Ayv17 v Minister for Immigration

[2019] FCCA 1287

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYV17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1287

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XD) visa – whether the Tribunal considered the applicant’s claims and evidence – whether the Tribunal afforded the applicant procedural fairness – whether the Tribunal’s decision was affected by bias – whether the Tribunal misinterpreted the law – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: AYV17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 129 of 2017

Judgment of: Judge Street

Hearing date: 15 May 2019

Date of Last Submission: 15 May 2019

Delivered at: Sydney

Delivered on: 15 May 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

ORDERS

1. The name of the First Respondent is changed to “Minister for Immigration, Citizenship and Multicultural Affairs” and the Court dispenses with the need for the filing of a further document in that regard.

2. The Application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDERS: 15 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 129 of 2017

AYV17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

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 Administrative Appeals Tribunal (“the Tribunal”) made on 17 February 2017 affirming a decision of the delegate not to grant the applicant a Protection (Class XD) visa.

2. The applicant was found to be a citizen of Vietnam and his claims were assessed against that country. The applicant claimed, in summary, to fear harm by reason of his religion being Catholic, his political opinion, and his membership of particular social groups as a failed asylum seeker returning from the West who departed Vietnam illegally.

3. On 27 May 2015, the delegate found that the applicant failed to meet the criteria for the grant of a protection visa.

4. On 2 June 2015, the applicant applied to the Tribunal for review. By a letter dated 10 August 2016, the applicant was invited to attend a hearing on 13 October 2016. The applicant appeared on that date to give evidence and present arguments. The applicant was represented by his migration agent via telephone. The applicant was given the opportunity at that hearing to provide further submissions. The applicant provided further submissions dated 23 October 2016.

5. The Tribunal in its reasons identified the background to the visa application and summarised the applicant’s claims and evidence. The Tribunal referred to the adverse findings that had been made by the delegate. The Tribunal referred to both the pre and post hearing submissions provided by the applicant and the hearing that occurred on 13 October 2016. The Tribunal raised with the applicant at that hearing its concerns in relation to the applicant’s evidence.

6. The Tribunal accepted that the applicant is a practising Catholic but rejected other significant aspects of the applicant’s claims for reasons that the Tribunal provided in detail. The Tribunal accepted that the applicant was a third generation practising Catholic but found that he was an ordinary member of the Dao Dong parish and congregation. The Tribunal did not accept that the applicant is a leader or organiser of the Dao Dong parish with any significant profile, either in fact or is perceived to be so.

7. The Tribunal referred to the applicant’s evidence that he had no problems in practising his Catholic faith in the past prior to an incident at Con Cuong. The Tribunal referred to country information in relation to restrictions being placed on Catholics involved in anti-government political activities. The Tribunal found that the applicant will not face a real chance of serious harm on the basis of being required to live discretely, or on the basis of having to modify his behaviour, now or in the reasonably foreseeable future in Vietnam.

8. The Tribunal referred to the applicant’s claims concerning a business that he had been operating without a licence. The Tribunal referred to the applicant’s claims that the relevant authorities placed obstructions on a bridge which otherwise enabled physical access to his place of business. The Tribunal did not accept that the attention focused by the relevant authorities on the applicant in relation to his lack of a business licence was a result of his religion. The Tribunal did not accept that the applicant was targeted for harm as a result of venting his frustration, was charged with any offence, or that there are any warrants outstanding for his arrest due to this or any other incident. The Tribunal found that the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future for having shouted abuse at officials at the Committee Building.

9. The Tribunal referred to the licencing regulations and found that they were laws of general application and not administered or implemented in a discriminatory way. The Tribunal found that if the applicant were to be prevented from operating his business in the future because of a failure to meet licencing requirements, this would not amount to serious harm.

10. The Tribunal referred to the applicant’s claim to fear harm because of his political activities. The Tribunal referred to the applicant’s claims that he was involved in activities in the Con Cuong parish that were critical of the government. The Tribunal accepted that the applicant was involved with other parishioners in prayers and protest in support of the Con Cuong parishioners. The Tribunal referred to country information and accepted that the applicant was detained for a few hours by the local authorities. The Tribunal accepted that the applicant was asked to take down banners and sign a statement, which he refused to sign.

11. The Tribunal considered the evidence that the applicant was released after this to be very significant. The Tribunal found the applicant’s evidence that he was released despite his claimed refusal to sign a statement and despite his claims that he was wanted by the authorities for reasons of his claimed activism is inconsistent with country information which suggests that the Vietnamese authorities would take a firmer line with a person whom they suspected was, in fact, a dissident or who was advocating serious anti-government messages. The Tribunal found that the release of the applicant by the authorities, and without charge, seriously undermines the applicant’s claims that he is a person of continuing adverse interest to the Vietnamese authorities.

12. The Tribunal found that the applicant is not, in fact or perceived to be, an anti-government political activist. The Tribunal found on the evidence before it that there is not a real chance the applicant will be charged with an offence under article 91 of the Vietnamese penal code for fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration of Vietnam.

13. The Tribunal referred to the applicant’s illegal departure and use of his brother’s passport to depart Vietnam and claim that he will be seriously harmed because of this. The Tribunal accepted that the applicant left Vietnam to go to Cambodia where he worked for approximately seven months. The Tribunal did not accept that the applicant fled Vietnam for fear of serious harm, but that he went to Cambodia for employment reasons. The Tribunal also considered the applicant’s claim that he returned to Vietnam after seven months because his wife was pregnant, in circumstances where the applicant claimed he feared serious harm. The Tribunal found that the applicant’s return in these circumstances is inconsistent with a claim of a genuine fear of harm. The Tribunal found that the applicant’s return in these circumstances undermines the credibility of the applicant and his claims to fear harm in Vietnam.

14. The Tribunal referred to country information in relation to the applicant’s failure of not using his own passport to depart Vietnam and found that the applicant may face a fine. The Tribunal found that, in the applicant’s circumstances where he has been employed in Australia for some time, this fine does not amount to serious or significant harm. The Tribunal found that the applicant is not in a position where he would be unable to pay the fine if it were imposed on him.

15. The Tribunal referred to the applicant’s claims in relation to being interviewed by members of a Vietnamese delegation whilst in immigration detention. The Tribunal took into account that the applicant is not a person of adverse interest to the Vietnamese authorities and did not accept the applicant’s claim that he faces a real chance of serious harm because of the interview by members of the Vietnamese delegation.

16. The Tribunal did not accept the applicant’s claim that there was a breach of the necessary confidentiality by the Department in its dealings with the officials of the A18 delegation in its actions to verify the identity of the relevant persons, including the applicant, held in immigration detention. The Tribunal found that the applicant is not of adverse interest to the Vietnamese government. The Tribunal found that it did not accept the applicant’s claim that the provision of documents to A18 gave rise to a real chance that the applicant will face serious harm now or in the reasonably foreseeable future in Vietnam.

17. The Tribunal referred to the data breach at the Department. The Tribunal accepted that the applicant’s personal details and identification may have been accessed. The Tribunal found and took into account that the applicant is not of any interest, adverse or otherwise, to the Vietnamese government. The Tribunal did not accept that there is a real chance the applicant will face harm because of the data breach and release of his personal information if he returns to Vietnam now or in the reasonably foreseeable future.

18. The Tribunal referred to the submissions advanced on behalf of the applicant that the authorities in Vietnam have seen, and have continuing access to, the information disclosed by the breach. The Tribunal did not accept that is necessarily the case. The Tribunal was not convinced that the applicant is of any adverse interest to the Vietnamese authorities such that they would seek to seriously harm him or that they would, therefore, carry out inquiries or investigations in search of material to be used against the applicant.

19. The Tribunal referred to the applicant’s claims of association with the Viet Tan organisation. The Tribunal found the applicant’s involvement with the Viet Tan organisation to be low level at best. The Tribunal found on the applicant’s own evidence, that he was not an active member. The Tribunal did not accept that the applicant’s volunteer activities, which appear to have been mainly involving food preparation for the purpose of fundraising, would come to the attention of the Vietnamese authorities and that he would be regarded as an anti-government political activist for such activities. The Tribunal found that the applicant does not have a profile of any adverse interest to the authorities in Vietnam or elsewhere.

20. The Tribunal referred to the applicant’s online photographs and postings and found that the chance the authorities will identify the applicant and target him to be remote at best. The Tribunal found that the applicant’s claims about his postings were vague. The Tribunal was not satisfied that the applicant posted messages online which give rise to a real chance that such posting would result in the applicant being targeted for serious harm now or in the reasonably foreseeable future in Vietnam.

21. The Tribunal referred to the applicant’s claims to fear harm by reason of being a failed asylum seeker and did not accept that the applicant will be targeted for harm on this basis.

22. The Tribunal referred to the applicant being a member of several particular social groups of failed asylum seekers, asylum seekers returned from the West, and illegal departees. The Tribunal found that the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future in Vietnam on any of these bases. The Tribunal found that the applicant does not face a real chance of serious harm for reasons of his membership of the particular social groups claimed, or for membership of any other particular social group.

23. The Tribunal in its reasons also considered the claims that were advanced before it concerning the applicant’s son, whose claim has been dealt with separately in other proceedings before this Court. The Tribunal found that the applicant does not face a real chance of serious harm on the basis of his and his son’s claims, individually or cumulatively, now or in the reasonably foreseeable future if returned to Vietnam. The Tribunal found that the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future if returned to Vietnam.

24. The Tribunal found that the applicant’s claimed fear of persecution is not well-founded. The Tribunal found that the applicant does not face a real chance of serious or significant harm if returned to Vietnam. The Tribunal found that the applicant is not of adverse interest to the Vietnamese authorities, or to anyone else, and that the risk of him suffering torture at the hands of the Vietnamese authorities and/or inhumane treatment or punishment and degrading treatment or punishment by the Vietnamese authorities is remote and not a real risk.

25. The Tribunal found that the applicant did not meet the criteria under s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 8 March 2017. Orders were made by a Registrar of this Court on 3 May 2017 and a Judge of this Court on 10 December 2018 giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. The applicant did not do so.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant endeavoured to tender photographs which the applicant confirmed went to his claims for protection. The photographs were provided to the solicitor for the first respondent, who objected to the tender of the same. One of the photographs was a colour photograph of a photograph in the Court Book. The other photographs all appeared to be different from what was before the Tribunal. There is no relevant issue that the coloured photograph went to that would make it relevant. The other photographs, not being before the Tribunal, are not capable of giving rise to any relevant error by the Tribunal. The Court rejected the tender of the same as being not relevant to any issue before the Court, and the photographs were marked MFI1.

4. The applicant also sought to tender from the bar table a letter from the parish priest which was in Vietnamese. The tender was objected to by the first respondent. The applicant made clear that the tender went to the applicant’s claims. The Court rejected the tender of the document on the ground that it was not relevant to a fact in issue, and the document was marked MFI2. A document not before the Tribunal is not capable of giving rise to a relevant error insofar as that document goes to the applicant’s claims, which is the position in respect of the proposed tender by the applicant in the present case.

5. From the bar table, the applicant asserted that he would be sent to jail for his illegal departure. It is apparent that the Tribunal referred to the applicant’s illegal departure and found that he would be the subject of a fine and that the applicant would be able to pay the same, and that the fine being imposed did not give rise to the applicant facing a real chance of serious harm or significant harm.

6. The applicant also submitted that the Tribunal had not taken into account his claims concerning the attendance of a delegation whilst in detention. It is apparent from the Tribunal’s reasons, as summarised above, that the Tribunal expressly considered that claim and made dispositive findings in respect of the same.

7. The applicant also suggested that the Tribunal had not taken into account his involvement with the Viet Tan organisation. As summarised above, it is apparent that the Tribunal took into account the low level activity of the applicant in that regard and made dispositive findings that were open to the Tribunal in respect of that claim.

8. The applicant asked the Court to reconsider his application. This Court does not have power to make fresh findings of fact in relation to the applicant’s claims. This Court does not have power to determine the matter on compassionate or discretionary grounds.

9. The applicant’s submissions from the bar table otherwise invited the Court to engage in merits review. This Court has no power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. I think the Decision maker did not consider all of the evidence or did not take into account relevant considerations.

   2.  I was not afforded procedural fairness.

   3.  I think the Decision is affected by bias.

   4.  I think the Decision maker misinterpreted the law

Ground 1

1. In relation to ground 1, there is no evidence that has been identified that the Tribunal did not consider, nor has there been identified any relevant consideration that the Tribunal was required to and did not take into account. On the face of the material before the Court, the Tribunal made dispositive findings in respect of the applicant’s claims.

2. Insofar as the Tribunal made adverse findings in relation to the applicant’s credit, the Tribunal gave detailed, logical and rational reasons in support of those adverse credibility findings. The adverse credibility findings cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, on the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal. The Tribunal’s reasons reflect a meaningful engagement with the applicant’s claims, evidence and submissions. No jurisdictional error arises by reason of ground 2.

Ground 3

1. In relation to ground 3, an allegation of bias must be clearly alleged and properly proved. No such case of bias is proved. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. On the face of the material before the Court, the Tribunal conducted the review with an open mind, reasonably capable of persuasion as to the merits. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, on the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant law and there is no basis to find that the Tribunal misinterpreted or misconstrued the relevant law. No jurisdictional error as alleged in ground 4 is made out.

2. As the application fails to make out any jurisdictional error, the application is dismissed.

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

Associate:  

Date:  26 June 2019