ARE15 v Minister for Immigration
[2016] FCCA 1041
•4 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARE15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1041 |
| Catchwords: MIGRATION – Review of a decision of the Second Respondent – application for a Temporary Protection (Class XD) visa – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), reg.13.04 Freedom of Information Act 1982 (Cth) Migration Act 1958 (Cth), ss.5, 36(2)(aa), 91R(2), 420, 422B, 425, 425(1), 425A(1), 425A(3), 425A(4), 427(1), 427(1)(b) Migration Regulations 1994 (Cth), reg.4.35D(2) |
| Cases cited: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126, (2003) 128 FCR 553 SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 |
| Applicant: | ARE15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1012 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 10 February 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 4 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kelsey-Sugg |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the First Respondent: | Mr Mosley |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1012 of 2015
| ARE15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By amended application dated 11 January 2016 the Applicant seeks judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 1 April 2015 wherein the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Temporary Protection (Class XD) visa (‘the visa’). The Applicant seeks a declaration that the decision of the Tribunal is unlawful, void and of no force and effect and, further, seeks certiorari quashing or setting aside the decision of the Tribunal, and prohibition directed to the First Respondent prohibiting him from acting upon or giving effect to or proceeding further upon the decision of the Tribunal. In addition, in the final orders as sought by the Applicant, the Applicant seeks mandamus or an injunction compelling the First Respondent to cause the Tribunal to consider and determine, according to law, the Applicant’s application for a protection visa. The Applicant seeks costs.
The grounds of application as set out in the amended application are as follows:-
“Ground 1: The Tribunal erred by failing to invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, in contravention of section 425(1) of the Migration Act 1958.
Particulars
(a) By refusing, without reason, to postpone the hearing on 9 March 2015 as the Applicant had twice requested, and in deciding to affirm the decision not to grant the Applicant a protection visa on 1 April 2015, the Tribunal deprived the Applicant of a real chance to present his case.
Ground 2: The Tribunal erred by exercising the discretion in section 427(1)(b) of the Migration Act 1958 unreasonably.
Particulars
(a) In refusing, without reason, to postpone the hearing on 9 March 2015 as the Applicant had twice requested, and in deciding to affirm the decision not to grant the Applicant a protection visa on 1 April 2015, the Tribunal gave no or no adequate weight to the matters raised in the email dated 28 February 2015 from the Applicant’s representative.
Ground 3: The Tribunal erred by making findings of fact which were not supported by any evidence.
Particulars
(a) The Tribunal found, at paragraph 24 of the Decision Record, that “if [the Applicant] were the subject of outstanding summonses, he would have had difficulty in exiting and re-entering Vietnam” when there was no evidence of that.
Ground 4: The Tribunal erred by treating the unlawful publication of the Applicant’s data by the Department of Immigration and Border Protection as ‘limited to’ the Applicant’s name, date of birth and details of detention.
Particulars
(a) Paragraph 38 of the Decision Record.”
The First Respondent argues the Tribunal decision dated 1 April 2015 is not affected by jurisdictional error and that the application should be dismissed with costs following the event.
On 6 May 2015 the Applicant first made application to the Court for review of the Tribunal’s decision. The amended application was filed on 11 January 2016 together with the Applicant’s written contentions in support thereof. On the date of hearing, namely, 10 February 2016, the Applicant sought leave to serve on the Respondents an application in a case dated 9 February 2016 and a supporting affidavit of Ms Arti Chetty, affirmed 9 February 2016. Further, the Applicant sought to file and serve a further amended application in the form of the document exhibited to the affidavit of Ms Arti Chetty.
The further amended application proposed as annexed to the affidavit of Ms Chetty affirmed 9 February 2016 added:-
a)a subparagraph (b) to Ground 4, as recited in paragraph two above, that subparagraph being:-
“Ground 4
(b) By accepting the Department’s advice, the Tribunal failed to dispense with its obligations to consider the extent and consequences to the Applicant of the data breach and was therefore prevented from undertaking its statutory task to assess the real risk or real chance of harm on return.”; and
b)an additional ground, being Ground 5, which is recited herein as follows:-
“Ground 5: In making its assessment in relation to the data breach the Tribunal denied the Applicant procedural fairness.
Particulars:
(a) The Tribunal made an assumption that the Vietnamese authorities may have accessed the Applicant’s personal information and proceeded to conducts its assessment in the context set by this assumption.
(b) The Tribunal states at paragraph 39 of the Decision Record the following: ‘The Tribunal nevertheless accepts that it may well be surmised by the Vietnamese authorities, from their meeting with him [the Applicant] in August 2013, in immigration detention, and if they accessed his details following the data breach, that he may have applied for asylum.’
(c)The Tribunal then continues in paragraphs 40 - 41 to assess the Applicant’s claims as a failed asylum seeker and comes to the conclusion at paragraph 42 that, ‘In the Tribunal’s view [the Applicant] does not fall within the profile of failed asylum seekers who are harmed on return to Vietnam.’
(d) In conducting its assessment under the assumption outlined above, the Tribunal denied the applicant procedural fairness, as the Applicant was asked to respond to the assumption that the Vietnamese authorities had accessed his personal information without being provided any information about the data breach and, in particular, without being provided a copy of the full KPMG report into the data breach.
(e) As per SZSSJ v the Minister for Immigration and Border Protection (2015) FCAFC 125 at paragraph 120, as the Applicant was not provided with a full picture of the effect of the data breach, including essential information in relation to who may have accessed the information, the Applicant could not know or ascertain how he would be potentially affected if he returned to Vietnam.”
On the hearing, the Applicant relied upon the affidavit of Ms Chetty affirmed 9 February 2016 and the amended application, and sought to rely on the further amended application. An outline of the Applicant’s submissions, dated 10 February 2016 was also before the Court.
The First Respondent relied upon an affidavit of Elizabeth Tan sworn 9 February 2016, and the First Respondent’s contentions, filed 3 February 2016. In addition, the Court had in evidence before it the contents of the Court Book filed by the Solicitors for the First Respondent on 17 August 2015.
On the hearing, the Applicant sought to adjourn the proceedings pending the outcome of the special leave application made to the High Court in the matter of SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125. The Applicant also sought essentially to rely upon the further amended application. These matters were as contained in the application in a case. The Court ordered on that day that the application in a case dated 9 February 2016 be dismissed and, further, that the costs of the First Respondent in respect thereto to be paid by the Applicant. Those costs were fixed by consent in the sum of $2,706. That order as to costs was made by the Court on 4 April 2016 without a need for an appearance by or on behalf of the parties and pursuant to r.13.04 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’).
Background
The Applicant is a citizen of Vietnam who arrived in Australia as an irregular maritime arrival on 19 May 2013. On 5 June 2013, the Applicant was interviewed by an officer of the Minister’s Department. On 16 June 2014, the Applicant made an application for the visa.
On 10 October 2014, the Applicant was interviewed by a delegate of the First Respondent. On 16 December 2014, a delegate of the First Respondent refused to grant the Applicant the visa.
On 23 December 2014, the Applicant appointed an authorised recipient.
On 2 January 2015, the Applicant applied to the Tribunal for review of the delegate’s decision. The Applicant provided to the Tribunal a copy of the delegate’s decision with that application.
On 6 January 2015, the Tribunal acknowledged receipt of the Applicant’s application for review and advised the Applicant, by his authorised recipient, that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.
On 23 February 2015, the Tribunal forwarded correspondence to the Applicant’s authorised recipient, inviting the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The invitation to appear noted that the Tribunal had arranged a hearing for 9 March 2015 at 1 pm (WA time), at a location of North West Point Immigration Detention Centre, Christmas Island. The invitation to appear before the Tribunal noted that an interpreter would be available in the Vietnamese language and that arrangements had been made to conduct the hearing by videoconference, noting that the member and interpreter would be in Perth. The invitation included a Response to Hearing invitation.
On 26 February 2015, the Applicant’s authorised recipient returned the signed Response to Hearing invitation, requesting a postponement of the hearing to enable the Applicant to obtain pro bono representation and prepare a case.
On 27 February 2015, the Tribunal advised the Applicant by his authorised recipient that the member had considered the request “carefully”, but had decided not to postpone the hearing. The letter included a further Response to Hearing invitation.
On 28 February 2015, the authorised recipient again requested that the hearing be postponed, advising that no representation had yet been secured. That correspondence said, relevantly, as follows:-
“… I am hoping to gain the agreement of a migration agent to at least provide some assistance urgently to help to prepare a submission with Mr … [X]. However, if Mr … [X] must proceed with the hearing as scheduled on 9 March 2015, he will not be able to prepare a submission and send it to the Tribunal 7 days before the hearing, as required. Even if a submission is substantively prepared this weekend, which will be extremely difficult to achieve, it will not be possible to finalise it, to organise the necessary communications so as to cross-check Mr … [X’s] statement with him, explain the submission to him and ensure that it is accurate and that he fully understands it, and to arrange for him to sign off on it.
I therefore request, again, that due consideration be given to these reasons to postpone this hearing…”
On 3 March 2015, the Tribunal advised the Applicant by his authorised recipient that the member had considered the request “carefully”, but had decided not to postpone the hearing.
On 5 March 2015, the Applicant appointed the authorised recipient to act also as his representative in the application. The second Response to Hearing invitation was returned by the representative, advising that the Applicant wished to call a witness, Dr Peter Hansen, at the hearing on 9 March 2015.
Also on 5 March 2015, the Applicant’s representative made a request for access to documents under the Freedom of Information Act 1982 (Cth) (‘the FOI Act’), the Tribunal acknowledge such request by correspondence to the Applicant’s representative on 11 March 2015.
On 9 March 2015, the Applicant’s representative provided to the Tribunal a considerable amount of material in support of the Applicant’s application. That material included, inter alia, a signed statement by the Applicant, an extensive submission from the Applicant’s representative, a submission from Dr Peter Hansen, a letter from the Minister of 3 September 2013, together with other documentary material and country information.
On 9 March 2015, the hearing proceeded. In attendance were the Applicant, and the Applicant’s representative, an interpreter in the Vietnamese and English languages, and Dr Peter Hansen as a witness.
On 13 March 2015 and post the Tribunal hearing, the Applicant’s representative provided to the Tribunal a further submission, which included further country information. In addition, it included a statutory declaration made by Dr Peter Hansen. Later, in its Statement of Decision and Reasons (‘the Decision Record’) the Tribunal noted that the submissions provided to it, before and after the hearing, had been taken into account by the Tribunal in its deliberations.
On 18 March 2015, pursuant to the Freedom of Information request made by the Applicant’s representative, the representative was provided with a copy of the Tribunal’s file.
On 30 March 2015, the Applicant provided the Tribunal with a copy of his birth certificate and a translation thereof.
No further submissions were received by the Tribunal.
On 1 April 2015, the Tribunal affirmed the decision not to grant the visa.
Applicant’s Claims and Tribunal Decision
The issues in the review before the Tribunal were, as noted by the Tribunal in paragraph seven of its Decision Record, whether the Applicant had a well-founded fear of being persecuted in Vietnam for one or more of the five reasons set out in the Refugees Convention and, if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm.
The Tribunal found that the Applicant was a national of Vietnam for the purposes of the Convention, and that Vietnam was his receiving country under s.36(2)(aa) and s.5 of the Migration Act 1958 (Cth) (‘the Act’).
The Tribunal noted that the Applicant’s claims were set out in his statement of 16 June 2014 and his protection visa application. They were elaborated on at his interview with the delegate on 10 October 2014 and at the Tribunal hearing. The Applicant also provided to the Tribunal a statement dated 7 March 2015, responding to the delegate’s decision.
The Applicant claimed to have a well-founded fear of persecution in Vietnam, for reasons of his religion, and as a returned asylum seeker.
The Tribunal accepted that the Applicant was a practising Catholic, as claimed. The Tribunal accepted that he had experienced some harassment from the authorities as a practicing Catholic, but did not consider that it amounted to persecution, as it did not involve “serious harm” of the kind outlined in s.91R(2) of the Act. In the Tribunal’s view, the harassment claimed by the Applicant did not reach the level of harassment that can be said to constitute “significant physical harassment”.
The Tribunal accepted that there may have been a protest regarding the bulldozing of a church cemetery in 2007, but it did not accept that the Applicant was involved, and did not accept he received summonses from the local hamlet committee office stating that he was required to attend for questioning. The Tribunal was concerned about a number of features of the two summonses put before it by the Applicant and ultimately placed no weight upon those documents. The Tribunal did not accept that the reason the Applicant left Vietnam to travel to Australia and seek asylum was due to his involvement in the protest and being summonsed. The Tribunal reached those findings for a number of reasons, as set out in its Decision Record commencing at paragraph 24.
The Tribunal said in paragraph 24:-
“24. Firstly, he has claimed that he made several trips outside Vietnam after he claims to have been involved in the 2007 protest and summonsed. In his protection visa application he stated that he travelled to China in 2008-2009 for business (although in his entry interview he stated it was in 2010). It is noted in the delegate’s decision that at his interview with the delegate he stated he visited China on several occasions however he was unsure when he visited China, stating variously that it was before the protest and before and after the protest. Further he claims he left Vietnam in 2010 for Mali returning to Vietnam in 2012. On the basis of the evidence before it the Tribunal finds that Mr … [X] made trips to both China and Mali between 2008 - 2012. The Tribunal discussed with Mr … [X] its view that given that he was able to leave Vietnam legally without incident and using his own passport indicated to the Tribunal that he was not of adverse interest to the authorities. He responded that he was not a serious criminal and that his only problem was with the local authorities in his hometown and he was not of interest at a national level and therefore able to leave and re-enter Vietnam without a problem. The Tribunal does not accept this and considers that if he were the subject of outstanding summonses he would have had difficulty in exiting and re-entering Vietnam. Further, in the Tribunal’s view the fact that he returned to Vietnam after each of these visits abroad undermines the veracity of his claims for protection.”
And later at paragraphs 25 and 26 the Tribunal said:-
“25. Secondly, he has not made any claims that the authorities visited his family home following the 2007 protest, or made enquiries of his parents or neighbours to question him about his involvement in the protest. The Tribunal asked him about this and he indicated that he had not asked his parents if the authorities had been asking after him. The Tribunal indicated to Mr … [X] that it found it hard to believe that in these circumstances he would not have asked his parents whether the authorities had been asking after him, and he responded that he could not recall if he had asked them this. In the Tribunal’s view if Mr … [X] had been summonsed, he would have made enquiries of his parents following his departure from his village to ascertain whether the authorities had any ongoing interest in him. Further it would expect that if he had not responded to any outstanding summonses, the authorities would have been making enquiries regarding his whereabouts of his parents, and in the village generally and that his family would have informed him of this.
26. Thirdly, in his arrival interview he stated that his reason for leaving Vietnam was that it is very hard to find a job and he tries to do business but it is still very hard and he is very much in debt and the region is very hard on people and their citizen’s rights have been jeopardized. When asked whether there was any other reason he indicated in the negative. When asked for the principal reason he stated “lack of economic opportunity”. When asked what he thought may happen to him if he returned to Vietnam he indicated that he did not know what to do or how to pay back the debt. The Tribunal notes that in his arrival interview he also alluded to other reasons for leaving Vietnam when he indicated that “since 1988 when I have start involve church activities they come and demolish house when trying to build on church land and try every which way to interfere and questioning about family bike and who owns and questioning difficult.” He also indicated that he had chosen to come to Australia because the human rights are better and there is freedom of religion. As noted in the delegate’s decision he made no mention of having been involved in a land protest in 2007, or having outstanding summonses issued against him.”
The Tribunal found the principal reason for the Applicant’s departure from Vietnam was economic.
The Tribunal considered all the material before it including country information and the expert opinion provided by Dr Peter Hansen, but, in light of its findings that the Applicant had not been involved in any protest against the government, the Tribunal did not accept his claims that if he returned to Vietnam he would continue to protest against the government. The Tribunal accepted that the Applicant would continue to practice his religion, but on the basis of country information before it did not accept that, as a person with no specific activist profile, he would be imputed with anti-government views. The Tribunal found that the Applicant did not face harm for this reason. There was no real chance that he would be persecuted for reasons of his Roman Catholic faith if he returned to Vietnam in the reasonably foreseeable future.
The Tribunal also did not accept that the Applicant would be detained or harmed for having sought asylum in Australia. The Tribunal accepted that he was issued with a ‘laissez-passer’ in August 2013, after being visited by Vietnamese consular officials, and that his parents were visited by the authorities thereafter “as a consequence of the Vietnamese authorities having met him in immigration detention in Australia.” The Tribunal accepted that the authorities may surmise that the Applicant had applied for asylum in Australia, but country information did not indicate that asylum seekers, per se, were mistreated on return. Country information was to the contrary.
The Tribunal specifically relied upon DFAT material that ordinary citizens returning as failed asylum seekers did not face harm. No differential treatment was applied to those asylum seekers known to be Catholic. In the Tribunal’s view, the Applicant did not fall within the profile of failed asylum seekers who are harmed on return to Vietnam. The Tribunal found there was no real chance that the Applicant would be persecuted for reasons of his membership of the suggested particular social group of “failed asylum seekers”, or any political opinion imputed to him, because he would be returning to Vietnam as a failed asylum seeker.
The Tribunal also considered the issue of complementary protection. It found, for similar reasons to its findings in respect of the Applicant’s claims under the Convention, that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there was a real risk the Applicant would suffer significant harm.
Consideration
Ground 1
The Applicant claims that the Tribunal erred by failing to invite him to appear before it to give evidence and present arguments in breach of s.425(1) of the Act.
Section 425(1) of the Act is as follows:-
“(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”
The Tribunal did invite the Applicant to appear before it on 9 March 2015. At the time the invitation was sent, s.425A(3) of the Act and reg.4.35D(2) of the Migration Regulations 1994 (Cth) (‘the Regulations’) required any such letter to provide the Applicant with no less than seven days to appear at a hearing after deemed receipt of the invitation. The invitation met that notice requirement. The letter of invitation also complied with s.425A(1) and (4) of the Act.
The Applicant attended. He was represented. An interpreter was present. The hearing proceeded over a three-hour period, and there were detailed written submissions delivered to the Tribunal, both before the hearing and after the hearing, upon the invitation of the Tribunal. There was also an expert witness who gave evidence.
The Applicant was provided, post hearing, with the complete Tribunal file.
The issue argued by the Applicant was really one of the refusal by the Tribunal of the request for an adjournment under s.427(1)(b) of the Act. Section 427(1) of the Act is as follows:-
“(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation; or
(b) adjourn the review from time to time; or
(c) subject to sections 438 and 440, give information to the applicant and to the Secretary; or
(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.”
The Court finds, contrary to the submission of the Applicant, the Applicant was not prejudiced by the hearing proceeding on 9 March 2015. The history of opportunity provided to the Applicant, both before the Tribunal, during the Tribunal hearing and after the Tribunal hearing, is as detailed earlier in these reasons.
The Applicant refers the Court to the High Court decision in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [61] (‘Li’). It is clear on the factual history of this matter however, that the Tribunal’s invitation to the hearing was one which was meaningful, in the sense that it provided the Applicant a review with a real chance to present his case.
In Li, the refusal to grant an adjournment was fatal to the application. The refusal of the adjournment resulted in the review being brought to an end. Gageler J concluded in Li that in the circumstances of that case, being that the application could not succeed unless a relevant assessing authority had assessed the skills of the Applicant as suitable for the Applicant’s nominated skilled occupation. The Tribunal was advised that a relevant skills assessment was pending at the time the request to the Tribunal to adjourn was made and the refusal of the adjournment resulted in the review being brought to an end. Gageler J concluded at [124]:-
“No reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment.”
In the circumstances of this case, the Applicant was not denied an opportunity to appear before the Tribunal, pursuant to s.425 of the Act. As submitted by Counsel for the First Respondent, the Tribunal’s invitation to the Applicant was “real and meaningful”, and it did not cease to be real and meaningful only because the hearing proceeded on the day fixed by the Tribunal. There was no misleading of the Applicant, no unfairness to the Applicant. The Applicant did not place before the Court a tape recording or transcript of the hearing supporting and/or substantiating any complaint. The Applicant did not put to the Tribunal that he was ill prepared at the hearing date and nor was that suggested in post-hearing submissions.
The invitation afforded by the Tribunal was not a “hollow shell or an empty gesture”.[1] This ground must fail.
[1] Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126, (2003) 128 FCR 553, [33].
Ground 2
The Applicant claims the Tribunal erred by exercising its discretion in s.427(1)(b) of the Act unreasonably.
In Li, in considering the legal standard of reasonableness, Hayne, Kiefel and Bell JJ stated at [67]:-
“In Klein v Domus Pty Ltd, Dixon CJ said that where discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority, requires nothing less. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.”
This ground is also related to the refusal of the Tribunal to adjourn the proceedings at the request of the Applicant’s representative. As submitted by Counsel for the First Respondent, and on the evidence before the Court, the Tribunal carried out its statutory task with no lack of reasonableness in the performance of its statutory duty of review. The Tribunal considered the request for an adjournment, carefully it said, and responded to that request.
The outcome of the exercise of the discretionary power of the Tribunal, in refusing to adjourn the hearing in the factual context presented, as described above, was that the Applicant was not denied an effective and complete opportunity to give evidence and present arguments to the Tribunal. The refusal to adjourn was not fatal to the review application itself. The Applicant had an opportunity to present his case and took that opportunity, as described elsewhere in these reasons. This ground cannot succeed.
Ground 3
The Applicant claims the Tribunal erred by making a finding of fact which was not supported by evidence. The particular finding was the Tribunal’s determination that the summonses were not genuine. That finding was made by the Tribunal in light of the features of the summonses themselves, as set out in the Decision Record. The Tribunal, after considering various features of the summonses and discussing its concerns with the Applicant, and noting the submissions made by his representative, concluded that the summonses were not genuine and put no weight on them as described earlier in these reasons. That was a finding of fact clearly open to the Tribunal on the material before it. Indeed there was clear evidentiary material to support the finding.
The Tribunal’s later rejection of the Applicant’s explanation as to how he was able to depart Vietnam and travel to China and to Mali, and return without incident, was not a part of the specific finding in respect of the summonses. The Tribunal said at paragraph 23 of its reasons:-
“… the Tribunal does not accept that Mr … [X] was involved in the dispute and summonsed as claimed. Nor does it accept that this was the reason he ultimately left Vietnam to travel to Australia to seek asylum. It reaches these findings for a number of reasons.”
As submitted by Counsel for the First Respondent, and as referred to already in these reasons at paragraphs 34 and 35 apart from the challenged reasons, the Tribunal’s reasons included:-
a)the fact the Applicant had returned to Vietnam after travelling abroad on a number of occasions, after the issue of the summons, undermined the veracity of his claims;
b)that had the Applicant been summonsed as claimed, he would have made inquiries from his parents in his village where the summonses were delivered, to ascertain whether the authorities had any ongoing interest in him. Additionally, it would expect that if he had not responded to the summonses, the authorities would have been making inquiries from his parents and his village, generally, and that his family would have informed him;
c)at his arrival interview, the Applicant gave various reasons for leaving Vietnam, the principal reason being a lack of economic opportunity. He made no mention at all of having been involved in a land protest in 2007 or having any summonses against him which had caused him to leave. The Tribunal found it highly significant that the Applicant made no mention of the protest or the outstanding summonses at his arrival interview, and found the principal reason for his departure in 2013 was economic.
The Tribunal’s rejection of the Applicant’s response to its express concern as to how he was able to travel a number of times to China and to Mali without incident, and return, was not a critical step in either of its specific findings made at paragraph 22 (the authenticity of the issued summons) or at 29 (that the Applicant was not involved in the dispute nor summonsed) of the Decision Record.
I accept the submissions made by the First Respondent that the argument that there was no evidence to support the finding that the summonses were not genuine is untenable. To the contrary, there was evidence before the Tribunal.
Ground 4
The Applicant claims the Tribunal erred by treating the unlawful publication of the Applicant’s data by the First Respondent’s Department as “limited to” the Applicant’s name, date of birth and details of detention. The Tribunal stated at paragraph 38 of its Decision Record:-
“…It is noted in the delegate’s decision that the scope of the data breach, which the Tribunal accepts occurred in respect of persons in detention on 31 January 2014 including the applicant, was limited to the name, date of birth and details of detention. It accepts that no details were released in respect of whether those detainees had made asylum claims.”
The Applicant argued the Tribunal, in paragraph 38, incorrectly described the scope of the data breach and then proceeded to reason on the basis of that incorrect decision. That is, it was a crucial error which was adopted in its reasoning.
I accept the First Respondent’s submissions however that, whether or not the information resulting from the data breach was limited to the personal information to which the Tribunal referred, the Tribunal nevertheless proceeded on the basis that it accepted the Vietnamese authorities may, as a consequence of the data breach, be aware the Applicant had applied for asylum in Australia. It thus considered whether, as a known failed asylum seeker with no specific activist profile, the Applicant had a well-founded fear of harm, and found he did not. This consideration occurred even though at the time of publication of that material and the data breach, claims for asylum had not been made by the Applicant. The protection visa application was lodged on 16 June 2014, so the claims to protection were not made until that date. The Applicant was in detention at the date of the data breach, but he had not made any protection visa claims at that stage. Notwithstanding that, the Tribunal proceeded on the basis that the authorities may be aware the Applicant had applied for asylum, and the Tribunal considered it on that basis.
The amendments to Ground 4 and Ground 5 as proposed in the further amended application were not permitted to proceed by the Court by order of 10 February 2016.
The decision in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 (‘SZSSJ’) is distinguishable. The Tribunal was the subject of the statutory regime identified in ss.420 and 422B of the Act. The processes addressed by the Full Court of the Federal Court of Australia in SZSSJ were not the subject of such statutory obligations as found in Division 4, Part 7 of the Act, being an exhaustive statement of the requirements of the natural justice hearing rule, that applied to the Tribunal in assessing whether or not Australia had an obligation of non-refoulement of the Applicant by reason of the application of the complementary protection provisions of the Act.
The decision in SZSSJ was predicated on the manner in which an International Treaties Obligations Assessment was made. This was a process by which an assessment was carried out by the Department acting under the ultimate direction of the Minister, to see whether Australia owed any non-refoulement (or other) obligations. The Applicant had no idea who was making the decision, or how the decision was made, or on what criterion an assessment would be made. As was said of that situation by the Court in SZSSJ “procedural fairness is not satisfied by giving a person a hearing if the person does not know why he is being heard, about what or by whom.” [2] In the present case, the Applicant had an interview with the delegate and, more importantly, a review before the then Refugee Review Tribunal, in which it considered the claims that were made and proceeded on the basis that the Vietnamese authorities would, in fact, be aware that the Applicant had made an asylum claim.
[2] SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125, [99].
Ground 4 cannot succeed.
The application is dismissed and a costs order shall be made.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 4 May 2016
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
0
5
5