organisation even though, the applicant claimed to have been so involved since 2015.
At [31-32] the Tribunal put to the applicant that pursuant to s 423A of the Act, the Tribunal must draw an adverse inference about claims and evidence that were not put to the Department, unless a reasonable explanation could be given for not providing the claim/information earlier. In response, the applicant explained she wanted to discuss it more in detail at interview but was denied the opportunity. The applicant only found out about the interview when told by her current legal representative. The applicant’s English was limited when communicating with the previous representative and this may also explain the absence of this information.
In terms of her involvement with Viet Tan in 2015, the applicant stated she had always held anti-Communist regime views, but her fears arose only after she became involved more publicly with Viet Tan in 2015. At [36] the Tribunal raised with the applicant its concern that in her case, there was only a limited history of activism and that she had only very recently been involved with Viet Tan, which may lead the Tribunal to conclude that she was not generally involved, nor would be at risk upon her return. The applicant responded she can provide more evidence if necessary and that even low profile ordinary people were at risk in Vietnam.
In considering the applicant’s claims at [44] onwards, the Tribunal had considerable concerns, giving the timing and content of her evidence as to the genuineness and motivation of her claims relating to her political activities and association with Viet Tan. The applicant failed to mention her involvement with, and knowledge of Viet Tan or attendance of protest events or political activism in Australia in her original Statement of Claim lodged with the Department. The Tribunal concluded the applicant had not provided a reasonable explanation for the omission of this information at the primary stage. The Tribunal did not accept that the applicant was not aware of the Departmental interview, given “specific evidence on the file of an email from her representative advising she had declined the offer of interview and requested the decision be made on the papers”.
At [51], the Tribunal drew an adverse inference pursuant to s 423A of the Act on the credibility and genuine motivation of the applicant’s involvement with the Viet Tan organisation. It did not accept that the applicant was involved in 2015 as claimed, and more likely commenced attending activities after that time.
In terms of the evidence of NQP and HAL, the applicant’s oral evidence about events and activities she had participated in, the Tribunal was prepared to accept that the applicant attended the claimed events and protests organised by the Vietnamese community in Sydney and Canberra. However, it considered the applicant’s evidence of attending a handful of events and protests over the past few years suggested she had been at most, a low-level participant with no organising profile or role. The Tribunal noted the applicant’s evidence was that she had no history of political activism or activity in Vietnam prior to coming to Australia and no history of political activity from 1999 until her recent attendance at protests and events in the past few years.
At [56] the Tribunal concluded the applicant was most likely not a supporter of the current government or ideology in Vietnam and had participated in recent times in anti-Vietnamese government events in protests in Australia. However, she did not play any part in organising, coordinating or in an activist role in these events beyond attendance. The Tribunal was not convinced that she would engage in political activity upon return which might bring the applicant to the attention of Vietnamese authorities. The Tribunal noted relevant country information that the treatment of political activists in Vietnam however, the Tribunal was not satisfied that her activities and commitment to future political activism would be such as to bring her under adverse attention.
At [59] the Tribunal considered her claim of harm arising from the criminal charges in Australia. It was not satisfied there was a real chance that the applicant would face serious harm upon return for this reason. Further, the Tribunal noted that the applicant still had family in Vietnam and that was no evidence that she would be denied access to basic services, threatening her capacity to subsist, will be denied the capacity to earn a livelihood of any kind for reasons of a political opinion or is a returnee after a long absence or any other reason.
Accordingly, the Tribunal was not satisfied that the applicant met the test under s 36(2)(a) of the Act for the grant of a protection visa. For the same reasons, the Tribunal was not satisfied the applicant met the test under the complimentary protection obligations under s 36(2)(aa) of the Act and accordingly, affirmed the decision not to grant the applicant her visa.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon are contained in an Amended Initiating Application filed with the Court on 1 July 2021. They are as follows (less particulars):
Ground One
Not Pressed.
Ground Two
The Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claims and/or acted in the legally unreasonable manner and/or irrationally and/or a logically in determining the applicant had decided not to attend a protection visa interview.
Ground Three
The Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claims and/or acted in the legally unreasonable manner and/or irrationally and/or logically in failing to make any findings as to the credibility of the supporting evidence provided by NGP and HAL (full names redacted).
Ground Four
Not Pressed
THE APPLICANT’S SUBMISSIONS
The applicant was ordered to file written submissions by 4 May 2023. The applicant’s then solicitor filed a Notice of Intention to Cease Acting on 2 May 2023. A hearing on 11 May 2023 did not proceed and the matter was transferred from Judge Liang’s docket to mine. Counsel instructed in the matter, who appears today before me, appeared at a Directions Hearing on 1 May 2023 and was aware of the Court’s direction for the applicant’s written submissions to be filed by 4 May 2023. They were not filed until 11 October 2023.
The written submissions, when they were filed, did not press Grounds 1 and 4. The First Respondent, as a matter of courtesy to the Court, filed written submissions on 5 May 2023 in accordance with Judge Liang’s directions of 1 May 2023. As a result of this, the First Respondent has been required to respond to grounds of judicial review that have now been abandoned. This is unsatisfactory.
In relation to Ground 1, it was submitted that the Tribunal drew an inference against certain evidence advanced by the applicant, pursuant to s 423A of the Act, on the basis that this evidence had not been advanced before the primary decision-maker, being the departmental delegate.
Part of the Tribunal’s reasoning in this regard was that it did not accept the applicant’s explanation as to why she had not attended an interview with the Departmental delegate when invited to do so. The Tribunal stated at [50]:
The Tribunal also does not accept that she (the applicant) was not aware of the Departmental interview, given specific evidence on the file of an email from her representative advising that she declined the offer of interview and requested a decision be made on the papers.
During the course of the Tribunal hearing, the applicant explained this as follows, as recorded in [31] of the decision record:
She only knew about the interview when told by her current new representative. Her English was limited when she was communicating with her previous representative, and this may also explain the absence of this information.
It was submitted that it was implicit in the above passage, that the Tribunal rejected this explanation. However, it was submitted, the decision does not disclose an evident or intelligible justification for so doing. It was submitted the available evidence actually supports the applicant’s version of events as follows:
•The applicant had no reason to voluntarily decline interview to put forward her case at a protection visa interview. It was inherently implausible that she would have taken that course.
•It was evident from the Tribunal’s file that communication difficulties between the applicant and the migration agent had occurred prior to the hearing before the Tribunal, and these communication difficulties were long-standing.
•On 20 August 2020, the applicant’s new representative wrote to the Tribunal and stated inter alia:
“I was advised the previous appointed representative sent a request to the AAT and cancelled a video conference interview without the applicant’s instructions”.
•The applicant’s previous representative responded to that allegation in an email to the Tribunal later the same day and stated inter alia:
“You notified us that the hearing was vacated and the client was informed of this but failed to understand due to language difficulties. We have a number of occasions advise the client to seek assistance from an interpreter which he failed to do, hence she has misunderstood the situation”.
It was submitted there was evidence before the Tribunal supporting the applicant’s submission that the explanation by the applicant’s former representative that she did not wish to attend the interview was a misunderstanding arising from language and communication difficulties.
However, there is nothing to suggest that this information was considered by the Tribunal or taken into account. In these circumstances, the Tribunal’s approach lacks an evident or intelligible justification and is therefore legally unreasonable: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76].
Further, or in the alternative, it was submitted where a critical piece of evidence is not referred to, that fact might be one for which an inference can be appropriately drawn that the issue to which the evidence was relevant was not adequately considered by the decision-maker, such as to give rise to jurisdictional error: Singh v Minister for Home Affairs (2019) 267 FCR 200 at [36].
In relation to Ground 3, it was submitted that the Tribunal rejected the applicant’s submissions that she had been involved with the Viet Tan organisation since January 2015. It held in fact that the applicant was involved after that time and likely after the delegates decision which was made on 25 November 2016.
At [52], the Tribunal referred to the evidence provided in support of the applicant by NQP and HAL and found that she attended events in protests organised by the Vietnamese community in Sydney and Canberra.
Based on the letters, it was submitted by NQP that “since 2015 the applicant had participated in many anti-Communist…participated in Viet Tan in order to support human rights and pro-democracy activities in Vietnam”.
The statement from HAL stated that the applicant had attended an annual protest in 2015 on 30 April.
It was submitted that the evidence therefore confirmed that the applicant had been attending, and indeed organising, Viet Tan events since 2015, well before the delegate’s decision on 25 November 2016. However, this evidence directly contradicts the Tribunal’s conclusion that the applicant did not have any such involvement until after 2015 and more likely after 2016: see [51] and [52].
Internally inconsistent findings in the reasoning underpinning a decision, or a contradiction in the process by which the Tribunal’s conclusions were reached is an example of a decision that is illogical or legally unreasonable: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [23-24].
It should be accepted that the Tribunal at least accepted some of their evidence, if not all of it. There is no suggestion that the Tribunal determined it should disbelieve the evidence of NQP and HAL. If the Tribunal gives no reasons for rejecting that evidence, this constitutes jurisdictional error.
THE FIRST RESPONDENT’S SUBMISSIONS
In relation to Ground 2, it was submitted that the Tribunal made a finding of fact properly and reasonably open to it, at [50] in the final sentence. The Tribunal had an email from the applicant’s migration agent stating that the applicant declined the invitation to interview and wanted a decision to be made on the papers. This provided an evident and intelligible justification for the factual finding, even if contrary arguments can be advanced, as are set out in the particulars of the ground of review. There was nothing untoward in the correspondence regarding the initial scheduling of the Tribunal hearing and the email chain at CB 170 indicates the Agent had informed the applicant of that hearing.
The Tribunal was properly entitled to assume that the agent was acting on the applicant’s behalf and on her instructions. It is the Tribunal’s reasons for its finding of fact that must be the focus: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [84].
Further, the applicant cannot discharge her onus of proving materiality of any jurisdictional error with respect to the finding at the final sentence of [50]. This is because what was significant for the Tribunal was the omission of the applicant’s critical claims from her protection visa statutory declaration. The applicant’s explanation for why she did not attend the delegate’s interview had no bearing on that omission: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [2]-[4].
In relation to Ground 3, the letter from NQP says the applicant participated in anti-Communist activities since 2015 but fails to say when in 2015 and does not state when the applicant became involved with Viet Tan. The letter from HAL refers to meeting the applicant in 2015 at an annual protest for the 30 April event but does not say when the applicant became involved in Viet Tan.
It is clear that the Tribunal identified and considered these two supporting letters at [52]. It gave cogent and rational reasons for rejecting the applicant’s claims concerning the timing and extent of her political activism. As noted by the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 at [26] (citations omitted):
labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These former nurse have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision makers] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd “the limited role of a court reviewing the exercise of administrative discretion must be constantly born in mind”. The court does not substitute its decision for that of an administrative decision maker.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a Court conducting judicial review was described in this manner:
…An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611,the Court concluded at [131] that it was insufficient that the different minds might reach different conclusions in a jurisdictional fact and that the test for illogicality or irrationality:
…Must be to ask whether logical or rational reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by reviewing court to be a logical or irrational or unreasonable simply because the conclusion that has been preferred to another possible conclusion.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration v Li (“Li”) (2013) 297 ALR 225 at [28], or where a decision has been made that lacks an “evident and intelligible justification”; Li at [76]. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters, or the evaluative judgements made by the decision-maker: Li at [30], [113].
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
Finally, the reasons of the Tribunal should not be read with an eye finely attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Ground 2 relates to a claim that the Tribunal made a finding of fact at [50] that was not reasonably open to it, such as to constitute jurisdictional error. That finding of fact related to the claim that the applicant had wanted to attend a an interview and her representative was instructed to decline the invitation to attend a hearing.
This ground has no merit. First, it was reasonably open to the Tribunal to find that the email from the applicant’s previous representative was based on the applicant’s instructions.
Second, the Court does not accept the email at CB 194, that the Tribunal received from the applicant’s previous representative positively proved the applicant did want to attend an interview. The email is merely speculative that the applicant may have been confused due to language difficulties. If anything, the email points to a failure of the applicant’s previous representatives to ensure they obtained proper and clear instructions. The Court also notes in this regard there was evidence before the Tribunal that the applicant had been in Australia since 1999 and had studied English. Any suggestion of confusion due to a lack of English language skills required more hard evidence than a speculation on the part of her previous representatives.
Third, the Court accepts the respondent’s submission that this issue is immaterial to the ultimate outcome by the Tribunal. Thus, it does not involve jurisdictional error. Even, if the Court were to accept the Tribunal made a mistake of fact as regards this issue, it was not dispositive of the applicant’s claims: Minister for Immigration and Citizenship v SZNGP [2010] FCAFC 51. The gravamen of the decision was that the applicant did not face a real risk of harm, if returned, due to her political views and activities in Australia.
Ground 2 relates to a claim that the Tribunal failed to give genuine, reasonable and realistic consideration to the evidence and credibility of NQG and HAL.
First, the Court is satisfied that the Tribunal did give active and genuine consideration to their evidence. The Tribunal found that the applicant likely became involved in anti-regime activities after January 2015. At [50-52], the Tribunal was prepared to accept the applicant did attend anti-regime activities however, rejected her claim based on the fact that she had not raised these matters in her original visa application.
Second, the Tribunal found at [52] that her involvement with these activities “was at most, a low level participant with no organising profile or role”. The Tribunal went on to find at [56]-[58] that even accepting her claimed involvement, this did not support a finding that the applicant would engage in such activities upon return or that she would be at risk of harm due to her involvement in anti-regime activities in Australia. This was a finding that was reasonably open to the Tribunal. If anything, this ground seeks to engage the Court in impermissible merits review. Ground 2 has no merit.
CONCLUSION
As none of the grounds of judicial review pressed have merit, the application must be dismissed.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 13 November 2023
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