APP18 v Minister for Home Affairs
[2019] FCCA 3401
•31 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APP18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3401 |
| Catchwords: MIGRATION – Judicial review – decision of the Immigration Assessment Authority – where inconsistencies in statements of different people provided by applicant – whether the Authority was obliged to invite the applicant to comment on the inconsistencies – whether it is within the discretion of the Authority to not raise inconsistencies – exercise of discretion was not unreasonable – application dismissed – costs ordered. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: BVD17 v the Minister for Immigration and Border Protection [2019] HCA 34 Plaintiff M174/2016 v the Minister for Immigration and Border Protection (2018) 353 ALR 600 Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 |
| Applicant: | APP18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 59 of 2018 |
| Judgment of: | Judge Young |
| Hearing date: | 31 October 2019 |
| Date of Last Submission: | 31 October 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 31 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Kereru |
| Solicitors for the Applicant: | Camatta Lempens Pty Ltd Lawyers |
| Counsel for the First Respondent: | Mr Rettalick |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | Mr Rettalick |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The application filed 9 February 2018 be dismissed.
The applicant pay the first respondent’s costs in the scale amount of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 59 of 2018
| APP18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Ex-Tempore
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision of the Immigration Assessment Authority (“Authority”) made on 10 January 2018 affirming a delegate’s decision not to grant a protection visa to the applicant.
The background is as follows. The applicant arrived in Australia by sea from Vietnam in 2011. He was accompanied by an older sister. The applicant’s initial claims were that he and his sister were homeless or abandoned children. In simple terms, they were “street kids.”
He said that he had been born in 1999. He also said that he was 10 years old on arrival in Australia in 2011. He said that he had walked over 1,100 kilometres to get to Ho Chi Minh City in the south. He said that in 2009 he attended a protest over confiscation of church lands and, as I understand the Authority’s reasons, had walked another 1,100 kilometres back to the north to attend a protest in relation to that confiscation. He said that after attending that protest he had walked back to the coast and saw people praying on a boat. He had joined that group and, involuntarily it seems, came to Australia on that vessel.
The applicant subsequently admitted that these claims were entirely false. He was in fact born in 1993 and may have been 18, or almost 18, when he arrived in Australia. He was not an abandoned child or a street kid but rather his family had paid to put him and his sister on the boat. These matters were revealed in his written protection visa claims, if not before.
The applicant’s claims made in his protection visa claims were different. He said that he was born in Nghe An province and lived in the family home until his departure for Australia. He said that he was a Catholic. He said that in 2008 his father and others built a shrine to Mary outside the local Catholic church. The police wished to destroy the shrine and there was physical conflict. This led to harassment of the applicant’s father. The applicant said he was assaulted and injured by police when the police came to the family home. The applicant said he was threatened by gangsters and government agents. He said he was forced to withdraw from his school. The applicant also said that at one point his seven siblings, apart from himself and his older sister who had accompanied him to Australia, remained in Vietnam. Elsewhere he said that one sister and two brothers had sought asylum in Germany.
Another matter taken into account by the Authority were inconsistencies between the applicant’s account of events and his sister’s account made in her protection visa application. This inconsistency was referred to, along with the other matters I have just mentioned, as one of the reasons for refusing to accept the credibility of the applicant’s claims. The applicant had provided a copy of his sister’s statement and it appears that that statement was before the delegate at the time the delegate made his decision. The delegate’s decision, while making passing reference to the sister’s protection visa statement, did not refer to these inconsistencies, or give them as a reason for rejecting the applicant’s claims. The Authority did not invite any comment from the applicant about the inconsistencies.
There was some discussion about the nature of the inconsistency identified by the Authority, particularly at paragraphs 10 and 11 of its reasons, and counsel for the applicant at one point referred to “alleged inconsistency or inconsistencies”. I accept that the Authority’s description of the inconsistency between the statement of the applicant and his sister is somewhat confusing and to my mind does not clearly identify any inconsistency. However, I have read the two statements included in the court book and I am satisfied that there are significant inconsistencies between the two statements. In any event, the applicant accepts that there is inconsistency in the statements and says that it was unreasonable for the Authority not to invite him to comment on this inconsistency.
The applicant was ordered to file and serve an amended ground of review as foreshadowed before me some weeks ago. The applicant did not file the amended ground as ordered. It is fair to say that the ground was settled this morning in discussion between counsel for the applicant and myself as follows:
That the Authority committed a jurisdictional error in that it was legally unreasonable not to consider the exercise of the discretionary power in section 473DC, subsections (1) and (3) of the Migration Act 1958 to seek new information from the applicant, being comment on the alleged inconsistency between his statement and his sister’s statement referred to at paragraphs 10 and 11 of the Authority’s reasons.
It was alleged by the applicant that there was no evident and intelligible justification for the Authority not to consider the exercise of its discretion under section 473DC where the delegate had not identified any inconsistency in the statements between the applicant’s statement and his sister’s statement.
There was no evidence about what new information the applicant would have provided if he had been asked. It was said that the Authority’s silence in its reasons permitted the inference that it had not considered the exercise of its discretion under section 473DC. The applicant in particular relied on the High Court’s decision in Plaintiff M174/2016 v the Minister for Immigration and Border Protection [2018] HCA 18, especially at paragraph 49.
In that case it was alleged that it was unreasonable for the Authority not to exercise the discretion in s 473DC where certain adverse information had not been put to the applicant under s 57 of the Migration Act. The court dismissed the plaintiff’s case but said at paragraph 49:
And the Authority would risk transgressing the bounds of reasonableness in the conduct of the review under section 473DB were the authority to go on to treat the information as the reason, or a part of the reason, for affirming the decision to refuse the protection visa without first exercising the discretion conferred by s 473DC(3) to issue such an invitation.
The applicant also relied on a decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, 253 FCR 475 which says at paragraph 82, referring to s 473DC:
The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review of the Authority under s 473CC miscarried for jurisdictional error.
The respondent relied primarily on the High Court decision in BVD17 v the Minister for Immigration and Border Protection [2019] HCA 34, 93 ALJR 1091. A similar argument was raised in that case to the argument raised by the applicant here that the silence of the Authority in relation to considering the exercise of its discretionary power under s 473DC permitted an inference that the exercise of that discretion was not considered and that failure was unreasonable.
The High Court found that there was nothing in Pt 7AA of the Migration Act requiring the Authority to give reason for the exercise or non-exercise of procedural powers such as those conferred by s 473DC (1). See in particular, paragraph 16. The court found that in those circumstances the factual basis for drawing such an inference of the kind sought to be drawn here could not be made out.
I accept that submission and, in my view, the application must fail for that reason. I also accept Mr Rettalick’s submission for the Minister that the failure to seek comment about the inconsistency was not unreasonable. There was no procedural unfairness (although I note that this issue is not to be seen through the “lens” of procedural fairness), because the applicant provided his sister’s statement himself. There were other arguably weightier reasons for making an adverse credibility assessment and the issue was not determinative, although it was clearly one of the reasons for affirming the delegate’s decision.
I consider the factual matrix to be very different to that in CRY17 where the Authority disabled itself from determining the central issue and hence might be seen as failing to discharge its statutory duty. I consider that to be not the case here.
The application will be dismissed.
I am satisfied that there ought to be an order for costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 25 November 2019
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