APA15 v Minister for Immigration

[2016] FCCA 933

FEDERAL CIRCUIT COURT OF AUSTRALIA

APA15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 933

Catchwords:
MIGRATION – Judicial review – protection visa – claims that factual finding with respect to applicant’s ability to obtain household registration in Vietnam.

Legislation:

Migration Act 1958 (Cth), ss.30, 31, 36, 42(1), 477(1)

Re Minister for Immigration and Cultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
NAHI v Minister or Immigration and Multicultural an Indigenous Affairs [2004] FCAFC 10
Lee and Minister for Immigration and Indigenous Affairs [2005] FCA 464
SZRRN v Minister for Immigration and Citizenship [2014] FCA 77
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 547
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24

Applicant: APA15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 892 of 2015

Judgment of: Judge Harland

Hearing date: 1 March 2016

Date of Last Submission: 1 March 2016

Delivered at: Melbourne

Delivered on: 16 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Nguyen

Solicitors for the Applicant: Winstan Lawyers

Counsel for the Respondents: Ms Gory

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the application for judicial review filed on 27 April 2015 be dismissed.

1. That the Applicant pay the First Respondents costs in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 892 of 2015

APA15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants filed an application for a Protection (Class XA) visa on 14 June 2013. The applicants are a female Vietnamese woman and her two young children.

2. The delegate handed down a decision on 26 May 2014. The applicant reviewed that decision and the Tribunal handed down its decision affirming the delegate’s decision on 23 March 2015. The applicant filed an application for judicial review on 27 April 2015. She filed her application within the time frame: see s.477(1) of the Migration Act1958 (Cth) (“the Act”).

3. A Registrar made the usual directions on 19 August 2015. The applicant has not complied with those directions and has not filed any written submissions. This is not unusual when a person does not have the assistance of a lawyer.

4. The application sets out the following grounds for review:

   a)The decision of the Tribunal:

   i)Is affected by an error of law; and

   ii)Denied the applicant procedural fairness.

   b)The applicant is currently seeking a legal merits assessment from Victoria Legal Aid.

5. The grounds are so vague that they do not disclose a jurisdictional error.

Background

1. The applicant married on 19 July 2000 in Vietnam. Her then husband sponsored her to come to Australia. She separated from her husband in February 2008.

2. The applicant has two children born on 1 February 2009 and 20 July 2013. The children have different fathers, neither of whom are involved in their lives.

3. In her application for protection visa the applicant said she feared that she and her children would suffer serious harm if she was forced to return to Vietnam as a single mother who has been living outside of there now for a long time. She said her children would suffer harm as they could not have Vietnamese citizenship. She says after she and her former husband married they applied for several visa’s and finally came to Australia in 2006. She says her husband was controlling and they moved around a lot which meant they did not have an address to prove that they were living together and did not attend all of their interviews with the Department of Immigration. Her application for a permanent visa was refused. She says the husband threatened to have her sent back to Vietnam and she left him shortly afterwards.

4. The applicant had a brief relationship with a man she met after she left her relationship and became pregnant with her first child.

5. About two years later she met another man who was visiting Australia they began a relationship and she became pregnant. Her partner was arrested and placed in immigration detention. She came to the attention of the Department when she visited him in detention.

6. The Tribunal member accepted the applicant’s evidence that she was not able to contact the father of her oldest child and that the father of her youngest child lives in Vietnam as a fisherman and was unable to provide financial support.

7. The applicant says she is afraid that her daughters will not be able to access education and other basic services in Vietnam as they will be undocumented and without household registration. Household registration is required in order to access basic services. She says her household registration was cancelled a long time ago.

8. She says that her mental health would deteriorate if she is unable to access services. She also said that she feared that her ex-husband and his family would cause problems if she went back to Vietnam.

The Legislation

1. The Full Court of the Federal Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 summarises the legislation at [65] to [72] as follows:

   The Migration Act provides for the circumstances in which a person who is not a citizen of Australia (a non-citizen) may enter Australia.

   It provides, subject to certain exceptions that are not here relevant, that a non-citizen must not travel to Australia without a visa that is in effect: s.42(1).

   The Act provides for classes of visas: s.31.  Visas may be permanent or temporary: s 30.  One class of visa is a protection visa: s.36(1).  The criterion for a protection visa is provided for in s.36(2).  It relevantly provides:

   (2)    A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …

   Section 36(2)(a) relates to a claim for protection by a non-citizen relying upon Article 1A(2) of the Refugees Convention, which defines a refugee as a person who:

   … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a political social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   If a non-citizen is a person who has a well-founded fear of persecution for a Convention reason and satisfies the other criteria of Article 1A(2) of the Refugees Convention, that non-citizen will be entitled to a protection visa and therefore to remain in Australia as a lawful non-citizen.

   Section 36(2)(aa) was first introduced into the Migration Act on 24 March 2012. It recognises that a non-citizen, who is not entitled to a protection visa because the non-citizen cannot satisfy the criteria in Article 1A(2) of the Refugees Convention, may be entitled to a protection visa because of Australia’s other protection obligations under the CAT or the ICCPR.

   If a non-citizen makes a valid application for a protection visa, s.36(2) envisages the Minister will proceed in the following order.  First, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations under the Refugees Convention.  If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa.  If the Minister is not so satisfied, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen’s removal from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.  If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa.  If the Minister is not so satisfied, the non-citizen, subject to any rights of review, will have exhausted the non-citizen’s rights to obtain the grant of a protection visa.

   Paragraphs (a) and (aa) of s.36(2) recognise that Australia has obligations to any non-citizen who satisfies one of those paragraphs to allow those non-citizens to remain in Australia free from the persecution or the harm that they would suffer by being returned to their country of nationality or any receiving country.

The Tribunal decision

1. The Tribunal member records he listened to the recording of the delegate’s interview with the applicant and also refers to the written submissions her representative provided in support of her protection application. The Tribunal member recorded in summary her claims were that there was a real chance of her suffering serious harm if she returned to Vietnam for the following reasons:

   a)Fear of her ex-husband and his family;

   b)Lack of family support because of the loss of face they would feel if she returned;

   c)She and her children are undocumented without household registration and access to basic services;

   d)The risk  of her children being trafficked because of their age; and

   e)Being unable to access medical services for treatment of her depression.

2. The delegate found that the applicant was credible but was not satisfied that the country information supported her claims.

3. The Tribunal member records that the applicant provided written submissions in support of her application for review dated 11 December 2014. She also provided a statutory declaration where she spoke about her family circumstances. She also provided other supporting documents. She provided further written submissions before and after the Tribunal hearing.

4. The Tribunal member adjourned the first hearing as he was concerned that the presence of the applicant’s daughters was distracting for the applicant. He adjourned the hearing to a time when the applicant could arrange for someone to mind the children.

5. At the first hearing the applicant told the Tribunal member that she had not been able to establish whether or not the oldest daughter held Australian citizenship and she had sought the assistance of the child for the Child Support Agency in locating him and they were unsuccessful.

Fear of her ex-husband and her family

1. The applicant said she was afraid that if she returned to Vietnam her ex-husband or his family would bring harm to her. She says she does not know where her ex-husband is. His brothers live in a village nearby to her family. The Tribunal member pointed out that she separated from husband some six and half years before. The applicant said her younger sister had overheard a conversation six months before, where relatives of ex-husband living in their home village said his family would harm her and the children if they returned.  The Tribunal member did not accept that there was any risk of harm from her ex-husband or his family.

2. The Tribunal member found that the applicant’s evidence about the risk of harm by her ex-husband and all his family lacked specificity and were not credible.

3. The conclusion the Tribunal reached based on the evidence before it was open to it on this issue.

Lack of family support

1. The Tribunal member summarised the applicant’s evidence for the second hearing. She has four brothers and three sisters living in Vietnam. The younger sister is at high school and lives with their parents. The other siblings are married.

2. The applicant said she could not return to live with her parents in Vietnam because they told her that they had allowed her to go to Australia to marry and she should stay in Australia. She said she was afraid that her parents would hit her and did not accept their daughter anymore. She said her father hit her when she was young but also as an adult. The applicant conceded she had not said this to the Tribunal previously or to the Department.

3. The applicant says she speaks to her youngest sister by telephone and Internet about once a month and speaks to her parents every few months. She says she does not have any contact with her other siblings.

4. The Tribunal member then turned to the issue of household registration. He accepted that the applicant’s registration would have been cancelled six months after she left Vietnam.

5. The Tribunal member put the country information to the applicant which did not support her claims about being difficult to obtain household registration once a person has been living overseas. He said that the country information indicated a single mother and that her children face a degree of discrimination in Vietnam but that this did not amount to a level of serious or significant harm. This is because the country information did not suggest that those living outside of Vietnam in a Western country for a significant period of time or having unsuccessfully sought asylum, faced a real chance of suffering serious or significant harm upon their return to Vietnam. They would not be imputed with the particular political opinion critical of the Vietnamese government only because they lived outside Vietnam for a long period of time.

6. The Tribunal member referred to her evidence about her family and said that until the hearing her evidence about her family was to refer to her family as being cold towards her and her relationship with them, she did not state that her family would not support her. He considered that if the family objected strongly, that she says they did, they would have told her that in the years since she separated from her husband and her children. He found that if they objected personally they would not have stayed in contact with her.

7. The Tribunal member records that the applicant was represented when she prepared the visa application, from before she was interviewed by the delegate and with respect to the application for review therefore would have been advised about the issues relevant to her claims for protection. He found that her claims that her father had been violent towards her had been fabricated as this was not raised before the hearing.

8. The Tribunal member found that it was most likely that the applicant remained on her family’s household registration until she left Vietnam given the length of time between her marriage and the dates she left for Australia. He found that the applicant would be able to obtain household registration for herself and the daughters soon after returning to Vietnam.

Being undocumented

1. The Tribunal member advised the applicant that he would be proceeding on the basis that her children were entitled to Vietnamese citizenship by consent. The applicant said she understood that her daughters are Vietnamese citizens.

2. The applicant said that if she went to live in another part of Vietnam she would be afraid because she would not be able to complete the necessary paperwork so as to enable her and her children get household registration and access services. She said that she would be interrogated like she was a criminal returning after seeking asylum in Australia.

3. The Tribunal member told the applicant they should be able to obtain evidence of her children’s Vietnamese citizenship through the Vietnamese Embassy in Australia as well as in Vietnam.

4. The applicant did not think her parents would be able to reregister her and her children on their household registration even if they wanted to because the children do not have Vietnamese birth certificates and she would not be able to show that her children were born in Vietnam. The Tribunal member told the applicant that Vietnamese people born overseas are able to obtain documents proving their citizenship either at a consulate outside of Vietnam or once they return to Vietnam. The Tribunal said that if she was able to show evidence to the contrary he would consider it.

5. The Tribunal found that the applicants would not be undocumented and found that they would not be denied access to government services because they do not have household registration or any other reason based on the country information.

Poverty and the risk of being trafficked

1. The applicant said she feared her children would be discriminated against as being children of a single mother. The Tribunal accepted that the applicants would be subjected to some ostracism and discrimination but not such that it would amount to a real chance of harm for a Refugee Convention reason.

2. The Tribunal member accepted that some children living in poverty were exposed to forms of exploitation including trafficking  though not all children living in poverty face that risk.

3. The Tribunal acknowledged that the applicants may suffer discrimination and ostracism but that this did not amount to serious harm under the Act

Being unable to access medical services

1. The applicant confirmed that she is still taking antidepressant medication and said she did not think she would be able to afford to get that medication in Vietnam and did not know if any organisation could assist her in that respect.

2. The Tribunal member stated at [77] and [78] of the CB that he had real concerns about the applicant’s credibility. He took into account her psychologist reports and her anxiety and depression that found that they did not explain his concerns with her credibility.

3. Further advice is that the country information had suggested that she would be able to access medication that would not be deliberately denied mental health treatment.

Mental Health

1. The Tribunal was concerned with the mother’s mental health and the reports from her psychologist both in the context of her recall and ability to give evidence and also in terms of access to medical services if she returned to Vietnam.

Failed asylum seekers.

1. Based on the country information the Tribunal was not satisfied that the applicant would face a real chance of harm upon their return to Vietnam because of being failed asylum seekers who have lived in a Western country for a long period

2. The Tribunal member then considered whether or not Australia had the obligations under the complementary protection criterions they did not find that they were satisfied either.

Issues argued before the Court

1. The applicant had the assistance of a pro bono lawyer at the hearing.  He submitted that the findings of fact with respect to family support and risk did not support the conclusions the Tribunal reached.

2. The applicant did not pursue a procedural fairness argument at the hearing. This argument could not have been sustained in light of the detailed written submissions the applicant provided at various stages before the Tribunal hearing and after the hearing before the decision was handed down. The applicant was also given an opportunity to meaningfully participate in the Tribunal hearing with the Tribunal member adjourning the hearing on his own motion when he thought the children were too distracting to the applicant at the first hearing. The Tribunal member also indicated at [60] that he would consider any submissions showing evidence that Vietnamese citizen born overseas being unable to gain household registration. There is no indication that she made such a request.

1. Quite properly the applicant’s legal representative conceded that the children’s citizenship is not in issue. This issue is addressed [58] of the Tribunal’s decision.

2. The applicant’s argument at the hearing focused on her ability to obtain household registration.

3. He further submitted that the Tribunal should have had regard to the country information regarding the main consideration which was the country information about household information.

4. The applicant’s argument is that the Tribunal should not have been satisfied that the applicant would be able to secure a household registration because the finding is that the applicant will have family support was not open to it on the evidence. The applicant’s argument strayed into a merits argument during the course of submissions on several occasions although Mr Nygugen was at pains to describe it as a failure to consider the applicant’s claims. That argument is not made out when one examines the Tribunal’s reasons and the detailed submissions before it. The Tribunal refers to the submissions at [19] – [24]. The decision refers to specific aspects of the submissions and the country information the submissions refer to. Any suggestion that the Tribunal failed to consider the whole of the applicant’s claims must be rejected.

5. The clearest example of this is the applicant’s argument with respect to the applicant’s claim that her father was physically abusive. The Tribunal’s findings on this issue are set out at [81]. The applicant’s evidence about this is set out at [51]. At [82] the Tribunal found that the applicant had chosen to fabricate evidence with respect to her father given the lateness in raising it as an issue particularly noting that she was represented from the period before she was interviewed by the delegate and detailed submissions were filed on her behalf. The Tribunal member said:

   “I find that she has chosen to fabricate this claim about how her father mistreated her in Vietnam in an attempt to strengthen the applicants’ claims to be owed protection in Australia. I give significant weight to her willingness to do so in my assessment of credibility generally, which I find to be very poor.”

6. The applicant’s legal representative argued that the finding that the applicant had fabricated the claim was too strong. This is really a challenge to the weight the Tribunal placed on the applicant’s evidence with respect to this issue. It is clear from the Tribunal’s reasoning that the Tribunal was referring to the applicant’s claim with respect to her father. That finding was open to it on the evidence. The weight the Tribunal places on evidence is also a matter for the Tribunal and not this court.[1] The argument with respect to the applicant’s father is really inviting the Court to conduct an impermissible merits review.[2] It is clear from the Tribunal’s reasoning on this issue that it considered the evidence before it and reached the conclusion on the evidence before it. That is the task the Tribunal is required to undertake. Having found that the applicant had fabricated the claim with respect to one issue was open to the Tribunal to be critical of her credibility generally. The Tribunal had the benefit of hearing her evidence. It is for the Tribunal to make assessments about an applicant’s credibility. It has often been said in the authorities that the Tribunal is not obliged to accept an applicant’s evidence uncritically.[3]

   [1] See NAHI v Minister or Immigration and Multicultural an Indigenous Affairs [2004] FCAFC 10. Lee and Minister for Immigration and Indigenous Affairs [2005] FCA 464 at [27].

   [2] See SZRRN v Minister for Immigration and Citizenship [2014] FCA 77 at [44].

   [3] Ex Parte Durairajasingham (2000) 168 ALR 407; Kopalapillai v Minister for Immigration and multicultural affairs (1998) 88 FCR 547

7. The applicant’s representative was also critical of the Tribunal’s references to the applicant’s evidence as being “vague and generalised”. He said this was not justified given that she gives consistent evidence repeatedly in her submissions and in evidence before the Tribunal. Counsel for the Minister argued that the fact that something is repeated and consistent does not answer the issue with respect to it being vague and generalised and points out that the substance of the applicant’s claim is accurately set out in [80].

8. When one examines the applicant’s submissions and the Tribunal’s decision the applicant provides little detail about her family. The decision refers to that information. The applicant is really disagreeing with the weight the Tribunal gave that evidence. This is a matter for the Tribunal not the Court.[4]

   [4] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291-2

9. Counsel for the Minister says that the applicant would need to satisfy the unreasonableness to succeed. The applicant’s representative picked up on this in submissions in reply.

10. The applicant referred to page 220 of the CB and the extract of Article 26 which addresses household registration books granted to individuals.  Article 26 sets out the categories of individuals who can be granted a household registration book. The applicant says she did not fall within category 1A which are persons who have domiciled independent from their families because she does not have any financial means which would enable her to rent a property.

11. The only category the applicant could satisfy would be under Article 27 which addresses separation of the household registration book which would require the head of her household, being her father to provide written consent to her to have a separate registration book. Prior to her leaving Vietnam the applicant was a member of her family’s household was included the registration book. It is apparent from this issue of whether or not the applicant can gain household registration depends on whether or not she has family support.

12. The Tribunal had found that the applicant did not have family support then her other claims of harm being subsistence living and the risk of trafficking particular with respect to her children would have merit. However as the Tribunal was satisfied the applicant would have family support these did not arise. It would appear from a reading of Article 27 that even if the applicant’s family could not or would not provide accommodation the family could consent to her obtaining a separate registration book. This is not a matter that the Tribunal considers. However it does not fall within jurisdictional error and this could have only strengthened the Tribunal’s reasons for not granting a protection visa rather than assisting the applicant’s case.

13. The respondent points to [87], [88] and [92] with respect to country information declined to the applicant’s circumstances and supports the argument that because the Tribunal found that the applicant will have family support the other harms that she alleges with respect to subsistence level living and risk trafficking do not arise. The Tribunal does address those harms in its decision.

14. It is clear from the examination of the CB including the various written submissions the applicant provided and the Tribunal decision that the Tribunal member did consider all of the applicant’s claim. Much of the applicant’s complaints go to issues of credibility and weight which cannot succeed on a judicial review.

15. In order to succeed the applicant needs to establish that the Tribunal’s findings with respect to family support are so illogical or irrational that no other decision maker could have reached that conclusion.

16. The test of unreasonableness is a difficult one for an applicant to meet. It is not an issue of whether or not another decision maker would have reached a different conclusion. There is nothing exceptional about this concept and it is often applied in other contexts by Appeal Courts. Mason J drew this analogy in Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at [75]:

    “… guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion". House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.”(footnotes omitted)

17. The Tribunal member’s chain of reasoning is clear. It cannot be said that the decision is so illogical or unreasonable that no one decision maker would have reached the same conclusion.

18. The applicant has not been able to make out any jurisdictional error. The application must be dismissed.

19. In his response the Minister seeks costs. It is usual in these cases that costs follow the event. I will order the applicant to pay the respondent’s costs in accordance with the Federal Circuit Courts costs scale.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 16 May 2016