BIW17 v Minister for Immigration and Border Protection
[2017] FCA 1606
•14 November 2017
FEDERAL COURT OF AUSTRALIA
BIW17 v Minister for Immigration and Border Protection
[2017] FCA 1606
Appeal from: BIW17 v Minister for Immigration [2017] FCCA 1857 File number: WAD 424 of 2017 Judge: RARES J Date of judgment: 14 November 2017 Legislation: Migration Act 1958 (Cth) ss 36, 45AA
Migration Regulations 1994 (Cth) reg 2.08F
Cases cited: BIW17 v Minister for Immigration [2017] FCCA 1857
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Date of hearing: 14 November 2017 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 41 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Ms T Jonker Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
WAD 424 of 2017 BETWEEN: BIW17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
14 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an appeal from the decision of the Federal Circuit Court refusing the appellant’s claim for Constitutional writ relief in respect of the decision of the Administrative Appeals Tribunal given on 15 March 2017 that, in substance, refused the appellant’s claim to a protection visa: BIW17 v Minister for Immigration [2017] FCCA 1857.
The Tribunal set aside the Minister’s delegate’s decision to refuse to grant the appellant a protection (class XA) visa and substituted a decision to refuse to grant the appellant a temporary protection (class XD) visa. That was because the delegate made his decision under review on 16 December 2014, which was the date on which reg 2.08F of the Migration Regulations 1994 (Cth) came into effect for the purposes of s 45AA of the Migration Act 1958 (Cth).
Relevantly, the Tribunal found, as the delegate had, that the appellant had made a valid application for the protection (class XA) visa but, by force of s 45AA and reg 2.08F, that application was treated as always having been a valid application for a temporary protection (class XD) visa instead of one for a permanent protection visa. In substance, therefore, the Tribunal affirmed the delegate’s decision, albeit that the legislation had substituted one form of protection visa for another.
Background
The appellant originally claimed that he was entitled to protection when he arrived in Australia at his entry interview as an irregular maritime arrival conducted on 4 April 2013, based on his being a Catholic and a single incident in his village in Vietnam on 14 July 2012. He alleged that on 14 July 2012, while he and others within a group, of which he claimed to be a leader, were in a church praying, the military authorities brought a tank, or tanks, to the church and remained outside it for a period of time.
The Minister allowed the appellant to make a claim for protection, and he did so in an application lodged on 14 June 2014, in which he elaborated his claims consistently with what he had said in the entry interview, adding that after a time, on 14 July 2012, the priest went outside and persuaded the military personnel with the tank to leave.
The delegate refused the appellant’s claims to protection for the purposes of s 36(2)(a) and (aa) on the basis that he was not satisfied that the appellant had a well-founded fear of persecution were he to be returned to his home village in Vietnam then or in the foreseeable future for any Refugee Convention-related reason or that, and, for the same reasons, rejected his claim that, he had a real chance of facing significant harm there for the purposes of a complementary protection ground.
During the course of his interview with the delegate, the appellant elaborated further claims which had arisen subsequently to his arrival in Australia, namely that he feared harm because of:
·a visit to the detention centre, in which he was detained, by persons whom he believed were members of the Vietnamese A18 police; and
·the fact that he had been affected by what is known as the “data breach”. That fear arose because he was in immigration detention on 31 January 2014 and had been notified that he may have been affected by the Minister’s Department having disclosed on the internet the names of and some personal details of all persons, including the appellant, who were in immigration detention on the date of the posting: see Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180.
The delegate noted that the Departmental advice concerning the data breach had identified that the Department had caused the personal information of detainees to be disclosed to at least 104 IP addresses who had accessed the Department’s website. The delegate found that the information disclosed consisted of the detainee’s name, date of birth, nationality and details about the detainee’s detention in Australia. The delegate found that there was no evidence to indicate that being in immigration detention prior to return to Vietnam of itself would result in the appellant being exposed to a risk of persecutory harm by the Vietnamese authorities. The delegate found there was no evidence to suggest that Vietnamese authorities, including the A18 police, who may have visited the detention centre at which the appellant was held, had made other than reasonable inquiries to assist them in establishing the identity and nationality of the persons being interviewed. The delegate found that there was no evidence that those inquiries revealed information that went beyond those bare facts. In particular, the delegate found that there was no evidence of any revelations of the reasons why the appellant may have been in immigration detention, otherwise than that he did not have a valid visa.
The appellant sought review of that decision by the Tribunal and, as first constituted, on 21 October 2015, the Tribunal came to the same decision, namely to substitute a decision to refuse to grant the appellant a temporary protection (class XD) visa, as did the second Tribunal whose decision is the subject of the current appeal.
On 18 August 2016, the Federal Circuit Court by consent ordered that the first Tribunal’s decision be set aside on the basis that the first Tribunal had unreasonably refused the appellant’s request for an adjournment that he had made to it. That led to the second Tribunal, constituted by a different member, reviewing the delegate’s decision.
The proceedings in the Tribunal
At the first hearing of the second Tribunal on 15 December 2016, the appellant was represented by a migration agent who was not a lawyer. As a result of issues with the quality of the interpretation at that hearing, the second Tribunal decided to have a second hearing with another interpreter and had no regard to any of the translation, and, more particularly, to any evidence, given at the first hearing.
The second Tribunal member refused to recuse himself on the basis that he had heard what had been said on 15 December 2016 in the hearing because he decided not to take into account anything that had been interpreted at that first hearing. The second Tribunal said that it had had regard only to the appellant’s evidence and submissions at the second hearing, and that accordingly no fair-minded layperson might think that the decision-maker might not bring a fair and impartial mind to the making of the decision under review.
The Tribunal correctly identified the appellant’s claims that I have summarised, namely first, his claim to fear persecution on the grounds of his Catholicism and the incident on 14 July 2012, including his position in the church group and, secondly, separately and in combination, his claims based on the visit to the detention centre by the police or Vietnamese authorities, who may have been or included A18 police, and also the impact of the data breach, if any, alone or in combination with that police visit.
The Tribunal found that, as the appellant confirmed in his submissions today before me, he had made no claim that any of his family, who were also Catholics, and his father, who on the evidence before the delegate and the Tribunal was a catechist in the church, had been subjected to any adverse activities or harm in Vietnam since the time of the appellant’s arrival in Australia in March 2013.
The Tribunal reviewed in detail what the appellant had told it, and his other submissions and evidence including country information. It said that, having given careful consideration to all of the evidence before it, it did not accept that there was a real chance that the appellant would be persecuted for reasons of, first, his Catholic religion, taking into account the fact that his father was a catechist and he himself was a leader in the youth group that he identified, or, secondly, any imputed political opinion against the government based on his religion, his involvement with the youth group, his participation in prayer services or protests against the government’s policies and practices, the oppression of Christians or his illegal departure from Vietnam to seek asylum in Australia.
The Tribunal gave cogent reasons for coming to that conclusion which were open to it on the evidence that it identified. It did not accept that, on the evidence before it, there was a real chance that the appellant would be persecuted for reasons of his involvement in those activities or his practice of his Catholic religion more generally, were he to return to Vietnam then or in the reasonably foreseeable future. It also did not accept that the appellant would have to hide his religious activities. It made a positive finding that on the evidence before it, he would be able to carry on his religious activities and practise his religion openly, in the way he had done in the past.
The Tribunal accepted that if the appellant returned to Vietnam, the Vietnamese authorities would know that he had left Vietnam illegally and would either know or assume that he had applied for asylum in Australia. It found that it did not matter for the purposes of the review:
·whether the Vietnamese authorities would know or assume those matters, because the A18 police group had visited the detention centre at which he had been held, and talked to other Vietnamese asylum seekers who may have revealed his personal details;
·that, by reason of the data breach, those details had been published to the Vietnamese authorities; or
·he would be returned to Vietnam involuntarily.
The Tribunal found that the Vietnamese authorities inevitably would be made aware, because of the appellant’s involuntary return, of his personal details, and would assume that he was a failed asylum seeker.
It did not accept the appellant’s claim that he had attracted the attention of the Vietnamese authorities before he left Vietnam. Therefore, it did not accept that he was on any blacklist noted in his personal file because of those activities. It accepted country information and found that there was no real chance that the appellant would face penalties for having departed Vietnam illegally or otherwise be treated differently from anyone else returning to Vietnam. It did not accept that he would be persecuted because the Vietnamese authorities would know or assume that he had applied for asylum in Australia.
Accordingly, taking into account the cumulative effect of all of the appellant’s circumstances, as well as his individual claims, the Tribunal did not accept that he had a well-founded fear of being persecuted for one or more Convention reason were he to return to Vietnam then or in the reasonably foreseeable future. Having regard to its findings on the claims to protection under s 36(2)(a) of the Act, the Tribunal also found that there were no substantial grounds to believe, as a necessary and foreseeable consequence of the appellant being removed from Australia to Vietnam, that there was a real risk that he would suffer significant harm for any of the bases on which he claimed protection for the purposes of s 36(2)(aa). Accordingly, the Tribunal came to the decision to refuse to grant the appellant a protection visa.
The proceedings before the trial judge
The appellant applied to the trial judge for judicial review based on four grounds set out in his application below, namely, that:
·the appellant did not think that the Tribunal had considered all of his evidence or taken into account relevant considerations;
·he was not afforded procedural fairness;
·the decision was affected by bias; and
·the Tribunal misinterpreted the law.
His Honour rejected each of those un-particularised grounds. First, he found that the first ground, in substance, reflected a disagreement by the appellant with the adverse findings that the Tribunal had made, and that that did not give rise to any case of jurisdictional error. Secondly, he found that the Tribunal had afforded the appellant procedural fairness in accordance with the scheme of the Act, and that the second member was correct not to recuse himself in the circumstances of the proceedings before him. Thirdly, to the extent that the allegation of bias related to the adverse findings made by the Tribunal, his Honour found that nothing in the way in which the Tribunal dealt with the review or arrived at those findings could satisfy the legal test for bias. Fourthly, the trial judge held that the Tribunal correctly identified the relevant law as set out in the attachment to its reasons. His Honour therefore dismissed each of the articulated grounds for review.
The trial judge also considered submissions that the appellant had raised during the course of the hearing before him, namely, that the Tribunal had accepted parts of his evidence, in relation to his practise of Catholicism and of being imprisoned as a suspected people smuggler, but had rejected his claims to have a well-founded fear of persecution by reason of those matters. His Honour found that the Tribunal had given rational and logical reasons in support of its adverse findings, that were open to it on the material before it, and that it had not fallen into any jurisdictional error in assessing the appellant’s credit or his claims in respect of his Catholicism. I note that the appellant had never put before the Tribunal a claim that he had any fear of being imprisoned on the ground of being a people smuggler.
His Honour said that the appellant had invited him to reconsider the Tribunal’s decision, but that he had explained that the Court did not have jurisdiction to engage in merits review. He found that the appellant’s submissions amounted to a disagreement with the Tribunal’s findings of fact, but did not articulate any basis on which the Tribunal may have fallen into jurisdictional error in arriving at those findings.
The trial judge also explained to the appellant that the Court did not have power to decide his case on compassionate grounds, and that its powers were limited to considering whether the Tribunal’s decision was unlawful or unfair. He found that the Tribunal had not committed any jurisdictional error.
This appeal
The notice of appeal raised four grounds that do not correspond with the arguments below, but which the Minister did not suggest occasioned any prejudice were they to be considered for the purposes of this appeal. The notice of appeal asserted that his Honour erred in failing to find that:
·the Tribunal had made a jurisdictional error in its application of, or failure to apply, the real chance test in respect of the harm that the appellant would face on his return to Vietnam, for reasons of his religion, or actual or imputed political opinion as a failed asylum seeker (grounds 1 and 3);
·the Tribunal had erred in its assessment of the impact of the data breach on the harm he claimed to fear that he would suffer were he returned to Vietnam (ground 2);
·the Tribunal had made findings without evidence (ground 4).
When the appellant appeared in person today with the assistance of the interpreter, he asserted that his Honour’s decision had not been fair to him. He asserted that the Tribunal should have found he was entitled to protection because he was escaping persecution in Vietnam based on the July 2012 incident.
The appellant accepted, as I have noted above, that since he left Vietnam, no harm had befallen his family in his village, but contended that the Tribunal “did not prove” (which I took to be a submission that it could not be satisfied) that he would not suffer a real chance or risk of harm were he to return to his village by reason of each of his claims of protection.
The appellant asked me to grant an adjournment of the appeal so that he could have a better chance to formulate his arguments, which I refused. He said that he wanted to search for a lawyer, but gave no explanation of any attempts he had made to obtain one beforehand. He said that he was confused, and although he had prepared everything properly for today, he was not able to go on to make out his case. I was satisfied that, first, the appellant had had sufficient notice of the hearing of the appeal today to formulate his case, so as to be able to put it forward, secondly, no useful purpose would be served in granting an adjournment, and, thirdly, that it was not in the interests of justice to do so. In fact, he did make coherent and lucid submissions, and I am satisfied that he has had a fair opportunity to put his case.
Consideration
Having read the material in the appeal papers, I am satisfied that the trial judge did not make any error in his consideration of the appellant’s case as put to him, and that his Honour was correct, for the reasons that he gave, in dismissing the application below.
In my opinion, there is no substance in the first and third grounds in the notice of appeal. It is plain beyond argument that the Tribunal did apply the real chance test. It referred to what McHugh J had held in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 430. There, his Honour said that it was not a necessary element of the concept of persecution that an individual be the subject of a series of acts, and that a single act of oppression could suffice, provided that that act can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, or so that he or she could be seen as being persecuted for the purposes of the Convention.
The Tribunal considered the individual circumstances of the appellant, as put forward in the context in which he sought to make his claim. It gave compelling reasons for its ultimate conclusion that there was no real chance that he would be persecuted for reasons of his involvement in his religious activities in the past in Vietnam, or his practice of religion more generally were he to return there, then, or in the reasonably foreseeable future. It is apparent that the Tribunal applied correctly the real chance test at all points of its consideration of each of the appellant’s claims to fear persecution by reason of his religion, actual or imputed political opinion, the concerns he had about the visit by the Vietnamese police to his detention centre, and the data breach, both individually and collectively. Accordingly, grounds 1 and 3 in the notice of appeal fail.
The second ground concerned the specific way in which the Tribunal dealt with the data breach. The Tribunal recorded the appellant’s representative’s submission, based on the KPMG and Privacy Commissioner reports to which the delegate had referred in his decision. She argued that the published information in the data breach comprised each asylum seeker’s full name, gender, citizenship, date of birth, the period for which he or she had been in immigration detention, the location, boat arrival details, and reasons why he or she was deemed to be unlawful. On that basis, the representative contended that the appellant had a sur place claim on the basis of a well-founded fear that the Vietnamese authorities had had access to this information. She further submitted that the Vietnamese officials who had visited his detention centre in August 2014 had been from the A18 police, and that he was at risk as a result of that circumstance.
The Tribunal found, as I have summarised above, that it did not matter in what way the Vietnamese authorities learned that the appellant was a failed asylum seeker, because they, in any event, would have all the information the subject of the data breach, namely his personal identifiers and the way in which he had arrived in Australia. Significantly, none of the data breach material or other information which the appellant claimed could be the subject of knowledge of the Vietnamese authorities included the nature of his claims for asylum.
Thus, the Tribunal reasoned that it was inevitable that the very information the subject of the data breach would be known to the Vietnamese authorities simply by reason of the appellant’s return to Vietnam as a failed asylum seeker. In SZSSJ 259 CLR at 207 [83]-[84] French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ held that a person in the position of the appellant would have a reasonable opportunity to be heard on the consequence of the data breach if he or she were put on notice of:
… the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of the information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.
Here, the appellant, through his representative, made submissions to the Tribunal based on material expressly considered in the decision by the delegate, in circumstances where I am satisfied he had a full opportunity of understanding the nature of the issues and the reason why the Tribunal might find that the data breach did not adversely affect him: see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162 [32]. Accordingly, I reject the second ground.
The appellant provided no intelligible information as to what finding or findings the Tribunal made, for which he contended, in ground 4, that there was no evidence. I reject that ground.
In my opinion, there is no basis for suggesting the second Tribunal member should have recused himself or gave rise to any apprehension, let alone actuality, of bias in the way in which the Tribunal proceeded at the second hearing earlier this year. The Tribunal said that it was not going to take into account anything that had been said in the first hearing in December 2016, at which the quality of the interpretation was suspect. The Tribunal correctly applied the test for recusal on the ground of apprehended bias, being that which Rares and Jagot JJ set out in Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at 235 [37], namely:
An administrative decision-maker will be found to have given rise to an apprehension of bias if a fair-minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision. The hypothetical lay person is an objective observer of the proceedings and will be assumed to be properly informed as to their nature, the matters in issue and the conduct complained of: Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; 179 ALR 425 at [28]-[29] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [14]-[21] per Allsop J, with whom Moore and Tamberlin JJ agreed.
No fair-minded layperson might think that the Tribunal might not have brought a fair and impartial mind to the making of the decision in all of the known circumstances.
Accordingly, there is no foundation for a conclusion that the Tribunal’s decision was affected by apprehended or actual bias.
Conclusion
For these reasons I am of opinion that there is no substance in the appeal and it must be dismissed with costs.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 21 December 2017
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