BLQ16 v Minister for Home Affairs
[2020] FCCA 2148
•5 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLQ16 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 2148 |
| Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal overlooked evidence or a claim – whether the Tribunal denied procedural fairness – whether the Tribunal was biased – whether the Tribunal misapplied the law – jurisdictional error established – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424AA, 425, 426A, 476 |
| Cases cited: Craig v State of South Australia (1995) 184 CLR 163 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 |
| Applicant: | BLQ16 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 143 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 3 August 2020 |
| Date of Last Submission: | 3 August 2020 |
| Delivered at: | Perth |
| Delivered on: | 5 August 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms S Anicic |
| Second Respondent: | Submitting appearances, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 4 April 2019.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 143 of 2019
| BLQ16 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Vietnam. He arrived in Australia as an irregular maritime arrival on 19 May 2013 (Court Book (“CB”) 29).
On 30 June 2014, the applicant applied for a Protection visa (the “visa”) (CB 31-99). He was assisted by a lawyer throughout the application process.
The applicant’s claims for protection can be summarised as follows:
a)he owned a restaurant and a mining company started an exploration project close to his business. The applicant and other villagers objected to this project;
b)he attended a protest against the exploration project and was attacked and assaulted by the police. He was arrested;
c)the exploration project went ahead and caused damage to the applicant’s business. The applicant was not offered any compensation and his business closed;
d)after the mining project was completed, the applicant reopened his business. The police began harassing him and accusing him of anti-government opinions. They also extorted money from him from 2007 until 2012;
e)in December 2012, he confronted a group who had begun to load the sand from his business area in order to take it somewhere else for sale. The police attended and sided with the other group. He was beaten by the police. The next day he was accused of hindering a police officer and was threatened with jail;
f)he fears that the police will press criminal charges against him for fleeing Vietnam and because he supports government opposition groups; and
g)his personal information was inadvertently released in a 2014 data breach. This has caused Vietnamese authorities to visit his family, who were told that the Vietnamese government believed that the applicant left so that he could fight against them.
The applicant attended an interview before a delegate of the first respondent (the “Minister”) on 16 October 2014 (CB 101-102). On 13 November 2014, the applicant’s lawyer forwarded company information to the delegate relating to the mining company (CB 103-106).
On 21 April 2015, the delegate refused to grant the applicant the visa (CB 107-125). The delegate was not satisfied that the applicant met the relevant visa criteria.
On 29 April 2015, the applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 126-133).
The applicant was invited to attend a hearing on 11 May 2016 (CB 140-143). He did not attend that hearing (CB 148-150). The Tribunal proceeded to determine the application pursuant to s.426A(1A)(b) of the Migration Act 1958 (Cth) (the “Act”) and affirmed the delegate’s decision not to grant the visa (CB 152-163).
On 27 September 2016, a Judge of this Court remitted the matter, by consent, to the Tribunal for reconsideration as it was found that the Tribunal had fallen into jurisdictional error (CB 164).
The applicant attended a hearing before the Tribunal on 21 January 2019 (CB 190-192). He provided supporting documents to the Tribunal on 19 February 2019 (CB 200-204).
The applicant attended a further hearing before the Tribunal on 4 April 2019 (CB 205-207). Further supporting documents were provided (CB 208-227). The Tribunal made an oral decision affirming the delegate’s decision at the conclusion of that hearing (CB 229-230). On 1 May 2019, the Tribunal provided a written statement of its reasons for decision (CB 245-254).
On 23 April 2019, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s.476 of the Act. To succeed, the applicant must demonstrate that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is 47 paragraphs in length. However, the substance of the Tribunal’s decision is found from paragraph 5 onwards. Paragraphs [1] to [4] simply note that the decision was made orally and that the remainder of the decision, “what follows”, is derived from the transcript of the hearing on 4 April 2019.
The Tribunal first outlined general principles pertaining to the protection visa criterion and to the assessment of credibility (at [5]-[8]). The Tribunal then gave an overview of the application’s procedural history. This includes information about the date the applicant applied for the visa, the progression of the matter before the delegate and what occurred in relation to the previous Tribunal’s decision (at [9]-[14]). The Tribunal then summarised the applicant’s claims as they had been presented in his visa application (at [18]-[22]).
When considering the applicant’s claims concerning the land dispute with the mining company and his participation in protests, the Tribunal:
a)noted that the applicant’s evidence at hearing about where the mining exploration and his restaurant were located was vague and lacked specificity (at [23]). The Tribunal noted that, at the resumed hearing on 4 April 2019, the applicant had provided a map identifying the location of the restaurant. The Tribunal accepted that this was the location the applicant had referred to in his claims (at [24]);
b)stated that the “bare facts” of the applicant’s claims appeared to have been “made out” by the maps and imagery the applicant had provided. However, the Tribunal noted that the “particularised impact” of the mining project to the applicant’s business was not demonstrated by the imagery (at [26]);
c)noted that the applicant had indicated that the mining company now has a much smaller workforce, the exploitable minerals have been depleted and the “mining focus” now spreads beyond the applicant’s village (at [27]); and
d)referred to the fact that the applicant’s immediate and extended family continue to live in the area, which is the focus of the applicant’s claims (at [28]).
At [29]-[30], the Tribunal found as follows:
29. The Tribunal notes that the applicant provided very little detail when invited to do so in the nature of dates and times and people or other corroborative evidence for any of his claims relating to the land disputes. While the Tribunal is prepared to accept that the location of his business presented difficulties between himself and the sand mining company as some time in the past, taking into account the lack of detail in the applicant’s evidence relating to these disputes and lack of corroborating evidence and also taking into account the fact that both he and his family resided peacefully in the area for many years suggests that whatever disagreements may have existed between himself and the mining company were not major even at the time when he claims they occurred. These issues appear, on the basis of the applicant’s own evidence, to have become even less significant with the depletion of the exploitable mineral resources in the area.
30. The disused state of the applicant’s business in its current location, a business which the applicant implies still remains within his family’s ownership, could equally be due to his absence from the country since 2013. Accordingly, after weighing all of the applicant’s evidence, the Tribunal does not place any weight on the applicant’s claims to have fled persecution from Vietnam on account of land use or sand mining on land near his business in [omitted] village. In making this finding, the Tribunal notes that the applicant continued to reside in [omitted] village for five months before departing Vietnam
When considering the applicant’s “irregular” departure, the Tribunal noted that the applicant had lawfully departed Vietnam using his own passport (at [31]). Referring to country information (at [32]), the Tribunal was satisfied that the applicant did not depart Vietnam illegally and would not be subjected to persecution on account of his departure. Referring to this as an “implied claim”, the Tribunal also found that it was not a fear subjectively held by the applicant and was therefore not “well-founded” (at [33]).
When considering the data breach, the Tribunal stated as follows:
34.There is no evidence before the Tribunal that the data released by the Department in 2014 contained any information about the protection claims that the applicant made. The Tribunal also notes that that the information was only accessible online for a short period of time before it was removed from the web. Of further relevance to this particular point the Tribunal notes that the applicant’s family has remained unharmed in Vietnam. The Tribunal notes that the applicant’s claims that they have been subsequently harassed by local police. However, for reasons that will be discussed below, the Tribunal finds that these claims are without credibility. Accordingly, for the purposes of its assessment, the Tribunal finds that the applicant has no genuine basis for holding a well found fear of persecution on account of the data released by the Department
The Tribunal then considered the applicant’s claims relating to a visit by Vietnamese officials to the detention centre in which the applicant was placed upon arrival in Australia and noted that his family in Vietnam had been visited and questioned after the applicant was placed in detention (at [35]).
The Tribunal noted that, when asked why his family remained in their village if they were facing persecution, the applicant provided no reasonable explanation. The Tribunal noted that the explanation provided was inconsistent with the country information (at [36]-[37]). The Tribunal continued:
38. When the Tribunal questioned the applicant about his legal departure from Vietnam, he claimed that his conflict with officials in Vietnam was localised. However, the applicant also claimed that his family were subject to harassment by Vietnamese officials after national-level officials visited Yongah Hill. The Tribunal finds that there is a material conflict in logic in the applicant’s claims in this respect. Either his family was subject to official persecution in Vietnam, or it was not. The fact that his family has continued to reside in a location where, if the applicant’s own evidence is accepted, up until 2013 they were subjected to localised persecution. The Tribunal notes, for example, that the applicant’s son has relocated to [omitted]. The opportunity for the applicant’s wife and his youngest son to relocate to Da Nang existed, and still continues to exist, but has never been acted upon. These facts do not align with the applicant’s principle claims. There is also the question as to whether or not the applicant would legally depart the country and leave his dependent spouse and dependent child in the way of harm without, at the very least, trying to obtain their safe relocation to a part of Vietnam where they would not be continue to be exposed to localised persecution.
39. The applicant’s claims with respect to the link between Vietnamese officials’ visits to Yongah Hill is, therefore vague, inconsistent, implausible and lacking in credibility. The applicant’s evidence in this respect suggests that he is not a person of any adverse interest to the authorities in Vietnam. Accordingly, the Tribunal finds there is not a real chance that he will suffer serious harm by agents of harm representing Vietnamese authorities or from anyone else, now or in the reasonably foreseeable future on the basis of the visits of Vietnamese officials to Yongah Hill Immigration Detention Centre.
The Tribunal then noted that the applicant had provided no corroborating evidence or witnesses in support of his claimed involvement with the Vietnamese community since 2014. The Tribunal expected that if such a claim was genuinely held and well-founded, the applicant would have presented evidence of this sort (at [40]).
Considering the applicant’s claims separately and cumulatively, the Tribunal found that the applicant’s claims were not credible and that the applicant did not subjectively hold a well-founded fear of persecution for any of the reasons claimed (at [41]).
Noting that the standard under the complementary protection criterion was the same as that under the refugee criterion (at [42]), the Tribunal was not satisfied that the applicant faced a real risk of significant harm if returned to Vietnam (at [43]-[44]).
The Tribunal affirmed the decision to deny the applicant the visa (at [45]-[47]).
Proceedings in this Court
In his judicial review application dated 23 April 2019, the applicant raised four grounds of review 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.
The applicant was given an opportunity to file an amended application, supporting affidavit evidence and an outline of submissions. No further materials were filed.
The materials before the Court are thus limited to the judicial review application, a Court Book numbering 254 pages (marked as Exhibit 1) and an outline of submissions filed by the Minister on 27 July 2020. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions.
At the hearing, the applicant appeared without legal representation. He was assisted by a Vietnamese interpreter.
Noting the remarks in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that an unrepresented applicant should be given an opportunity to orally explain what they believe the Tribunal “did wrong”, the Court invited the applicant to outline what mistakes he thought the Tribunal had made.
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error. It explained that the possible categories of jurisdictional error are not exhaustive and sometime overlap. For decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42] (“Htun”);
e)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant him the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant simply stated that he had explained everything to the Tribunal about why he applied for the visa and is seeking protection and now appeals to this Court for a different decision. Unfortunately, these submissions do not assist in relation to whether the Tribunal fell into jurisdictional error. They merely recite factual matters and, arguably, seek merits review.
Consideration
Ground 1
By ground 1, the applicant alleges that the Tribunal failed to consider all of the evidence or did not take into account relevant considerations.
Unfortunately, the applicant has not identified what evidence was overlooked or what relevant consideration was not taken into account. This is not uncommon when applicants do not speak English and have had no legal assistance when preparing for legal proceedings. Noting its duty to the self-represented applicant, the Court has thus remained astute and alert to the possibility of legal error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
In relation to the first part of ground 1, the applicant has claimed that the Tribunal failed to consider “all of the evidence”. Having reviewed the materials in the Court Book, it is observed that:
a)the Tribunal accepted that there were mining operations in the applicant’s village and that there may have been some disagreement or conflict between the applicant and the mining company. Hence, it was not necessary to refer to, or consider, the information provided to the delegate about the particular mining company;
b)the Tribunal made express reference to the Certificate of Business Registration the applicant had provided on 19 February 2019 and, accordingly, accepted the location of the applicant’s business (at [24]);
c)the Tribunal referred to the “maps” the applicant had provided and accepted that they corroborated the location of the applicant’s restaurant (at [24]);
d)the Tribunal expressly referred to the photographs that the applicant had provided (at [24]) and noted that these did not demonstrate any “particularised impact” to the applicant’s restaurant because of mining operations (at [26]);
e)the Tribunal made numerous references to the evidence the applicant provided at the first and second hearings. The Tribunal noted inconsistencies, illogicalities and vagueness in relation to this evidence (at [23]-[27] and [36]-[39]); and
f)the Tribunal made reference to the applicant’s “arrival interview” on 5 June 2013 (indicating that it had referred to this evidence).
The Tribunal’s consideration of the applicant’s claims as they arose in connection to, or as they were supported by, the evidence above is sound. The Tribunal had regard to that evidence and to the country information in assessing the applicant’s claims.
However, evidence that the Tribunal does not refer to is an “Award of Excellence” and two “Certificates of Appreciation” awarded to the applicant from the Vietnamese Community in Australia – WA Chapter (CB 202-204).
At [40], the Tribunal broadly states:
The applicant also raised his involvement in the Vietnamese community since 2014. The Tribunal notes that the applicant has provided no corroborating evidence or witnesses in support of this claim, which might be expected if such a claim was genuinely held and well-founded.
It appears that the applicant raised the claim that he had been involved in the Vietnamese community during the course of the Tribunal’s hearings.
The Minister submits that the applicant did not provide any corroborating evidence or witnesses as to how his involvement in the Vietnamese community could result in a risk of harm to him. Nor, it is submitted, was there any evidence that the applicant genuinely held a well-founded fear on this basis. At hearing, Counsel for the Minister emphasised that the Tribunal’s statement at [40] can be read as a statement that the evidence was not corroborative of a genuine fear of harm arising from community participation.
The Court does not accept the Minister’s submission in this regard.
The Tribunal used the heading “Profile in the Australian Vietnamese Community” when considering this claim. It is evident from the use of this heading that the relevant protection claim was that the applicant’s involvement in the Australian Vietnamese Community could cause him to have a “heightened profile”.
The award of excellence and the certificates of appreciation were “corroborative evidence” of the applicant’s involvement with the Vietnamese community. Those documents indicate that the applicant had “volunteered”, engaged in “meritorious service and participation” and participated in at least three events held by the Vietnamese community between 2016 and 2018.
Thus, there was “corroborative evidence” in support of the applicant’s claim to fear harm as a result from his involvement with the Vietnamese community. At the very least, the documents supported an argument that the applicant had been “involved” with the Vietnamese community. As such, the Tribunal was required to address whether any involvement, and how that involvement, might give rise to a profile that could result in a risk or chance of harm.
The Tribunal did not actively engage with that information. Rather, the Tribunal simply dismissed the claim as not genuinely held on the apparent basis that there was nothing before it to support any involvement. The Court does not agree with the Minister’s interpretation of the Tribunal’s statement of [40]. The Minister is asking the Court to “read into” what is not stated in that paragraph. The Tribunal referred to “this claim”. “This claim” related to the applicant’s profile in the Vietnamese community in Australia. At the very least, some transparent analysis of the level of involvement is necessary to inform an overall conclusion about a claim to fear harm because of that involvement.
Here, the Tribunal erred by failing to have regard to, and properly consider and “unpack” the applicant’s level of involvement in the Vietnamese community.
The Minister submits, alternatively, that the Tribunal’s failure to take into account the two certificates and the award of excellence does not amount to jurisdictional error as any such failure “is not material”. This, it is submitted, is so because, even if the Tribunal had had regard to this material, it could not realistically have resulted in the Tribunal making a different decision.
The Minister’s submissions do not state how or why it is the case that the materials could not have realistically resulted in a different decision. While the Court accepts that the onus is on the applicant to prove the materiality of any error, with respect, the Minister’s submissions are deficient. They contain a bare assertion without any explanation. Even if the applicant were not unrepresented, the Court would not consider the arguments made any differently. A party has a right to know the case against them. A bare assertion that the error “is not material” without any explanation for how or why that is the case is unacceptable.
The Court assumes that the Minister is saying that the probative value of the evidence is minimal.
It may well be the case that the sufficiency of the evidence in support of the applicant’s claim that his involvement with the Australian Vietnamese Community might cause him to have a “profile” is not strong. However, that is a matter for the Tribunal to determine. As the Minister’s own submissions state, it is a matter for the Tribunal to determine whether to accept, reject or give such weight to the evidence before it: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464. It is not for the Court to step into the role of the Tribunal, make necessary findings of fact and consider protection claims.
On the basis of the above, ground 1 is established. The “relevant considerations” relate to the applicant’s claims for protection. Here, the failure to consider evidence about the applicant’s involvement in the Australian Vietnamese Community led to the Tribunal failing to properly engage with the applicant’s claims. That error was material. For the Court to find otherwise would cause it to transgress into the realm of merits review.
Ground 1 is established. The application is to be allowed.
Ground 2
In ground 2, the applicant alleges that he was not afforded procedural fairness. Again, the applicant has not indicated how he was denied procedural fairness.
Here:
a)the applicant was invited to attend, and did attend, two hearings before the Tribunal. On the face of the Tribunal’s decision it is clear that he properly engaged with the Tribunal and had a real and meaningful opportunity to participate: the Act, s.425;
b)all of the information that the Tribunal relied upon was information that had been provided by the applicant in the course of the review or was country information. Hence, it was unnecessary for the Tribunal to put any information to the applicant for comment under ss.424A and 424AA of the Act;
c)the applicant was assisted by an accredited interpreter at both hearings and there is nothing to suggest that there were any interpretive difficulties or translation errors experienced in the course of the hearing; and
d)the Tribunal adjourned the hearing to another day and provided the applicant a further opportunity to provide supporting documents. In these circumstances, it cannot be said that the Tribunal acted unreasonably.
In the Court’s view, the materials before it and the Tribunal’s decision indicate that the Tribunal complied with the exhaustive procedural fairness obligations set out in div.4 of pt.7 of the Act.
Ground 2 is dismissed.
Ground 3
It is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
Having reviewed the Tribunal’s decision it is clear that the Tribunal was impartial and had an open mind. The Tribunal adjourned the hearing to allow the applicant further time to provide supporting documents. The Tribunal accepted some of the applicant’s evidence and claims notwithstanding concerns it had with that evidence. Read as a whole, it is apparent that the Tribunal gave the applicant every opportunity to satisfy the Tribunal that he met the relevant visa criteria.
Ground 3 is, accordingly, dismissed.
Ground 4
The Tribunal’s summary of the legal principles is set out at the beginning of the Tribunal’s decision (at [5]-[8]). There is nothing controversial in relation to the summary provided.
The Tribunal’s decision demonstrates a clear understanding of the legal principles applicable to protection visas. The Tribunal used the language of the statute and its reference to the applicant not “subjectively” having a fear of persecution demonstrates that the Tribunal was well versed in what was required for the grant of the visa.
There is nothing in the Tribunal’s decision to indicate that the Tribunal misinterpreted the law.
Ground 4 is dismissed.
Conclusion
Ground 1 of the judicial review application has identified jurisdictional error. The Tribunal failed to consider corroborative evidence and, in doing so, failed to consider one of the applicant’s protection claims.
The matter is to be remitted to the Tribunal for rehearing in accordance with the law.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 5 August 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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