Ayq17 v Minister for Immigration

[2018] FCCA 3600

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYQ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3600

Catchwords:
MIGRATION – Application for judicial review – protection (Class XA) visa – whether the Tribunal was irrational or illogical – credibility – whether the Tribunal failed to consider a claim raised by the Applicant – no illogicality – Tribunal did not failed to consider claim – no jurisdictional error apparent – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

DAO16 v Minister for Immigration and Border Protection [2008] FCAFC 2

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40

Applicant: AYQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 457 of 2017

Judgment of: Judge McNab

Hearing date: 1 August 2018

Date of Last Submission: 27 August 2018

Delivered at: Melbourne

Delivered on: 7 December 2018

REPRESENTATION

Counsel for the Applicant: Ms K.Chow

Solicitors for the Applicant: AUM Lawyers

Solicitors for the Respondents: Ms S.Nyabally of Mills Oakley

ORDERS

1. The application filed 8 March 2017 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 457 of 2017

AYQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter comes before the Court by way of an application for an order to show cause under s 476 of the Migration Act 1958 (Cth) (‘the Act’) filed 8 March 2017. The Applicant seeks review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 3 February 2017. The Tribunal affirmed a decision of a delegate of the First Respondent to grant the Applicant a Protection Visa (‘Visa’).

Background

1. The Applicant is a Vietnamese national who was living lawfully in Australia on a TU573 High Education Sector visa until 5 September 2010.[1] She did not depart the country after her visa lapsed and she was included as a member of the family unit on her sister’s Protection visa application.[2] As the Applicant is not a dependent under the Act or Migration Regulations 1994 (Cth), her application has been assessed separately to her sister’s application.[3]

   [1] Court Book 39.

   [2] Ibid.

   [3] Ibid.

2. The applicant made a number of claims, which were elaborated upon and amended at various review stages.[4] Her claims for protection before the Tribunal are summarised below:

   a)the Applicant’s father was the director of a well-known soft-drink company in Vietnam, which went bankrupt around 2008;[5]

   b)the Applicant’s father borrowed a significant amount of money from gangsters who were associated with the police. These gangsters, related to government, also demanded protection money. As the soft-drink company began floundering, the gangsters became concerned about debt and pressured the Applicant’s father to make repayments;[6]

   c)the Applicant returned to Vietnam in 2006 for around six weeks, having been studying in Australia. During this time people threw things such as shrimp paste, rocks and snakes at the Applicant’s family home. This made the Applicant suspicious that her father had problems with local gangsters, though when confronted her father did not tell the Applicant much about his affairs;[7]

   d)during her trip to Vietnam in 2006, the Applicant was kidnapped. While the Applicant’s accounts differed between the delegate and the Tribunal, she was held for between one and three days and then released.[8] A ransom was demanded from her father.[9] The Applicant’s father told her to leave Vietnam after the kidnapping, but she stayed another month to care for him.[10] Her father did not initially report the kidnapping because he was threatened, but did so after the Applicant left the country.[11] The police ignored his report.[12] The Applicant made other claims of harassment from the gangsters, including traffic accidents with her family and property offences;

   e)after the soft-drink company became bankrupt in 2008, her father could not find a new job because of his age. He faced greater pressure from gangsters as they were aware of his financial circumstances. His properties were ‘taken over by the gangster’.[13] The Applicant’s father has gone into hiding;[14]

   f)She fears harm from the gangsters in Vietnam if she returns and the government does not protect people.[15] If she returns to Vietnam she will have to find employment, and in any job people must routinely bribe others. The Applicant does not want to break the law and objects to working within a corrupt system;

   g)Vietnam is in conflict with China over international issues and war is imminent between the two countries;[16]

   h)There are no civil or women’s rights in Vietnam and she will face social stigma because of her age as an unmarried woman. She will not be able to marry and have a family if she returns to Vietnam.[17]

   [4] Ibid 95 – 99.

   [5] Ibid 96 [27], 97 [28].

   [6] Ibid 97.

   [7] Ibid.

   [8] Ibid 95 – 97.

   [9] Ibid 95.

   [10] Ibid 97.

   [11] Ibid.

   [12] Ibid.

   [13] Ibid.

   [14] Ibid 98.

   [15] Ibid.

   [16] Ibid.

   [17] Ibid.

3. The Applicant provided the Tribunal with additional written submissions post-hearing. Those largely added material to bolster claims made orally before it, but added that the Applicant had not expressed herself clearly due to her psychological condition, and her four years in Australia without a valid visa occurred because of depression arising from a relationship ending.[18]

   [18] Ibid 98 – 99.

Tribunal Decision

1. The Tribunal considered the Applicant to be competent to give evidence at the hearing. It noted that the Applicant was competent in English, that though emotional she had been articulate and there had been break periods provided when necessary.[19] She was also considered to be competent before the delegate, upon review of the recording of that interview.[20]

   [19] Ibid 99 [32] – [34].

   [20] Ibid 100 [35].

2. The Tribunal accepted many of the Applicant’s claims regarding her background, including her trips to Vietnam and her father’s position at the soft-drink company.[21] However, it considered her claims about the kidnapping to be inconsistent, with key differences between her written claims and oral claims before the Tribunal. At [43] of the decision record, the Tribunal stated that:

   The Tribunal considers these inconsistencies to be significant because the tribunal would expect that the Applicant could accurately and consistently recall key events about such an extreme experience as being kidnapped, had occurred as claimed. In light of these inconsistencies the Tribunal has significant concerns about the credibility of the Applicant’s claims to have been kidnapped and considers that these cast doubt on the Applicant’s general credibility.

   [21] Ibid [36] – [40].

3. The Tribunal overall considered the Applicant’s evidence about her kidnapping and her father’s involvement with gangsters to be vague and limited.[22] The Tribunal found that it was implausible that the Applicant decided to stay in Vietnam for four weeks after the kidnapping, given the frightening nature of the crime.[23]

   [22] Ibid 101 [44] – [45].

   [23] Ibid 102 [46].

4. While the Tribunal also accepted that the Applicant had faced some difficulty following the failure of her relationship in around 2010, it considered that her education and English proficiency made it very unlikely she would not have lodged a protection application at an earlier stage.[24]

   [24] Ibid [48].

5. For the aforementioned reasons, the Tribunal did not accept the Applicant’s claims regarding the kidnapping, gangsters or why she took time to make a protection application, on the basis of her credibility. The Tribunal did not accept that the Applicant faced a real chance of serious harm or a real risk of persecution on the basis of the claims she made if returned to Vietnam.[25]

   [25] Ibid 103 [52].

Grounds of review

1. The Applicant’s amended grounds of review, filed 4 July 2018, are as follows:

   1.The decision was unreasonable and/or irrational in that the AAT's finding as to the applicant's general credibility was unreasonable and/or irrational.

   Particulars

   The AAT's decision was unreasonable and irrational in making an adverse finding as to the applicant's general credibility on the basis of:

   ·Inconsistencies in her account of being kidnapped in 2006 - where the perceived inconsistencies were minor or did not in fact reflect any inconsistency;

   ·Perceived vagueness and hesitancy as to her account of being kidnapped in 2006 - where the applicant gave direct, specific information as to what occurred, or otherwise gave concrete explanations as to why she could not ascertain certain information;

   ·The perceived implausibility of her claims that:

   •She does not know the details of her father's loans with black market moneylenders - where she explained that her father refuses to disclose such information, and why;

   •She remained in Vietnam for some time after being released from kidnapping - where she explained that she did so out of fear for her father's wellbeing should she leave him alone;

   •Her father waited until she left Vietnam to report the matter to police;

   •That she delayed in applying for a protection visa - where she explained that she experienced severe depression during that period, which incapacitated her.

   2.The decision was unreasonable and/or irrational in that the AAT placed disproportionate reliance on the general credibility finding in rejecting the remainder of the Applicant’s claims

   Particulars

   ·The particulars set out under ground 1 constitute a limited number of relatively weak grounds to doubt the applicant's credibility. It was unreasonable and irrational to dismiss the large number of detailed claims raised by the applicant on this slim basis, as to her experience and that of her family.

   3.The AAT failed to consider the applicant's claim that her parents belonged to the previous government in Vietnam, such that she remains at risk under the current government should she return.

   Particulars

   ·During the AAT hearing, the applicant stated that her parents belong to the previous government in Vietnam, and that such persons and their family members remain vulnerable under the current government, such that she would be fearful should she be returned to Vietnam.

   ·The AAT failed to consider that claim. It appeared to misunderstand this claim in the course of the hearing and made no reference to it in its reasons for decision.

Consideration

Grounds one and two

1. The Tribunal’s findings in relation to the Applicant’s credibility and what it considered the implausibility of a number of the Applicant’s claims are set out in some detail at [41] – [49] of its decision.[26] The Applicant’s submissions focus on the findings recorded at [44] of the decision, where Tribunal stated:

   The Tribunal assessed the applicant’s evidence about her own involvement with gangsters and considered it to be vague and hesitant. In relation to the kidnapping, the applicant could not tell the Tribunal how the gangsters found her in the house; she could not describe who the people who took her were, or anything about where she was taken; or approximately how long it took to get there. In response to the Tribunal’s enquiries, the applicant stated that she was too scared to remember these things. Tribunal considers this explanation unconvincing in view of the impact these events could be expected to have on the applicant if they were true. The Applicant’s vague and limited responses to questions would expect her to recall events with clarity and spontaneity reflecting personal experience, that the Tribunal to doubt the veracity of the applicant’s claims and to conclude that there was not a credible basis for the claims.[27]

   [26] Ibid 101.

   [27] Ibid.

2. The Applicant submits that Tribunal failed to take into account that the Applicant had given detailed and extensive evidence and that the examples of inconsistency or implausibility were plainly wrong, readily explicable or contrary to common sense. By way of example, in relation to the claim that she had been kidnapped by moneylenders in order to place pressure on the father to repay loans, the Applicant submitted that the Tribunal’s finding of implausibility was “unsustainable”. It was said that the Applicant’s account was “plausible both as a matter of common sense and in light of the Applicant’s evidence”.[28]

   [28] Submissions of AYQ17 [19].

3. The principles to be applied when considering legal unreasonableness were summarised in DAO16 v Minister for Immigration and Border Protection [2008] FCAFC 2 [30]. At [30(5)] their Honours stated:

   A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality” (citations omitted).

4. In post hearing submissions provided to the Tribunal on 29 November 2016, the Applicant raised an explanation as to why she may have given evidence which the Tribunal found would be implausible. The Applicant had given evidence before the Tribunal that she had suffered from severe depression for years following a relationship breakdown and feelings of hopelessness about her future Visa and life prospects such that she was not capable of doing much more than sleeping and remaining inside her sister’s home, largely without speaking.[29]

   [29] Ibid 85 – 93.

5. The Tribunal did have regard to the Applicant’s psychological health as a reason for the delay in her making an application for Visa and in relation to her presentation to before the Tribunal. In particular, at [48] the Tribunal stated that it accepted the evidence of the Applicant that following her breakup with her partner in around 2010, the Applicant experienced a very difficult time. However, it did not accept that the Applicant’s psychological situation provide an adequate explanation for the delay of four years in making an application for a protection visa.

6. Further, the Tribunal found that the Applicant demonstrated an ability to respond meaningfully to its questions.[30] The Tribunal had regard to post hearing submissions provided that the Applicant did not express herself well at the hearing because of her psychological condition and found that the Applicant presented as very emotional of the hearing, was frequently tearful and distressed when speaking about the prospect of leaving her sister and her nephews but was highly articulate and able to use sophisticated language to explain complex matters.[31] It also noted that she was alert and responded appropriately to enquiries and that should that she was otherwise competent and able to present and provide evidence the hearing.[32]

   [30] Ibid .

   [31] Ibid .

   [32] Ibid [33].

7. Having regard to the reasons given by the Tribunal and the stated grounds of review, it is apparent that the Applicant is asking the Court to engage in merits review. The weight to be given to information that informs the findings of the Tribunal of its statutory task is a matter for it: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 [41]. It is not the case that the Tribunal made credibility findings on the basis of isolated or minor inconsistencies in the applicant’s evidence. A fair reading of the decision shows that the Tribunal made a decision on credibility based on the cumulative effects of a number of matters which considered went to demonstrate implausibility. It is not apparent at the decision is one which indicates illogical thinking, or irrationality, let alone extreme illogicality.

8. For these reasons, grounds one and two must fail.

Ground three

1. This ground is supported by supplementary submissions filed by the Applicant on 27 August 2018. The Applicant claims that she told the Tribunal of the hearing that her parents belong to the previous government in Vietnam and that such persons and their family members remain vulnerable under the current government. It is submitted by the Applicant that the Tribunal appeared to misunderstand this claim in the course of the hearing and as a result did not consider it. The Applicant relied on an affidavit filed on 7 August 2018 which annexed a partial transcript of the Tribunal hearing that took place on 24 November 2016. The transcript indicates that the applicant told the Tribunal:

   …my parents were born in Ho Chi Minh City before 1975 actually you heard about the war in 1975, my parents belonged to the old government not the newer government. My dad also belonged to the old government, when they were taking over you heard the story that lots of people wouldn’t live under the new politics that’s why they gone by boat and came to the third country. My dad tried really hard to get away from Vietnam but he had to go, his escape wasn’t that successful and he got caught one time and he was in prison for going on the boats away from Vietnam so and then…[33]

   [33] Affidavit of Lisa Marie Quinn, sworn 6 August 2018.

2. The Tribunal asked the Applicant how her father’s involvement in the old government would affect her today and how it might affect her if she returned to Vietnam.[34]

   [34] Ibid.

3. I accept the First Respondent’s submission that the Tribunal gave the Applicant the opportunity to make a claim that she was at risk of harm under the new government in Vietnam because her parents were members of the old government and that she did not do this. The transcript provided shows that she did not clearly advance this claim.

4. The Tribunal also considered on the basis of independent country information and the Applicant’s circumstances, the Tribunal that did not accept that the Applicant had a real risk of suffering serious harm now or in the foreseeable future because you will not have access to effective protection of any for any reason. At [52] of its decision, the Tribunal made a finding that the Applicant does not have a real chance of suffering serious harm now or in the foreseeable future, arising her from her father’s involvement with gangsters or anyone else. The Tribunal noted that it was over 10 years since the Applicant’s claimed kidnapping occurred and during this time, the Applicant’s father had the freedom and sufficient funds to travel to Australia for a visit and that he returned to Vietnam and has continued to live in Vietnam freely and safe from gangsters or anyone else.[35]

   [35] Court Book [47].

5. There has been no failure to consider clearly articulated claims made by the Applicant and for these reasons ground three must fail.

Conclusion

1. For the reasons provided above, the application will be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  7 December 2018