BDF19 v Minister for Immigration

[2020] FCCA 1079

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDF19 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1079

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – application for an extension of time within which to commence a judicial review application

CITIZENSHIP AND MIGRATION – Migration – Grant or refusal of visas – Credibility findings

CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Protection visa decisions – Fast track review process – Reviewable decisions – assessment of credibility

Legislation:

Migration Act 1958 (Cth), ss.473CA, 473CB, 473DC.

First Applicant: BDF19

Second Applicant: BDI19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 98 of 2019

Judgment of: Judge Jarrett

Hearing date: 15 April 2020

Date of Last Submission: 15 April 2020

Delivered at: Brisbane

Delivered on: 7 May 2020

REPRESENTATION

The Applicants in person via telephone with the assistance of an interpreter

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application filed on 18 March 2019 is dismissed.

3. The first applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $4,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 98 of 2019

BDF19

First Applicant

BDI19

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. By their application filed on 18 March, 2019 the applicants apply for an extension of time within which to commence an application for judicial review of a decision of the second respondent made on 23 January, 2019.   That decision affirmed a decision of a delegate of the first respondent to refuse to grant to the applicants a Safe Haven Enterprise (Class XE) (Subclass 790) visa.

2. The first respondent opposes the application.   The second respondent has entered a submitting appearance.

3. Despite orders made by a registrar on 17 April, 2019 that permitted the applicants to file an amended application, they have not done so and the grounds of review and the grounds upon which they seek an extension of time remain those set out in their original application.   I have the benefit of written submissions filed on behalf the first respondent.

Background

1. The first applicant is a citizen of Vietnam.   The second applicant is his daughter.   The first applicant arrived in Australia on 8 May, 2013 as an unlawful maritime arrival for the purposes of the Migration Act 1958 (Cth). The second applicant was born in Australia. She is an infant and has been automatically included in the first applicant’s visa application.

2. On 27 July, 2016 the first applicant was invited to apply for a protection visa and on 11 August, 2017 the first applicant applied for Safe Haven Enterprise (Class XE) (Subclass 790) visa.

3. The first applicant’s claims are contained in his statements and submissions which accompanied the visa application.   The first respondent’s written submissions accurately summarise the first applicant’s claims for protection.   The first applicant claimed that:

   a)he is of Kinh ethnicity and Buddhist;

   b)his mother told him that around the time he was born his family was given a parcel of land by the Vietnamese government to cultivate.  Every year, the government “shuffled and redivided” the land and in 1991 the first applicant’s father was given a bad parcel and he was unable to cultivate it;

   c)the first applicant’s father was blacklisted by the government and was detained because he appealed against being given the bad land;

   d)his mother and siblings sought to continue cultivating the land but it was hard without their father;

   e)in 1997, six years after his father had been detained, they were advised he was in hospital.  He died soon after from abuse and malnutrition;

   f)the government continued to “shuffle and redivide” the land.  The first applicant’s mother died in 2001, and he and one of his brothers tried to continue to cultivate the land.  Eventually he left and allowed his cousins to take the land who paid him in produce.  Subsequently he became a truck driver.  He did not return to the farm until 2013;

   g)he feared harm if he returned to Vietnam because in June 2013 the authorities took his land without offering compensation and prevented him from seeking justice;

   h)in 2013, the Vietnamese government sent contractors to re-possess his land and he was beaten by police when he tried to defend his property.  He arranged a meeting of affected residents which was violently broken up by police.  He was then summonsed by local police but did not go on the advice of his uncle.  He believes he will be imprisoned like his father;

   i)since arriving in Australia he has been involved in the Viet Tan Organisation and Australian Vietnamese Community, who help fight for the rights of Vietnamese citizens.  They are considered a dissident group and he faces arrest and detention in inhumane conditions if he returned to Vietnam;

   j)he will be imputed with an anti-communist opinion; and

   k)he feared harm as a failed asylum seeker.

4. On 11 April 2018, the applicant, with his representative, attended an interview with a delegate of the first respondent for the purposes of his visa application.   

5. On 9 October, 2018 the first respondent’s delegate refused to grant the visa. On 13 June, 2018 the matter was referred to the second respondent in accordance with s.473CA of the Migration Act 1958 (Cth).

6. On 23 January, 2019 the second respondent affirmed the delegate’s decision to refuse to grant the applicants the visa.

7. In so determining, the second respondent had regard to the material given to it by the secretary of the first respondent’s department under s.473CB of the Migration Act and noted that no further information had been obtained or received.

8. The second respondent accurately, in my view, summarised the first applicant’s claims at [3] of its reasons for decision.   It accepted that the applicants were members of the same family unit, their receiving country was Vietnam and their background was as they claimed to be.

9. The second respondent considered the first applicant’s claim regarding his father’s dealings with the government, his detention and his subsequent death in custody.  The second respondent was concerned with discrepancies between the first applicant’s evidence given at the entry interview and the evidence he gave at his interview with the first respondent’s delegate for the purposes of his visa application concerning the circumstances in which his father died and when his mother died.  The second respondent took into consideration the circumstances in which the first applicant made each of the statements and listen to the audio recording of the entry interview for the purposes of understanding the nature and extent of the first applicant’s understanding of the purpose of that interview.  The second respondent was concerned that the first applicant had not provided, and could not provide, any evidence, such as a death certificate or land titles to cooperate his claims.  The second respondent then said:

   11. I have taken into consideration that Applicant One has provided the same basic description of the circumstances of father's imprisonment in both the Entry and SHEV interviews. I have also taken into account DFAT and US State Department reports indicate that the basic elements of this aspect of his claims are plausible; corruption is widespread in the Vietnamese public administration system, including in the allocation of land, and there are credible reports of individuals seeking government action in relation to their land use rights having been attacked and/or jailed. However, as discussed above I have serious concerns with key elements of the oral evidence provided by Applicant One, including the timing and circumstances of his father's death, the allocation of farming land to his family, and the nature of the dispute with authorities that led to him being jailed. Given these concerns, and in the absence of any corroborative evidence, I am not satisfied that Applicant One's father was arrested after protesting the allocation of farming land to his family, or that he was jailed and died whilst in prison.

10. The second respondent considered the first applicant’s claims regarding the government’s seizure of his land in 2013.  The second respondent expressed serious concerns “with respect to the credibility of Applicant One’s claim that he was an (sic) participant or organiser of protests against the forced acquisition of his family’s land in 2013 and that these events led to him being perceived by the Vietnamese government as a political dissident”.  Whilst the second respondent accepted that the claim was plausible and was corroborated generally by country information to which the second respondent had regard, the second respondent was concerned by the limited and contradictory evidence given by the first applicant.  The second respondent was not satisfied that:

    a)his family land was seized without compensation;

    b)the first applicant was involved in any protest activity in Vietnam, either as a participant or as an organiser;

    c)the first respondent was a person known to the Vietnamese authorities as a human rights or land rights activist or political dissident; and

    d)the first respondent was not a person of adverse interest to the Vietnamese authorities at the time he departed Vietnam.

11. The second respondent considered the first applicant’s claim that he had been involved in political protest and the dissident movement in Australia.  However, the second respondent was not satisfied of these claims.  The second respondent said:

    20. The applicant has claimed to have been a human rights campaigner through his involvement with the Viet Tan since 2015. However he has provided scant oral evidence concerning his political opinions and activities as a human rights campaigner in Australia and has provided no corroborative evidence such as support letters from the Viet Tan Party or any other evidence of his participation in their events. On the evidence before me I am not satisfied that Applicant One has participated in the events organised by the Viet Tan or any other political party or human rights organisation Australia, or otherwise had any close association with such groups.

12. The first respondent’s details were made publicly available as a result of the now infamous “data breach” that took place in 2014.  The second respondent accepted that the first applicant’s personal information was temporarily available for public access on the first respondent’s department’s website and that the relevant information may have been downloaded for distributional republication.

13. The second respondent then turned to assess the first applicant’s claims, in light of its findings, against the criteria for the grant of the visa.  The second respondent accepted that the first applicant may wish to experience greater freedoms and see reform in Vietnam.  However, given its findings about the factual matters relied upon by the applicant, the second respondent was not satisfied the first applicant would engage in political protest if he returned to Vietnam.  The second respondent was not satisfied that the first applicant was or is an anti-Communist dissident or human rights activist nor would he be perceived to be one.  The second respondent did not think that the first applicant would engage in activism on his return to Vietnam.  Accordingly, it concluded that he, or the second applicant, did not face a real chance of harm on this basis if they were to return to Vietnam.

14. The second respondent accepted that the first applicant’s personal information may have been accessed in the 2014 data breach but did not accept that it would have resulted in him facing a real chance of harm.  The second respondent found that if he was to return to Vietnam he would need to provide the same information that was able to be accessed in the data breach and therefore, there had been no material change in his circumstances.

15. The second respondent accepted that the first applicant had departed illegally and that relevant country information indicated he may be detained if he returns.  However, it was not satisfied the first applicant had a profile that placed him at risk of serious harm as a failed asylum seeker.

16. The second respondent concluded that it did not accept that the first applicant met the refugee criterion.

17. The second respondent turned its mind to the first applicant’s claims to complementary protection.  The second respondent was not satisfied that any detention, questioning and fine as a result of his illegal departure would constitute significant harm.  The second respondent otherwise relied on its anterior findings in concluding that the first applicant did not face a real risk of significant harm for any of the reasons claimed by him.

18. Accordingly, the second respondent affirmed the decision that had been referred to it for review.  It notified its decision to the first applicant by way of letter dated 23 January, 2019.  According to the first applicant’s evidence, however, that letter was sent to an address that he no longer occupied and it was not until February, 2019 that he became aware that his visa application had been refused.  He went to his old address to collect the letter, found a letter there and then commenced these proceedings after the time for commencing a judicial review application had expired.

19. The first applicant did not address the application for extension of time separately.  The first respondent’s submissions were focused primarily on the merits of the application for review more generally rather than the extension of time application.  In fact, very little argument at all was addressed to the question of whether an extension of time ought to be granted.

20. In the circumstances, I propose to grant the extension of time, there being an explanation for the first applicant’s failure to commence his proceedings within time and to consider the application for review of the second respondent’s decision.  That accords generally with the way in which the parties and, more particularly the first respondent, has approached the case.

The grounds of review

1. The first applicant specifies the following grounds of review in his application:

   1.  The IAA failed to consider my claim according to law.

   2.  The IAA did not give me an opportunity to respond to the Department of Home Affairs’ decision because the IAA did not send the acknowledgement letter or it sent it to the wrong address.

2. As the first respondent submits, the proposed grounds of review are not properly particularised and, as currently pleaded, do not identify with sufficient clarity any error in the second respondent’s decision.  Despite the Court’s orders dated 17 April 2019, no amended application, affidavit or submissions have been filed by the first applicant.

3. I can discern no error in the way in which the second respondent dealt with the first applicant’s claim.  It conducted the review that it was obliged to conduct pursuant to Part 7AA of the Act.  It conducted the review by considering the review material forwarded to it by the secretary to the first respondent’s department.  It did not consider any new information. It was not obliged to, and it did not, interview the first applicant. Although the first applicant complains in his second ground of review that he was not given an opportunity to respond to the Department of Home Affairs’s decision because the second respondent did not send the acknowledgement letter or sent it to the wrong address, subject to s.473DC of the Act there was no opportunity for an applicant to appear before the second respondent for an interview.

4. The first applicant has not identified any evidence or any material that he claims was not considered by the second respondent, but ought to have been.  I accept the first respondent’s submissions that the second respondent’s reasons for decision demonstrate that it considered the first applicant’s claims and evidence contained in his written statements, submissions and oral evidence at entry and visa interviews and made findings that were open to it on that material. 

5. The first applicant’s oral submissions demonstrated that the only error that he contended the second respondent made was not to accept his claims.  He was unable to identify any error with the second respondent’s decision, other than that he disagreed with it because the second respondent had not accepted his claims. 

6. As to the second ground of review, the evidence in the court book reveals that on 12 October, 2018 the second respondent sent a letter, described as an “Acknowledgement of Referral Letter” to the first applicant.  The letter was sent by way of email as well as by post.  The email (at court book 144) is expressed to have been sent on 12 October, 2018.  The email address to which it was sent, however, was wrongly described and was not the first applicant’s email address.  Nonetheless, the email records that the letter accompanying it was also sent by post.  The letter bears the date 12 October, 2018.  It was addressed to “18 Brinckley Crescent, Koondoola”.

7. When he commenced his proceedings, the first applicant filed an affidavit in which he swears that he moved to a new address in December, 2018.  He says “Prior to this I was living at 18 Brinckley Crescent, Koondoola, WA 6064”.  He says that he was informed that his visa had been refused when he went to the Department of Home Affairs in early February, 2019 to check his work rights.  He says that the “Immigration Department” called him on 11 March, 2019 and said his application had been refused by the second respondent.  The first applicant says that he did not receive anything from the second respondent and the officer to whom he was speaking said that it was sent to the Brinckley Crescent address.  The first applicant says that the next day he went to his old address at Koondoola, WA and found the second respondent’s letter addressed to him “at the porch of the house”. 

8. It is apparent that there were two letters sent to the first applicant’s address at Brinckley Crescent, Koondoola.  The first was the “Acknowledgement of Referral Letter” sent on 12 October, 2018.  The second was the letter notifying him of the second respondent’s decision.  A copy of that letter can be found at page 152 of the court book.  It is dated 23 January, 2019. 

9. Having regard to those matters and the first applicant’s evidence, it is plain that it is the latter of those letters that he did not receive because he had changed address.  His evidence does not suggest that he did not know that the second respondent was reviewing the decision made by the delegate on his visa application, but rather that he did not know that a decision had been made refusing that application.  His evidence does not suggest that he did not receive the letter from the first respondent’s department at page 122 of the court book notifying him that his visa application had been refused but the decision had been referred to the second respondent.  That letter was dated 9 October, 2018.  According to the first applicant’s own evidence, he was still resident at the Brinkley Crescent address in October, 2018. 

10. Moreover, as the first respondent submits, even if the first applicant had moved, the notification of the delegate’s decision (the letter of 9 October, 2018) included information regarding the referral, including that the second respondent would contact him and that he needed to advise them, not just the first respondent’s department, if he moved.  There is no evidence that the first applicant advised the second respondent he moved or made any enquiries of the status of his matter after the delegate’s decision.  In any event, the second respondent was only required to afford the first applicant the procedural fairness requirements prescribed in Part 7AA, Division 3 of the Act.  Under those provisions, the second respondent was under no obligation to invite the first applicant to attend an interview.

Conclusion

1. The first applicant has provided an explanation for his delay in commencing his application for review.  Within the context of considering his extension of time application, I have considered his grounds of review.  Even at a reasonably impressionistic level, those grounds of review have no, or no reasonable, prospect of success.  The second respondent’s decision is, in my view, without jurisdictional error.

2. In the circumstances, the application for the extension of time should be refused and the application dismissed. 

3. The first respondent seeks an order making a formal change to the name of the first respondent in the proceedings.  That order is appropriate.  The first respondent also seeks an order for costs.  Costs should follow the event.  There are no special circumstances attending this case which would mean that the usual rule that costs should follow the event should not apply.  The first respondent seeks an order for costs in a fixed sum of $4000 which, in my view, is reasonable.

4. Accordingly, I make orders in terms set out at the commencement of these reasons.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 7 May, 2020.

Associate:

Date: 7 May 2020