Bel17 v Minister for Immigration

[2019] FCCA 409

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEL17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 409

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Temporary Protection (Class XD) visa – whether the Tribunal considered the applicants evidence and submissions – whether the adverse credibility findings were open to the Tribunal on the material – invitation to this Court to engage in impermissible merits review – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: BEL17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 160 of 2017

Judgment of: Judge Street

Hearing date: 21 February 2019

Date of Last Submission: 21 February 2019

Delivered at: Perth

Delivered on: 21 February 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr P Corbould
Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 21 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 160 of 2017

BEL17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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 16 February 2017, affirming a decision of the delegate not to grant the applicant a Temporary 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 arrived in Australia undocumented on 8 April 2013. The applicant claimed to fear harm by reason of his Catholicism, being perceived to be anti-government, a visit to a detention centre by Vietnamese officials, the department’s data breach, his illegal departure from Vietnam and returning as a failed asylum seeker.

3. On 8 May 2015, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

4. The applicant applied for review on 14 May 2015. By letter dated 10 August 2016, the applicant was invited to attend a hearing on 10 October 2016. The applicant appeared on that date together with his representative to give evidence and present arguments. The Tribunal identified the background to the application for review as well as the applicant’s claims and history. The Tribunal identified the applicant’s attendance at the hearing after having identified what had occurred before the delegate and why the delegate refused to grant the applicant a visa. In that regard, the delegate made adverse credibility findings.

5. The Tribunal’s reasons identify and explore the applicant’s claims and testing the credibility of the applicant’s claims in relation to his fears. The Tribunal raised with the applicant several inconsistencies in his evidence which the Tribunal considered to be significant inconsistencies in relation to his claims. In that regard, the Tribunal referred to the applicant claiming that after the church incident he was arrested by undercover officers, but that at the protection visa interview, the applicant claimed he was issued with a summons to present himself at the police station.

6. The Tribunal referred to the applicant remaining in Vietnam from when the incident occurred in December 2011 until March 2012 when he went to Laos, and that he returned to Vietnam. The Tribunal referred to the applicant having made no mention at the entry interview that he was beaten by anyone or that he had been detained. The Tribunal referred to the applicant claiming that officials went to his home and asked his wife questions about the applicant going to Australia, however the Tribunal was concerned that there was no evidence the authorities would have known at that stage that he was in fact in Australia. The Tribunal noted that the applicant was not interviewed by the A18 officials, and the applicant confirmed he did not attend any such interview.

7. The Tribunal referred to having put its concerns in respect of credibility to the applicant in respect of his claims and taken into account the applicant’s submission that the omissions and inconsistencies were due to being confused in knowing whether the officials were fair and his fear of being sent back to Vietnam. The Tribunal did not accept that those matters explained the significant omissions and inconsistencies. The Tribunal found there was no evidence to suggest the applicant suffers memory problems. The Tribunal did not accept the applicant withheld making all his claims at the entry interview for any of the reasons claimed and was of the view that if the applicant had travelled to Australia for protection, he would have mentioned at the entry interview having been beaten.

8. Having regard to all the applicant’s evidence, the Tribunal concluded the applicant’s evidence was unreliable and that he had embellished or exaggerated and fabricated critical elements of his claims.

9. The Tribunal did not accept that the applicant held a senior role in the church. The Tribunal did not accept the applicant was arrested a few days after going to work in the church in or around December 2011. The Tribunal found that the applicant has given markedly inconsistent accounts of the details of this and his claimed mistreatment by Vietnamese authorities, such that the Tribunal did not accept the claim to be truthful. In particular, the Tribunal did not accept that the applicant would fail to make mention of any reference to the event at the time of his entry interview. The Tribunal considered the combination of the inconsistencies between the two accounts, and the omission of any reference at the entry interview, undermines the claim to have been targeted for harm by Vietnamese authorities for reasons of his activities at the church. The Tribunal rejected the applicant’s claim that he had been arrested, detained or mistreated for reasons of his activities or association with the Catholic church in his village.

10. The Tribunal referred to the applicant’s evidence that he continued to attend church. Taking into account country information and the applicant’s evidence, the Tribunal found the applicant has not been prevented from following his Catholic faith in Vietnam in the past and that there is not a real chance that he will be prevented from doing so now or in the reasonably foreseeable future.

11. The Tribunal did not accept that the applicant was detained or harmed by the authorities and did not accept that there is a warrant waiting for the applicant arising out of his church activities. The Tribunal referred to country information and was not satisfied the applicant is perceived to be actively opposed to the government and did not accept that any of the claims made by the applicant give rise to real chance of serious harm to the applicant now or in the reasonably foreseeable future in Vietnam.

12. Based on all the evidence, the Tribunal did not accept that the authorities kept harassing the applicant or that he was told he could not go to church. Looking into the reasonably foreseeable future, the Tribunal did not accept the applicant faces a real chance of being prevented from following and worshipping in his church, or in any Catholic church, if he returns to Vietnam.

13. The Tribunal did not accept the applicant’s claim that authorities visited his house on the grounds that he is wanted for any action or offence in relation to church activity or anything else. The Tribunal did not accept the Vietnamese authorities suspect the applicant of plotting against the government. The Tribunal found the applicant is not a person of ongoing interest to Vietnamese authorities. The Tribunal did not accept the Vietnamese authorities told the applicant’s family that they would take their revenge once he returns to Vietnam.

14. The Tribunal was not satisfied that the applicant has been involved in anti-government activities, or that he would be perceived to have been either. The Tribunal referred to the applicant’s attendance at a protest and did not accept that there might have been undercover spies in attendance or that the applicant was identified and will be targeted for serious harm now or in the reasonably foreseeable future.

15. The Tribunal did not accept that the applicant has an imputed profile as a prominent activist for his past activities in Vietnam, or in Australia, and did not accept he faces a real chance of serious harm because of being perceived as a political dissident.

16. The Tribunal found the applicant’s activities in the Catholic church in Vietnam were not such as to have elevated his profile to one which country information would suggest would attract ongoing interest by Vietnamese authorities.

17. The Tribunal referred to the A18 delegation visit, in respect of which the applicant was not interviewed, and the Tribunal found the applicant does not face a real chance of harm for reasons of the A18 delegation visit to the immigration detention centre.

18. The Tribunal referred to the data breach that occurred and did not accept that there is a real chance the applicant will face serious harm because of the data breach and release of his personal information if he returns to Vietnam now or in the reasonably foreseeable future.

19. Having regard to all the evidence, the Tribunal did not accept the applicant faces a real chance of serious harm for reason of departing Vietnam in a manner contrary to the requirements of domestic law. The Tribunal also found the fine that the applicant may face in that regard does not amount to serious harm.

20. The Tribunal did not accept the applicant faces a real chance of serious harm for reasons of having travelled to, having spent time in a Western country or for reasons of returning as a failed asylum seeker.

21. The Tribunal found the applicant does not face a real chance of serious harm for one or more of the convention grounds. The Tribunal found the applicant’s fear of persecution is not well founded and that the applicant failed to meet the criteria under s 36(2)(a) of the Act.

22. The Tribunal found that the applicant does not face a real risk of significant harm as defined in the Act and that the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 20 March 2017. On 25 May 2017, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed.

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

3. From the bar table, the applicant maintained that he would be exposed to harm if returned to Vietnam and that he disagreed with the adverse credibility findings made by the Tribunal. The Tribunal gave logical and rational reasons in support of the adverse credibility findings, as summarised above. Those adverse credibility findings were open for the reasons given by the Tribunal on the material before the Tribunal. The applicant’s disagreement with the adverse findings does not identify any relevant jurisdictional error.

4. The applicant otherwise indicated he wished to stay in Australia. This Court does not have the power to decide the matter on discretionary or compassionate grounds. The applicant’s submissions from the bar table otherwise invited the Court to engage in impermissible merits review. This Court has no power to review the merits. Nothing said by the applicant from the bar table identified any relevant legal error.

The ground

1. The ground 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. There is no evidence that has been identified that the Tribunal failed to consider and there is no matter that has been identified that was a consideration that should have been taken into account by the Tribunal. On the face of the material before the Court, the Tribunal correctly identified the applicant’s claims and made findings dispositive of the applicant’s claims that were open to the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. Ground 1 does not identify any jurisdictional error.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 28 March 2019