AVG17 v Minister for Immigration

[2017] FCCA 2534

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVG17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2534

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – the Tribunal’s findings were reasonable and logical – the Tribunal’s reasons reflect a genuine and meaningful engagement with the submissions – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476, 477

Applicant: AVG17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 572 of 2017

Judgment of: Judge Street

Hearing date: 19 October 2017

Date of Last Submission: 19 October 2017

Delivered at: Sydney

Delivered on: 19 October 2017

REPRESENTATION

Counsel for the Applicant: Mr J Williams on a direct access basis

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. Pursuant to s.477 of the Migration Act 1958 (Cth), time for filing of the application in this Court is extended up to and including 27 February 2017.

2. Grant leave to the applicant to rely upon the amended application attached to the affidavit filed on 9 October 2017 and dispense with the need for the filing of an electronic copy of the same.

3. The amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 572 of 2017

AVG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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 Administrative Appeals Tribunal (“the Tribunal”) made on 22 December 2016 affirming a decision of the delegate not to grant the applicant a Protection visa.  

2. The applicant was found to be a citizen of Vietnam, and her claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 8 April 2013. The applicant applied for a protection visa, which was taken to be a valid application for a Temporary Protection (Class XD) visa, on 13 June 2014.

3. The delegate refused to grant the visa on 20 April 2015, finding that the applicant failed to meet the criteria under the Act. The applicant claimed to fear harm in Vietnam on the basis of her Catholic faith. The applicant claimed that the Catholic religion was not accepted in Vietnam and that Catholics were discriminated against.

4. The applicant also claimed that her family home was destroyed by the Vietnamese authorities and her family had been engaged in a land dispute with the government, as they would not compensate her family for the loss of the land. The applicant claimed this also happened to other families in her local area and, as a consequence, the applicant and her sister had to live with her grandparents. The applicant claimed her grandfather had been working in a government anti-corruption agency for many years.

5. The applicant claimed that in September 2011, while she was living with her grandparents, some of the people who had been named by her grandfather as corrupt came to his house and set off explosives and caused damage to the house, but no one was injured. The applicant claimed that after this event, her grandfather found a letter threatening to harm him and his family if he continued with his anti-corruption activities. The applicant claimed that in the months that followed the explosion, her grandfather received threatening letters every few weeks. The applicant claimed her grandfather was killed on 5 August 2016 and that the people who killed him made it look like a motorbike accident.

6. The applicant claimed to fear harm as a result of her grandfather’s involvement in anti-corruption work, as a result of her Catholic faith and her family home being the subject of a land dispute. The applicant also claimed to fear harm by reason of being a political activist who is opposed to the Vietnamese Communist Government, her mother’s convicted of smuggling offences and imprisonment in Vietnam, the Departmental data breach, a Vietnamese delegation being granted access to Vietnamese asylum seekers held in immigration detention, and by reason of being a failed asylum seeker from a Western country.

The Tribunal

1. The Tribunal in its reasons delivered on 22 December 2016, identified the background to the applicant’s application for the protection visa in respect of the application for review. The Tribunal identified the relevant law and summarised the applicant’s claims for protection. The Tribunal set out in detail the applicant’s claims and evidence.

Grandfather’s anti-corruption work actual or imputed political opinion

1. The Tribunal referred to the applicant’s evidence in her protection interview in October 2012 that she was travelling to a court house with her grandfather and they were attacked by strangers and her leg was injured. The applicant also claimed during her protection interview that her father was injured near the family home in about January 2012. The Tribunal was not satisfied that the incidents could be linked to the grandfather’s anti-corruption activities in Vietnam. The Tribunal did not accept that the grandfather was murdered in a targeted attack. The Tribunal noted that the applicant was unable to identify the name of the institution where the grandfather worked.

2. The Tribunal referred to applicant’s evidence that the grandfather worked for the communist government and was honoured by the provincial authorities, being inconsistent with the claim that the grandfather spoke out against the communist regime. The applicant maintained that the grandfather worked in the system against the communist regime. The Tribunal sought to explore with the applicant how she was involved in the grandfather’s work. The applicant confirmed that neither she, nor the grandfather had ever been arrested or detained.

3. The Tribunal expressed some concern as to whether the applicant was in fact the granddaughter of the person said to have been murdered but was prepared to proceed on the basis that the applicant may have been the granddaughter of that particular person. The Tribunal found the applicant’s evidence about her involvement in her grandfather’s anti-corruption activities vague and lacking in detail. The Tribunal did not accept that the applicant was a political activist in Vietnam or held a profile in the community as an anti-corruption protester because of her grandfather’s work.

4. The Tribunal did not accept the applicant’s claim that her and her family have continued to receive threats after the death of the grandfather as being credible. The Tribunal did not accept the applicant’s claim that her grandfather was murdered by people who were threatened by his anti-corruption work in Vietnam. The Tribunal did not accept the applicant would be perceived to be an anti-corruption campaigner or anti Vietnamese communist government because of her association with her grandfather.

5. The Tribunal was not satisfied there is a real chance the applicant would face serious harm because of her deceased grandfather’s anti-corruption work or because she will be imputed with an anti-community government political opinion if she returns to Vietnam in the reasonably foreseeable future.

6. The Tribunal found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that she will suffer significant harm because of her grandfather’s anti-corruption work or because she will be imputed with an anti-community government political opinion.

Land dispute

1. The Tribunal addressed the applicant’s claims in respect of the fear concerning the land dispute. The Tribunal found the reason for the seizure of the land was a road expansion project that impacted on a number of residents in the applicant’s village. The Tribunal did not accept that there is a real risk the applicant will be persecuted if she returns to Vietnam in the reasonably foreseeable future because part of her family’s land was confiscated and part of her family home was destroyed.

2. The Tribunal found that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Australia and returned to Vietnam, there is a real risk she will suffer significant harm because of a dispute with the local authorities over her family’s land in 2009.

Religion

1. The Tribunal then turned to the applicant’s claimed fears as a result of her religion. The Tribunal did not accept the applicant is a religious activist who will speak out against the Vietnamese Government if she returns to Vietnam. The Tribunal did not accept the applicant’s claim that she would undertake work that is aimed at exposing the weakness in the government in Vietnam through her religious practice in Vietnam. The Tribunal was satisfied the applicant is an ordinary Christian practitioner who will be able to continue to attend a registered Catholic church and practice her religion if she returns to Vietnam in the foreseeable future. The Tribunal found the applicant will be able to carry on with work for the poor and charitable work in Vietnam.

2. The Tribunal took into account the applicant’s profile as an ordinary Catholic practitioner and was not satisfied that if the applicant was to return to Vietnam in the reasonably foreseeable future, there is a real chance she will be persecuted because of her Catholic religious beliefs and/or because she is the granddaughter of an anti-corruption government official and/or because she wants to engage in charity work and would be perceived as anti-government. The Tribunal found the applicant’s fear of persecution because of her religion and anti-government imputed political opinion is not well-founded.

3. For the same reasons, the Tribunal was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk the applicant will suffer significant harm.

‘Sur place’ claims

1. The Tribunal identified the possibility of risk of harm arising as a result of actions or events which have occurred while the applicant is in Australia. The Tribunal did not accept the applicant’s claims in relation to the imprisonment of her mother to be credible. The Tribunal found the applicant’s political activity in Australia, being the actions in posting anti-Vietnamese Government material on Facebook was engaged in by the applicant to solely strengthen her protection claims and as a consequence, the Tribunal disregarded the evidence regarding the applicant’s political activism while in Australia when assessing her claims.

2. The Tribunal noted however, that there is no such exception in relation to complementary protection. The Tribunal found, having regard to the applicant’s profile that it did not accept that the Vietnamese authorities would have any reason to monitor the applicant or suspect that she posted material on Facebook, using a pseudonym since she had come to Australia. The Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Vietnam, there is a real risk she will suffer significant harm because she made anti-Vietnamese Government posts on Facebook in Australia.

Privacy breach

1. The Tribunal then turned to the applicant’s claims as a result of the Department’s data breach, where certain personal details were disclosed on the internet. The Tribunal made reference to the applicant’s statement in relation to her being questioned by the Vietnamese officials and as to why she misled authorities at the airport as to her reasons for leaving Vietnam. The Tribunal also made reference to the applicant’s claims concerning her grandfather’s work in opposition to the Vietnamese Government.

2. The Tribunal referred to the fact that the applicant departed Vietnam legally, using her Vietnamese passport, travelling on a tourist visa. The Tribunal referred to the applicant’s claim that the authorities knew she had applied to be a refugee because they questioned her at the Immigration Detention Centre in Darwin.

3. The Tribunal made reference to the applicant’s submissions that the Vietnamese official’s visit was a trigger from which the Vietnamese authorities were made aware of the applicant’s presence in Australia and then could begin to monitor her political and religious activities in Australia. The Tribunal referred to the submission that the information obtained by the Vietnamese authorities from the Department would have served as a starting point for gathering and consolidating information and intelligence about the applicant’s life and family in Vietnam.

4. The Tribunal referred to the applicant’s claim about being visited and questioned by the Vietnamese official at the Immigration Detention Centre in Darwin. The Tribunal summarised what the applicant said occurred at that meeting. The Tribunal noted that the applicant said she was frightened and did not speak to the Vietnamese officials. The Tribunal referred to media reports in respect of the attendance of Vietnamese officials. The Tribunal referred to correspondence, including the necessity for Australia to have cooperation with a country to whom people were being returned.

5. The Tribunal accepted that the Vietnamese officials did visit the Immigration Detention Centre in Darwin but found aspects of the applicant’s claim inconsistent and lacking in credibility. The Tribunal did not accept that the visits had put her life in danger if she returns to Vietnam in the foreseeable future. The Tribunal provided reasons in support of that finding, referring to the applicant’s statement that the officials visited and spoke to her about why she had undertaken activities. At the hearing, the applicant said she did not personally speak to the officials because she was too scared. It was in these circumstances the Tribunal found the applicant was not interviewed by the Vietnamese officials.

6. The Tribunal referred to material disputing the identity of the officials being secret police, and also referred to a communication from the Minister addressing concerns of the Vietnamese community that the officials had only had access to people whose applications for asylum had been rejected. The applicant was not such a person at that time. The Tribunal referred to the visit being in August 2013, before the applicant actually lodged her application for protection, and the Tribunal found there is no evidence to suggest the Department provided any information about the applicant to the Vietnamese officials, including her status as a failed asylum seeker in Australia.

7. The Tribunal did not accept the Vietnamese officials had any knowledge or information about the applicant undertaking activities in opposition to the Vietnamese Government or about the circumstances of her departure from Vietnam, other than that she travelled on a valid Vietnamese passport to Indonesia. The Tribunal was not satisfied as a consequence of the Vietnamese officials visit to the Immigration Detention Centre in Darwin in August 2013, there is a real chance that in the foreseeable future the applicant will be persecuted by the Vietnamese authorities because of her actual or imputed anti-Vietnamese Government profile. The Tribunal found the applicant’s claim of persecution because of her actual or imputed political opinion as a Vietnamese failed asylum seeker in Australia, in an Australian detention, was not well-founded.

8. For the same reasons, the Tribunal found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Vietnam, there is a real risk she will suffer significant harm because a team of Vietnamese immigration officials were allowed to visit her at an Immigration Detention Centre.

9. The Tribunal then turned to the applicant’s claims concerning the Department’s privacy data breach. The Tribunal referred to the information being made available on the Department’s website and accepted that some of the applicant’s personal information could potentially have been accessed by third parties due to the Department data breach, as she was in immigration detention at the time. The Tribunal made reference to the applicant’s claim that the Vietnamese authorities had suspicions about her anti-government activities before she departed Vietnam and would be aware of her asylum claims because of the data breach.

10. The Tribunal found that the data breach only involved information that was the name, date of birth, gender, nationality and details about detention and if other family members were in detention. The Tribunal made reference to the data breach not involving any information about protection claims that the applicant or any other person may have made.

11. The Tribunal made reference to the fact that the applicant did not lodge her protection visa application until 13 June 2014, which was after the data breach. The Tribunal found that the applicant’s protection claims could not have been disclosed to the Vietnamese authorities in the February 2014 data breach.

12. The Tribunal made reference to the submission that her precise claims for protection were not made available but rather, the very fact that the applicant was detained would be enough to raise the suspicion of the Vietnamese authorities as to why she was in Australia and for what reason she was detained. The Tribunal made reference to the submission that it was because of this suspicion that there is a real chance the Vietnamese would have to extrapolate that there was a likelihood the applicant was an asylum seeker, and it would have additional motives for monitoring her activities in Australia and interrogating her upon her return to Vietnam.

13. The Tribunal did not accept the applicant is an anti-corruption activist or political activist in Vietnam or after she arrived in Australia. The Tribunal had regard to the applicant’s profile and did not accept that the Vietnamese authorities became aware the applicant was in immigration detention as a consequence of the data breach, or because the Vietnamese officials had access to the Vietnamese asylum seekers in the Immigration Detention in August 2013. As a consequence of those findings, the Tribunal did not accept that the applicant was known to the Vietnamese authorities in Australia, and that the applicant’s activities were monitored while she was in Australia.

14. The Tribunal found that there was nothing in the data breach that would be known to the Vietnamese authorities should the applicant be removed to Vietnam in the future. The Tribunal made reference to the fact that the applicant was detained because she arrived in Australia without a visa, and that this would be obvious due to her method of arrival.

15. The Tribunal was not satisfied there was a real chance that the applicant would face persecution from Vietnamese authorities because they would have knowledge of her activities or refugee claims in Australia. The Tribunal found the applicant’s fear of persecution because of her imputed political opinion as anti-government was not well founded.

Failed asylum seeker from a Western Country

1. The Tribunal made reference to the applicant’s claims to fear harm by reason of being a failed asylum seeker from a Western country. The Tribunal did not accept the applicant would be imputed with an anti-Vietnamese government opinion because she has resided in a Western country. The Tribunal was not satisfied the applicant faces a real chance of persecution for having departed Vietnam illegally or because she applied for asylum in Australia.

Findings

1. Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied there is a real chance of persecution of the applicant in Vietnam. The Tribunal did not accept that the applicant was a religious activist or has a political profile because of her grandfather’s anti-corruption work or because of her Facebook posts in Australia. The Tribunal did not accept that the applicant would be treated differently or suffer adverse attention upon return. For these reasons, the Tribunal was not satisfied there was a real risk that the applicant is a person with a profile who could be deprived of her life, suffer torture, or be subjected to be cruel and inhumane treatment, or degrading treatment, or punishment.

2. The Tribunal found that there is no information to suggest that she will face a real risk of significant harm as a returnee to Vietnam. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act. The Tribunal was not satisfied the applicant is a person in respect to whom Australia has protection obligations under s 36(2)(aa) of the Act, and affirmed the decision under review.

Before this Court

1. The grounds of the amended application are as follows:

   Ground 1: There was an insufficient logical or evidentiary basis for the decision by the Tribunal to affirm the decision by the delegate to deny the applicant a protection visa

   1 (a) The decision by the Tribunal was affected by jurisdictional error as there was an insufficient logical or evidentiary basis for the Tribunal to find at [113] with regard to the refugee criterion and [114] with regard to the complementary criterion that as a consequence of the Vietnamese officials visit to the Wickham Point IDC in August 2013 there is not a real chance that in the applicant will suffer persecution or harm if refouled to Vietnam.

   1 (b) The decision by the Tribunal was affected by jurisdictional error as there was an insufficient logical or evidentiary basis for the Tribunal to find at [125] with regard to the refugee criterion and at [126] with regard to the complementary criterion that as a consequence of the data breach there is not a real chance that in the applicant will suffer persecution or harm if refouled to Vietnam

2. At the commencement of the hearing, the Court as a result of the material filed on behalf of the applicant by Mr Williams of counsel, foreshadowed making an order under s 477 of the Act extending time given the issues identified in the amended application, the affidavit as to explanation of delay and the submissions. Accordingly, the Court made an order after hearing from Mr Johnson of counsel extending time under s 477 of the Act, up to the time of the filing of the application in this Court.

Ground 1

1. In relation to ground 1, Mr Williams of counsel submitted that the Tribunal’s finding in relation to the applicant’s claimed fear of harm as a result of the attendance by the Vietnamese officials was legally unreasonable and/or illogical and/or without sufficient evidentiary foundation. Mr Williams took issue with the Tribunal’s adverse findings in relation to both the real risk and real chance in respect of refugee criteria and complementary criteria in relation to the consequence of the Vietnamese officials’ visit to the applicant.

2. The Tribunal’s reasons reflect a genuine and meaningful engagement with the submissions and claim advanced by the applicant in respect of her fears as a result of the attendance of the Vietnamese officials. The adverse findings by the Tribunal were cogent, logical, and open on the material before the Tribunal and dispositive of the applicant’s claims. In particular, this was a case where the applicant gave evidence to the Tribunal, to which the Tribunal referred, that the applicant had not been spoken to by the Vietnamese officials.

3. The adverse findings made by the Tribunal in relation to the attendance of the Vietnamese officials were not legally unreasonable, nor illogical, and was not the subject of insufficient evidentiary foundation. No jurisdictional error, as alleged in ground 1(a), is made out.

4. In relation to ground 1(b), Mr Williams of counsel argued that the Tribunal’s findings both in relation to real risk and real chance, in respect of refugee status and complementary protection, were again the subject of error in respect of the data breach fears of the applicant.

5. Mr Williams argued that the findings of the Tribunal in that regard were legally unreasonable, illogical, or not the subject of sufficient evidentiary basis. The Tribunal’s reasons reflect a genuine and meaningful engagement with the submissions advanced on behalf of the applicant in respect of the applicant’s fears as a result of the data breach. The adverse findings by the Tribunal in respect of the applicant’s fears were open on the material before the Tribunal, and cannot be said to lack an evident and intelligible justification.

6. The Tribunal identified that there was only limited information that was provided as a result of the data breach, and the Tribunal did not accept the applicant’s claims in relation to her alleged profile. No jurisdictional error as alleged in ground 1(b), is made out.

7. Accordingly, the amended application is dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 October 2017