Amp17 v Minister for Immigration

[2019] FCCA 397

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMP17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 397

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the adverse findings of the Authority were open to it – whether the Authority with its statutory obligations – whether the Authority was required to invite the applicants to comment or invite the applicants to attend a hearing – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 476

First Applicant: AMP17

Second Applicant: AMQ17

Third Applicant:  AMR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 65 of 2017

Judgment of: Judge Street

Hearing date: 21 February 2019

Date of Last Submission: 21 February 2019

Delivered at: Perth

Delivered on: 21 February 2019

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

ORDERS

1. The first applicant, AMP17, is to act as the litigation guardian on behalf of the second applicant, AMQ17, and the third applicant, AMR17, and the Court dispenses with the need for any filing of an affidavit under the Federal Circuit Court Rules 2001 in that regard.

2. The application is dismissed.

3. The first applicant pay the first respondent’s costs fixed in the amount of $5,500.00.

DATE OF ORDERS: 21 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 65 of 2017

AMP17

First Applicant

AMQ17

Second Applicant by their litigation guardian AMP17

AMR17

Third Applicant by their litigation guardian AMP17

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 10 January 2017, affirming the decision of the delegate not to grant the applicants a Safe Haven Enterprise visas.

2. The first applicant is the mother of the second and third applicants. The applicants were found to be citizens of Vietnam and their claims were assessed against that country. The applicants claim to fear harm by reason of the husband of the first applicant being involved with clashes between Catholic and Vietnamese authorities, and by reason of the husband’s involvement in the Con Cuong protests in July 2012 and by reason of the first applicant and her husband being forced to pay a large sum of money to enrol their child in school and by reason of the husband facing charges of people smuggling and by reason of their illegal departure and being found to be failed asylum seekers.

3. On 31 August 2016, the delegate found the applicants failed to meet the criteria for the grant of Safe Haven Enterprise visas.

4. On 6 September 2016, the Authority wrote to the applicants informing the applicants that the application for the visas had been referred to the Authority for review. The Authority’s letter provided an attached fact sheet and practice direction giving the applicants an opportunity to provide new information and submissions. No submissions or new information was provided to the Authority.

5. The Authority in its reasons identified the background to the visa application and that the first applicant’s husband was found to be ineligible for the grant of a protection visa under s 36(2C)(b) of the Act, and that accordingly, the decision in relation to the husband was not reviewable by the Authority.

6. The Authority had regard to the material referred by the Secretary under s 473CB of the Act. The Authority summarised the applicants’ claims and referred to the credibility issues of the first applicant and her husband raised by the delegate in the visa refusal decision.

7. The Authority referred to the travels of the applicants between Laos, Thailand and Indonesia. The Authority found there had been significant inconsistencies and omissions in the evidence of the first applicant and her husband about their movements, his employment history, his time in other countries, his criminal history, and his use of aliases and different dates of birth, their use of multiple passports, their departure from Vietnam, and the reasons for police interest in their activities.

8. The Authority took into account, in considering the credibility of the first applicant and her husband, the difficulties faced by them, including the impact of the husband’s continuing detention and the emotional impact on the first applicant and her children.

9. The Authority, having regard to all the circumstances, was not satisfied the first applicant and her husband are credible witnesses. The Authority found that they had deliberately concealed significant aspects of their history, and omitted other equally important and recent aspects of their claims, including the husband’s imprisonment and deportation from the UK.

10. It was in those circumstances the Authority did not accept the husband was involved in clashes as Con Cuong Chapel in July 2012. The Authority did not accept the husband’s evidence that he was present at the Con Cuong in July 2012, or that he was beaten in the aftermath, targeted for questioning, repeatedly summonsed, interrogated or beaten in detention, extorted or forced to pay bribes to secure his release in July or August 2012 or at any other time. The Authority did not accept the first applicant and her family were intimidated, threatened with kidnap or other harm in connection with the first applicant’s husband’s claimed involvement at Con Cuong or any other activities. The Authority did not accept that the applicants faced other issues with the authorities due to this, such as needing to pay significant bribes to enrol her children in school. The Authority did not accept the claim that the cumulative impact of these events forced them to sell their property and leave the country.

11. The Authority was prepared to accept that the applicants may have payed low-level bribes to the authorities in the past due to the success of their business. The Authority was not, however, satisfied that they were ever seriously extorted or forced to pay high levels of bribes in connection with the business.

12. The Authority was satisfied that the first applicant’s husband is facing charges in Vietnam for involvement in people smuggling. The Authority did not accept that the applicants were extorted, forced to pay bribes, or that the first applicant and her children were threatened or otherwise harmed by the police, the Vietnamese authorities or hired thugs in connection with the husband’s charges.

13. Whilst accepting that the husband is facing smuggling charges, the Authority was not satisfied of, and did not accept, that the allegation made against the first applicant’s husband that he is a member of an organised crime group. The Authority was not satisfied the applicants are in any way at risk of a chance of harm on the basis that the husband is involved in such a group. Given the adverse credibility findings, the Authority did not accept the claims that the husband is being targeted by authorities through these charges for political or religious reasons.

14. The Authority referred to the smuggling charges and was not satisfied these charges are baseless or an attempt to target the first applicant’s husband for political, religious or other reasons. The Authority found there is no chance or a risk of harm on the basis of religion or any actual imputed connection to the Catholic Church.

15. The Authority was satisfied that the first applicant was not connected to people smuggling, nor would she be seen to have been associated in any way by the Vietnamese authorities or anyone else. The Authority did not accept that the applicants are at any real chance or risk of being arrested, interrogated, prosecuted or imprisoned under Article 275 of the Vietnamese Penal Code, or any other charges relating to people smuggling.

16. The Authority was not satisfied the first applicant’s husband’s charges give rise to a well-founded fear of persecution, or that the applicants face any real chance or risk of being harmed in connection with the charges against the applicant’s husband, or any other profile he may have with the authorities.

17. The Authority found the applicants left Vietnam legally using valid travel documents. The Authority was satisfied that any questioning the applicants may face on return to Vietnam would be brief and that they would not face detention, charges or other fines.

18. In relation to the Department’s data breach in 2014, the Authority was prepared to accept the possibility that the applicants’ details were obtained by the Vietnamese authorities and that this may disclose that the applicants sought asylum. The Authority did not accept that there is any chance or risk of harm to them on this basis.

19. The Authority found there is no real chance or risk of the applicants being harmed on return to Vietnam on the basis that they left the country illegally, as returnees or failed asylum seekers, or through any actual or imputed political opinion or profile for having applied for asylum or because they were in detention while in Australia.

20. The Authority was satisfied that the Vietnamese authorities’ interests in the first applicant’s husband stems not from their own travels to Australia, but to his activities in Vietnam. The Authority found the first applicant and her children would return to Vietnam as ordinary returnees with no criminal, political or religious profile. The Authority found there was no real chance of the first applicant or her children facing the investigation, arrest, detention or any other penalty. The Authority rejected the first applicant and her husband’s claims that the children would be forcibly removed from the first applicant.

21. The Authority acknowledged not having the husband with the applicants may give rise to some hardship for the family but did not accept that this would impact on the applicants’ ability to subsist or otherwise put them at vulnerability or at risk. The Authority found there is no real chance of the first applicant being extorted, threatened or otherwise seriously harmed as a result of any business she may commence or recommence on return to Vietnam.

22. The Authority was not satisfied there is a real chance the first applicant or her children would face serious harm for any of the reasons claimed, whether considered separately or in combination.

23. The Authority found the applicants did not meet the definition of refugee in s 5H(1) of the Act and that the applicants did not meet the criteria in s 36(2)(a) of the Act.

24. The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being returned to Vietnam from Australia, there is a real risk the applicants would suffer significant harm. The Authority found the applicants do not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 7 February 2017. On 10 May 2017, a Registrar of the Court made orders giving the applicants an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing the Court explained to the first applicant the nature of the hearing and the first applicant confirmed she understood the nature of the hearing as explained by the Court.

3. From the bar table the first applicant asserted that the Authority had made mistakes and unfairly treated her family. The first mistake identified by the first applicant was the Authority not believing her claims. The Authority provided logical and rational reasons for rejecting the credit of the first applicant and her husband, as summarised above. The Authority’s adverse findings were open on the material before the Authority as summarised above and the first applicant’s disagreements with the adverse credibility findings does not identify any relevant error by the Authority.

4. The first applicant referred to her husband being in detention. It is apparent that the Authority took into account that the first applicant’s husband may not accompany them back to Vietnam but nonetheless found that the applicants did not meet the criteria under the Refugee Convention in respect of complementary protection. Those adverse findings were open for the reasons given by the Authority as summarised above.

5. The first applicant referred to her children wanting to stay in Australia. This Court has now power to determine the matter on discretionary or compassionate grounds. This Court has no power to review the merits. The first applicant’s submissions in relation to her children on their desire to stay in Australia in substance invites the Court to engage in impermissible merits review. Nothing said by the first applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. The Assessor failed to properly consider all of my claims.

   2. The Assessor didn’t give me a chance to comment on one aspect of my claims.  

Ground 1

1. In relation to ground 1, no claim has been identified that the Authority failed to take into account or make dispositive findings in respect of that claim. Unparticularised, ground 1 is incapable of making out any relevant error by the Authority. The Court is satisfied on the material before the Court that the Authority conducted the review in accordance with the statutory criteria. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to ground 2, the Authority’s review of the application was done under Part 7AA of the Act. It is apparent from the Authority’s reasons that the delegate sought to explore the first applicant and her husband’s credibility and there is no new issue identified of a kind that might give rise to any obligation on the Authority to expressly consider exercising the powers under s 473DC of the Act.

2. The Authority was otherwise required under the legislation to determine the matter on the papers before the Authority, subject to the provisions of Part 7AA of the Act. The Authority was not required to invite the applicants to comment or to conduct a hearing in respect of the review under Part 7AA of the Act.

3. The Authority did give the applicants an opportunity to put on new information and submissions by the letter dated 6 September 2016 and no such documents were provided to the Authority. Ground 2 fails to make out any jurisdictional error.

4. As the application fails to make out any jurisdictional error the application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  31 May 2019