Anr17 v Minister for Immigration - [2019] FCCA 419

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANR17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 419

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider the risk of future harm to the applicant – whether the Authority failed to consider an integer of the applicant’s claims – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant:

ANR17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 73 of 2017

Judgment of:

Judge Street

Hearing date:

22 February 2019

Date of Last Submission:

22 February 2019

Delivered at:

Perth

Delivered on:

22 February 2019

REPRESENTATION

Solicitors for the Applicant:

Mr R Jaknke
Estrin Saul Lawyers

Solicitors for the Respondents:

Ms B Rayment
Sparke Helmore

ORDERS

The name of the first respondent be changed to “Minister for Immigration, Citizenship & Multicultural Affairs”.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDERS: 22 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 73 of 2017

ANR17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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 3 February 2017, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Vietnam and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 28 October 2012.
The applicant claimed to fear harm by reason of his religion and having attended the Con Cuong Church. The applicant alleged a particular incident occurred on 1 July 2012 at that church in which he was hit with a baton. The applicant alleged he was given a piece of paper requiring him to attend the police station, that he did not attend the police station and that his parents have been punished over the incident.
The applicant claimed to fear he would be harmed on return to Vietnam for reasons of his religion, actual or imputed political opinion, as a failed asylum seeker, his illegal departure from Vietnam, his involvement with the Viet Tan party in Australia and by reason of the data breach. On 19 December 2016, the delegate found that the applicants failed to meet the criteria for the grant of a Safe Haven Enterprise visa.
The Authority wrote to the applicant on 22 December 2016, explaining that the application for the visa had been referred by the Authority for review. The letter invited the applicant to put on submissions and new information. The Authority in its reasons identified the background of the application for review and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority expressly referred to a submission that was advanced on 11 January 2017. The Authority’s reasons identified the nature of the applicant’s submissions as not agreeing with the delegate’s decision and that the discussion reiterated and addressed claims made by the applicant during the protection application process. It was in that context that the Authority observed that it did not consider this to be new information within the meaning of s 473DC of the Act and had regard to this information.
The applicant’s submissions addressed the applicant’s Catholicism and the incident on 1 July 2012 and then had the heading “Political Opinion - Viet Tan in Australia” and contended that his participation in a particular protest in Australia was genuine and not to embellish his claims. The submission seeks to criticise the decision in relation to the potential surveillance that the Vietnamese authorities undertake in monitoring Viet Tan activities. There is a reference to the applicant having been imbued in Australia to feel safe to express his deeply held views in relation to issues such as the Formosa. That is a reference to a company in relation to environmental concerns.
The applicant’s submissions referred to the Formosa environmental disaster in Vietnam and said that if the applicant were to return to Vietnam he would not be able, nor should he be expected, to supress his passionately held views that make up his personal being and the applicant’s outlook on life. It was submitted that in order to avoid persecution, the applicant would have to supress his deeply held views. No such finding is made by the Authority. The Authority did not accept the submission on a fair reading of its reasons as a whole, that the applicant had to supress his views.
The submissions continued in that regard by annexing country information in respect of the suppression of people and it was contended that the additional information constituted exceptional circumstances within s 473DD of the Act that were made after the delegate’s findings and that there was no opportunity to provide the same. It is apparent from the Authority’s reasons that the Authority had regard to the submissions and the material provided in the submissions. The submissions then referred to the applicant being a failed asylum seeker who departed Vietnam illegally and addressed the delegate’s reasoning in that regard as well as addressing the data breach. The submission then referred to a delegation attending a particular detention centre and the cumulative effect of the claims and an alleged lack of procedural fairness of the delegate failing to consider these by rejecting the claims.
The country information in relation to the applicant’s fears concerning his political opinions was accepted by the Authority and the Authority had regard to as the supporting information which the Authority rejected under s 473DD(a) of the Act as it concerned information that predated the delegate’s decision.
The Authority summarised the applicant’s claims and addressed the claims relating to religion and identified having serious concerns about the applicant’s claims that approximately one week after the incident in Con Cuong Church, a policeman attended the applicant’s home and the applicant was given a summons requesting him to attend the police station. The Authority found it implausible that the applicant failed to mention the summons, specifically given that the summons predates his arrival and the entry interview. The Authority did not accept the applicant was issued with a summons by the police.
The Authority did not accept the applicant was moving between houses to avoid the police. The Authority was satisfied that the applicant was not of interest or being sought by the Vietnamese authorities, including the police prior to him departing Vietnam in 2012. The Authority did not accept that there is any basis for the applicant’s claims that there is a connection between his departure and the punishment of his family in Vietnam by the Vietnamese authorities.
The Authority was not satisfied that the payment of bribes by either the applicant or his family to Vietnamese authorities constitutes serious harm. The Authority found it would not result in a threat to their life or liberty, or result in serious economic hardship, threaten the applicant’s capacity to subsist or earn a livelihood or otherwise amount to serious harm as non-exhaustively defined in the Act.
The Authority accepted that the applicant participated in the incident at the Con Cuong Church on 1 July 2012, but was not satisfied that his activities as a practising Catholic would be considered on return as giving rise to the applicant being considered as being involved in acts of a political or religious activist by the state or that he would participate in such acts on return which would give rise to such a reception by the state.
The Authority was satisfied that the applicant would return to his home in Vietnam and that he would continue to be a regular member of the Catholic Church and would participate in masses and religious celebrations. The Authority was satisfied that the applicant would not face a real chance of harm on the basis of his religious practise on his return to Vietnam now and in the reasonably foreseeable future.
The Authority referred to there being some discrimination that had occurred in the past. The Authority was not satisfied that the discrimination or disadvantage the applicant described, and which he may again endure on return to Vietnam, including some employment barriers to government roles, would threaten his livelihood or impact on his capacity to subsist or otherwise constitutes serious harm. The Authority was not satisfied the applicant faced a real chance of harm on that basis on return to Vietnam now or in the reasonably foreseeable future.
The Authority then addressed under the heading “Claims Relating to Actual or Imputed Political Opinion” that the applicant had participated in a peaceful demonstration in Australia in respect of an incident involving a company called Formosa Ha Tinh Steel in 2016, that company being a subsidiary of the Taiwanese company Formosa Plastics, polluted the waterways in Vietnam causing a large quantity of fish to be killed. The applicant claimed that the demonstration in Australia against Formosa was organised by the Viet Tan group and this is the only demonstration he has been involved in since his arrival in Australia. The Authority noted the applicant has not claimed he was a member of any particular party including the Viet Tan group. The Authority accepted that the applicant had participated in one peaceful demonstration in Australia against Formosa which was organised by the Viet Tan group.
The Authority referred to having considered whether the applicant participated in the demonstration by the Viet Tan for the sole purpose of strengthening his claims for protection and referred to his protection visa interview in which the applicant explained that people in Vietnam were suffering because of the situation caused by Formosa and that he wanted to show his support for them.
The Authority referred to the fact that the applicant did not have any exposure to the Viet Tan in Vietnam, nor was he involved in any demonstrations or protests, having regard to the reasons provided by the applicant for his participation in a demonstration, the Authority was satisfied that the applicant had not participated in the demonstration ordered by Viet Tan for the purpose of strengthening his claims.
The Authority referred to the Viet Tan organisation being declared a terrorist organisation in Vietnam. The Authority referred to the absence of that organisation as being recognised as a terrorist organisation by certain western countries. The Authority referred to country information indicating that there are credible risks for people who associated with or are perceived to be associated with the Viet Tan in Vietnam. The Authority accepted that the applicant had participated in one demonstration organised by the Viet Tan in Australia. The Authority was not satisfied that this level of participation would be perceived to be an act of a political activist or an associate of the Viet Tan by the State or otherwise viewed adversely. The Authority found on the applicant’s owns statements that he is not a member of the Viet Tan group, nor has he propagandised, instigated others to join or has sponsored or sought sponsors for the group. The Authority found that there is no evidence before the Authority that the applicant has undertaken any activities which would perceive him to be an activist by the Vietnamese authorities.
The Authority was not satisfied that the applicant would be imputed to hold any anti-government political opinion or perceived to be associated with the Viet Tan or any other political group as a consequence of his participation in one demonstration organised by the Viet Tan in Australia against a company. It was in those circumstances that the Authority was satisfied the applicant would not face a real chance of harm on this basis on his return to Vietnam now or in the reasonably foreseeable future.
The Authority referred to the applicant being an asylum seeker, an illegal departee and referred to the data breach. The Authority was not satisfied the applicant has a well-founded fear of persecution on return. The Authority found the applicant failed to meet the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act.
The Authority was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Vietnam from Australia, there is a real risk that the applicant will suffer significant harm.
The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

The grounds

The ground in the amended application is as follows:
1.The Authority failed to consider the risk of harm the Applicant would face in Vietnam in the reasonably foreseeable future as a result of him expressing his political opinions in Vietnam in the future.
Particulars
a.The claim is referred to at CB 234.

Ground 1

Mr Jahnke of counsel, on behalf of the applicant, took the Court to the submissions that have been referred to above that were received by the Authority as well as to the transcript of the interview before the delegate in which the delegate sought to explore with the applicant whether the applicant had been involved in any political activism or involved in any political parties. It was in that context that the applicant referred to the demonstration in Perth which was organised by a group of people, being the Viet Tan, and that this was one or two months ago and in the context of the applicant wanting to protest the Formosa company in Vietnam and that this was the only demonstration that he had attended.
The delegate sought to explore with the applicant why he was willing to attend the protest and the applicant identified that there were a lot of people that suffered from the situation caused by Formosa and that he wanted to support his family and the people in Vietnam. The delegate said to the applicant that he obviously felt strongly about the issue with Formosa and the contamination and in that context asked would the applicant consider joining the Viet Tan for any other protests or if it was just about that incident specifically.
The applicant responded:
“At the moment it is too early for me to enrol for membership because I am a little bit too busy, but in future, after I learn more about them, I will apply to be a member of Viet Tan.”
The delegate then asked the applicant:
“So is there any other reasons you fear returning to Vietnam?”
And the applicant responded:
“I fear returning to Vietnam because of three reasons. Number 1, I was involved in the conflict with the police before. If I come back, my family will be put in a very hard situation. Second reason is I am sure that if I will be put in prison. Number 3, I think that my life will be end – will be ended in prison if the government – if the Vietnamese Authority could find a copy of my interview, my applications and the information I provided to the Australian government.”
The delegate sought to explore why the applicant feared being in prison and the applicant identified it was his illegal escape from Vietnam. Mr Jahnke submitted that the Authority failed to consider the risk of harm the applicant would face in Vietnam in the reasonably foreseeable future as a result of him expressing his political opinions in Vietnam.
The submissions continued that the applicant raised a claim in respect of his political opinion and that he would not be able to supress his passionately held views that make up his personal being and outlook on life. Mr Jahnke referred to the submissions in that regard that the applicant should not be expected to supress his passionately held views and that in order to avoid persecution or significant harm he would have to suppress this kind of deeply held conviction, which was not consistent with the case law. The footnote to those propositions identify that those propositions come from the submissions referred to earlier that were made to the Authority and which the Authority expressly referred to having regard to the same.
Mr Jahnke submitted that there was a failure to respond to a substantial, clearly articulated basis of the claim for a protection visa amounting to a constructive failure to exercise jurisdiction and Mr Jahnke submitted that the Authority was required to consider whether the applicant not voicing his opinion was by reason of his fear of persecution. The Authority on the face of its reasons, clearly took into account the applicant’s claims concerning his beliefs in respect of the company Formosa and the environment as well as taking into account the limited and singular peaceful activity in which the applicant had participated in Australia.
The Authority’s reasons are not to be read with a keen eye for error. The adverse findings by the Authority in respect of the applicant’s claimed fear of harm by reason of actual or imputed political opinion was dispositive of the applicant’s claim. I do not accept that there is an integer of the applicant’s claim or a material issue that required any finding of fact in respect of the applicant’s views in respect of the pollution caused by Formosa. I do not accept the reference in the transcript to what the applicant may possibly do in the future, read in context of the transcript as a whole, gave rise to an issue that required the Authority to address the consequences of the applicant joining the Viet Tan. No such claim fairly arose on the material before the Authority.
On a fair reading of the Authority’s reasons, the Authority has taken into account and accepted that the applicant generally holds views in relation to the environmental disaster in respect of Formosa. I do not accept that the Authority’s reasons should be read as making any finding that the applicant had to suppress his views in that regard in the context of the adverse finding by the Authority.
The Authority’s reference in the context of the applicant’s actual or imputed political opinions to the Formosa subsidiary of the Taiwanese company and the reason behind the applicant wanting to show support for the situation that had been caused, are consistent with the Authority making dispositive findings upon the whole of the applicant’s claims in respect of actual or imputed political opinions. The Authority’s reasons in that regard reflect, on a fair reading, an orthodox and comprehensive review of the applicant’s claims and a real and meaningful engagement with the applicant’s submissions. It was not necessary for the Authority to refer to every piece of evidence. There was no constructive failure by the Authority to exercise its jurisdiction. There was no failure by the Authority to consider an integer of the applicant’s claims. No jurisdictional error as alleged in ground 1 of the amended application as is made out.

Conclusion

Accordingly, the amended application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 22 May 2019