BEP19 v Minister for Immigration

[2019] FCCA 2814

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEP19 v MINISTER FOR IMMIGRATION  & ANOR [2019] FCCA 2814

Catchwords:
MIGRATION – Application for safe haven enterprise visa – adverse findings made by Authority – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 5J, 36, 473CB

Cases cited:

Minister for Immigration and Citizenship v SZLSP & Ors (2010) FCAFC 108

Minister for Immigration and Citizenship v SZOCT (2010) FCAFC 159
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: BEP19

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 278 of 2019

Judgment of: Judge Egan

Hearing date: 23 September 2019

Date of Last Submission: 23 September 2019

Delivered at: Brisbane

Delivered on: 23 September 2019

REPRESENTATION

Counsel for the Applicant: Mr. D. Nguyen

Solicitors for the Applicant: Australasia Law

Solicitors for the First Respondent: Ms. E. Tattersall of Sparke Helmore

ORDERS

1. The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.’

2. The amended application for review filed on 11 September 2019 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $4,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 278 of 2019

BEP19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Vietnam who arrived in Australia as an Unauthorised Maritime Arrival on 14 July 2013. 

2. On 19 July 2013 the applicant attended an arrival entry interview. 

3. On 12 April 2017 the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV).

4. On 4 December 2018 the applicant attended an interview with a delegate of the Minister. On 10 January 2019 the delegate refused to grant to the applicant the SHEV. 

5. On 15 January 2019 the matter was referred to the Immigration Assessment Authority (the Authority) for its review of the delegate’s decision.

6. On 22 February 2019 the Authority affirmed the delegate’s decision.

7. On 20 March 2019 the applicant filed an originating application for review of the Authority’s decision.

8. On 11 September 2019 the applicant filed an amended application for review of the Authority’s decision. The filing of that amended application was not opposed at the hearing before the Court today.

9. The applicant today relies upon only one ground as set out in the amended application for review, namely:

   Grounds of Application

   1. The Immigration Assessment Authority (‘Authority’) engaged in conduct which amounted to jurisdictional error in that:

   a. The Authority determined that the Applicant did not have a genuine interest in political activity and overthrow of the Vietnamese Government on the basis that the Applicant provided ‘poor responses’ and did not have more information about the Viet Tan party;

   b. In making that determination, the Authority made itself the arbiter of the level of knowledge to be expected by one who claimed to be politically active within the Viet Tan party;

   c. The Authority did not put forward any probative material to suggest any basis for its ability to fulfil the role of arbiter;

   d. Accordingly, the Authority’s evaluation was irrational and illogical, so as to be arbitrary and/or perverse.

10. At [3] of its reasons, the Authority recorded that it had had regard to the material provided to it by the secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (the Act).

11. At [5] of its reasons, the Authority set out the applicant’s claims as follows:

    ·In his arrival interview the applicant claimed life was difficult in Vietnam. Most of the student scholarships are given to others, not Catholics and his sister graduated as a nurse but could not get a job even with bribes. He took a year off schools to work to save money so he could study but during that time he was conscripted. He was health checked and then due to start with the army as any male who did not have a job over 8 years had to do military duty. He was looking for a free country where he could later bring his parents. He will be punished for not serving in the army. He was catholic, in the youth group and helped with the altar service. He was always persecuted because he was Catholic and was a good student but never got an award.

    ·In his application the applicant claimed he was a young Catholic male from a Catholic family. He participated in all aspects of church work, including as altar boy 2003 - 2008, youth catholic movement in the parish 2008 - 2013 and helped in bible study classes.

    ·He fears imprisonment and torture for having protested against the destruction of church property. He was engaged in social activities for his church which were deemed anti-government by the authorities and he was summoned to the police station to answer questions about resisting arrest. He had seen his friends being tortured and imprisoned and did not want to suffer the same the fate.

    ·In February 2013 he joined a group of adult parishioners to construct an altar. On the second day of construction police came to order them to stop. They resumed work two days later. The police came to dismantle their work and collected their tools. When the police started loading the tools, the applicant attempted unsuccessfully to stop them. Police warned him and others to go away.

    ·A week later he received a summons on the charge of interfering with police on official duty. The applicant's father pleaded with police and they let him off with a warning he must stop all activities with the church; otherwise they would prosecute him on the charge. In his interview the applicant claimed he received the summons a few days later and his father did a secret deal with the police, the day before the applicant presented to police, so the applicant was let off with a warning.

    ·The police had also sent summons to the applicant's father in March 2013 requesting he attend the police station on the charge that the applicant had departed illegally. In the protection interview the applicant claimed his father was required to report a number of times to explain why the applicant had not reported to authorities for national service. His father bribed and talked to authorities to calm the situation and said the applicant was grown up and he had no idea why he had not reported.

    ·The fear of persecution of his family members was the reason why the applicant did not mention he was seeking asylum at his initial interview. He was very young and his father had repeatedly told him not to mention political asylum because the family would likely suffer the consequences.

    ·In 2017 submissions the applicant's representative added that since coming to Australia, the applicant continued to be politically and socially active and take part in activities drawing attention to the disregard for human rights in Vietnam and plight of prisoners of conscience. He has taken part in a street demonstration, selling tickets to a concert to raise funds to aid human rights prisoners in Vietnam, manning a desk at the shopping centre to sign a petition. He has also sold raffle tickets to raise funds for the Vietnamese community and assisting senior citizens when he can.

    ·In a submission of 30 November 2018, the applicant's legal representative stated since the applicant had been in Australia he joined the Viet Tan (Vietnam Reform party), which has been declared a terrorist organisation by the Vietnamese government because of its anti-government activities. A letter from the Chair of the Qld chapter was provided. The applicant has joined the international youth movement for Human Rights. A letter from the President was provided. Seventeen photos were also provided showing the applicant's participating in anti-Vietnamese government activities.

12. At [6] and [7] of its reasons, the Authority set out the relevant refugee assessment criteria as provided for in s. 5H(1) and s. 5J of the Act.

13. At [8] – [30] of its reasons, the Authority set out the matters which related to those claims of the applicant which were based upon his being of the Catholic faith. That aspect of the applicant’s claims was not the subject of any ground of review before the Court, and the Court therefore does not need to deal with such claims.

14. At [31] – [38] of its reasons, the Authority dealt with the applicant’s alleged involvement with, and membership of, the VIET Tan (Vietnam Reform Party). At [31] of its reasons, the Authority noted that the VIET Tan party had been declared a terrorist organisation by the Vietnamese Government. 

15. The Authority, in detail, dealt with the claims made by the applicant as to the extent of his involvement in such party. At [33] – [35] inclusive of its reasons, the Authority considered in detail the correspondence provided to it, which correspondence purported to set out the extent of the applicant’s involvement in awareness demonstrations, further stating that the applicant had been actively involved in events within the Queensland chapter of an anti-Vietnamese government organisation – though the extent of, and nature of, such involvement was not particularised. 

16. The Authority further considered a letter from the chair of the VIET Tan Queensland chapter party which recorded that since 2015 the applicant had been a loyal, hard worker who had been recruited to be a “pre-member” of the VIET Tan party on 1 September 2018. It was said that the applicant had been an active member since that time. It was further stated that if the applicant was returned to Vietnam it was likely that the applicant would be arrested, charged and detained by the police. 

17. The Authority recorded that it had considered such supporting information, and it accepted that the applicant had joined the organisations referred to in it. It also accepted that the applicant had attended protests and other events related to the welfare of the Vietnamese community in Australia. 

18. At [36] of its reasons, however, the Authority noted that it had serious concerns that the applicant had only participated in such events and memberships for the sole purpose of enhancing his protection claims.  The Authority did not accept that the applicant had been engaged in, or interested in, any such activities, or held anti-Vietnamese government views or sentiment, or that he feared harm due to his political opinion before coming to Australia. 

19. At [37] of its reasons, it was noted by the Authority that whilst the applicant had been in Australia since May 2013, and in the community since October 2014, he did not join the VIET Tan party until September 2018. It was noted that although the applicant had attended various events, it was not until after February 2015 that he was noted as having attended such events when it was recorded that he had been seen at them, rather than having organised them. 

20. At [38] of its reasons, the Authority listed its similar concerns concerning the applicant’s membership of IYMHR which he had not joined until 2018, some four years after he had been in the Australian community.

21. At [39] of its reasons, the Authority recorded that he had listened to the applicant’s protection interview. Having done so, the Authority found that it considered the applicant’s understanding of, and information concerning, the     VIET Tan party was limited to the organisation wanting to overthrow the Vietnamese Government, its wanting to modernise Vietnam and its people, and its wanting to stop the control of the Chinese Government. 

22. The Authority noted that whilst the applicant had only joined the party in September 2018, the applicant had claimed to have studied the group from June 2017. The Authority noted that if the applicant had so studied and been involved with the group as claimed, it would have expected that the applicant would have had more knowledge of and information about the group, and the reasons why he had joined it, than what he had.

23. At [40] of its reasons, it was recorded by the Authority that the applicant did not articulate reasons as to why he chose to study the VIET Tan party group, or why he had joined, or was interested in it, or its intentions in relation to overthrowing the Vietnamese Government.  Further, when asked what he was protesting against when he attended the 30 April event which commemorated the “loss to the communists”, the applicant said it was because of the way the Vietnamese Government operated. 

24. When asked what he did not like about the government, the applicant said it was because the government had multiple parties, and they did things on their own despite the wish of the people, creating a society where students assaulted teachers, people fought in the family, where the economy was bad, and where people were not allowed to practice religion. 

25. The Authority noted at [40] of its reasons that, whilst it understood the applicant’s stated concerns about religious practice and the economy, it considered the applicant’s explanation as to why he wanted to overthrow the government was simplistic, rambling and “without much sense”. When recording its reviews on such topic, the Authority said:

    [40] …I am aware that people will have different reasons for participation and that there is not one level of knowledge that can be expected.  However, in this case, I find his description particularly lacking given his claims he had studied the organisation.  I consider his poor responses and lack of information indicate that he did not have a genuine interest in political activity, overthrowing the government, or the organisation. 

26. At [41] of its reasons, the Authority found that the summons documents, concerning propaganda spreading, lacked credibility, and it placed no weight on them.  It was further recorded that when the applicant was asked about the police and the applicant’s father’s interactions with them, the applicant referred to national-service issues, rather than propaganda issues.  The Authority recorded that had the applicant been truthfully recounting factual events, he would have answered differently, and it found that he was making things up as he went.

27. At [42] of its reasons, the Authority did not accept that the applicant was a genuine pre-member, or had a genuine interest in VIET Tan, or was interested in overthrowing the government or other political activities. 

28. Further, it was found by the Authority that the applicant did not claim that he intended to attend protests or similar events in Vietnam if returned. It did not find that the applicant had a genuine interest in doing so. 

29. At [44] of its reasons, the Authority said that given the concerns expressed by it in a number of respects, it was not satisfied that the applicant had been engaged in activities concerning the VIET Tan party other than for the purpose of strengthening his refugee claims.  In submissions made on behalf of the applicant, reference was made to Minister for Immigration and Citizenship v SZLSP & Ors (2010) FCAFC 108, particularly the reasons of Kenny J at [39], and Minister for Immigration and Citizenship v SZOCT (2010) FCAFC 159 at [22]. Each of those cases related to decisions of Tribunals where questions of religious dogma/learning had been the subject of tribunal findings. Kenny J, at [39] of SZLSP, in that regard, relevantly said as follows:

    [39] Where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know. 

30. In SZOCT Buchanan J, at [22], said:

    [22] The vice in the Tribunal’s reasons for failing to reach the necessary state of satisfaction is that there is, in my opinion, no rational or logical connection between an assessment of the Visa Applicant’s failure to reveal an encyclopaedic knowledge of verses from the Bible and what might be expected from a person who believed in and practiced Christianity in China between 2004 and 2008.

31. The complaint made by the applicant, in this matter, relates not to religious doctrine but, rather, to the way in which the Authority dealt with claims made by the applicant that he would suffer harm should he be returned to Vietnam because of his political beliefs and opinions.  It is noted that the applicant proceeded in this matter in circumstances where the relevant transcript of the interview between the delegate and the applicant was not contained in the court book.  The applicant elected to do so in circumstances where the Court had asked the applicant whether he was in a position to proceed in the absence of such transcript.

32. Ms Tattersall, for the first respondent, referred the Court to [83] of the reasons of Nicholas J in SZOCT, in support of the proposition that where a Tribunal has a number of reasons for not accepting an applicant as a credible witness, then it is open for the Tribunal or Authority to cumulatively support an adverse credibility finding against an applicant. At [83] of his Honour’s reasons in SZOCT, Nicholas J said:

    [83] If the Tribunal’s lack of satisfaction that the respondent was a person to whom Australia owed protection obligations was based on its assessment of the extent of the respondent’s knowledge of the Bible when compared to what might reasonably be expected of a person who believed in and practiced Christianity in China from 2004 until 2008, I would readily agree with Jacobson J that the Tribunal’s decision could not be permitted to stand.  However, as its reasons for decision make clear, there were other matters which led the Tribunal to find that the respondent was not a credible witness.  It drew upon these “singularly and cumulatively” in support of that finding. 

33. At [61] – [63] of its reasons, the Authority relevantly set out the requirements for refugee status, together with what constituted a real risk of significant harm as provided for in s. 36(2A) of the Act.

34. At [64] – [80] of its reasons, the Authority closely considered country information relating to political protests against the Vietnamese Government. 

35. At [76] of its reasons, the Authority noted that country information indicated that the Government of Vietnam monitored social media and shutdown anti-government posts, but that there was no evidence before it that the applicant had come to the attention of authorities in that regard. It was noted that the applicant had provided evidence of only a few posts on Facebook. 

36. At [78] of its reasons, the Authority found that it was not apparent that the applicant was a member of VIET Tan from anything which he had put on Facebook. 

37. At [79] of its reasons, the Authority found that there was not a real risk that the applicant’s protest activities or Facebook posts would come to the attention of the Vietnamese authorities. It noted that it had not accepted that the applicant had been issued with a summons.  Further, it found that there was no credible evidence that the applicant’s activities had come to the attention of the authorities in the context of his Facebook account being removed, or his posts deleted, as country information suggested would have been the case, or may have been the case, in respect of those people who would have been considered as critical of the government. The Authority was not satisfied that the applicant’s past activities would come to the attention of the authorities, or that he would be perceived as a person of interest if they were. 

1. At [80] of its reasons, the Authority found that whilst country information indicated that some failed asylum seekers were detained and physically harmed, that was in 2010 and 2011 involving individuals who had been targeted previously in Vietnam, or who were part of a specific ethnic majority, of which the applicant was not. 

2. At [81] of its reasons, it was found by the Authority that whilst the applicant may be interviewed upon his return as a failed asylum seeker, the current country information did not indicate that the Vietnamese authorities would take an interest in offshore protest activity of returnees or failed asylum seekers, and that, even if interviewed upon arrival back in Vietnam, the Authority did not accept that there was a real risk that the applicant’s past activities or posts would come to the attention of the authorities. It was not considered that the applicant had an adverse profile with Vietnamese Authorities as a result of anything that he had done in Australia involving dissent or blogging. 

3. It was not considered that the applicant would face a real risk of significant harm if he was returned to Vietnam. Further, the Authority did not find that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his being returned to Vietnam that there was a real risk that the applicant would suffer significant harm. The relevant section 36(a) and section 36(aa) criteria had not been met.

4. The Ground 1 claims have not been made out.  The Authority did consider matters of relevance before it.  It took into account the applicant’s poor responses to questions put to him, and the applicant’s lack of information provided at interview.  It assessed the applicant’s responses, and formed an adverse view as to his level of knowledge about a political party which he said he was integrally involved in.  Some of his responses were found by the Authority to be unconvincing, and others were found to be inconsistent with the truth.

5. It cannot be said that the Authority, when analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27] where it was said:

   “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

   [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

   [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

6. Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as the Authority.  As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

   “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

7. Neither could the decision be considered as legally unreasonable or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

8. The decision of the Authority was not irrational or illogical. It was soundly based after a close consideration of the claims made by the applicant, and after having listened to the applicant’s protection interview.

9. No jurisdictional error has been demonstrated on the part of the Authority. 

10. The amended application for review is without merit and is dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  7 October 2019