Bae17 v Minister for Immigration

[2017] FCCA 2285

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAE17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2285

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – refusal of an extension of time for a show cause application.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5H, 5J, 36, 477

Cases cited:

Minister for Immigration v Rajalingam & Ors (1999) 197 CLR 510, [1999] FCA 719

MZYXS v Minister for Immigration [2013] FCA 614

SZSGA v Minister for Immigration [2013] FCA 774

SZSHK v Minister for Immigration (2013) 138 ALD 26

Applicant: BAE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 134 of 2017

Judgment of: Judge Driver

Hearing date: 19 September 2017

Delivered at: Sydney

Delivered on: 19 September 2017

REPRESENTATION

The Applicant appeared in person by videoconference.

Solicitors for the Respondents: Ms E Warner Knight of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 134 of 2017

BAE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 16 January 2017.  The Authority affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The background facts relating to this matter are set out in the Minister’s legal submissions.   

2. The applicant is a 35 year old citizen of Vietnam. He arrived in Australia as an irregular maritime arrival on 22 April 2013.[1]  On 9 March 2015, the applicant took part in an Irregular Maritime Arrival Entry Interview, with officers of the Minister’s Department (Department).[2]

   [1] Relevant Documents (RD) 136

   [2] RD 1-15

3. On 9 August 2016 the applicant, with the assistance of a registered migration agent, lodged an application for a protection visa with the Department, under cover of a letter dated 5 August 2016.[3]

   [3] RD 38-84

4. The applicant is married.  He also claimed to be Catholic and to have undertaken two years of military service in Vietnam. As part of his protection visa application, the applicant provided a statutory declaration dated 27 July 2016 containing his claims for protection.[4] The applicant claimed as follows:

   [4] RD 82-84

   I left Vietnam because I was looking for a proper life. Many bad things happened to other people in Vietnam; I saw many people being badly treated by government authorities. I was also treated badly. The problems I had there were not so bad but I don’t want to speak of them. I want to focus on being able to live in Australia. This will solve the problem of me having to live in Vietnam.

   Because of Vietnam not being a good place I went in search of a good place to live. I have travelled to many places and I knew Australia was a good place. Also the Bible taught me to live well and to have a meaningful life; I can have that meaningful life in Australia.

   I am unable to rely on the Vietnamese government for protection because the persecutors are the government authorities.

   If I went back to Vietnam I would be returning to my homeland. But I would prefer to live in Australia.

   I am unable to relocate to another area of Vietnam because my main wish is to live in Australia.

5. The applicant attended an interview on 23 November 2016. The delegate stated at page 4 of her decision:[5]

   At the TPV interview on 23 November 2016 the applicant reiterated his written claims. He indicated that he did not wish to discuss his life in Vietnam, including his experiences during his military service. He reiterated that he is seeking a better life in Australia.

   [5] RD 139

6. On 6 December 2016 a delegate of the Minister refused the applicant’s application.[6]

   [6] RD 132-147

7. In accordance with s.473CA of the Migration Act 1958 (Cth) (Migration Act) the applicant’s case was automatically referred to the Authority on 12 December 2016 to conduct a review.[7]

   [7] RD 148-151

8. The applicant was notified of the referral in a letter from the Authority of the same date and was advised that he may provide new information to the Authority for it to consider in limited circumstances.[8]  No further information or documents were provided to the Authority.

   [8] RD 154-165

9. On 16 January 2017 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.

The Authority’s decision[9]

[9] RD 171-181

1. The Authority set out the applicant’s claims.[10] It first considered whether the applicant is a refugee as defined in s.5H(1) of the Migration Act, and in particular whether the applicant had a well‑founded fear of persecution as defined by s.5J.

   [10] [5]

2. The Authority had “serious concerns” about the veracity of the applicant’s claims given the applicant’s failure to provide any details of his claim to have been “treated badly” in the past or reasons why he could not return to Vietnam, other than his expressed preference to remain in Australia, or provided any reasons why he could not secure employment or a place to live.[11]

   [11] [11]–[16]

3. It accepted that the applicant is a Catholic[12] and that he may wish to practice his Catholicism on return to Vietnam, though noted that the applicant had not claimed harm on the basis of his religion.[13]  It was not satisfied, on the basis of country information and the applicant’s circumstances, that the applicant faced a real chance of harm on the basis of his religion.[14]

   [12] [17]

   [13] [18]

   [14] [19]–[23]

4. On the basis of country information, the Authority also found that the applicant did not face a real chance of harm on the basis of his being a returned asylum seeker.[15] It concluded that the applicant did not meet the requirements of the definition of refugee in s.5H(1) and did not meet the criteria in s.36(2)(a) of the Migration Act.[16]

   [15] [24]–[27]

   [16] [28]

5. The Authority then considered the complementary protection provisions and did not accept that there was a real risk the applicant would face significant harm upon returning to Vietnam.[17] It concluded that the applicant did not meet the criteria in s.36(2)(aa) of the Migration Act.[18]

   [17] [31]

   [18] [32]

The present proceedings

1. These proceedings began with a show cause application lodged on 21 February 2017. For some reason unknown, the application was not filed by the registry until 9 March 2017. However, taking the relevant date as the date of lodgement, that was one day outside the period prescribed in s.477(1) of the Migration Act. The Court has power to grant an extension of time under s.477(2) of the Migration Act. However, an immediate problem is that the application did not seek an extension of time. As was pointed out by the Minister’s solicitor, s.477(2) of the Migration Act requires that an extension of time be sought in writing.

2. The matter came before a registrar for directions on 3 May 2017.  The registrar provided the applicant with the opportunity to file an amended application and affidavit evidence.  The registrar listed the matter for an extension of time hearing before me today.  Unfortunately, the applicant did not take up the opportunity to amend his application.  At the time of today’s hearing, the application was, therefore, incompetent. 

3. I dealt with that difficulty in consultation with the Minister’s solicitor and the applicant in a somewhat novel way.  I physically amended the application myself after finding out from the applicant what amendments he would have made if he had made them.  As amended in that way, the application seeks an extension of time because the applicant desires that his application be considered on its merits.  The applicant was not aware that his application was late and he did the best he could while being held in immigration detention.  He considers that he has good grounds for a review of the Authority decision. 

4. The application is supported by a short affidavit filed with it which I received. That affidavit is silent on the question of an extension of time, but I waived the requirement in rule 44.05(2) of the Federal Circuit Court Rules 2001 (Cth). Having regard to the considerations relevant to an extension of time decision, it is plain that the delay in this matter is very short. It is entirely plausible that the applicant experienced difficulties while being held in immigration detention. I also accept that the applicant was not aware that his application was late. That, in itself, is not an explanation for delay, but the exigencies of life in detention are a reasonable explanation for a short delay. The real difficulty for the applicant here, however, is that his application would be doomed to fail.

5. There are three grounds advanced in the application:

   1. Not satisfied with the outcome of Immigration Assessment Authority

   2. The second respondent erred in its determination as to whether the applicant faced a real chance of persecution because it failed to consider the possibility of error in its evaluation of the applicant’s claims.  In particular, the second respondent failed to ask itself the question “what if I am wrong” in its assessment of the applicant’s claims and credibility.

   3. The IAA failed to apply the test for complementary protection under section 36(2A) of the Migration Act, by failing to properly consider and apply the applicable law defining “significant harm” to the facts as raised by the applicant’s claims.

6. Those grounds were discussed with the applicant by me and dealt with orally by the Minister’s solicitor in her oral submissions.  Unfortunately, the applicant’s oral submissions only went to the merits of his claims for protection and the difficulties of life in detention over a long period.  I agree with the Minister’s submissions concerning the grounds. 

Ground 1

1. The applicant here asserts that he is “[n]ot satisfied with the outcome of Immigration Assessment Authority. The mere assertion of dissatisfaction with the outcome of the Authority’s decision does not identify any arguable jurisdictional error.

Ground 2

1. The applicant here complains that the Authority erred by failing to assess whether he faced a real chance of persecution on the basis that its conclusions as to the applicant’s claims and credibility may have been wrong, and that it was obliged to ask “the question ‘What if I am wrong’ in its assessment of the applicant’s claims and credibility”.

2. In Minister for Immigration v Rajalingam & Ors[19] the Full Federal Court set out at [60]–[67] the principles surrounding the question of whether, and in what circumstances, the decision-maker[20] was required to consider in its assessment of the risk faced by the applicant the possibility that a certain event occurred, even if it had formed the view that the events probably did not occur. The Full Court held that if a fair reading of the reasons showed the Tribunal had “no real doubt” as to its factual findings, then it was not required to consider the possibility that its findings were wrong.

   [19] (1999) 197 CLR 510, [1999] FCA 719

   [20] In that case, it was the then Refugee Review Tribunal (now the Administrative Appeal Tribunal)

3. Given the scant nature of the applicant’s claims, Rajalingam has no application to this matter. The claims made were entirely lacking in meaningful detail and the Authority simply could not be satisfied that they were true.

4. To the extent that the Authority considered implied claims arising from the applicant’s accepted circumstances, namely that he is a Catholic who would continue to practice his religion and that he would be returning to Vietnam as a failed asylum seeker, Rajalingam is also not relevant because there was “no real doubt” in the Authority’s findings or its conclusions on those matters.

5. There is no substance in the second ground of review.

Ground 3

1. Ground 3 is an assertion that the Authority failed to properly apply the meaning of “significant harm” in s.36(2A) of the Migration Act.

2. Where the essential claims or facts were the same for Convention purposes and complementary protection purposes, the Authority was entitled to rely on its Convention findings in assessing whether there is a real chance of significant harm. The Authority did not fall into jurisdictional error by referring to and relying upon its earlier findings when addressing an applicant’s claims for complementary protection, so long as the Authority applied the correct test under s.36(2)(aa), which it did at [30]-[31][21]  .

   [21] MZYXS v Minister for Immigration [2013] FCA 614 at [31] per Marshall J; SZSGA v Minister for Immigration [2013] FCA 774 at [56]-[57] per Robertson J; and SZSHK v Minister for Immigration (2013) 138 ALD 26 at 34 [32] per Robertson, Griffiths and Perry JJ

3. The third ground not disclose any arguable ground of review.

4. The unavoidable difficulty confronting both the Minister’s delegate and the Authority in this case was that the applicant was unwilling to put forward anything in support of his claim for protection, apart from the general assertion of bad treatment.  In those circumstances, the adverse outcome for the applicant was probably inevitable. 

Conclusion

1. I conclude that the interests of the administration of justice do not require the granting of an extension of time in this case.  I will order that the application for an extension of time be refused. 

2. In consequence of the refusal of the extension of time, the Minister seeks an order for costs in the sum of $,3606.  I invited submissions from the applicant, but he became agitated and did not address the issue of costs.

3. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  21 September 2017