AFU17 v Minister for Immigration

[2017] FCCA 3411

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFU17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3411

Catchwords:
MIGRATION – Application for judicial review –protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Applicant: AFU17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 97 of 2017

Judgment of: Judge Riethmuller

Hearing date: 10 November 2017

Date of Last Submission: 10 November 2017

Delivered at: Melbourne

Delivered on: 10 November 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Mills Oakley

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 97 of 2017

AFU17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore)

Background

1. The applicant is a woman from Vietnam.  She arrived in Australia on 23 January 2008 on a student visa.  The applicant’s student visa ended in January 2013.  During this period between 2008 and 2013 the applicant travelled offshore on three separate occasions.  In November 2012 the applicant applied for a skilled visa, however this was refused by the Department in April 2013.  The applicant appealed that decision to the Migration Review Tribunal (as it was then known), however the Tribunal affirmed the decision to refuse a skilled visa in January 2014.

2. In February 2014 the applicant then applied for a protection visa.  She claimed to fear harm if returned to Vietnam because she had converted to a form of Christianity which she said had been regularly monitored and harassed by the Vietnamese Government.  The applicant provided various documents in support of her claim.  The applicant appeared before the Administrative Appeals Tribunal (“the Tribunal”) to give evidence.  She was represented by a migration agent who provided statutory declarations in support of her claim.

3. The applicant lodged the application for judicial review in this Court in January of this year.  In July of this year a registrar made directions for the applicant to file an amended application and a written outline of argument.  The applicant had not done so and in October of this year revised directions were made providing the applicant with further time to file an amended application or outline.  The applicant has not amended her application nor filed any outline.

Grounds of Application

1. The grounds of the application are simply:

   The Tribunal decision has jurisdictional error.

2. There is nothing on the face of the application to provide any hint of the true basis of the claim.

3. Today the applicant sought an adjournment.  She said she wanted time to find a lawyer, however, she has had 10 months to find a lawyer and not done so already.  There is nothing to indicate that further time would result in her finding a lawyer.  I therefore refused the adjournment.

Tribunal Findings

1. The Tribunal in its decision accepted that she was Vietnamese and accepted that she had taken up religion.  The Tribunal were concerned, however, that the earliest supporting evidence of her conversion to the LDS Church (The Church of the Latter Day Saints) were two receipts for tithes in May and July of 2014.  They also noted that the applicant made no mention of this church when she applied for her protection visa.  Not surprisingly the Tribunal did not accept that she engaged with the LDS Church until 2014.  However the Tribunal did accept that she is now genuinely engaged with the church at least since 2014.

2. The Tribunal thought that the applicant’s reason for converting to the church was to further her refugee claim.  However, the Tribunal accepted that she has since developed a genuine commitment to the church and would continue to practice her faith if she returned to Vietnam.  The Tribunal also accepted that, since 2015, the applicant has been involved with a protest group, although noting that she did not mention this in her protection visa application.

3. Importantly the Tribunal looked at country information which showed that the LDS Church was officially recognised by the Vietnamese Government on 30 May 2014, which distinguished it from unregistered religious groups.  The Tribunal concluded that she was not at risk of serious harm as a result of her participation in the LDS Church.

4. The Tribunal also considered her political activities in Australia and whether she would continue those activities in Vietnam.  The Tribunal considered country information and concluded that the Vietnamese Government distinguished between anti-regime activities and critical views.  The Tribunal concluded that the Vietnamese Government tolerates critical views, but not anti-regime activities.

5. The Tribunal concluded that the applicant’s political activities in Australia, whilst critical, expressing critical views, were not anti-regime activities.  They noted the evidence of a witness from the political group who said that she did not know of any people with a similar profile to the applicant who encountered problems on return to Vietnam.  The Tribunal also noted that the group did not blur out the faces of local recruits on their website photos, both of which pieces of evidence supported the idea that the applicant and people in her position did not face a real risk of serious harm.

6. The Tribunal also had regard to the long delay before the applicant applied for a protection visa, which was around six years.  However, the Tribunal was of the view that her religious views had become genuine, but it was not of the view that her political views were genuine views as opposed to conduct to assist her to obtain a visa.  The Tribunal considered any risk as a result of being returned as a failed asylum seeker and the totality of her circumstances.

7. The applicant said that she thought she did not get a fair hearing because she was pregnant at the time of the hearing.  The hearing was on 16 November 2016.  The applicant says she gave birth on 21 December 2016.  The applicant said the hearing lasted for four hours and that she did not feel comfortable because of her pregnancy.  There is nothing to indicate any adjournment was requested.  Earlier in September, an adjournment was requested to enable her to obtain a representative: see Court book p.135.  The applicant’s migration agent wrote to the Tribunal on 17 October 2016 (see Court book p.143) but did not seek an adjournment. 

8. I am not persuaded that the applicant has established an arguable case in this regard, nor in the circumstances has she raised issues reasonably warranting further inquiry.

9. The second matter the applicant raised was that the police had come to her house in Vietnam looking for her since the date of the hearing.  Evidence of events that have taken place after the hearing are not admissible and therefore these matters cannot be taken into account.

10. Finally, the applicant said that she was not worried about herself, but worried about her child.  I do not take this as a formal admission that she has no fear, rather an emotive plea that the Court engage in merits review.

Conclusion

1. As the applicant has not been able to identify any arguable ground for judicial review, nor a matter that would warrant further inquiry that could not have been undertaken before now, it is appropriate that the application be dismissed.

2. I therefore dismiss the application,

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 25 May 2018