AKB17 v Minister for Immigration
[2018] FCCA 764
•28 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKB17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 764 |
| Catchwords: MIGRATION – Protection visa – whether applicant given a meaningful opportunity to give evidence and advance claims before Tribunal – whether Tribunal failed to exercise jurisdiction by failing to consider all claims – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a) & (aa), 425 |
| Cases cited: Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 |
| Applicant: | AKB17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 30 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 6 February 2018 |
| Date of Last Submission: | 6 February 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 28 May 2018 |
REPRESENTATION
| The Applicant: | In person with an interpreter |
| Counsel for the Respondents: | Ms L Butler |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application filed 21 January 2017 is dismissed.
The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND DOLLARS ($6,000).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 30 of 2017
| AKB17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for constitutional writs in relation to a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 6 January 2017. That decision affirmed an earlier decision of a delegate of the Minister for Immigration and Border Protection rejecting the applicant’s claim for a Protection (Class XA) visa (‘the visa’).
The application raises four grounds as follows:
“1.The Tribunal Member did not give me sufficient time to answer the question put by her and always interrupt me.
2.The Tribunal Member failed to consider the serious nature of the sexual assault that I suffered from a Government official in Vietnam.
3.The Tribunal Member misleadingly told me that my case look good and concluded the hearing after about an hour without giving me an opportunity to provide further information to support my case.
4.The Tribunal Member did not take into consideration the relevant facts that I had previously provided to the Department of Immigration and Border Protection.”
(Grounds reproduced verbatim)
On 1 March 2017, the Registrar gave the applicant leave to file and serve any amended application by 29 May 2017. She was also given leave to file and serve any further material on which she sought to rely, including the transcript of proceedings. The Registrar ordered her to file and serve an outline of submissions 10 business days prior to the hearing date. No amended application has been filed, no further evidence has been put on by the applicant, and no outline of submissions has been provided to the Court by her.
The applicant appeared before me unrepresented and with the assistance of an interpreter in the Vietnamese and English languages. She relies on the documents contained in the Court Book in addition to her affidavit of 22 January 2017. That affidavit annexes a copy of the Tribunal decision and repeats some of the details of the claims made before the Tribunal.
Background
The background to this application, the Tribunal hearing, and findings have been thoroughly summarised by the first respondent in its outline of submissions. The accuracy and adequacy of that summary has not been disputed by the applicant. I have paraphrased that summary below.
The applicant is a 46 year old Vietnamese woman, having been born in 1971. She married in 2005. She arrived in Australia in 2006 joining her husband, who was residing here under a Temporary Work (Skilled) (subclass 457) visa. She was granted a 457 visa as a dependent of the husband. A further 457 visa was issued to her on 12 February 2010, once again, as a dependent on her husband’s visa. Her circumstances changed in 2012. At that time, her husband applied for a further 457 visa, listing her as a dependent. The applicant was refused a further visa because it was concluded that she was no longer in a genuine relationship with the husband. Apparently, the parties had been living separately. The applicant’s husband and four children were granted a further 457 visa, but the applicant was not.[1] The applicant and her husband have subsequently divorced.
[1] Court Book (‘CB’) p 89.
The applicant then lodged an application for a Protection visa. This was lodged on 29 May 2014. The application was refused by a delegate of the Minister on 21 October 2015 and the decision record was posted to the applicant on that day.[2]
[2] CB pp 85-100.
The applicant applied to the Tribunal for a merits review on 16 November 2015.[3] That application was acknowledge by the Tribunal 4 days later, and on 17 October 2016 the Tribunal wrote to the applicant inviting her to attend at a hearing to give evidence and present arguments relating to her claims. The hearing took place on 24 November 2016. The applicant attended without representation and with the assistance of a Vietnamese interpreter. The hearing record notes that proceedings took place over a period of approximately 50 minutes.[4]
[3] CB p 103.
[4] CB p 116.
Tribunal Hearing and Decision
The applicant gave evidence at the hearing and relied on a number of documents, including a letter from her parish priest that confirmed she had regularly attended mass at his church for a period of about 10 years.[5] In addition, she provided letters of support from her employer, a friend, and an affidavit sworn by her that detailed the circumstances of her marriage breakdown in Australia.
[5] CB p 127.
The Tribunal identified the applicant’s claims as being that she sought protection because she was a Catholic who had attended an anti-government protest in Vietnam in 2004. That protest was claimed to have been with respect to government suppression of religious activities. She attended the protest with a number of her friends. They were confronted by police and ultimately ordered to climb into a truck, whereupon they were taken to a police station. Having been spoken to initially in an interview room, she was then taken to a cell and held overnight.
The next morning she was beaten and sexually assaulted by two police officers, one of whom was called “Duc”. She claims to have been forced to sign, without reading, a statement that had been pre-prepared for her by the police. Released later on the second day, she was forced to attend a government propaganda study group and was sexually assaulted there by “Duc”, who told her that she was on the police register as an agitator and subversive, and that her activities would be monitored.
Over a period of 3 years, police officers attended periodically at her house and questioned her. When Duc was the officer, he would usually rape her. The situation stopped when she moved to Australia to be with her husband. After she moved to Australia, Duc confronted her family in Vietnam and sought her contact details in Australia. He presented her parents with a threatening letter, which they forwarded to her. As a result of the above, she is on record as an agitator and subversive, and if she returns to Vietnam will be forced to take part in a government political indoctrination course, be harmed by the police and possibly imprisoned. She claims to have suffered serious psychological injury as a result of her treatment at the hands of police.
The Tribunal accepted that the applicant had attended a protest as claimed and that she was questioned by police and, as a result, ordered to attend re-education classes. It further accepted that the applicant had been inappropriately touched and probably sexually assaulted by police at both the police station and re-education classes. It found that the applicant had stopped attending classes and that there were no adverse consequences to her as a result.
The Tribunal considered the Department of Foreign Affairs and Trade Country information, which indicated that whilst there is a level of restriction on religious freedom in Vietnam, generally, the government respected registered religious organisations, and that Catholicism was one such registered organisation. As a result, it found that the applicant would be free to practice her religion upon return to Vietnam, including by regularly attending and participating in her church.
The Tribunal found that the applicant had only attended a single protest and found that she had not been involved in political or religious activism in South Australia. It found that the applicant had not provided the Department or the Tribunal evidence of Duc’s letter. As his last inquiry about the applicant was in 2007, and the applicant had obtained a police clearance issued by the Vietnamese Government in 2015, it concluded that the police did not have an ongoing interest in her.
To the extent that it concluded that the applicant had been sexually assaulted, the Tribunal found that the conduct of the perpetrator was opportunistic and the chance of him having an ongoing interest in her 12 years later was so remote as to not amount to a real chance. The Tribunal did not accept the applicant’s name was on a police register and it considered that because she had not been pursued for her non-attendance at re-education classes, had been given a passport, obtained a police clearance, and legally departed the country, she was not a person of interest.[6]
[6] CB p 145 at [24].
The Tribunal concluded that the applicant’s claimed fear of suffering sexual assault in Vietnam was merely speculation, and that there was not a well-founded fear of persecution by reason of her religion or actual or imputed political opinion. It did not accept that there was a real risk that she would be imprisoned or suffer a sexual assault upon return. It was not satisfied that the applicant was a person in respect of whom this country has protection obligations under the Refugee Convention and for that reason did not satisfy the criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’).
It found that the applicant’s fear of being traumatised should she be required to return to Vietnam did not amount to significant harm as defined in s.36(2A) of the Act. It was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there was a real risk that she would suffer significant harm.[7] As a consequence it found the applicant did not meet the complementary protection criterion set out in s.36(2)(aa) of the Act.
[7] CB p 147 at [32].
Submissions
The applicant made brief submissions before me. To a significant extent, those submissions simply repeated the grounds of application, but the applicant was at pains to stress that she had, in effect, been given an intimation by the Tribunal Member that she would support her application and that she had been satisfied the applicant would satisfy all of the relevant criteria. She submitted that the Tribunal Member did not pay much attention to her statements. In her submission, the Tribunal did not consider the fact that the police had assaulted her. Further, she claimed the Tribunal did not give her more time to give evidence, and for that reason, the decision itself was very unfair. The applicant told the Court that she wanted a fair hearing with someone who considered all of the materials that she had submitted.
The applicant submitted that she had received the written decision of the Tribunal but not the audio recording and she had not obtained the transcript, and for that reason, she could not present it to me.
That issue was raised by me with the counsel for the first respondent. The first respondent attended at the hearing with a CD that contained an audio file of the Tribunal hearing. It had not intended to tender that file. I raised with the applicant whether she would like me to receive the audio recording and listen to it because of the fact that we did not have the transcript available to us. The applicant indicated that she did want me to consider the audio file. Accordingly, I received that as Exhibit R1 and I have listened to the recording of the hearing.
The applicant complained that there were certain documents provided by her that the Tribunal Member had not considered, and by that I infer she means did not mention in the decision record. Two of the documents that the applicant referred to were the letter of support from her employer and the letter of support from her friend as to the details of their friendship.[8]
[8] CB pp 118 and 122.
First Respondent’s submissions
With respect to grounds 1 and 3, the first respondent submits that the applicant was given a “meaningful opportunity” to attend the hearing and present evidence and advance arguments. On the case before the Court, no inference to the contrary could be drawn. It submitted that this was evident from the recording of the hearing.
As to ground 2, the first respondent submits that the Tribunal thoroughly considered all of the claims expressed by the applicant and arising on the applicant’s evidence, including the applicant’s claim of the risk to her of being traumatised by being returned to a country where she was sexually assaulted. Contrary to the assertions of the applicant, the Tribunal did consider closely her claims to having been sexually assaulted. As far as the weight that was given to that evidence by the Tribunal is concerned, the Minister submitted that this was a matter for the Tribunal.
With respect to ground 4, the first respondent submitted that a fair reading of the decision record shows that the Tribunal gave active consideration to all the claims, including the information in her written visa application and the claims made before the Delegate. It also considered her oral evidence and tested the claims for inconsistency. It submitted that this ground was without merit and must fail.
Consideration
Grounds 1 and 3 can be conveniently dealt with together, as they both raise questions of whether the hearing afforded to the applicant was procedurally fair and whether it could be regarded as having been a meaningful opportunity to attend, give evidence, and present arguments in support of her claims. It is well established that a hearing must not simply be a “hollow shell or empty gesture”.[9] If the Tribunal does not consider that it can decide the review in the applicant’s favour on the basis of the material before it, then it must, unless the applicant consents otherwise, invite the applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”.[10]
[9] Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188 at [31].
[10] Section 425 of the Migration Act.
As I have noted, the Tribunal did extend an appropriate invitation to the applicant which she acknowledged, indicating her desire to attend at the hearing. It is clear from the decision record that the Tribunal provided the applicant with an opportunity to give oral evidence, and that it tested her claims. This is also clear from the recording of the Tribunal hearing.
The hearing was relatively short, but that of itself cannot be indicative of a failure to provide a meaningful opportunity for the applicant to present her case. The claims and issues arising from it were relatively discrete. Further, the Tribunal had before it the decision record of the Delegate and the materials associated with the Protection visa application. There is no evidence that the applicant sought and was refused an adjournment to obtain further evidence or for any other reason. There is no evidence that the applicant sought an opportunity to provide further written material after the hearing concluded. The transcript of the hearing has not been put on by the applicant, but I have listened to the recording.
Ordinarily, where a party seeks to adduce evidence of what occurred before the Tribunal, they file a copy of the transcript under cover of an affidavit. Leave was given to the applicant specifically to do this. The purpose of tendering such information is to provide an appropriate evidential base upon which to assess the integrity of the proceedings and the merit of the complaints made on judicial review. Without it, the Court is not able to speculate or draw inferences as to what did and did not occur during the course of the hearing.[11]
[11] NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]; Brar v Minister for Immigration & Border Protection (No 2) [2017] FCCA 1538; EBI17 v Minister for Immigration & Border Protection [2018] FCCA 44; SZVHC v Minister for Immigration & Border Protection [2016] FCA 1342.
In any event, I have considered the recording of the proceedings. At the commencement of the hearing, the Tribunal member explained the proceedings to the applicant and invited her to ask for explanations if she did not understand any of the evidence. The Tribunal member specifically acknowledged the letters of support from the employer and the friend of the applicant and the information relating to her divorce and asked if any of those materials were relevant to the protection visa application. It was apparent as the recording continued that the Tribunal Member conducted herself in a calm and patient manner. She explored answers that were given by the applicant. There were occasions upon which she asked follow up questions. She did not seem to be continually interrupting the applicant and the evidence proceeded in the usual question and answer fashion. The applicant appeared to be able to give her evidence freely and did not appear to be rushed. She was allowed by the Tribunal Member to finish her answers. In cases where the Member had doubts about matters, she raised them with the applicant. This was clearly appropriate as it is well established that the Tribunal does not have to accept uncritically everything an applicant says. An example of the type of questions that the Tribunal Member put to the applicant is:
“Who is it that you fear harm from if you returned to Vietnam …”
The Tribunal member invited the applicant to say why it was she disagreed with the decision of the Delegate. She went through the criteria for a protection visa with the applicant and gave her an opportunity specifically to give evidence that might assist her and repeated and explained things to her when it appeared that she did not understand.
The recording leads me to conclude that there is no basis upon which I could properly find that the applicant was not afforded sufficient time in the circumstances to answer the questions put by the Tribunal Member, or that there were persistent interruptions that deprived her of a meaningful opportunity to present her case.
As submitted by the first respondent, a fair consideration of the recording of the Tribunal hearing demonstrates that the Tribunal Member asked open ended questions of the applicant and invited her to explain relevant circumstances as to why she feared harm in Vietnam. The recording does not support an inference that the applicant was rushed in giving her evidence. It appears that she was given sufficient time to respond to questions. It is also, as the Minister submitted, obvious that applicant herself asked questions in order to clarify when she did not fully understand matters that had been raised with her.
Finally, at the end of the hearing, the Member asked her if there was anything else she wished to say in support of her application and the applicant took advantage of that opportunity to further explain her claims. The recording does not demonstrate the applicant seeking an adjournment to provide further materials. The additional comments made by the applicant showed that she responded in a way that largely explained her aspirations but added nothing of substance to the basis for the visa application.
The recording does not support the applicant’s submission that the Tribunal Member assured her or promised her that she would be given a Protection visa or that she told the applicant that she would definitely satisfy all of the relevant criteria for a Protection visa.
In the circumstances, I am satisfied that there is no substance to grounds 1 and 3 of the application and I dismiss those grounds.
It is well-established that a failure by the Tribunal to consider all claims made by an applicant may amount to a constructive failure to exercise jurisdiction. As to ground 2, it is clear from the decision record that the Tribunal gave proper consideration to the claims relating to sexual assault. There is nothing in the reasons of the Tribunal that leads me to conclude that it did not appreciate the gravity of those claims either objectively or from the applicant’s perspective. I dismiss this ground.
With respect to ground 4, the Tribunal had a copy of the delegate’s decision and discussed it in some detail in the decision record.[12] Further, the Tribunal Member questioned the applicant about discrepancies between her written statement and the information she gave the delegate at the interview.[13] I accept the Minister’s submission that a fair reading of the Tribunal’s decision demonstrates that it considered both the matters in the written visa application and the claims made before the delegate. The recording of the hearing shows as I have noted that the Tribunal acknowledged receipt of the letter from the employer and the letter of support from the applicant’s friend. I am not satisfied that the applicant has demonstrated a failure on the part of the Tribunal to consider all of her claims and materials provided. I dismiss this ground.
[12] CB p 143 at [12]-[13].
[13] CB p 143 at [15].
I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 28 May 2018
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