APR19 v Minister for Home Affairs

[2019] FCCA 3498

FEDERAL CIRCUIT COURT OF AUSTRALIA

APR19 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3498

Catchwords:
MIGRATION – Judicial review – refusal of Safe Haven Enterprise Visa – where it was alleged that the Authority formed adverse view of applicant’s credibility based on ignorance of relevant material – where it was found that the Authority was aware and had considered the relevant material – extension of time – application dismissed.

Applicant: APR19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: DNG 4 of 2019

Judgment of: Judge Young

Hearing date: 19 November 2019

Date of Last Submission: 19 November 2019

Delivered at: Darwin

Delivered on: 19 November 2019

REPRESENTATION

Counsel for the Applicant: Ms Merlino

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the Respondent: Mr Liveris

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application for extension of time filed 7 November 2019 be granted.

2. The application filed 19 February 2019 be dismissed.

3. That the applicant pay the first respondent’s costs to be taxed in default agreement.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 4 of 2019

APR19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. 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.

2. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 23 October 2018 affirming a decision of the Minister’s delegate to refuse the applicant a Safe Haven Enterprise Visa. The decision by the delegate was made on 26 September 2018.

3. The applicant is a citizen of Vietnam who arrived in Australia in 2013.  His refugee claims were that he is a practising Catholic and in 2013 he was beaten and arrested by police after he and others attempted to stop the police attacking and torturing a priest attending a large mass. He said he was released by the police and required to return to the police station but was afraid and did not return.

4. He said that at a later point he filmed police accepting a bribe while he was working in a delivery van and he was assaulted by the police. He said he experienced continued harassment by police and later, in March 2013, he was attacked by a group of men, one of whom was wearing a police uniform. He departed unlawfully for Australia soon after that incident. 

5. He said he feared serious harm should he return to Vietnam on the basis of his religious beliefs, his religious activities, his failure to attend the police station, his unlawful departure from Vietnam, as a returned asylum seeker and because of the consequences of the so-called data breach in 2014 when the applicant’s personal details, but not his refugee claims, were inadvertently published on the internet.

6. The Authority was not satisfied that the applicant was truthful about his claims. It gave particular weight to his failure to raise his claims of persecution as a Catholic in his induction interview on 5 July 2013. The applicant said in that interview that he left because of the economic and human rights “situation” in Vietnam and that he sought employment in Australia. He made no claim of past experience of harm.

7. The Authority also identified what it said were other inconsistencies in the applicant’s claims. It pointed to the applicant’s claim in his protection visa statement that he had been released by the police and instructed to report back five days later. In his protection visa interview he said he was released without charge but later received two summonses to return to speak to the police. He said he did not have copies of the summonses. He said he then went into hiding.

8. The Authority observed that the applicant had not previously mentioned that he had been “the subject of any summonses”. It was an agreed position that the applicant had, in fact, made a statement in a letter dated 31 October 2013 that, translated into English, said that he had:

   … received a summons to attend the communal office to resolve that incident but I was too scared to go.

9. The incident referred to was the beating by police he suffered, or claimed to suffer, at the time of the large mass.

10. There were two amended grounds of review:

    (1)The IAA was disabled from exercising its jurisdiction because of the Secretary’s failure to provide to the IAA [the] letter written by the applicant dated 31 October 2013 (and/or its translations [sic], which had been procured by the Department itself), such letter containing evidence about his claims for protection.

    (2)In the alternative to ground (1), the IAA failed to consider the evidence given by the Applicant prior to his visa application in his letter dated 31 October 2013 that he had been summonsed by the Vietnamese police.

11. In support of ground (1), the applicant pointed to the Authority’s reasons which he said indicated that the Authority did not have the letter, sometimes called the “supplementary information statement”, of 31 October 2013 before it when it made its decision.  He pointed to a number of matters. The first is the second sentence of paragraph 18 of the Authority’s reasons which is as follows:

    I also consider the timing of when the applicant provided his past experiences of harm to the Department, which according to the delegate was in his supplementary information statement which he provided on 31 October 2013 and after he was told he had not engaged Australia’s protection obligations further detracts from the credibility of his claims regarding his past experiences of harm. 

12. The applicant submitted that this sentence indicated that the Authority did not have a copy of the supplementary information statement of 31 October 2013 and was relying only on a report from the delegate of the contents of the document. The applicant also submitted that that reading of the sentence was supported by paragraph 20 of the Authority’s decision which relevantly says:

    … at the protection visa interview, he stated that while he was released without charge he later received two summonses stating that he had to go and speak to the police. 

13. In the fifth sentence of the paragraph the Authority observed as follows:

    The applicant made no mention that he had ever been the subject of any summonses in any of his previous interactions with the Department and I find it difficult to accept that given the significance of such claims that had they been true he would [not] have provided them earlier….

14. The applicant said that the sentence, or the part of the sentence I have read, showed that the Authority was ignorant of the supplementary information statement of 31 October 2013.

15. The applicant also pointed to correspondence with the Department where the Authority had requested various documents. That correspondence appears at pages 186 and 187 of the court book. At page 186 there is an email from the Authority to the Department requesting various documents including, according to the agreed position of the parties, a reference to the supplementary information statement of 31 October 2013.

16. Two days later a departmental officer replied to the Authority in the following terms:

    Thank you for your email. The case delegate has responded back to the request and stated that the applicant made no submissions to the Department and so there are no documents to forward to the IAA. 

17. In my view the two pieces of correspondence I have referred to show that the Authority wished to obtain the supplementary information statement and other documents. The applicant said, nonetheless, that correspondence, coupled with an interpretation of the Authority’s reasons that I have referred to, show that the Authority was ignorant of the supplementary information statement of 31 October 2013.

18. I have difficulty accepting that submission because it is clear from the Authority’s decision, particularly at paragraph 18, that it was aware of the supplementary information statement of 31 October 2013. It must have become aware of it in some way.

19. While I am satisfied that it is clear from a reading of paragraph 18 that the Authority was aware of the existence of the supplementary information statement of 31 October 2013, the meaning of the sentence in paragraph 18 is, I agree, somewhat ambiguous. The positioning or absence of commas changes the sense of the relevant sentence. A natural reading of the paragraph is that the delegate simply confirmed that the first claims of harm made by the applicant were contained in the supplementary information statement of 31 October 2013.

20. I prefer that reading of the sentence, or the paragraph, to the one proposed by the applicant which was that the Authority was relying on a hearsay report of the contents of the supplementary information statement provided by the delegate. The other factor is one emphasised by the respondent which is that at paragraph 22 of the reasons the Authority observed that:

    … the applicant’s responses at the protection visa interview only loosely correlated with the evidence in his protection visa statement and supplementary information statement (emphasis added).

21. That is a clear indication, in my view, that the Authority had compared those matters and I consider that the Authority could really only have reached that conclusion if the supplementary information statement was before it. That is the only reasonable reading of that sentence.

22. The respondent also referred to paragraph 23 of the decision, where the Authority referred to the applicant’s claims, including “the issuance of any summons”. It is noteworthy that this reference is, on the face of it, to a summons in the singular. I consider this is likely to indicate that the Authority was aware of the supplementary information statement which itself refers to a summons in the singular, as opposed to the applicant’s claims in the protection visa interview where he referred, according to the Authority, to two summonses.

23. Taking all those matters into account I am not satisfied that the basis of the factual claims made by the applicant that:

    (1)the supplementary information statement of 31 October 2013 was not before the Authority; or

    (2)the Authority did not take into account the supplementary information statement

    are made out. Further, I am satisfied on the balance of probabilities that the supplementary information statement was provided to the Authority and that it was taken into account. 

24. Accordingly the application will be dismissed

25. The applicant has also applied for an extension of time within which to make the application. The test of whether an application for an extension of time should be granted is whether or not it is in the interests of the administration of justice to do so. In this case the applicant’s delay was about four months. There was an affidavit put on by his solicitor saying that the reason for the delay was his lack of facility in English and a delay in finding a lawyer who could advise him.

26. The first respondent did not allege any prejudice and those factors militate in favour of allowing the extension of time. I extend the time but dismiss the application. 

27. I will also make the costs order sought by the Minister. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  3 December 2019