BDQ17 v Minister for Immigration

[2019] FCCA 1285

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDQ17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1285

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority considered all of the evidence and took into account relevant considerations – whether the Authority denied procedural fairness to the applicant – whether the Authority’s decision was affected by bias – whether the Authority misinterpreted the law and/or addressed a wrong question – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 5H, 36, 473CB, 473DD, 476

Applicant: BDQ17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 158 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 E Tattersall
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 any further document in that regard.

2. The Application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $4,600.00.

DATE OF ORDERS: 15 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 158 of 2017

BDQ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

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 Immigration Assessment Authority (“the Authority”) made under Part 7AA of the Act on 24 February 2017 affirming the decision of a delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Vietnam and his claims were assessed against that country. On 17 March 2013, the applicant arrived in Australia as an unauthorised maritime arrival. The applicant claims, in summary, to fear harm by reason of being a practising Roman Catholic, having participated in church activities, having been exposed to a data breach by the Department, his imputed political opinion as a failed asylum seeker and a visit by Vietnamese officials whilst he was in detention.

3. On 6 December 2016, a delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. By letter dated 12 December 2016, the Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise visa had been referred to the Authority for review. That letter provide an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. By emails dated 9 January 2017 and 23 February 2017, the applicant put on submissions which were expressly referred to in the Authority’s reasons.

4. The Authority in its decision referred to the background of the applicant’s Safe Haven Enterprise visa application. The Authority also had regard to the material referred by the Secretary under s 473CB of the Act. Insofar as the applicant’s submissions engaged with the delegate’s decision, the Authority had regard to the same. The Authority otherwise considered the new information in accordance with the requirements of s 473DD of the Act.

5. The Authority referred to the applicant’s claims in relation to his religion. The Authority accepted that the applicant is a Catholic. The Authority also accepted that the applicant would continue to practise his Catholic faith on return to Vietnam.

6. The Authority referred to the applicant’s claim that he was a member of the Don Bosco group between 2010 and 2012. The Authority did not accept the applicant’s explanation for his omission of any mention in the entry interview with the Department of his claims about the Don Bosco group and his role as an Information Officer. The Authority did not accept that the applicant was a member of the Don Bosco group or an Information Officer for the Don Bosco group. The Authority did not accept that the applicant was of interest to, or being sought by, the Vietnamese authorities, including the police, on the basis of his membership or activities with the Don Bosco group prior to his departure to Australia in 2013.

7. The Authority referred to the applicant’s claim that he received a text message in relation to a community meeting at the Tai Hai Church in December 2011. The Authority accepted that the applicant attended the Tai Hai Church in December 2011. The Authority also accepted that the applicant did not suffer any harm during the event. The Authority did not accept the applicant’s claims that he attended the Tai Hai Church in December 2011 in his capacity as a member of the Don Bosco group and that his role was to take photographs.

8. The Authority referred to the applicant’s claim that four Vietnamese army tanks attended the Xa Doai Church in July 2012. The Authority did not accept that the applicant was present and/or praying at the Xa Doai Church when tanks attended the church.

9. The Authority referred to the applicant’s claim that he was attending a Christmas celebration party when a group of people attended claiming to be policemen and asked the group to cancel the party in December 2012. The Authority accepted that the applicant was present at a Christmas celebration party in December 2012 when police attended and forced the closure of the event. The Authority accepted that the applicant did not suffer any harm during this event.

10. The Authority referred to the applicant’s claim that he attended a court trial for fourteen mostly Catholic men in January 2013. The Authority accepted the applicant’s claim that when he and others tried to force themselves into the court they were beaten, arrested and kept in custody overnight by the police before being released. The Authority was satisfied that the applicant’s assertions in that regard are broadly consistent with his entry interview and protection visa statement and interview. The Authority was also satisfied that the applicant’s assertions in that regard are consistent with country information. The Authority, however, did not accept the applicant’s claims that he attended the court trial of the fourteen men in his capacity as the Information Officer for the Don Bosco group. The Authority also did not accept that the applicant’s camera was confiscated and handed back to him without the memory card.

11. The Authority referred to the applicant’s claim of having been summonsed twice to attend the a police station after the events at the court trial. The Authority did not accept the applicant’s explanation for the omission in his entry interview of references to being summonsed twice to attend the police station. The Authority did not accept that the applicant was summonsed twice to the police station prior to his departure from Vietnam. The Authority found it implausible that the applicant would fail to raise this claim at the entry interview.

12. The Authority also did not accept that the applicant was of interest or being sought by the Vietnamese authorities, including the police, on the basis of his participation in and subsequent arrest and release after the court trial in January 2013 prior to his departure to Australia in 2013.

13. The Authority referred to the applicant’s claims that he will suffer harm on return to Vietnam because his personal details may have been released to the Vietnamese Ministry of Public Security – Immigration (“MPSI”) when they visited to interview Vietnamese citizens held in immigration detention in Australia in 2013. The Authority found that the personal details provided to the MPSI was the name of a person born in 1995, which the applicant provided to the Department when he arrived in Australia in March 2013. In fact, the name and date of birth of the applicant is different to the name and date of birth provided to the MPSI, which was declared by the applicant to the Department on 30 October 2015.

14. The Authority found that the personal details provided to the MPSI were for a different surname and year of birth. The Authority did not accept that there were sufficient similarities in the details provided to the MPSI to give rise to the suggestion that they are referring to the applicant. Therefore, the Authority did not accept that the applicant’s personal details were released to the MPSI in 2013.

15. The Authority referred to the applicant’s claims that he will suffer harm on return to Vietnam as a result of the release of his person details via the Department data breach that occurred on 31 January 2014. The Authority noted that, at this time, the applicant had not provided his correct personal details to the Department. In these circumstances, the Authority did not accept that there were sufficient similarities in the details published to give rise to the suggestion that they are referring to the applicant. Therefore, the Authority did not accept that the applicant’s personal details were inadvertently released on the Department’s website on 31 January 2014.

16. The Authority referred to the applicant’s claim that, since he left Vietnam, six policemen have gone to his family’s home and performed a search. The Authority did not accept that the applicant was of interest or was being sought by the Vietnamese authorities prior to his departure to Australia in March 2013. The Authority also did not accept that the applicant’s personal details were provided to the MPSI or inadvertently published on the Department’s website. Therefore, the Authority did not accept that, since the applicant’s departure from Vietnam, police have attended the applicant’s family home, performed a search and told the applicant’s family to convince the applicant to return to Vietnam.

17. The Authority referred to the applicant’s activities in Australia, including the applicant’s involvement in the Vietnamese Community in Australia – WA Chapter Inc (“VNCWA”) and activities associated with the Catholic Church, Block 8406 and Viet Tan. The Authority also referred to photographs and videos of the applicant and a link to a Facebook page. The Authority did not accept that the new information supports the continuation of the applicant’s human rights activities which he undertook with the Don Bosco group. The Authority did not accept the applicant to be a credible witness in regards to his claims that he was a member or Information Officer of the Don Bosco group.

18. The Authority took into account the applicant’s admission that he gave false evidence about his identity to the Department. The Authority also took into account that it did not accept the applicant to be a credible witness in regards to his claims of his membership of the Don Bosco group, his presence at the Xa Daoi Church, the issuance of two summonses in his name and the attendance of the police at his family home since his departure from Vietnam. The Authority was not satisfied that the provision of the applicant’s sur place claims to the Authority after the decision of the delegate was for a purpose otherwise than to strengthen the applicant’s claims for protection. In these circumstances, the Authority found that the applicant’s conduct in Australia must be disregarded in respect of the applicant’s claims for protection.

19. The Authority was not satisfied that the applicant’s past activities as a practising Catholic, including his attendance at the court trial in 2013, would result in the Vietnamese authorities identifying the applicant as a political or religious activist.

20. The Authority was not satisfied that any discrimination or disadvantage, including in respect of employment barriers to government roles, would threaten the applicant’s livelihood, impact on his capacity to subsist or otherwise constitute serious harm. The Authority was also not satisfied that the applicant faces a real chance of harm as a Catholic on his return to Vietnam now or in the reasonable foreseeable future. The Authority was also not satisfied that the applicant faces a real chance of serious harm on return to Vietnam as a practising Catholic who left lawfully and sought asylum in Australia.

21. The Authority found that the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority also found that the applicant does not meet the criteria in s 36(2)(a) of the Act.

22. The Authority then considered the issue of complementary protection. The Authority referred to the applicant’s activities in Australia with the VNCWA, Catholic Church, Block 8406 and Viet Tan. The Authority also referred to Vietnam having declared the Viet Tan to be a terrorist organisation.

23. The Authority accepted that the applicant has been involved in the activities as claimed which have been organised by the VNCWA, Block 8406, Viet Tan and the Catholic Church since his release from detention in October 2016. The Authority, however, was not satisfied that the nature of the applicant’s involvement in these activities will be perceived by the Vietnamese government as the applicant being a member, supporter and/or associate of declared activist or terrorist organisations on his return to Vietnam. The Authority identified the limited involvement of the applicant in these activities. The Authority also referred to the fact that the applicant has not claimed to be a member of Block 8406 or the Viet Tan, nor is there information before the Authority that the applicant would continue such activities on his return to Vietnam. Rather, the Authority found that the applicant has only undertaken these activities to strengthen his protection claims.

24. The Authority was not satisfied that there is a real risk of significant harm to the applicant on his return to Vietnam as a result of his activities in Australia. The Authority was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Vietnam from Australia, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant does not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. On 17 March 2017, these proceedings were commenced by the applicant. On 25 May 2017, a Registrar of the Court made orders which, together with orders made by a Judge of the Court on 10 December 2018, gave the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents have been filed.

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 asserted that he was a member of the Viet Tan. The Authority made a finding that the applicant had not claimed any such membership. A claim that was not advanced before the Authority cannot give rise to any relevant error by the Authority.

4. From the bar table, the applicant otherwise claimed that he could not go back to Vietnam because he would be sent to jail. Contrary to the applicant’s submissions, the Authority found that the applicant was not of interest to the Vietnamese authorities and made findings that the applicant would not face serious or significant harm on return to Vietnam.

5. The applicant’s submissions from the bar table, in substance, invited the Court to engage in merits review. This Court has no power to review the merits of a decision. Nothing said by the applicant from the bar table identified any jurisdictional error.

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, unparticularised, there is no part of the applicant’s evidence that has been identified by the applicant which the Authority did not consider or did not take into account. On the face of the Authority’s reasons, the Authority took into account the whole of the evidence and the submissions made on behalf of the applicant. The Authority had a real and meaningful engagement with the applicant’s claims and made dispositive findings which were open for the reasons summarised above. Insofar as ground 1 is understood to be referring to the deliberations of the Authority under s 473DD of the Act, on the face of the Authority’s reasons, it is apparent that the Authority took into account the whole of the provisions under s 473DD of the Act. Accordingly, no jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the review under Part 7AA of the Act is not one which required the Authority to invite the applicant to attend an interview. On the material before the Court, the applicant was given an opportunity by the Authority to put on submissions and new evidence. By emails dated 9 February 2017 and 23 February 2017, the applicant twice put on submissions. The Authority considered the same in accordance with the statutory requirements.

2. There is no issue that has been identified by the applicant which would have warranted the Authority expressly considering its powers under s 473DC of the Act. The statutory provisions of Part 7AA of the Act otherwise exclude the requirements of procedural fairness. On the face of the material before the Court, the Authority complied with its statutory obligations and the review was conducted in accordance with the statutory regime. No denial of procedural fairness is made out in relation to ground 2. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, bias is a matter which must be clearly alleged and properly proven. The adverse findings of the Authority are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Authority might not bring an independent and an impartial mind to the determination of the matter on its merits. On the face of the material before the Court, there is nothing to support the contention that the Authority did other than approach the review with an open mind reasonably capable of persuasion as to the merits. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, the Authority correctly identified the relevant law and, on the face of the Authority’s reasons, made dispositive findings in respect to the applicant’s claims and evidence that were open to the Authority and do not reveal any misinterpretation of the law. No jurisdictional error is made out by ground 4.

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

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 August 2019