AMU17 v Minister for Immigration
[2018] FCCA 844
•14 March 2018
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 Migration Act 1958 (Cth), reg.2.08F of the Migration Regulations 1994 (Cth) had taken effect. Regulation 2.08F(1) relevantly provided that a valid application for a Class XA visa made before the commencement of the regulation by an applicant prescribed by sub-reg.(2) (which included the applicant) is, immediately after the regulation starts to apply in relation to the application under sub-reg.(3):
(a)taken not to be, and never to have been, a valid application for a Protection (Class XA) visa; and
(b)taken to be, and always to have been, a valid application for a Temporary Protection (Class XD) visa, made by the prescribed applicant.
The applicant relies upon the conversion regulation, namely reg.2.08F, to say that his Class XA visa application was invalid. That much may be accepted: see sub-reg.2.08F(1)(a). He goes on to argue that, for that reason, the decision of the delegate to refuse to grant that visa was made in contravention of the Act and so was invalid in itself, and as a consequence, the Tribunal, on its review of that decision, was limited to setting aside that decision. Essentially, the argument is based upon, as I have said, the invalidity of the application for the Class XA visa. However, the argument does not grapple with the fact that at the same time as making the application for the Class XA visa invalid, the regulation made the same application a valid application for a Class XD visa. Such an application was an application for a protection visa.
A protection visa is, pursuant to s.5, one that is defined by s.35A of the Act, which includes, relevantly, s.35A(3), a class of temporary visas known as temporary protection visas, which includes, when regard is had to the Regulations, a Class XD visa. That means that the decision of the delegate was, in fact, a decision to refuse a protection visa. Therefore, under s.411 of the Act, the decision was a pt.7 reviewable decision.
As there had been a valid application made in accordance with the provisions of div.2, pt.7 of the Act, the duty on the Tribunal was to review the pt.7 reviewable decision. Amongst the powers of the Tribunal on review of a pt.7 reviewable decision is to set the decision aside and substitute a new decision. That is what occurred here.
In Minister for Immigration & Border Protection v BSD17 [2017] FCCA 2888, Judge Vasta, effectively, came to the same conclusion. While his Honour at [33] referred to the Tribunal as having an application for a Class XD visa before it, what I take his Honour to have meant is that the Tribunal had before it an application for review of a decision in respect of an application for a Class XD visa. Nevertheless, his Honour’s reasoning is not clearly wrong. Indeed, it aligns with my reasoning, as I have briefly explained.
Further, it is, with one exception, the same as the reasoning given by Gageler J in BIW17 v Minister for Immigration & Border Protection [2018] HCATrans 3, for refusing an application for interlocutory relief. His Honour explained, at lines 175 and following, what I have attempted perhaps more clumsily to explain. The difference between what was before his Honour and what was before me is that, as indicated at line 205, the applicant’s argument accepted the validity of the visa application.
As I have found that there was a valid visa application and, therefore, an obligation on the Minister to consider that application, and there was indeed a decision made in respect of the application, albeit wrong-headedly in respect of the wrong class of visa, my reasoning aligns with that of Gageler J. For all of those reasons, the applicant’s argument that the Tribunal had only limited jurisdiction, if any, must be rejected.
I return then to the chronology. The Tribunal, as initially constituted, made a decision on 23 October 2015. That decision was set aside by an order made in this Court on 8 September 2016, with the Tribunal having been found, and it was agreed by both parties, not to have reasonably exercised or to have failed to exercise its power to adjourn the review. The matter was remitted to the Tribunal for further consideration.
The Tribunal conducted a hearing on 12 December 2016, at which the applicant gave evidence, and on 23 December 2016, it made its decision, which, as I have said, was to set aside the decision of the delegate and to substitute a decision to refuse to grant the applicant a Class XD visa. The Tribunal did so, having addressed the matters that I have addressed, arising by operation of s.45AA and reg.2.08F: see [3] of its reasons.
Tribunal’s decision
The reasons of the Tribunal have been accurately summarised by the first respondent in his written submissions at [5] to [11], which I set out below:
5.The Tribunal accepted that the applicant was a practising Catholic and member of a Catholic youth group, and that in 2006 the applicant had participated in protests and been briefly detained on suspicion of hitting a police officer. However the Tribunal did not accept that the applicant was held in detention for 2 nights or was beaten by police, due to the exclusion of those claims from his entry interview, first statutory declaration and interview before the delegate: [27]–[29].
6.Based on the answers given by the applicant at the hearing, the Tribunal did not accept the applicant’s claims that he was blacklisted or followed by police for his involvement in the protests, or that that the questioning by the police of the applicant on his return to his home town in 2011 after several years overseas was related to those protests: [30]–[33].
7.The Tribunal accepted that the applicant fled Vietnam to Indonesia in April 2012 and returned to Vietnam voluntarily in December 2012. It accepted that the applicant received a fine of 20 million Dong by police, without making a finding as to whether it was legitimate or not, signed a document stating that he would not leave Vietnam illegally again, was slapped by police on several occasions and received a number of phone calls from authorities: [36].
8.The Tribunal accepted that the applicant’s personal details were part of the data breach and that information about the data breach is available to the Vietnamese government: [38].
9.With reference to the above, and to country information, the Tribunal found that the applicant would not be treated as a political or religious activist, and did not have a genuine fear of being targeted for his political opinion or religion. The Tribunal found that the applicant faced a real risk of being charged under Article 274 of the Vietnamese Penal Code for his illegal departure of Vietnam. However, with reference to the Department’s PAM3 Guidelines and country information, that did not amount to significant harm: [40]–[50]. The Tribunal further found, by reference to country information, that the applicant did not face a real chance of serious harm or real risk of significant harm due to his being a returning asylum seeker: [51]–[56].
10.It also found, based on the evidence before it, that the applicant did not face serious or significant harm in the pursuit of his religion (as distinct from protest activity): [57]–[60].
11.The Tribunal concluded that it was not satisfied that the applicant’s circumstances, considered both individually and cumulatively, were such that the applicant was a person to whom Australian owed protection obligations: [61]–[65].
(Without alteration)
Consideration
In his amended application, the applicant raises two grounds. I have dealt with the first ground which considered the operation of the conversion regulation, and for the reasons that I have given, that ground will be rejected.
Ground 2
The second ground, as it appears in the application, is that “there was insufficient logical or evidentiary basis for the decision by the Tribunal to affirm the decision by the delegate to deny the applicant a protection visa”. This ground is focused upon four separate findings, in respect of which it is alleged in each case that there was insufficient logical or evidentiary basis for the Tribunal to make their finding.
Particular (a)
The first of those four findings is at [41] of the Tribunal’s reasons, where it found that the likelihood of the applicant being charged under Article 91 of the Vietnamese Penal Code was remote. I set out [41] below:
The harm that the representative claims the applicant faces is articulated in Article 91 of the Vietnamese Penal Code:
Article 91 – Fleeing abroad or defecting to stay overseas with a view to opposing the people's administration
I find that the likelihood of the applicant being charged under Article 91 to be remote as he has not committed any act which would suggest that he could be viewed as having fled with a view to oppose the regime. Furthermore, he departed Vietnam the second time legally. Instead, I find that there is a real chance and a real risk that the applicant would be charged under Article 274.
Article 274 – Illegally leaving or entering the country; illegally staying abroad or in Vietnam
Those who illegally leave or enter the country or stay abroad or in Vietnam, have already been administratively sanctioned for such act but continue the violation, shall be subject to a fine of between fine million and fifty million dong or a prison term of between three months and two years.
This view is reinforced by the accepted fact that the applicant received a 20 million Dong fine when he returned from Indonesia the first time rather than a penalty of between three to five years as is stipulated under Article 91. In considering the penalty under Article 274 I note that the applicant made a commitment not to depart illegally, was fined and didn't pay it, that while he departed legally he remained abroad for a period that I accept would not be viewed as legal and considering the above mentioned High Court decision regarding the data breach I find that the applicant would face a prison term.
(Citations omitted, error in original)
In his oral submissions today, Counsel for the applicant explained that the real complaint with this particular is that in [41], the Tribunal dealt with or purported to deal with both Article 91 and Article 274 of the Code. However, while rejecting the possibility of the application of Article 91, it found that there was a real chance of the applicant being charged under the latter Article. He argued that given that the two Articles were almost identical, there was insufficient logical basis for the different findings.
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.
Particular (b)
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.
Particular (c)
Particular (c) of ground 2 focuses on the Tribunal’s finding at [46], namely, that in light of the Department’s PAM3 Guidelines[3] and the country information on prison conditions, there was an insufficient basis for its assessment of the harm that might come to the applicant.
[3] PAM3: Refugee and humanitarian – Complementary Protection Guidelines’ and ‘PAM3: Refugee and Humanitarian – Refugee Law Guidelines’.
What the Tribunal did in [46] was to assess the complementary protection criterion in sub-s.36(2)(aa) of the Act by reference to the likely conditions that the applicant might face if, as accepted by the Tribunal, he was to be sentenced with a term of imprisonment for his illegal departure, in breach of Article 274 of the Code. The country information which is set out at [46] went some way to establishing that the conditions in prison would not be comfortable, to put it lightly. I set out [46] below:
The Department’s PAM3 guidelines note that ‘Prison conditions may constitute cruel, inhuman or degrading treatment or punishment if they seriously or systematically deprive a detainee of human dignity.’ Assessing this requires a consideration of the specific circumstances including that of the individual. I have reviewed country information on Vietnam’s prison conditions which are summarised herewith:
a.‘Prison conditions were austere but generally not life threatening. Overcrowding, insufficient diet and unclean food, lack of access to potable water, and poor sanitation remained serious problems.’
b.‘Prisons in Vietnam remain overcrowded. Inmates often share cells with up to 40 others and have limited access to recreational facilities. Inmates are forced to work and are punished if they refuse. Food rations are basic and prisoners rely on supplies brought in by family members to supplement their diet. There is no independent inspectorate of prisons. Any reported abuses are dealt with internally by the Ministry of Public Security.’
c.Prisoners will be categorised based on the crime involved, their sentence, age, gender, health and other individual factors. Prisoners normally share cells with about 20-40 inmates. Each prisoner has a space of 2 square meters for their own sleeping area. Each big cell is equipped with a TV and radio. Foreign prisoners are encouraged to learn Vietnamese and teachers are provided. On food and drink: each prisoner is entitled to 17kgs rice, 0.7kgs meat. 0.8kgs fish, 0.5kgs sugar, 1 kg salt, 15kgs vegetables and sufficient drinking water per month. Meals will be provided by the prison. On clothes and toiletries: each prisoner is entitled to 2 sets of prison uniform, 1 blanket, 1 bed net, 2 items of underwear, 2 towels, 1 sedge mat, 2 pairs of plastic sandals, 1 cap or conical hat, 0.3kgs soap.
I do not accept that the conditions listed above and those described through submissions made by the representative for the prison population of Vietnam in of themselves amount to cruel or inhuman treatment or punishment nor degrading treatment or punishment.
(Citations omitted)
The applicant argued that in light of those conditions which would appear to have been accepted by the Tribunal, there was no logical basis for the Tribunal to conclude that the treatment of the prison population in general did not amount to cruel or inhuman treatment or punishment, nor degrading treatment or punishment.
The problem with that argument is, first, that what is involved in the determination of whether certain conduct will fall within the definition of significant harm, which is defined in s.36(2A) of the Act, is, essentially, an evaluative, qualitative task. Thus, it is not sufficient for the applicant to say that, in light of the material, the Tribunal was wrong to find that that treatment would not amount to cruel or inhuman treatment or punishment, nor degrading treatment or punishment, unless he can establish that as a matter of law, that would be the case, however, that was not the argument he put.
Given the fact that this assessment is an evaluative one, which like persecution in the definition of a refugee, is one of fact and degree, I can discern no error in the conclusion itself by the Tribunal in the last subparagraph of [46], nor indeed in its approach to that conclusion. I add ‘its approach’ because the Tribunal clearly had regard to information that was before it that was relevant to the issue, including the Department’s Guidelines and other authoritative statements about what might constitute torture, inhuman or degrading treatment or punishment: see [45]. For that reason, I reject the complaint found in [2.c] of the application.
Particular (d)
In [2.d] of the application, the applicant says that:
In light of the country information regarding the torture of failed asylum seekers in the Vietnamese prison system at [50]; and the finding at [53] that given the data breach, the applicant would face a prison term; there was an insufficient logical or evidentiary basis for the Tribunal to find at [54] that the “applicant’s fear of persecution for the Convention reason of membership of a particular social group, namely, failed asylum seekers of Western countries, does not meet the real chance test.” Nor was there logical or evidentiary basis for the Tribunal to find that the applicant does not face a real risk, of significant harm related to his seeking asylum in the reasonable and foreseeable future was he to return to Vietnam.”
I set out [50] of the Tribunal’s reasons below:
I have also considered whether the applicant would face a real risk of torture within the Vietnamese prison system. Country information notes that the Vietnamese authorities have signed the Convention Against Torture and Other Cruel or Degrading Treatment or Punishment in 2013 as well as the National Assembly having passed a resolution ratifying the Convention on 28 November 2014. Nevertheless, torture has been reported to have occurred in Vietnamese prisons. The representative submitted a report Vietnam: Torture and Abuse of Political and Religious Prisoners as evidence that the applicant faces torture. In reviewing the report I do not agree with this conclusion. The relevant section lists the types of activities that led citizens to be imprisoned and become victims of torture. The applicant may claim only to fall under the final category, namely people who have sought asylum abroad for political or religious reasons. I will address this specific concern in the following section. Otherwise the same report notes that there are approximately 600 prisoners in Vietnam who the report considers at risk of torture. I find that were the applicant to be imprisoned he would be seen as having broken the law no differently to the 136,000 people in prison and not to add to the ranks of the 600.
(Citations omitted)
The applicant added to this ground in oral argument that the Tribunal had somehow erred in its application of what is known as laws of general application, noting that the Tribunal had before it and accepted information that approximately 600 prisoners were considered at risk of torture. The problem with both of these grounds is that it relies on only a partial reading of [50] in the context of the balance of the reasons.
In [50], the Tribunal had regard to information concerning the risk of torture and noted, in particular, that the report that referred to that risk listed the types of activities that led citizens to be imprisoned and to become victims of torture: see line 9 of [50][4].
[4] At page 325 of the Court book.
The Tribunal then noted that the applicant could only claim to fall under the final category, namely, people who had sought asylum abroad for political or religious reasons. It then noted that it would address that concern in the following section and did so.
For the purposes of [50], however, the Tribunal continued to note that approximately 600 prisoners in Vietnam were considered at risk of torture. But the Tribunal found that the applicant, if he were imprisoned, would be seen as having broken the law no differently to the remaining 136,000 in prison and not amongst those 600 who would be at risk.
Therefore, within [50], it is clear that the basis of the Tribunal’s conclusion was not a law of general application at all. What it was considering was a country report about the circumstances in prison and the risk of torture being inflicted upon certain types of prisoners. For the purpose of [50], the Tribunal was not satisfied that the applicant would fall within that class and, therefore, he did not fall within the class of people who would be at risk of torture. That reason was open on the material before the Tribunal and clearly logically based upon that.
The Tribunal went on to consider the effect of the applicant having sought asylum, and based upon country information, it noted at [54] that the applicant would not be distinguished from general groups of returnees and given his background profile of seeking asylum in a western country, it did not believe he would be detained for an extended period, but would be released shortly after being interviewed without being harmed. Once again, having had regard to material relied upon by the Tribunal, there was nothing illogical or irrational about that finding, and it reveals that in conjunction with [50], it had regard to each of the claims.
One further matter may be noted, that is, that one of the principles relied upon by the applicant to support the claim that the Tribunal had fallen into jurisdictional error was that it may constitute jurisdictional error for a Tribunal to fail to consider a relevant matter, or to fail to consider relevant material in a way that affects its exercise of power. He relied in particular on the decision of Robertson J in Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317, in particular at [96]. I do not see how that principle applies in this case where, by reference to the paragraphs that I have referred to above, the Tribunal plainly referred to each of the applicant’s claims.
If it is intended to argue that the Tribunal erred, in the manner suggested by Robertson J, because it rejected those claims, then that does not amount to jurisdictional error, but, rather, a contention that the Tribunal ought to have come to a different conclusion. That is not a matter that excites the jurisdiction of this Court under s.476 of the Act, and so that argument too must be rejected.
Conclusion
I am not satisfied that the Tribunal’s decision is affected by jurisdictional error, and the application will be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 11 April 2018
Status of Refugees (1967).
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