AJW18 v Minister For Home Affairs and Anor (No.2)
[2018] FCCA 2868
•12 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJW18 v MINISTER FOR HOME AFFAIRS & ANOR (No.2) | [2018] FCCA 2868 |
| Catchwords: MIGRATION – Application seeking declaratory relief in respect of ITOA assessment and injunction restraining Minister for relying on it – whether Assessor denied applicant procedural fairness and/or assessment affected by legal error – applicant absconding from community detention and thus not attending assessment – no denial of natural justice – no errors in assessor’s approach – grounds of application not made out – application dismissed. |
| Legislation: Migration Act 1958 |
| Cases cited: SZBUX v Minister for Immigration & Anor [2015] FCCA 2822 |
| Applicant: | AJW18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | DIANNE ADAMS IN HER CAPACITY AS ACTING MANAGER, WESTERN AUSTRALIA IMA AND ONSHORE PROTECTION |
| File Number: | MLG 214 of 2018 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 1 October 2018 |
| Date of Last Submission: | 1 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 12 October 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr McDermott |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $8,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 214 of 2018
| AJW18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| DIANNE ADAMS IN HER CAPACITY AS ACTING MANAGER, WESTERN AUSTRALIA IMA AND ONSHORE PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
Introductory
This matter has a somewhat unusual history. It was commenced by an application lodged on 28 January 2018 in which the Applicant sought injunctive relief restraining the Minister from deporting the Applicant. The substantive application sought a declaration that the ITOA assessment of the second respondent, dated 26 February 2015, was not made according to law, in that the Applicant was not afforded procedural fairness, but that matter was not significantly examined in the interlocutory proceeding that followed. It will be necessary to return to the grounds of the originating application in due course. The matter came on as an urgent matter out of hours before the Court as presently constituted on 28 January 2018. I ordered that the application be dismissed, although that order was intended to operate only on those parts of the interim application seeking to prevent the imminent deportation of the Applicant from Australia.
In the context of the injunction application, I expressed some wholly preliminary views as to the merits of the application. I determined in my ex tempore ruling, at [15], that:
“Once again, it is not possible to form any concluded views about all these matters. All I would say is that arguably those findings were open to the officer on the evidence. I should emphasise again I have not had time to conclusively assess the strengths of these grounds. I would say, however, that taken in conjunction with the s.198 point, the applicant’s case on the serious issue matter is weak at best.”
As it transpired, the Applicant was not deported and gave birth to a child shortly thereafter. On 19 February 2018 I made orders by consent designed to produce the trial that has recently occurred. It should be noted that the Applicant was legally represented at the time, as she was indeed at the interlocutory hearing to which I have referred.
The interlocutory orders made on 19 February 2018 provided inter alia for the Applicant to file and serve any amended application with proper particulars of the grounds of application, a supplementary Court book, if any, and written submissions. No such materials have been filed.
On 31 August 2018 the solicitors for the Applicant filed a Notice of Withdrawal. The First Respondent’s written submissions, filed
17 September 2018, respond, unsurprisingly in the circumstances, only to the grounds of application as originally filed.
The Applicant was self-represented with the assistance of an interpreter at the trial before me and advanced a number of matters to which
I shall return. Since one of the objections taken by the First Respondent to those submissions was that they had not previously been raised, it is appropriate to traverse the matters that the Applicant has advanced from time to time in support of her case as detailed in the Court Book (“CB”).
The Applicant’s claims in the Court book
The Applicant’s unauthorised arrival interview is at CB14-34.
The Applicant, at CB18, gave her religion as Catholic. She said that she had last seen her mother and father when she was six, this being consistent with her previous address, at CB16, from 1997 to 2003 living with parents. At CB19 she said there was no one in Australia who could be contacted as an emergency.
At CB23, the Applicant answered a question, “Why did you leave your country of nationality?”. She said she did not know. She said she “saw people reading bible on the boat, so I jump into the boat. I just jump on, and they read bibles and afterwards they will give you something to eat, I just wanted something to eat.”
When asked what was her life like in Vietnam, she responded:
“Me and my brother we were homeless – we didn’t have a place to stay. If I work washing dishes I can ask the owner to let me stay otherwise we stayed elsewhere, I sleep on the street, on a dry day underneath a tree, if it rains we just try to find shelter.
What did you eat?‑‑‑Whatever we can find.
Why did you have to leave your parents’ house?‑‑‑Because when we were young my father always hit my mother and after that they were separated.
Could you have stayed with your mother?‑‑‑My mother left first and afterwards my father left as well.
Did you see them again?‑‑‑No.”
At CB24, in response to a question, “Are you a member of any particular social or religious group?” the mother responded:
“Church – On Sunday me & my brother went to church, I don’t know the name so many churches we attend.”
At CB25, in response to a question as to police arrest, the Applicant responded:
“They do not allow me to sleep on the street, they hit me with a baton. They say you can’t sleep here. It happened lots of times. When I saw them I ran away.”
At CB28, in response to a question, “What arrangements were made?” the Applicant said:
“Noone knew we were on the boat. They only found out about me after 5 or 6 days, we hid in the bottom of the boat, me and my brother. I don’t know anyone else.
Did you have food?‑‑‑I did not have food for the first few days, once they found out we had food.
Did you have water?‑‑‑Yes, in my bag.”
At CB30, the Applicant asserted that she did not know she was coming to Australia and did not know she was coming here until Australian police officers boarded the boat.
At CB31, in response to the question, “Do you have any reasons for not wishing to return to your country of nationality?” the Applicant responded:
“Nobody is looking after me in Vietnam.
What do you think would happen to you if you went back?‑‑‑I want to stay here in Australia. The Australian Government feeds me and gives me a good education but in Vietnam I didn’t have a place to stay and the police hit me.
Any other reasons?‑‑‑No.
Anything you would like to add?‑‑‑No.
Is there anything you would like to ask me?‑‑‑I want to be able to enrol to school.”
The matter continued at CB32:
“Any other reasons?‑‑‑When I came to Australia I find it better than Vietnam, I didn’t have a place to stay I was kicked out all the time.
Any other reasons?‑‑‑I’ve always been hungry.
Any other reasons?‑‑‑No.”
The Applicant provided a statement at CB37-39. On 13 July 2011 she deposed to being a Catholic, born on 31 December 1997 in
Ha Tinh Province, Vietnam, and that she feared returning to Vietnam. She deposed to sad memories of her father hurting her mother when he was drunk, and both parents leaving them. She deposed to being homeless and that “I did not know of any relatives, local people knew my father was a drunk and people who lived near us had to go to work on the farms”. Essentially, she deposed to a homeless life. She did however say, at paragraphs 15 and 16:
“15. Having my faith in God and praying has helped my confidence in life. When I finished work each day in Vietnam at night I would pray, thank God for the work I had that day, pray to look after the people who gave me the work and to pray to look after my brother.
16. A few years ago my brother and I went to the prayer meeting at Quang Binh. Plain clothes people tried to break up this gather using violence with bricks, batons. I think the plain clothes people were gangsters. I was hit by a man when I was trying to leave I have a scar under my nose. It was scary people were running in all directions trying to escape. I found it scary that people praying could be attacked like this.”
Under the heading ‘What I fear may happen to me if I return to that country and why’, the Applicant deposed, at paragraphs 17 - 20:
“17. I believe if I return to Vietnam I would face a real chance of being harmed for reasons of being a homeless child in Vietnam.
18. I fear that I would face the uncertainties again homelessness, starvation. The fear of being chased and told to go away and not having anywhere to go.
19. I fear being harmed by men. I was once offered money to sleep with a man. I refused this and ran away. I fear that I could be harmed by men.
20. I fear for my brother, I cannot be with him twenty four hours a day. I am scared that he may be getting mixed up with street gangs, make a wrong decision that could cause him harm. He is all I have in this world and every day in Vietnam I am fearful for his safety.”
Under the heading ‘Who I think may harm/mistreat me in that country and why’, the Applicant deposed:
“I believe if I return to Vietnam I would be at real risk of facing serious harm by the police because we are homeless. I think they have the power to do whatever they want, I have a small voice I don’t think anyone will hear me.”
The matter was referred to a Protection Obligations Evaluation (“POE”). The referral decision is at CB65-75. It was issued on
25 August 2011 (CB65). The decision noted, at CB66, that the Applicant claimed to have arrived as a 13 year old female born and resided in Ha Tinh Province in the north central coast of Vietnam. She claimed that she was approximately six years old when her parents abandoned her and her brother and she made her way to Ho Chi Minh City, where she lived as a street kid and was homeless until she left to come to Australia. The Applicant was asked about places where she had lived and worked, and could only say that she remembered the name of a supermarket called Maximac, a nearby park called Sui Tin and a church in Vung Tau (CB67). These were the only details that she was able to provide about her life on the streets, apart from interactions with the authorities.
The Applicant’s version of her journey to Australia is at CB67:
“It was put to the claimant that, considering that this was reported to be an illegal venture, it would be reasonable to expect that the crew would closely monitor who was going in and out of the boat. It was further noted that, given the intelligence presented, her statement that he [sic] managed to get on board a boat (20 metre long by five metres wide) carrying 30 people unnoticed, was far-fetched. It was also put to the claimant that, given the described circumstances of the trip, the claims made by the claimant that she boarded a boat destined for Australia without paying any money was very unlikely.”
The POE officer recorded, at CB68:
“… I find the claimant’s account of how she learned to read and write whilst living in the streets to be unlikely and place little weight on this account. I find that the claimant is unable to provide information about her claimed life in the streets because she is not being truthful about her identity of being a homeless street kid. Furthermore, I find the claimant’s story about how she managed to come to Australia, not to be credible, I also consider this matter to be linked to her identity and her claims to be a homeless street kid without any financial means. Given the above, I find the claimant’s testimony not to credible and therefore do not accept that her identity is as claimed (ie homeless street kid without parental support).
Whilst I have concerns regarding the claimant’s true identity, based on responses given by the claimant regarding her Catholic faith, I am satisfied that she holds the Catholic religion. Further, I am also satisfied that the claimant is a Vietnamese national.”
I note that at CB69 the officer recorded:
“In addition, the claimant stated that she is Catholic and that
a few years ago her brother and the claimant went to a prayer meeting in Quang Binh province. She stated that the prayer meeting was violently broken up by plain clothes people and that she was hit by a man when she was trying to leave the protest area.”
The officer returned to the question of the Applicant’s religion at CB70 in the following terms:
“During the POE interview on 16 July 2011, the claimant was asked questions about her claimed participation in a religious protest in Quang Binh. The claimant stated that a few years ago she was living in Ho Chi Minh City and was approached by other homeless people and invited to a prayer meeting. She stated that she had walked Quang Binh province from Ho Chi Minh City (approximately 1000 km). When asked how long it had taken her to walk this distance, she stated that two or three days and that she had made stops in her journey.
The claimant was asked where in Quang Binh province the protests had happened. The claimant stated that she did not know the name of the town or the location of the protest. The claimant was asked to describe Quang Binh province, in response the claimant noted the name of the bridge and stated that she does not remember anything else because she was young and had not lived there long.
Despite her claims to have travelled to and briefly resided in Quang Binh, the claimant was not able to provide any information about the area or describe any landmarks in that province. The claimant was aged approximately 12 when she travelled to Quang Binh, one would reasonably expect more detailed particular from an individual that claims to be homeless and living in the streets.
Additionally, the claimant’s statement regarding the time it took her to travel the estimated 1000km to Quang Binh Province seems very farfetched (considering her age and means of travel). Accordingly, during the interview, the claimant was asked whether, given the distance involved, her testimony about this event was true and correct, the claimant responded by affirming that it was.”
Perhaps unsurprisingly the review officer was not convinced.
The officer noted, at CB72, that the Applicant claimed to have been physically hurt due to her Catholic religion. The officer went on to consider whether the subjective fear was well-founded. Based on country information, it was put to the claimant that there was extensive country information confirming that Catholics are generally not persecuted for reason of their religion (CB74).
The officer noted that he had found the Applicant had not have participated in the Quang Binh Province demonstrations. At CB74, the officer noted:
“… I also note testimony given by the claimant stating that she did not intend to participate in any future religious demonstrations if she was returned to Vietnam. Moreover, the claimant is not a priest or any kind of religious leader, she is simply an ordinary practitioner. Consequently, based on the above credibility findings, the claimant’s testimony and country information, I conclude that there is no “real chance” of the claimant being persecuted for her religion upon return to Vietnam.”
The Applicant was found not to meet the definition of a refugee in the Refugees Convention and the Refugees Protocol and the case was automatically referred for Independent Protection Assessment (CB75).
The Applicant’s representatives forwarded submissions on her behalf on 22 December 2011, at CB78-88. At CB78, the representatives noted a dispute as to whether the Applicant was or was not 18 years of age. Her convention nexus claims of fears of persecution were put as being:
“- Her religion as a Catholic and participation in protests against lands confiscation by the Catholic Church
- membership of a particular social group, namely:
* Homeless street children in Vietnam; and/or
*impoverished children in Vietnam.”
At CB80, the submissions asserted:
“In response to the findings of the POE delegate, (AJW18) has explained that:
“- it did not take her two or three days to walk from Ho Chi Minh City to Dong Hoi. (AJW18) was nervous during the interview and that is why she gave this answer. She cannot remember exactly how long the journey took, because it was some time ago and she was young.”
Having set out substantial amounts of country information in relation to religious oppression in Vietnam, the submissions asserted, at CB84-85:
“- There has been a deterioration in relations between civil society and the authorities since 2009. In particular, the authorities have been cracking down on expressions
of collective dissent against government policies and actions;
- Religious activity is closely monitored and under the control
of the State;
- There have been reports of violent suppression of Catholic protests from 2008 to the present, including as recently as
2 December 2011;
- (AJW18) has in the past been involved in a protest;
- (AJW18) has no guardian, no home and as such is extremely vulnerable to serious harm from the Vietnamese authorities.”
The submissions went on to deal with the Applicant’s claims of fear as a member of a social group, namely homeless children and/or impoverished children in Vietnam.
The reasons of the Independent Protection Assessor are at CB92-116. Under the heading ‘Claims and Evidence’, the assessor reviewed the matters that the Applicant had previously advanced (and a new claim of imputed political opinion because she had departed Vietnam illegally and sought asylum in Australia), and set out her statement in full at CB94-96. The assessing officer set out his interview with the Applicant and her brother at CB96-100, and I note at CB100 that the Applicant said:
“that while they were in Vung Tau they saw a boat with people on it and statues of the Virgin Mary they decided to get on board”.
She claimed that she had paid no money for her passage to Australia and that she did not know she was coming here (CB100).
It should be noted that the Applicant’s adviser claimed that the Applicant would face a real chance of persecution for the reasons of her religion and that she would suffer for reasons of departure from Vietnam, and these would be reasons of imputed political opinion (paragraph 71, CB101). It should be noted that there were a number of inconsistencies in the evidence given by the Applicant and her brother, and that the officer did not believe their account.
The officer traversed the claims of possible risk of harm through religion and of being a returned failed asylum seeker and noted that
a number of other persons with very similar claims had arrived on the same boat as the Applicant. The officer found that the Applicant’s claims were unbelievable and rejected them. He found that the claims of possible risk of harm on the basis of religion were simply not made out. He completely dismissed the Applicant’s claims to have been
a homeless street child.
Thereafter the matter was the subject of an International Treaties Obligations Assessment (“ITOA”). The assessment record is at CB143-160. I note that identity documents examined in relation to the Applicant suggested that her date of birth was 10 April 1989 and not 1997 (CB144-145).
The assessor noted that on 19 June 2014 the Applicant absconded from her community detention property and had not made contact with the Department since that date. Attempts by the Department to contact the Applicant’s representatives suggested that they were unable to contact her (CB147). The Applicant had not attended an ITOA interview despite the opportunity to do so.
The assessor noted, at CB149, that while there were no new claims provided for consideration there might have been an unintentional access to her personal information in the public domain as a result of
a data breach incident in January 2014.
The Applicant’s previously articulated claims were not accepted by the assessor. The assessor further came to the conclusion that any details regarding the Applicant’s claims had not been made available to the Vietnamese authorities (CB156) and that:
“… DFAT assesses that the Vietnamese authorities considers that Vietnamese citizens generally seek asylum abroad for economic reasons and do not treat failed asylum seekers differently to other returnees. Also, it is reasonable to conclude that many if not most involuntary removals and many voluntary removals would have been held in immigration detention and that the Vietnamese authorities would be aware that Vietnamese nationals who return to Vietnam would have been in detention.
I find no evidence to indicate that being in immigration detention prior to return to Vietnam, in itself, will result in persecutory harm by the Vietnamese authorities.”
Put shortly, the assessor found that the Applicant was not a person in respect of whom Australia had non-refoulment obligations.
The Grounds of application – ground 1
1.The Second Respondent in making the ITOA denied the Applicant procedural fairness and/or made an error of law in its consideration of the Applicant’s claims.
Particulars
a)The ITOA was undertaken for the purpose of assessing whether Australia has non-refoulement obligations to the Applicant.
b)
The Applicant had absconded from community detention on
19 June 2014 and consequently did not make any specific representations during the ITOA process and did not attend her ITOA interview on 30 January 2015.
c)The assessor adopted the ‘findings and conclusions’ of the previous Protection Obligations Determination (‘POD’) and Independent Protection Assessment (‘IPA’) because ‘as the client did not attend the interview nor submit new claims, [it] was unable to conduct an assessment of the client’s credibility for the purposes of this ITOA’.
d)
In its specific consideration of the Applicant’s ‘catholic claims’, the assessor relied ‘on the findings and conclusions of the POD and IPA decisions’ and consequently accepted the Applicant was
a Catholic from Vietnam but did not accept ‘as credible her claim that she … attended a Church prayer/protest meeting in Quang Binh or that she was harassed by the police for being a Catholic.’
e)
In order to properly undertake its assessment of the Applicant’s claims for the purposes of the ITOA, the assessor was under
an obligation to review the Applicant’s claims and make its own independent findings, regardless of whether she presented to
an interview or made new claims.
f)While it was open to the assessor to rely on previous evidence and information provided through the Applicant’s refugee application process, it was denial of procedural fairness and/or a misunderstanding of its role to simply adopt ‘findings and conclusions’ of a previous decision making without any independent assessment of the Applicant’s claims.
The written submissions presented to the Court in support of the application for an injunction essentially repeat this ground and its particulars. The gravamen of the submission is at paragraph 24, where it is asserted:
“In the present case, it was procedurally unfair to adopt previous findings and conclusions without independently assessing the evidence.”
As with all the grounds previously advanced, the Applicant, who was self-represented at trial, did not advance any submissions in support of ground 1.
The written submissions of the First Respondent essentially assert that, contrary to ground 1, the assessor did properly review the matter
for themselves. The gravamen of the submission is at paragraphs
28-29:
“28. … Noting that the Applicant presented no new claims or evidence in the International Treaties Obligation Assessment, and did not participate in an interview before the Assessor, the Assessor has adopted the approach of considering the previous dispositive conclusions (concerning credibility of her claims) of the delegate and the Independent Protection Assessor and independently concluded that, given the circumstances, it was appropriate to come to the same conclusions. The Assessor then clearly determined new claims that potentially arose after those earlier assessments. In circumstances where the Applicant was on notice that the assessment would be made ‘based on all information currently before the [Department], and not having participated in the International Treaties Obligations Assessment, it was both orthodox and open to the Assessor to consider, and rely upon, the findings made by the delegate and the Independent Protection Assessor in coming to the ultimately conclusion about whether Australia owed the Applicant non-refoulement obligations.
29. Had the Applicant participated in an interview before the Assessor, it would also have been open to the Assessor to put to the Applicant previous adverse findings and the reasoning in support of them for the purposes of offering the Applicant an opportunity to comment about those findings and the reasoning sustaining them, and to state why those findings should not be accepted. The Applicant was given the opportunity to participate in an interview with the Assessor, but having regard to the circumstances of having absconded from community detention and effectively being incommunicado, inhibited herself from taking that opportunity so afforded.”
The submissions went on to distinguish the case of SZBUX v Minister for Immigration & Anor [2015] FCCA 2822, and in my view that submission is correct.
There can of course be no natural justice point in failing to give an opportunity to be heard to a party who has absconded and thus made any such opportunity nugatory. Furthermore, the way in which the Assessor approached his task was in my view wholly unexceptionable. As counsel in oral submissions suggested, what else could the Assessor have done? The assessor was in a position where he had only the materials previously filed before him, and the terms of the assessment, when read fairly as a whole, do not suggest a failure properly to engage with the task before him. The assessor properly assessed the matter and came to a conclusion which in the circumstances was all but inevitable.
Ground 2
The Second Respondent, in making the ITOA denied the Applicant procedural fairness and/or made an error of law in its assessment of whether the Applicant was at risk of harm for illegally departing Vietnam.
Particulars
a)The Applicant claimed she was of interest to the Vietnamese authorities for seeking asylum in Australia and for departing Vietnam illegally.
b)The assessor referred to country information that was relevant to the treatment of failed asylum seekers.
c)The assessor failed to consider the Applicant’s claim that she would be of interest or was at risk of harm for having left Vietnam illegally.
The written submissions in support of ground 2 relevantly assert, at paragraph 27:
“On a fair reading of the assessment, the assessor appears to have failed to consider whether the applicant had a well-founded fear of persecution on return to Vietnam because she had departed that country illegally.”
The First Respondent’s written submissions point to passages in the ITOA assessment at CB155-156. At CB155, the assessor noted:
“The client claimed that she is of interest to the Vietnamese authorities for seeking asylum in Australia and for departing Vietnam illegally.”
The assessment went on to consider that claim in terms, and referred
to country information as part of that assessment. Read fairly and as
a whole, it is clear in my opinion that the assessor did properly turn their mind to the Applicant’s claim of risk of harm for illegally departing Vietnam.
Ground 3
The Second Respondent, in making the ITOA failed to accord the Applicant procedural fairness and/or made an error of law in its assessment of the data breach claim which arose on the evidence.
Particulars
a)The assessor accepted that the Applicant may have been affected by the data breach as she was in detention on 31 January 2014.
b)The assessor considered that the ‘extent of the dissemination of the data [was] speculative’.
c)The assessor was satisfied that ‘any details regarding the client’s claims’ have not been made available to Vietnamese authorities and noted that the ‘countries identified as the location of the IP addresses do not include Vietnam.’ It also concluded that she would not be imputed with any anti-government political opinion by the authorities even if they had information that she was in immigration detention.
d)It was unreasonable and/or a denial of procedural fairness for the assessor to find that the Vietnamese authorities had not accessed the Applicant’s information because the IP addresses did not include Vietnam. As stated by the High Court of Australia in Minister for Immigration and Border Protection v SZTZ, ‘once downloaded from the Department’s website, the document containing the personal information of the 9,258 visa applicants could have been forwarded to and interrogated by anyone, anywhere, and at any time.’
e)The assessor consequently failed to properly consider how the data breach may have affected the Applicant’s claims and/or whether it placed her at risk of harm upon return to Vietnam if her details were known to the authorities and/or if the authorities knew that she was in detention for having made an application for protection.
The written submissions of the Applicant set out the details of the data breach and refer in more detail to the decision of the High Court in SZSSJ. The gravamen of the submission is at paragraphs 35-37 of the written submissions, as follows:
“35. In the present case the assessor made no such assumptions and/or did not proceed on the basis that the applicant’s details had or may have been accessed by the authorities.
36. The assessor consequently failed to properly consider how the data breach may have affected the applicant’s claims. It failed to consider whether it placed her at risk of harm upon return to Vietnam if her details were known to the authorities and/or if the authorities knew that she was in detention for having made an application for protection in respect of Vietnam, where she had fled from illegally and arrived in Australia by boat.
37. The findings made in respect of the data breach were not reasonable and/or lacked an evidence and intelligible justification.”
The First Respondent’s written submissions at paragraph 34 point
to the fact that at CB156 the assessor found that the Applicant’s personal information was publicly available for a short time, that there was no information that her specific claims to engage Australian protection obligations had been made known to the Vietnamese authorities, that based on country information referred to the assessor observed that failed asylum seekers are not treated differently to other returnees and it was reasonable to assume that Vietnamese authorities would know that the Applicant had been in migration detention prior
to her return to Vietnam in any event. The assessor also found that there was no evidence to indicate that the Applicant’s being
in immigration detention prior to her return to Vietnam would result
in her being harmed by the Vietnamese authorities.
Put shortly, the submission made by the First Respondent is that, having regard to these matters, it is not arguable that the assessor did not consider or dispose of the claimed risk of harm potentially arising from an assumption that the Vietnamese authorities would assume the Applicant to be a failed asylum seeker that had spent time in immigration detention. It should be noted that, to the extent that the ground raises a complaint of a denial of natural justice, the Applicant’s failure to attend the hearing before the assessor meant that no such denial of natural justice took place.
As pointed out in counsel’s oral submissions before the Court, the assessor made a positive finding that the Applicant’s claims were not disclosed. Additionally, however, and whether that finding was properly open or not, the assessor made two further conclusions which in my view are fatal to this ground. The assessor came to the conclusion that Vietnamese authorities consider asylum seekers are essentially economic migrants and that the authorities would likely assume that the Applicant had been in detention. Having made those findings, which were plainly open on the material before the assessor, the assessor concluded there was no evidence of any risk of harm because of the Applicant having been in immigration detention. Indeed, at CB157 the Tribunal found there was no credible evidence that the Applicant had been involved in political activity. This dispositive conclusion, as counsel described it, that the Applicant had not conducted herself in such a way that she would be imputed with anti-government opinion, even if the Vietnamese authorities thought that the Applicant had been in detention, was, as counsel submitted, open on the materials and not procedurally unfair.
The asserted grounds made on the Applicant’s behalf, supported by the only written submissions she has filed, are not made out.
The Applicant’s submissions before the Court
What follows is taken from my notes.
The Applicant, who represented herself with the assistance of an interpreter, urged the Court to reconsider her case. If it is rejected, she will be deported. She will be jailed or even killed. The Vietnamese community is very cruel. If she is killed, her daughter will have no mother. The Applicant said that:
“In Vietnam, we can’t speak up for ourselves. We are Catholic, and the Government is not religious. We have no say in any matters and are oppressed by many people.”
The Applicant said that her father used to be a doctor for the army, but when he married her mother he was sacked and not allowed to work. The mother said she also participated in disseminating the teachings of her church and was given a lot of trouble. In the past, because she had tried to protect the statue of Jesus’ mother, she was assaulted, given a hard time and still has a scar on her hands. So she urged the Court to consider her application again and give her an opportunity for a new life in a country with freedom. She said she just urged the Court not to let the Immigration Department deport her, because she would be harmed if she had to go again.
Counsel for the First Respondent submitted that the process before the Court was to assess the legality of the process and the recommendations of the assessor rather than the underlying merits.
A number of matters raised by the Applicant go to the underlying merits. The Applicant claimed to have taught her church doctrines, but there was no evidence of this claim in the Court Book. Her claim was that she was a street child, only a minor, when she entered Australia. Her second claim was that she was assaulted trying to protect a statue of the Virgin Mary. There was no evidence in the Court Book about this either. Counsel noted that the Applicant was unable to be contacted because she had absented herself from detention. There was no opportunity for the assessor to put matters to her at interview. Counsel submitted that procedural fairness is about practical injustice, and it was not clear what the assessor could have done other than what was actually done.
I have already dealt with the submissions made in relation to the data breach above.
In reply, the Applicant said that counsel had said there was no evidence in the Court Book. She said she had talked to her lawyer about these things, but did not know why they were not in the Court Book. She came from a very small village so there was no evidence. She did not think there would be a day like today when she could give evidence. She had no internet or Facebook at the time. Even when she came here, in her village people were still oppressed by the Government. Also in Vietnam people have smart phones but the Government controls social network. Posts would be deleted straight away.
Consideration of the Applicant’s oral submissions
Counsel for the First Respondent is correct to say that the Applicant has, at no time in the long history of her various claims, ever suggested, before the Court hearing in this Court, that she had ever disseminated or taught, or been involved in disseminating or teaching, church doctrines in Vietnam. She has certainly claimed to be a Catholic, but she has never articulated, in anything remotely resembling their current form, her claims to have been an actual proselytiser of her faith. Nor has she said that this gave rise to assault. The history of her involvement with church meetings is already described earlier in these reasons for judgment.
The Applicant has also raised, for the very first time, an assertion that she tried to protect a statue of the Virgin Mary and was injured. There is no such reference, or anything that could remotely be described
as indicating it, in the Court Book materials. The only reference to
a statue of Mary is the asserted one in the boat before she embarked for Australia, allegedly surreptitiously.
To the extent that the Applicant has indicated that she might have told her lawyers about these matters, and that they had been admitted,
I would point out that the Asylum Seeker Resource Centre, which represented the Applicant until very recently, is a body committed
to the fair treatment of refugees and it is entirely improbable that they would have omitted a significant claim articulated to them.
The matters the Applicant now seeks to raise before the Court are all matters of merits review. That is not the Court’s function in an application of this sort.
Conclusion
The Applicant’s original grounds have not been made out. Her oral submissions are essentially irrelevant to the dispute the Court is being asked to determine, namely the lawfulness or otherwise of the ITOA assessment.
It should however be noted the findings made against the Applicant from time to time, which I have traversed when setting out the Court Book materials, are findings that on the face of it seem entirely reasonable. The accounts given by the Applicant from time to time so strain credulity that it is in no sense surprising that those charged with reviewing the Applicant’s case came to the conclusions they did.
In any event, nothing raised by the Applicant suggests that the ITOA assessment involved jurisdictional error or other flawed approach such as to suggest that the assessment did not involve a valid lawful consideration of the Applicant’s claims.
The application will be dismissed with costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 12 October 2018
0