AFT18 v Minister for Home Affairs

[2018] FCCA 2332

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFT18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2332

Catchwords:
MIGRATION – Review of decisions – Judicial review – whether Tribunal failed to consider claim – whether Tribunal denied procedural fairness because of non-translations and misinterpretations – no jurisdictional error demonstrated.

First Applicant: AFT18

Second Applicant AFT18 AS LITIGATION GUARDIAN FOR AFV18

Third Applicant AFW18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 37 of 2018

Judgment of: Judge Jarrett

Hearing date: 3 August 2018

Date of Last Submission: 3 August 2018

Delivered at: Brisbane

Delivered on: 3 August 2018

REPRESENTATION

Solicitors for the Applicants: Essen Lawyers

Counsel for the First Respondent: Ms S. Forder

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 16 January 2018 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 37 of 2018

AFT18

First Applicant

AFT18 AS LITIGATION GUARDIAN FOR AFV18

Second Applicant

AFW18

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal given on 3 January, 2018.  That decision affirmed a decision of a delegate of the first respondent to refuse the applicants protection visas.  The first applicant made positive claims for protection, but the other two applicants, his wife and child, simply sought the grant of a visa on the basis that they were part of his family unit.  The first and second applicants are husband and wife.  As I say, the third applicant is their son. 

2. They have another child, but she is not the subject of this application.  The first applicant, who for the rest of these reasons I will refer to simply as “the applicant”, arrived in Australia on a student visa in June of 2008.  That visa was valid until 15 March, or thereabouts, 2012.  An application for a protection visa was made on 30 September, 2014 but it was refused on 23 February, 2015.  A review of that decision was made by the Administrative Appeals Tribunal, and the delegate’s decision was affirmed. 

3. Judicial review was sought in this Court, and that application succeeded.  It succeeded with the consent of the first respondent.  The first decision was set aside and the matter returned to the Tribunal for reconsideration.  The Tribunal reconsidered the matter, and that led to the decision which is now the subject of this review.  The claims made by the applicant before the Tribunal revolved around his political beliefs.  He said that he had held political views from a very young age, that he was against the communist regime in Vietnam, and he was fearful of expressing his opinions in public. 

4. He was engaged in some military training around 2002, but he abandoned that because he did not want to serve a communist regime.  And it has been really since that time, according to his claims, that he feared persecution.  He was not, according to his claims, politically active in Vietnam before he came to Australia in 2008.  But he claimed that once he came to Australia, he began his political activities.  He, he says, supported an organisation called Viet Tan, which is seen in Vietnam as a terrorist organisation or an outlawed organisation of some description. 

5. The applicant claimed that he had a close association with that organisation through the sharing of material over the internet, in one way or another, either by linking to website or sharing material on social media.  But beyond that, he did not become an official member of the organisation, simply, it seems, being content to support it through his loose association.  That was until he attended a rally, according to his claims, on 31 May, 2014.  That rally, he says, raised anti-communist sentiments against both China and Vietnam, and by reason of his involvement in that, he says he is now at risk should he return to Vietnam.

6. He says that his involvement in the rally, and his involvement and support for Viet Tan more generally, will lead to serious harm for him if he returns to Vietnam.  There can be no doubt, it seems to me, that the second respondent understood in their entirety the applicant’s claims.  The second respondent extracted in the reasons for decision in respect of this matter the applicant’s claims, and the evidence upon which he relied, in significant detail.  Indeed, it reproduced in the reasons for decision the declarations and other statements that the applicant had made in support of his claims.

7. The second respondent also sets out in its reasons for decision, in considerable detail, the discourse between the applicant and the Tribunal member at the Tribunal hearing.  To the extent that the applicant suggests that the Tribunal did not fully understand his claims – and I am not sure that that is what he is suggesting, but there is a hint of it in his written submissions – in my view, the Tribunal plainly understood all of the claims made by the applicant.  The second respondent rejected the applicant’s claims, basically because it found that he was not a credible witness.

8. That is a very shorthand description of the detail and the great length to which the second respondent has gone in the reasons for decision to explain why it had difficulties with some of the applicant’s claims and why it found against them.  The second respondent’s reasons concerning the factual findings that it has made against the applicant are transparent, in my view.  By his application for review, the applicant contends that the Tribunal did not consider his claim that his association with the Viet Tan party and his online activities against the Vietnamese Government created an adverse profile for him in Vietnam.

9. The application for review sets out a number of particulars in relation to that claim.  But those particulars were all fully canvassed by the second respondent in its reasons for decision.  As the first respondent succinctly submits, the Tribunal considered the applicant’s claim that his association with the Viet Tan party and his online activities against the Vietnamese Government had created an adverse profile for him.  It is just that the Tribunal did not accept it.  In fact, the second respondent determined that the applicant had no association with the Viet Tan party at all.  But I will come to that shortly.

10. I accept the first respondent’s submission that, having regard to the second respondent’s reasons, particularly from paragraph 90 onwards, it engaged in an active intellectual process in relation to the applicant’s claims.  It analysed his evidence about those claims.  It analysed the material before it in a close and thoughtful way, in my view. 

11. The second ground relied upon by the applicant in these proceedings is that the Tribunal denied the applicants procedural fairness because of non-translations and misinterpretations.  These allegations form part of the argument in ground 1 as well, but they cannot be made out.  They cannot be made out because there is no evidence before the Court of any non-translation or misinterpretations.  There is no transcript, no other evidence, which would suggest that there has been, in fact, a non-translation or a misinterpretation.  What there is, is a misinterpretation of the second respondent’s reasons by the applicant.  The applicant cavils with the second respondent’s finding that he was not a member or associated with the Viet Tan party. 

12. The second respondent cavils with the proposition that the applicant admitted that he was not a member of the party and that, really, these difficulties had come about because of a mistranslation or misinterpretation.  The Tribunal’s reasons, however, make it clear that the applicant did not claim – and as I understand his material, had never claimed – to have been an “official member” of the relevant party, but that through his internet presence, for want of a better description, he was associated with the party. 

13. There is clearly a difference, and, in my view, the second respondent clearly understood that difference.  As to the question of just what it was that the applicant had been doing on the internet to generate an adverse profile, as he had claimed, the Tribunal considered that matter very carefully but recorded in its reasons that the material before it was insufficient for it to come to any favourable conclusion about the applicant’s claims in that regard, because the applicant had not provided any material sought from him by the Tribunal to assist it. 

14. For example, there is a number of references in the second respondent’s reasons which set out that the second respondent was concerned about the claims concerning Facebook posts and had sought from the applicant details of his “privacy settings” and other material which would demonstrate that his claims about the Facebook posts and the material said to be representative of those posts was, in fact, genuine.  The second respondent’s reasons, in my view, do not review jurisdictional error by reason of either of the grounds raised by the applicant.

15. Rather, they reveal a very thorough and close consideration of the applicant’s claims.  And having closely examined his claims, the Tribunal concluded that it was not satisfied that he met the relevant criteria for the grant of the visa.  That approach was entirely appropriate.  There is nothing remarkable about the way in which the second respondent dealt with the applicant’s claim or the procedure it adopted.  In those circumstances, the application must be dismissed. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  22 August 2018