ASY17 v Minister for Immigration

[2019] FCCA 1041

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASY17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1041

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority had a real and meaningful engagement with the applicant’s claims and evidence – whether the Authority failed to take into account the information before it – no jurisdictional error made out – second amended application dismissed.

Legislation:

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

Applicant: ASY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 63 of 2017

Judgment of: Judge Street

Hearing date: 22 March 2019

Date of Last Submission: 22 March 2019

Delivered at: Adelaide

Delivered on: 22 March 2019

REPRESENTATION

Solicitors for the Applicant: Ms E Rutherford
Camatta Lempens

Solicitors for the Respondents: Ms A Ladhams
Australian Government Solicitor

ORDERS

1. Leave to the applicant to rely on the second amended application filed 8 March 2019.

2. The second amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of SEVEN THOUSAND FOUR HUNDRED AND SIXTY SEVEN DOLLARS ($7467).

DATE OF ORDER: 22 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 63 of 2017

ASY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. 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 25 January 2017, affirming the decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. 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 delegate accepted that the applicant was a youth leader at the church.

3. The applicant claimed to fear harm by reason of him having been a Catholic, youth group leader and active member of his church community. The applicant alleged he attended a prayer service in a particular church in August 2012, as the leader of a church youth group, and after the prayer session the police took his personal details and told him that he could not pray there. The applicant fears that he will be persecuted by the Vietnamese government due to being a devout Catholic, and a person active in his church community and a youth group leader, and because of his involvement with the particular church and his failure to comply with and challenging of two police summons. The applicant also claims to fear harm because of his actual or perceived political opinion and by reason of being a failed asylum seeker who departed Vietnam illegally.

4. On 16 September 2016, the delegate found the applicant failed to meet the criteria for the grant of the visa.

5. The Authority wrote to the applicant on 21 September 2016, explaining that the application for the visa had been referred to the Authority for a review. The letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. The applicant did put on submissions on 26 October 2016, received by the Authority on 27 October 2016, which were expressly referred to and considered by the Authority in accordance with requirements of s 473DD of the Act in respect of the new information.

6. The Authority identified the background to the visa application, having regard to the material provided by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims, which the Authority identified turned on his involvement with a Catholic youth group and his attendance at a prayer session of the particular church on 9 August 2012.

7. The Authority accepted that the applicant is a Catholic. The Authority referred to the applicant’s claims concerning his job being to organise prayer sessions and that when he was 15, he was the oldest member of the youth group, which meant that he was considered the group leader.

8. The Authority referred to the applicant’s claim that he was asked by the elders of the church to attend a prayer session at the particular church as a representative of the church’s youth group. The applicant referred to the church being approximately 100 kilometres from his home and that the applicant arrived at the church as part of a group of 30 Catholic youths, each from the local areas, and he was the only representative from his youth group. The applicant claimed that they were denouncing use of force against the church and then a number of security officers and police entered the church and that he was asked for his name and address. The applicant alleged the police told the group that they should not be able to undertake in prayers, so they left. The applicant claimed that he was too young to realise his actions might have been seen as anti-government.

9. The Authority referred to the applicant’s evidence in his visa interview before the delegate varying considerably from his evidence in his written statement. The Authority referred to the evidence before the delegate in which the applicant claimed that he had a call from a person at his church, who asked him to take 30 children to the particular church to pray and that he claimed that he was the leader of the group of Catholic children, numbering 40 or 50, aged seven and older.

10. The applicant claimed he brought the children to the church by bus and that there was no adult present, and the Authority referred to the delegate raising with the applicant that this appeared a significant responsibility to be looking after 30 children with no adults. The Authority expressly referred to the applicant claiming that he had learned leadership skills and was able to look after them. The Authority raised with the applicant why he had been asked to take the children to the church and the applicant claimed it was because the leader asked him to.

11. The Authority identified having concerns with the applicant’s oral evidence about the prayer session at the particular church and his role in that session, and the events that occurred on that day. The Authority took into account the applicant’s age when considering these matters.

12. The Authority expressly referred to taking into account the submissions made on behalf of the applicant and accepting that it was plausible that the applicant may have been the only person questioned by the police and that the applicant could reasonably deduce that his involvement with the particular church may have been linked to the letters he claims that he received from the police.

13. The Authority referred also to the submissions concerning the inconsistency about whether the applicant entered the church. The Authority referred to the applicant’s evidence about preparing banners and travelling a considerable distance to attend church and the consequences of the omission in relation to barricades and being unable to enter the church in respect of the applicant and his group.

14. The Authority found of more significance was the shift in the applicant’s evidence about the group which attended the church and his prominence within that group. The Authority referred to the applicant’s assertion in his written statement that he attended as part of a group of youth members from each local area, and that he was the only representative of his youth group. The Authority referred to the applicant’s oral evidence that he claims to have been a leader of the youth group at his church and that he was asked by a church leader to take a group of children to the particular church for a prayer service. The Authority referred to the applicant’s claims that no adults were present. The Authority referred to the applicant’s account of who was involved and his prominence within that group being inconsistent with his earlier written evidence.

15. It was in those circumstances that the Authority identified significant inconsistencies in the applicant’s evidence. The Authority identified having concern about the plausibility of his evidence. The Authority accepted that it is possible that a child of 15 in a regional area may show great leadership skills and possibly be given a significant responsibility to look after a group of children from a church area, some as young as seven. The Authority noted that the applicant claims to have done so without any other adult supervision or assistance and to have taken the children to a church over 100 kilometres from the home area. The Authority found this difficult to accept.

16. The Authority referred to the history of the particular church being volatile. The Authority expressed concern, not only in relation to the shift of the applicant’s evidence in his written statement, but found it implausible that a 15-year-old would be given such responsibility, given the myriad of risks involved. The Authority referred to taking together with the other concerns the Authority had as to the applicant’s evidence, the Authority found the applicant’s claims relating to his attendance at the church with his youth group to be lacking in credibility.

17. The Authority then referred to a claim that about five days after his attendance at the particular church, the applicant received a letter from the police requesting him to attend the police station. The Authority expressly referred to the applicant’s family becoming worried and his brother telling him he was in grave danger. The applicant asserted that at that time he did not know his brother was experiencing similar issues.

18. The Authority referred to concerns in respect of the applicant’s evidence that his father would have destroyed the evidence which would support his claim that he was summoned by the police.

19. The Authority referred to having weighed the applicant’s evidence about his involvement at the particular church and the Authority expressly referred to aspects of the applicant’s evidence being consistent, such as dates and the letters of summons, but found that these positive aspects of the applicant’s evidence are outweighed by what the Authority found to be serious inconsistencies and implausibilities in the applicant’s evidence about the events at the particular church.

20. The Authority expressly referred to taking into account all the information before the Authority and did not accept the applicant attended the particular church in August 2012, whether as a leader of a youth group or as a member of a group of youths from a number of local churches. The Authority did not accept that he displayed banners and that they recited political prayers. The Authority accepted the applicant was a devout Catholic but found the applicant had fabricated these matters to strengthen his protection claims to fear harm on the basis of his religion, and as a person who is politically and religiously active and opposed to the government.

21. The Authority referred to the submission advanced that the applicant’s profile was exacerbated by his brother’s separate activities at the particular church. The Authority took into account that the applicant did not claim in his written statement nor his oral evidence that he specifically feared harm or additional profile on the basis of his brother’s claimed involvement. The Authority expressly referred to having assessed the applicant’s brother’s claims in a separate decision, but in terms of the information provided in their combined application, the Authority noted that the brother’s claimed involvement at the particular church was low-level and brief, albeit it was claimed that there was an injury and that he had received summonses. The Authority was not satisfied on the evidence of any interest in the applicant in connection with his brother’s claims, or that he would face a real chance of being seriously harmed in terms of any actual or imputed connection with those claims. The Authority found the applicant has no profile or connection to the church, and faces no chance or risk of harm on this basis.

22. The Authority was satisfied, based on the applicant’s evidence, that he has not modified his conduct in the past to avoid harm, nor have members of his family or his church. The Authority was satisfied the applicant has not modified behaviour in the past in any way to avoid harm.

23. The Authority took into account that the applicant has not claimed that any member of his family or church has been targeted for harm in the past. The Authority was satisfied that the applicant could pursue his faith without putting himself at real risk or chance of harm. The Authority was satisfied the applicant would be able to do so without modifying his behaviour.

24. The Authority found the applicant would return to his home area and continue to practise his faith in the manner in which he has in the past, including active involvement in his church community in prayer, community support and youth leadership. The Authority referred to new laws in Vietnam but was not satisfied that these laws would impact on the applicant or his church community.  Taking into account all of the circumstances, the Authority was satisfied the applicant does not face a real chance of being seriously harmed on the basis of his religion.

25. The Authority was not satisfied and did not accept the applicant was of any interest to the Viet Tan party, or that he would join the group on return to Vietnam or that he would face any risk of real chance of harm on this basis.

26. The Authority found there was no basis upon which the authorities would consider the applicant to have any anti-government political opinion or profile, either actual or imputed. The Authority found there is no real chance of the applicant being seriously harmed for these reasons.

27. Considering the applicant’s claims cumulatively, the Authority was satisfied there is no real chance of the applicant facing serious harm on the basis of his religion, any actual or imputed political opinion, or any other profile that the applicant may hold.

28. The Authority accepted that the applicant departed Vietnam without a valid passport. The Authority took into account that the applicant was a minor at the time that he departed Vietnam and found the applicant would face no real chance of a penalty by reason of his departure without a valid passport.

29. The Authority referred to its finding that the applicant was not in the particular church in August 2012. The Authority was satisfied that the provisions and penalties applicable under Vietnamese law by reason of his illegal departure are laws of general application that apply to all Vietnamese equally. The Authority was satisfied there was no real chance of the applicant suffering serious harm for reasons of his illegal departure and that any process or penalty that he may face on return to Vietnam because of his illegal departure and return as a failed asylum seeker would not amount to persecution for the purpose of s 5J(1) and (4) of the Act.

30. The Authority found the applicant did not meet the definition of “refugee” in s 5H(1) of the Act and found the applicant did not meet the criteria in s 36(2)(a) of the Act.

31. The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence that the applicant being returned to Vietnam from Australia, there is a real risk the applicant would 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 ground

1. The one ground in the second amended application is as follows:

   1. The Immigration Assessment Authority ('the Authority') failed to consider evidence provided by the Applicant to the Department of Immigration and Border Protection ('the Department') which was of corroborative importance to an issue paramount to the Authority's consideration of the Applicant's claims, and therefore fell into jurisdictional error.

   Particulars

   1.1. On 22 December 2015 the Applicant's brother provided a statement ('the Brother's Statement) to the Department which corroborated the Applicant's claim that he had participated in a prayer session at C and had come to the attention of the authorities.

   1.2. On 12 July 2016 the Applicant provided the Department with a translated church leadership certificate ('the Leadership Certificate').

   1.3. The Brother's Statement and the Leadership Certificate was were relevant to the Applicant's claims for protection, namely that he held a position of leadership in his church youth group, and attended a prayer session in C as a representative and leader of that youth group, and that he had come to the attention of the authorities.

   1.4. The Authority's reasons fail to mention the Leadership Certificate or the Brother's Statement.

   1.5. The Authority did not accept that a fifteen-year-old would have been given responsibility over children from his youth group attending the prayer session in C, and rejected the Applicant's claim. The Authority rejected the claim in its entirety as a fabrication to strengthen the Applicant's protection claims.

   1.6. The Leadership Certificate was of such obvious corroborative importance to the issue of whether the Applicant would have been entrusted with oversight of the other children that, had the Authority been aware of its existence, it would have been mentioned when making its critical findings.

   1.7. The Brother's Statement was of such obvious corroborative importance to the issue of whether the Applicant was wanted by the authorities of Vietnam that, had the Authority considered it, it would have been mentioned when making its critical findings

   1.8. The Court is entitled to presume that the Authority failed to consider the corroborating evidence of the Leadership Certificate and the Brother's Statement, and therefore fell into jurisdictional error.

2. Ms Rutherford of counsel on behalf of the applicant submitted that there had been a failure by the Authority to have a real and meaningful engagement with the applicant’s claims and evidence and, in particular, the brother’s statement, which included, at page 88 of the Court Book, a reference to the applicant having participated in a prayer session at the particular church but with a different group and at a different time, and that the applicant had come to the attention of the authorities and that his brother was very worried about his safety so he assisted him to leave the country. The applicant’s statement also referred to having told his brother about his alleged activity at the particular church and that his brother warned him he was in grave danger and needed to flee.

3. Ms Rutherford submitted that the brother’s statement was material corroborative evidence to which the Authority should have expressly referred in its reasons in determining whether or not to accept the applicant’s claims in respect of his involvement at the church.

4. The Authority is not required to refer to every piece of evidence and there is no basis in the circumstance of the present case to find that the Authority failed to take into consideration the brother’s statement. I do not accept that there was a need for the Authority to make express reference to the applicant subsequently informing his brother about the alleged activities. It is apparent from the Authority’s reasons that there was express reference to the brother’s role in relation to informing the applicant as to his danger and in relation to being involved in his departure as summarised above. In those circumstances there is no basis to find that the Authority did not have a real and meaningful engagement with the applicant’s evidence, including the brother’s statement.

1. Ms Rutherford also referred to a leadership certificate at page 259 and the applicant’s claims in relation to the attendance at the church. The certificate, dated 2 September 2012 by a different priest to the one that referred to the applicant’s alleged involvement in the incident, referred to the applicant having completed a course at a particular parish on 20 to 21 July 2012 with good achievement and certifying the applicant was a Leader, Level 1, of the a particular youth movement of a particular parish.

2. Ms Rutherford drew attention to the reasoning of the Authority and the absence of any express reference to the certificate. I do not accept that the certificate was a material document to which the Authority was required to make express reference. There is no proper basis to infer that the Authority failed to take into account the information before it and, indeed, the Authority expressly said it did so, as referred to above. The Court does not accept that the Authority failed to take into account in that information in the certificate. The Court does not accept that the certificate, of itself, was a matter requiring the Authority to make express findings concerning the same.

3. Further, in relation to both of the propositions advanced by Ms Rutherford in respect of an alleged failure to consider, neither propositions are matters which were referred to in the applicant’s submissions to the Authority dated 26 October 2016.

4. Ms Rutherford referred to the delegate having accepted the leadership and having accepted the applicant was a youth leader at the parish. That does not, however, give rise to circumstances in which it was necessary for the Authority to refer to the certificate in the context of the reasoning of the Authority concerning the credibility of the applicant. No jurisdictional error as alleged in ground 1 of the second amended application is made out.

5. The court further accepts the submission of the first respondent that neither document, on its face, even if it had not been a subject of consideration could possibly have impacted on the adverse credibility findings that were made by the Authority.

6. As no jurisdictional error is made out, the second amended application is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 17 April 2019