AJH17 v Minister for Immigration

[2017] FCCA 2681

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJH17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2681

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

First Applicant: AJH17

Second Applicant: AJI17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 78 of 2017

Judgment of: Judge Vasta

Hearing date: 30 October 2017

Date of Last Submission: 30 October 2017

Delivered at: Brisbane

Delivered on: 30 October 2017

REPRESENTATION

The Applicants appearing on their own behalf with the assistance of a Mackenzie friend

Counsel for the First Respondent: Mr McGlade

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. Leave be granted for the Applicants to file the amended application filed on 27 October 2017.

2. The Application for extension of time for filing the Application for Review to 30 January 2017 be granted.

3. The Application filed on 30 January 2017 as amended on 27 October 2017 be otherwise dismissed.

4. The Applicants pay the First Respondent’s costs of and incidental to this application fixed in the sum of $7,328.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 78 of 2017

AJH17

First Applicant

AJI17

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. This is an application for judicial review of a decision made by the Immigration Assessment Authority.  That decision itself affirmed a previous decision by the delegate of the Minister not to grant the Applicant, and therefore also his daughter, who was the Second Applicant, a protection visa. 

2. The First Applicant is a Vietnamese citizen.  He is 38 years old.  The Second Applicant is his 14 year old daughter.  On 1 October 2012, both of them arrived in Australia by boat as unauthorised maritime arrivals.

3. They lodged an application for temporary protection on 3 November 2015 after the Minister exercised his power to lift the bar to permit them to apply for such visas.  As I have previously talked about, the daughter only sought protection on the basis of being a member of the same family unit as her father but did not make a claim in her own right. 

4. The delegate refused the application on 19 August 2016, and because it was a fast track decision, an application for review was then made to the Immigration Assessment Authority (“IAA”).

5. The Immigration Assessment Authority took into account all of the material that had been given to it by the Secretary.  The IAA did go through very thoroughly what the claims of the Applicant were.  

6. In short compass, the Applicant claimed that, because of his Catholicism, he was the subject of discrimination in Vietnam.  Prior to an incident on 1 July 2012, he had suffered some gentle teasing and some overt, and even covert, discrimination because of his Catholicism; given that Catholics comprise about 6.5 million people out of a population of 93 million people in Vietnam.

7. On 1 July 2012, an incident occurred at Con Cuong where there was an invasion of the church grounds by forces that had some backing of the Vietnamese authorities, and extensive damage was done. Physical injuries were sustained by persons who were there to worship.

8. The Applicant claimed that he was one of those persons.  Because of what happened, he was forced to flee.  He felt that he was, in effect, being hunted by authorities, and so he and his daughter escaped to another area of Vietnam and were able to get on a boat which eventually found its way to Australia. 

9. He fears that if he is made to return to Vietnam that he will suffer persecution and be subject to serious harm on account of, firstly, his Catholicism; secondly, his involvement with the activities that day at Con Cuong; and thirdly, because he is a failed asylum seeker.  And it is a combination of all three of these aspects that gives him, as he submits, that well-founded fear of persecution.

10. The IAA looked at the claims and did not accept that the Applicant was actually there at Con Cuong on that day, 1 July 2012.  Nevertheless, the IAA continued to assess the application and came to these conclusions after looking at material from the Department of Foreign Affairs and Trade.

11. The first conclusion reached by the IAA was that there has been no ongoing discrimination or persecution of persons who were involved at Con Cuong by the authorities in Vietnam.

12. The second conclusion was that the Applicant would not be discriminated against simply because of his Catholicism.

13. The third conclusion was that if the Applicant is returned as a failed asylum seeker, he would not suffer serious harm. 

14. The IAA also considered all of those factors together that, having been returned as a failed asylum seeker who is also a Catholic who was also involved at Con Cuong, and concluded that there would not be serious harm visited upon the Applicant and his daughter.

15. The application before me for review was actually some 12 days out of time, and I will get to that soon. 

16. The grounds for the application were these:

    1. The IAA erred in making this decision, namely:

    (a)The decision maker failed to take relevant material before it into account,

    (b) In considering the first applicant’s account of the events at the event at the chapel at Con Coung, in the province of Nghe An the decision maker:

    i. Took irrelevant information into account; and/or

    ii. Failed to take relevant information into account; and/or

    iii. Failed to accord the applicants with procedural fairness; and/or

    iv. Engaged in a process of reasoning that was illogical.

17. The Applicant did not give any further written submissions or really expand upon those arguments in any way before today. It was explained to me that it was thought that a lawyer would be here present to argue the matter, but a friend of the Applicant, Ms Lorraine Brosnan, has quite ably portrayed the situation in which the Applicants find themselves.

18. Unfortunately, none of the matters that Ms Brosnan wanted to bring to the Court’s attention had been flagged beforehand, and the Minister was caught somewhat flatfooted. 

19. Mainly, it was claimed that there had been a mistranslation of the interview that the Applicant had given to the Delegate and also some form of mistranslation in regard to a statement that the Applicant had made. 

20. The Applicant in the statement, that was read out to him by a person who had interpreted it for him, said that, with regard to the incident at Con Cuong, that the Applicant was acting, in effect, as a security guard, standing outside the chapel while the priest was inside and the people were praying and engaging in a liturgy.

21. It was claimed by Ms Brosnan that the Applicant had actually never said that.  He had actually always said that they were outside and that they were waiting for the priest to arrive. 

22. This version, that Ms Brosnan submitted that the Applicant actually said, does accord with the collateral information of what happened there at Con Cuong. That collateral information was that the priest arrived some time later. This information is quite different to what it is that is recorded in the Applicant’s statement and recorded as him having said those things in the IAA hearing.

23. Whilst it would seem to be quite a difficult matter to end up being able to prove; that is that two interpreters had gotten it wrong, there was an insistence by Ms Brosnan that that had actually happened and that the Applicant had never said that he was outside while the priest was inside. 

24. Of course, as was pointed out, that is just one of many aspects that the IAA looked at when it came to its conclusion that the Applicant had not been there at Con Cuong that day.

25. The IAA looked at the fact that the Applicant could not describe the outside of the church; that the Applicant’s chronology was different to that of the official timeline; that the Applicant did not talk about the reinforcing of the numbers of parishioners by persons coming in from a number of neighbouring parishes to strengthen the resistance; and that the Applicant did not refer to the fact that there was a Mass said, not inside the chapel, but outside in the grounds afterwards when the priest did arrive. It seems that this part of the mistranslation was just one of at least four pieces of information that the IAA had looked at.

26. As I had said during the course of the hearing, such factors act as circumstantial evidence in that, whilst one aspect may not be sufficient by itself, all of the aspects together may be sufficient to justify a conclusion. 

27. It seems to me though, that the conclusion made by the IAA was open on the evidence that was before the IAA.  But, that is still not the be all and end all of this matter.

28. There were a number of other criticisms that Ms Brosnan had of the process, including that there was a number of other matters of country information that the IAA did not look at. 

29. However, it is quite clear that none of those matters of country information were actually before the IAA.  Ms Brosnan did try to give me more information and also a letter from the Second Applicant. 

30. But, as I explained, this is not a Court that can look at those sorts of matters on the merits.  I can only look at what was the evidence that was before the IAA and determine whether they have discharged their statutory responsibilities.

31. In the end, the IAA looked at the country information which was to this effect; that persons who were returned to Vietnam because of being failed asylum seekers, were certainly dealt with, but not in such a way that would amount to serious harm as that term is known under the Act. The fact that those persons may have been Catholics did not mean that they were especially singled out for any worse treatment. 

32. There was no other country information that would, in any way, have put any doubt on that DFAT report.  The IAA also looked at country information that concluded there really are no ongoing hostilities between the Catholic population and the authorities over what happened at Con Cuong. The information was that persons who were involved in that very unsavoury and unfortunate incident have not been the subject of ongoing persecution, discrimination and arbitrary harm or imprisonment.

33. That being said, the IAA, acting upon the evidence that it had, came to the conclusion that it did. There has been nothing in any of the material given to me that would, in any way, cast any doubt that the IAA had acted in accordance with the legislation. 

34. Whilst there can be criticisms of the fact that the IAA did come to certain conclusions, that really is not to the point.  Neither is it to the point to say that other material could be sought or could be put to the IAA, if the Applicant could be given “another turn” at trying to convince the IAA of the particular arguments of the Applicant. The real point is that there is no jurisdictional error.

35. That then means that I should look at whether or not I should be granting leave to the Applicant to have an extension of time within which to file this material. 

36. The Applicant does say that the reason that he did not file the application until 30 January when he should have filed it on 17 January was that he had lodged a ministerial request and he really had no one else to help him.  The only person who has helped him has been Ms Lorraine Brosnan, who has appeared here today.

37. I should say that, whilst ultimately I have found against the Applicant, Ms Brosnan has been a very passionate advocate for the Applicant and, notwithstanding she has no legal training, has acquitted herself very well before this Court.  She has made quite cogent arguments. 

38. It is a discretionary matter as to whether I would give leave in this case.  Because the burden seems to have fallen more on Ms Brosnan than anyone else, I would grant the leave to file out of time, but ultimately still dismiss the application. 

39. And in doing so, I must do so with costs under the statutory scheme which amounts to $7328. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 6 December 2017