BIW17 v Minister for Immigration
[2017] FCCA 1857
•7 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIW17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1857 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection (Class XD) visa – whether the Tribunal failed to take into account an irrelevant consideration –whether the applicant was not afforded procedural fairness – whether the Tribunal was affected by bias – whether the Tribunal misinterpreted the law – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 45AA, 476 |
| Applicant: | BIW17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 175 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 7 August 2017 |
| Date of Last Submission: | 7 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2017 |
REPRESENTATION
| The applicant appeared in person by video link. |
| Solicitors for the Respondents: | Mr D Ireland Australian Government |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 175 of 2017
| BIW17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
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 15 March 2017, affirming a decision to refuse the applicant a protection (Class XD) visa. The applicant was found to a be a citizen of Vietnam and his claims were assessed against that country.
Claims for protection
The applicant claimed to fear harm in Vietnam because he belonged to a Catholic youth group called Hy Vong (“Hope”) which meant to pray and also raised funds to help poor people and victims of oppression. The applicant said he left Vietnam illegally and that the Vietnamese authorities will know or assume that he applied for asylum in Australia. The applicant feared that he would be imprisoned because of his involvement with the youth group and because he will be accused of being against the government and because of his illegal departure.
The applicant arrived in Australia on 23 March 2013 by boat. On 14 June 2014 the applicant applied for a Protection (Class XA) visa. Because of the provisions of s.45AA, the application was taken to be one for a Protection (Class XD) visa. The delegate on 16 December 2014, refused to grant the applicant a protection visa on the basis that the applicant failed to meet the criteria under the Refugees Convention and failed to meet the criteria for complementary protection.
On 23 December 2014, the applicant sought a review of the delegate’s decision. On 21 October 2015, a differently constituted Tribunal set aside the decision declining to grant the applicant a protection (Class XA) visa, and substituted a decision to refuse to grant the applicant a Protection (Class XD) visa. On 18 August 2016, a Judge of this Court set aside that decision and remitted the matter to a reconstituted Tribunal for reconsideration and determination according to law.
The current Tribunal decision
The applicant was invited to attend a hearing on 15 December 2016 and, as a result of concerns raised by the applicant’s migration representative, the Tribunal conducted a further hearing on 3 March 2017.
The Tribunal identified the applicant’s claims and the applicant’s background in relation to the application for a protection visa. The Tribunal summarised what occurred at the hearing on 15 December 2016 and the communications received thereafter, giving rise to the Tribunal relisting the matter for 3 March 2017. The Tribunal noted that the submission was put on behalf of the applicant that the Tribunal should recuse itself by reason of having initially refused to grant a further hearing. At the time the Tribunal refused to grant the further hearing, no further material from interpreters had been provided to the Tribunal. It was after material was provided to the Tribunal identifying an issue with the interpretation that had taken place in December 2016 that the Tribunal decided to exercise its power to hold a further hearing in March 2017.
The decision of the Tribunal at the time when no interpretation evidence identifying error had been placed before the Tribunal not to adjourn the matter is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. The Tribunal was correct not to recuse itself in relation to the review. On the face of the material before the Court, the Tribunal conducted the review with an open mind, reasonably capable of persuasion as to the merits. On the face of the material before the Court, the applicant had a genuine and meaningful hearing and the Tribunal correctly identified the applicant’s claims and evidence.
Refugee Assessment
The Tribunal identified the applicant’s claims in relation to the particular parish to which he belonged as being a ‘hot point’ used to pray for victims of oppression and was particularly watched by the local police. The Tribunal did not accept, as the applicant claimed, that he attracted the attention of Vietnamese authorities because he attended prayer service or because of his involvement in the youth group. The Tribunal noted that the applicant had not suggested that his family members who continue to live in the village are being persecuted for reasons of their religion or their imputed political view, nor that they are being prevented from practicing their religion.
The Tribunal did not accept on the evidence that the applicant attracted the attention of Vietnamese authorities before he left Vietnam. The Tribunal did not accept on the basis of independent evidence that as many people have been arrested as the applicant alleges in his parish or that his parish is a ‘hot point’ as claimed by the applicant. The Tribunal made reference to the country information provided by the applicant in support of his claims including a letter dated 16 September 2013 asserting that families of asylum seekers in Australia had been harassed, beaten and arrested. The Tribunal found there was no independent corroboration of that claim and noted that the applicant did not claim his family in Vietnam had been harassed and beaten or arrested since he came to Australia in March 2013.
The Tribunal did not accept that there is a real chance that the applicant will be persecuted for reasons of his religion as a Catholic taking into account the fact that his father is a catechist and that he himself was a leader of the youth group ‘Hope’, his imputed political opinion against the government based on his religion, his involvement with the youth group, his participation in prayer activities or protests against the government’s policies and practices and oppression of Christians, or his illegal departure from Vietnam to seek asylum in Australia.
The Tribunal accepted if the applicant returns to his home province he will continue his involvement in the Catholic Church, and he will continue to be involved in praying and in charitable activities as he was before he left Vietnam. The Tribunal did not accept on the evidence that there is a real chance that the applicant will be persecuted for reasons of his involvement in those activities, or his practice of his religion more generally if he returns to Vietnam now or in the reasonably foreseeable future.
The Tribunal noted that it did not accept that the applicant will have to hide his religious activities as was submitted. The Tribunal found on the evidence before it that the applicant will be able to carry out his religious activities and that he will be able to practice his religion openly as he has done in the past.
The Tribunal made reference to country information and submissions advanced on behalf of the applicant in relation to asylum seekers being returned to Vietnam, four of whom were subsequently convicted and jailed for organising the departure of the group by boat. The Tribunal made reference to that information supporting the DFAT information in relation to those suspected of involvement in organising people-smuggling operations being the subject of long-term detention. The Tribunal referred to the applicant’s evidence about these matters. The Tribunal did not accept on the evidence before it that there is a real chance the applicant will face penalties for having departed Vietnam illegally or that he would otherwise be treated differently from anyone else returning to Vietnam or persecuted because Vietnamese authorities will know or assume that he applied for asylum in Australia.
The Tribunal did not accept there is a real chance that the applicant will be persecuted for reasons of his religion, his real or imputed political opinion, or his membership of the suggested particular social groups of failed asylum seekers who have left unlawfully, undocumented, and have returned from a western country, or asylum seekers more generally. The Tribunal did not accept the applicant has a well-founded fear of persecution for one or more of the five Convention reasons if returned to Vietnam now or in the reasonably foreseeable future.
Complementary protection assessment
The Tribunal did not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act.
The Tribunal found the applicant is not a person in respect of whom Australia has protection obligations and found the applicant failed to meet the criteria under s.36(2)(a) or s.36(2)(aa) of the Act.
Proceedings before this Court
On 7 June 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.
At the commencement of the hearing, the Court explained to the applicant that this is a final hearing to determine whether the Tribunal’s decision is affected by relevant legal error. The Court explained that, in summary, a relevant legal error was one in which the Tribunal’s decision was either unlawful or unfair. The Tribunal explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the applicant’s application would be dismissed.
The Court explained it would have identified the evidence and then hear submissions from the applicant and then hear submissions from the barrister for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.
Submissions from the bar table
From the bar table, the applicant sought to take issue with the adverse findings made by the Tribunal. The applicant asserted that the Tribunal accepting parts of his evidence gave rise to contradictions where the Tribunal had rejected his evidence in relation to his fear of facing harm by reason of practising Catholicism and as well as his fear in relation to being imprisoned on the grounds of being suspected to be a people smuggler.
The Tribunal provided rational and logical reasons in support of the adverse findings made in the conduct of the review. Those adverse findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. The applicant’s submissions identified a disagreement with the adverse findings by the Tribunal, but did not identify any relevant legal error. I do not accept that the Tribunal engaged in contradictions in the Tribunal’s reasoning in support of the rejection of the applicant’s claims. Further, it was a matter for the Tribunal to determine the applicant’s credit. The Tribunal, in fact, accepted the applicant’s credit in relation to his practice of Catholicism. The adverse findings by the Tribunal in relation to the applicant’s fears in respect of his practice of his religion were open for the reasons explained by the Tribunal, including the findings in relation to the applicant’s family, to which I have referred above.
The applicant invited the Court to reconsider the decision and the Court explained to the applicant that the Court had no power to review the merits. In the course of the applicant’s submissions, the applicant repeated his submissions in relation to his disagreement with the adverse findings by the Tribunal, and the Court repeated its explanation that the Court could not make fresh findings of fact. The Court explained that it could only revisit findings if they are found to be unreasonable or illogical.
The Court explained to the applicant that it did not have power to decide the case on compassionate grounds and that the Court’s powers were limited to considering whether the Tribunal’s decision was unlawful or unfair. The applicant maintained that the decision was unfair because it was adverse to the applicant and submitted that the Tribunal had failed to consider the whole of the material and had not conducted the review thoroughly.
The Tribunal’s reasons reflect an orthodox approach to the determination of the review. On the material before the Court the Tribunal complied with its statutory obligations in the conduct of the review. On the material before the Court the applicant had a fair and meaningful hearing as a result of the two hearings conducted by the Tribunal. On the material before the Court the Tribunal complied with its obligations of procedural fairness. Nothing said by the applicant from the bar table identified any jurisdictional error.
Grounds of the application
The grounds of 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.
Consideration
Ground 1
In relation to Ground 1, there is no evidence identified or any relevant consideration identified that the Tribunal failed to take into account. Ground 1, in substance, reflects a disagreement with the adverse findings by the Tribunal. No jurisdictional error is made up by ground 1.
Ground 2
In relation to Ground 2, the Tribunal complied with its statutory obligations and afforded the applicant a second hearing as a result of the submissions advanced. The Tribunal was correct not to recuse itself in the circumstances of the present case.
There was no denial of procedural fairness by the Tribunal in the conduct of the review. Ground 2 fails to make out any jurisdictional error.
Ground 3
In relation to Ground 3, for the reasons already given, the Tribunal was correct not to recuse itself. Further, insofar as Ground 3 is advanced on the basis of the adverse findings by the Tribunal, that is not conduct by which a fair-minded lay observer might reasonably apprehend the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. Bias must be clearly alleged and properly proved. No allegation of bias is proved in the present case. Ground 3 fails to make out any jurisdictional error.
Ground 4
In relation to Ground 4, the Tribunal correctly identified the relevant law as set out in an attachment to the Tribunal’s reasons, which was incorporated in the Tribunal’s reasons. There is no basis to find that the Tribunal misinterpreted the relevant law. Ground 4 fails to make out any jurisdictional error.
Conclusion
As the application fails to make out any jurisdictional error, the Court orders that the application be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 4 September 2017
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