FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMU17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 844 |
| Catchwords: MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in setting aside and substituting a decision of the delegate – whether there was insufficient logical or evidentiary basis for the Tribunal’s findings – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 35A, 36, 45AA, 411, 476, div.2 of pt.7 Migration Regulations 1994 (Cth), reg.2.08F Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967) Other materials cited: |
| Cases cited: BIW17 v Minister for Immigration & Border Protection [2018] HCATrans 3 |
| Applicant: | AMU17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 72 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 14 March 2018 |
| Date of Last Submission: | 14 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Solicitors for the Respondents: | Ms D Watson, Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 72 of 2017
| AMU17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 23 December 2016. That decision was to set aside the decision to refuse to grant the applicant a Protection (Class XA) visa and to substitute a decision to refuse to grant the applicant a Protection (Class XD) visa.
Background
The applicant is a citizen of Vietnam, who arrived in Australia on 8 April 2013 and lodged an application on 25 June 2014 for a Class XA visa, that is, a permanent protection visa. The application for a protection visa was based upon the claim that the applicant feared harm if he returned to Vietnam from police and Vietnamese authorities on account of his Catholicism and associated activism. He also claimed to fear harm from the authorities on account of his illegal departure from Vietnam, as he had made a commitment not to leave the country for a second time, as well as his status as a returning asylum seeker, particularly given that his details had been made publicly available as a part of what has become known as the “Data Breach”, which occurred in February 2014 in respect of detainees’ personal information.
On 16 December 2014, a delegate of the Minster made a decision to refuse to grant the applicant a Class XA visa. However, by that time, pursuant to the power under s.45AA of the
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- Case
- [2018] FCCA 844
- Decision Date
CaseChat Overview and Summary
The court was required to determine two key issues. Firstly, whether the Tribunal had erred in its interpretation and application of Article 91 of the Code, specifically concerning the element of "fleeing abroad or defecting to stay overseas with a view to opposing the people's administration." Secondly, the court had to consider whether the Tribunal had made a jurisdictional error in finding no Refugee Convention nexus with the applicant's claims, given its earlier finding that there was a real risk of the applicant facing harm, such as a prison term for breaching Article 274 of the Code.
In relation to the first issue, the court found that the Tribunal had correctly distinguished between Article 91 and Article 274 of the Code. It noted that Article 91 contained a purposive element, requiring an intent to oppose the people's administration, which was absent in Article 274. The Tribunal's conclusion that the applicant had not committed any act suggesting he fled with such an intent was a logical inference from this distinction, and therefore, the complaint regarding Article 91 was rejected. Regarding the second issue, the court upheld the Tribunal's finding of no Convention nexus. The Tribunal's reasoning was based on the applicant's past experiences upon returning to his home country, where he did not face harm despite extended stays and subsequent illegal departures, other than a fine for illegal departure. The Tribunal concluded that these events were not instigated in response to his political activities, and therefore, his fear of being targeted for his political opinions, impugned political opinion, or religious belief, or as a member of a particular social group, was not justified. The court found that while the Tribunal's phrasing could have been more precise, its conclusion that there was no Convention nexus with the accepted real risk of harm was logically based on the evidence.
The court rejected both grounds of appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The problem with the argument, on the face of the material before the Court, is that there is a significant difference between the two Articles, and it was that difference that led the Tribunal to come to two different conclusions. Article 91 deals with “Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration” [1]. The emphasised part of Article 91 of the Code, the purposive part of it, does not appear in Article 274.[1] Emphasis added. The Tribunal noted that the applicant had not committed any act which would suggest that he could be viewed as having fled with a view to oppose the regime, and it was for that basis that it concluded that the likelihood of the applicant being charged under the Article was remote. That was a logical inference to draw from what I have called the purposive element of Article 91, which again as I have noted, is lacking in Article 274. Therefore, the complaint made in respect of [41] is rejected. The second particular focuses on the finding at [43] of the Tribunal’s reasons that there was no Refugee Convention[2] nexus with the applicant’s claims, in light of its findings at [42]. At [40] to [42], the Tribunal had accepted that there was a real risk of the applicant facing harm in the terms of a prison term for breach of Article 274 of the Code.[2] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the At [43], the Tribunal turned to consider whether there was a potential Convention nexus with harm that the applicant might face. It did so by analysing what had occurred to the applicant in the past when he had returned home. It found that “after the applicant returned to his home town from Ho Chi Minh City he did not face any harm despite staying for at least ten months”. In addition, after returning from work on a fishing trawler, “the applicant once again did not face any harm other than questioning about his whereabouts”, which the Tribunal found to have been because of his time abroad. The Tribunal then noted the applicant “subsequently departed illegally and returned once again to Vietnam at which stage he was fined for departing illegally”. On the basis of that sequence of events, the Tribunal did not accept that any of the actions by the police in respect of the applicant’s illegal departure were instigated in response to his participation in the 2006 protests, and, as such, it did not accept that the applicant’s fear of being targeted for his political opinions, impugned political opinion or religious belief was justified, and nor that he was a member of a particular social group. Those, in my view, constituted the logical bases for the conclusion that there was no Convention nexus with the applicant’s claims. Perhaps, more accurately, the Tribunal could have said there was no Convention nexus with the real risk of harm it had accepted, but in the context, there is no error in the slight infelicitous phrase used by the Tribunal. For that reason, I would reject the second particular of ground 2.