AYJ22 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 34

Federal Circuit and Family Court of Australia

(DIVISION 2)

AYJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 34

File number(s):	MLG 508 of 2022
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	27 January 2023
Catchwords:	MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Safe Haven Enterprise (Class XE) (Subclass 790) visa – claims to fear harm due to Catholic faith and compulsory military service – where applicant’s details were released as part of data breach – where grounds lack meaningful particulars – no jurisdictional error established – application dismissed with costs.
Legislation:	Migration Act 1958 (Cth), ss 476
Division:	Division 2 General Federal Law
Number of paragraphs:	49
Date of last submission/s:	7 September 2022
Date of hearing:	7 September 2022
Place:	Melbourne
Counsel for the Applicant:	The Applicant appeared in person
Solicitors for the First Respondent:	Ms J Hodkinson of Sparke Helmore

ORDERS

MLG 508 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AYJ22

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	27 January 2023

THE COURT ORDERS THAT:

1.The application filed on 7 March 2022 be dismissed.

2.The applicant pay the costs of the first respondent fixed in the sum of $5,000.

3.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

DEPUTY CHIEF JUDGE MERCURI:

Introduction

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 2 February 2022.  By its decision, the Tribunal affirmed a decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) to refuse the applicant’s application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (‘protection visa’).

   Background

2. The applicant is a citizen of Vietnam of Catholic faith.

3. On 22 April 2013, the applicant arrived in Australia by boat.[1]  On 14 May 2013, he attended an arrival interview and on 6 June 2013 he was found to be an unaccompanied minor in Australia and was placed in community detention.[2]

   [1] Delegate decision record dated 27 August 2019; Court book at page 44.

   [2] Delegate decision record dated 27 August 2019; Court book at page 45.

4. In February 2014, the applicant’s details were included as part of a data breach on the Department of Home Affairs’ website, which included details about when and where he was detained as well as the reason for his detainment.[3]

   [3] Delegate decision record dated 27 August 2019; Court book at page 45.

   Protection visa application made on 19 June 2019

5. On 1 July 2019, the applicant lodged a valid application for a protection visa.[4]

   [4] Court book at pages 9 to 32.

6. In his application, the applicant claims that as a young child he saw his parents and other members of the Catholic faith being ‘tortured, jailed and discriminated against’, that there has ‘always’ been clashes between the Vietnamese government and the Catholic church, and that the government ‘tries to eradicate the religions that is strong with foreign support’.[5]  He claims that if he were to return to Vietnam, he would not get protection and that authorities in the country would not protect him.

   [5] Court book at page 30.

7. On 27 August 2019, the applicant was advised by letter that a delegate of the Minister had refused his visa application.[6]

   [6] Court book at pages 41 to 43.

   Application for review at Tribunal on 18 September 2019

8. On 18 September 2019, the applicant lodged an application for review with the Tribunal.[7]

   [7] Court book at pages 62 to 63.

9. The applicant was invited to and attended two hearings before the Tribunal to give evidence and make submissions in relation to his application. The first hearing was conducted on 18 October 2021,[8] and the second hearing on 18 November 2021.[9]  On both occasions, the applicant was assisted by an interpreter in the Vietnamese language.

   [8] Court book at pages 68 to 73; Court book at pages 77 to 79.

   [9] Court book at pages 83 to 84; Court book at pages 85 to 87.

10. On 13 January 2022, the applicant was invited to comment on or respond to country information.[10]  On 27 January 2022, the applicant provided a written response to the Tribunal via his representative.[11]  I discuss this further below.

    [10] Court book at pages 89 to 127.

    [11] Court book at pages 128 to 131.

11. On 2 February 2022, the Tribunal decided to affirm the delegate’s decision to refuse the applicant’s application for a protection visa.[12]

    [12] Court book at pages 134 to 135.

    Tribunal decision

12. The Tribunal’s decision record of 2 February 2022 is at pages 136 to 161 of the court book.

13. After setting out the statutory criteria for a protection visa at paragraphs [3] to [7] of the decision and the requirements of Ministerial Direction No 84 at paragraph [8], the Tribunal summarised the applicant’s claims.

14. At paragraph [10], the Tribunal set out, in detail, the claims made by the applicant in his statutory declaration made in November 2013 and provided to the Department.  At paragraphs [11] to [12], the Tribunal deals with the disclosure of the applicant’s personal information as part of the data breach on the Department’s website in February 2014.

15. The Tribunal then details the information provided by the applicant at the Tribunal hearing on 18 October 2021.[13]  Relevantly, the Tribunal records information provided by the applicant at that hearing which was not consistent with the information provided in his initial application for a protection visa.  In particular, the decision record notes the reasons given by the applicant as to the reasons for his departure from Vietnam, including that he says that he came to Australia because ‘he had run away from home and had nowhere to live’.[14]

    [13] Tribunal decision record dated 2 February 2022 at paragraph [16].

    [14] Tribunal decision record dated 2 February 2022 at paragraphs [16(k)].

16. In relation to the applicant’s claim that he feared harm in Vietnam because he is Catholic, the applicant said that ‘he did not know why this information was provided’ and that he had ‘no problems’ in Vietnam by reason of his Catholic faith.[15]  Rather, he said that his ‘problems in Vietnam are with his father and refusing to join the army’.[16]

    [15] Tribunal decision record dated 2 February 2022 at paragraph [16(r)].

    [16] Tribunal decision record dated 2 February 2022 at paragraph [16(s)].

17. At paragraph [18], the Tribunal records further information provided by the applicant at the second hearing on 19 November 2021.  In particular, the Tribunal put to the applicant at this hearing that information provided by him at the 18 October 2021 hearing ‘was very different from the information he provided in his Protection visa application’.

18. The decision also records that at the conclusion of the November 2021 hearing, the applicant referred to attending a demonstration at his parish in January 2013.[17]  He also referred to letters previously provided by his representative, which he said were from members of his parish, as well as his father.  The letters, which were untranslated, confirmed the applicant’s attendance at the January 2013 protest.[18]

    [17] Tribunal decision record dated 2 February 2022 at paragraph [18(o)].

    [18] Tribunal decision record dated 2 February 2022 at paragraph [18(f)] and following.

19. At paragraphs [19] to [24], the Tribunal set out country information that it had regard to, as well as the applicant’s submission of 27 January 2022, provided by his representative, in response to an opportunity to comment on that country information.

20. At paragraphs [25] to [33], the Tribunal then considered the applicant’s claims, both those included in his initial application and in his subsequent hearings with the Tribunal.

21. At paragraphs [27] to [33], it then considered the applicant’s claims to fear harm on the basis of his Catholic faith.  The Tribunal accepted that the applicant was a practising Catholic.[19] However, it found his evidence about the difficulties that he and his family faced in his parish to be inconsistent and contradictory throughout the review process.[20]

    [19] Tribunal decision record dated 2 February 2022 at paragraph [27].

    [20] Tribunal decision record dated 2 February 2022 at paragraph [28].

22. In particular, the Tribunal referred to evidence provided by the applicant in his first written statement to the Department about participating in a church-related demonstrations, including a demonstration in Con Cuong whilst he was still in school.[21]  It noted, however, that the applicant’s protection visa application made no reference to any personal involvement in church protests and that at the October 2021 Tribunal hearing, the applicant ‘stated clearly he had no problems regarding his Catholic religion and practicing his religion in Vietnam’.[22]

    [21] Tribunal decision record dated 2 February 2022 at paragraph [29].

    [22] Tribunal decision record dated 2 February 2022 at paragraph [30].

23. The Tribunal was prepared to accept that the applicant had attended the Con Cuong protest when he was a child, but concluded that nothing happened to him as a result.[23]  The Tribunal however, did not accept that the applicant had participated in church led demonstrations in January 2013, referring to the fact that the applicant had only raised this incident at a late stage of the review process, as well as the internal and external inconsistencies in his account.[24]

    [23] Tribunal decision record dated 2 February 2022 at paragraph [31].

    [24] Tribunal decision record dated 2 February 2022 at paragraph [32].

24. At paragraph [34], the Tribunal considered the data breach issue and accepted that the applicant’s name was among a list of detainees whose details were made public in 2014.

25. At paragraphs [35] and [36], the Tribunal then considered the applicant’s claims that he feared harm due to not having undertaken military service in Vietnam and that he faced imprisonment if he returned.  After considering the evidence given by the applicant and country information, the Tribunal did not accept that the applicant would be arrested on his return or that he would face imprisonment for failing to undertake compulsory military service.  The Tribunal did accept, however, that he may be required to undertake military service if he returns.

26. At paragraphs [37] to [39], the Tribunal considered the applicant’s fear of harm from his father, raised for the first time in his hearing before the Tribunal on 18 October 2021.   Due to the lateness of this claim being raised and inconsistency in the applicant’s evidence, at paragraph [39], the Tribunal did not accept that the applicant had been physically mistreated by his father.

27. On the basis of these findings, at paragraphs [40] to [64], the Tribunal went on to set out its findings in relation to the applicant’s claims of fear of harm in Vietnam.  Relevantly:

    (a)having regard to country information, and the applicant’s own evidence, the Tribunal concluded that he did not face a real chance of serious or significant harm as a Catholic or due to his Catholic practice in Vietnam;[25]

    (b)given the nature of the information disclosed as part of the data breach, and the fact that since the data breach there has been no reported contact with himself or his family in Vietnam, the Tribunal found that there is no real chance of serious or significant harm to the applicant in Vietnam as a result of the data breach;[26]

    (c)whilst there is a chance that he might be required to undertake military service if he were to return, the Tribunal was not satisfied that there is a real chance of the applicant facing persecution as defined in section 5J of the Migration Act 1958 (Cth) in regard to his performance of military service or punishment for evading military service;[27]

    (d)having regard to country information, and the fact that the applicant’s family continues to live in Vietnam and therefore would be able to provide him some support if he were to return, the Tribunal was not satisfied that the applicant would suffer persecution or significant harm on return as a result of having left and sought asylum in Australia.[28]

    [25] Tribunal decision record dated 2 February 2022 at paragraphs [41] to [46].

    [26] Tribunal decision record dated 2 February 2022 at paragraphs [47] to [50].

    [27] Tribunal decision record dated 2 February 2022 at paragraphs [51] to [58].

    [28] Tribunal decision record dated 2 February 2022 at paragraphs [59] to [64].

28. For each of these reasons, the Tribunal concluded that the applicant did not satisfy the criteria for the granting of a protection visa and determined to affirm the decision of the delegate not to grant the applicant a protection visa.[29]

    Proceedings in this court

    [29] Tribunal decision record dated 2 February 2022 at paragraphs [65] to [69].

    Application filed on 7 March 2022

29. On 7 March 2022, the applicant filed an application for judicial review of the Tribunal’s decision to this court, along with an affidavit in support sworn on 2 March 2022.

    Orders made on 6 April 2022

30. On 6 April 2022, orders were made by Registrar Carney listing the matter for hearing before me, which was ultimately listed on 7 September 2022.  Orders were also made for the filing of material in advance of the hearing, including any written submissions, amended application and additional evidence upon which the applicant sought to rely.

    Hearing on 7 September 2022

    Applicant’s request to provide translated documents

31. At the commencement of the hearing and in response to a question from me as to whether he had filed any submissions or amended application as provided in the April 2022 orders, the applicant indicated that he was not aware that he could provide any further material.

32. He said that there was some material that he did wish to provide to the court.  When asked what this was, he said that he had two letters which had been provided to the Tribunal.  He said that at the time, these letters were in the Vietnamese language and he had not been able to have them translated before the Tribunal hearing.  He said, however, that he has since obtained translations of these documents and wanted to provide them to the court.

33. This request was opposed by the Minister on the basis that as the translations had not been before the Tribunal they could not be relevant to the question of whether there was a jurisdictional error in the Tribunal’s decision.  I agreed with this submission and therefore did not permit the applicant to provide the translated documents to the court.

    Submissions

34. After explaining the role of this court in a judicial review application and turning to the specific grounds of review in his application, I asked the applicant whether he wished to say anything as to the basis on which he believed the Tribunal’s decision was affected by jurisdictional error. The applicant, through the interpreter, indicated that as he did not know the law, he was unable to make any comment about legal issues.

35. However, he did say that on 13 January 2022, he received some country information from the Tribunal and was asked to comment on it.  He further said that as he had left Vietnam when he was 16 years old and his English is very limited, he was not in a position to provide any feedback.  In response to a question from me, the applicant confirmed that he did not provide any feedback to the Tribunal about the country information.

36. In response, the Minister noted that in fact, a response had been provided on the applicant’s behalf on 27 January 2022.[30]  That response appears to have been provided by the applicant’s nominated representative.  Prior to his statement to the court in relation to this issue at the hearing before me on 7 September 2022, the applicant did not provide any material to the court that this response was provided without his instructions or that he required additional time to supplement or amend that response.

    [30] Court book at pages 128 to 131.

    Grounds of review

37. In his application, the applicant raises two grounds of review. 

38. I will turn now to consider each of these grounds in turn.

    Ground 1

39. Ground 1 is in the following terms:

    Appeal to the Immigration Department’s decision refusal: Returning back to Vietnam, highly risky of daily personal life.  Relate to section 36(2) of the Immigration Act.[31]

    [31] Initiating application filed on 7 March 2022.

40. As stated, and without in any way being critical of the applicant, at the hearing, the applicant did not provide any additional submissions in relation to this ground.

41. On its face, ground 1 takes issue with a decision of the Department.  The court does not have jurisdiction to review such decisions, and on that basis, ground 1 should be dismissed.[32]

    [32] Migration Act 1958 (Cth) ss 476(2) and (4).

    Ground 2

42. Ground 2 is in the following terms:

    Appeal to the Administrative Appeals Tribunal’s decisions: Refusal, possible of judgement error.[33]

    [33] Initiating application filed on 7 March 2022.

43. This ground lacks any particulars so as to make any meaningful claim of jurisdictional error.

44. Moreover, a fair reading of the Tribunal’s decision does not disclose any jurisdictional error.  The Tribunal understood and considered the applicant’s claims.  The findings made by the Tribunal were reasonably open to it on the evidence before it.  No jurisdictional error is apparent on the face of the Tribunal decision record.

45. Therefore, ground 2 should also be dismissed.

    Conclusion

46. For each of these reasons, the applicant’s application ought be dismissed with costs.

47. The first respondent also seeks costs fixed in the sum of $5,000 which is below the scale amount in Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.

48. In addition, the first respondent seeks an order to amend its name to reflect current administrative arrangements.  It is appropriate to make such an order.

49. I therefore make the orders set out at the commencement of these written reasons for judgement.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Deputy Associate:

Dated:       27 January 2023