BMH17 v Minister for Immigration

[2020] FCCA 1315

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMH17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1315

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority correctly applied/interpreted the relevant law – whether the Authority’s decision was affected by bias – whether the Authority failed to consider relevant evidence and considerations – whether the Authority afforded procedural fairness to the applicant – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DB, 473DC, 473DD, 473DE, 476

Applicant: BMH17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 193 of 2017

Judgment of: Judge Street

Hearing date: 26 May 2020

Date of Last Submission: 26 May 2020

Delivered at: Sydney

Delivered on: 9 June 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams

Solicitors for the Respondents: Ms J Tran, Australian Government Solicitor, via Microsoft Teams

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 193 of 2017

BMH17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act made on 21 March 2017 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa (“the Protection visa”).

2. The applicant was found to be a citizen of Vietnam and his claims were assessed against that country.

3. The applicant claimed to fear harm by reason of an ongoing land dispute with the Vietnamese authorities and also by reason of an imputed adverse political opinion due to his resisting the land appropriation, being a failed asylum seeker, and by reason of his illegal departure from Vietnam or the disclosure of some of his personal information by the Department of Immigration data breach.

4. The applicant arrived in Australia as an unauthorised maritime arrival on 14 April 2013. On 13 January 2017, the Delegate found that the applicant failed to meet the criteria for the grant of the Protection visa. On 19 January 2017, the Authority wrote to the applicant explaining that the application for the Protection visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction providing the applicant with an opportunity to put on submissions and new information. No such material was provided to the Authority.

5. The Authority, in its reasons, identified the background to the Protection visa application.

6. The Authority identified the applicable law in an annexure incorporated by pagination in its reasons.

7. The Authority summarised the applicant’s claims and had regard to the material referred by the Secretary under s 473CB of the Act.

8. The Authority referred to the applicant’s claim that the family home remains on the land but they now have a much smaller home because the government came and demolished the earlier home.

9. The Authority referred to the applicant’s claims that the police break into the house regularly and demand money.

10. At the Protection visa interview, the applicant claimed that he left Vietnam because of his actions in seeking to disrupt the people who came to demolish his home and the applicant claimed that he had been arrested many times.

11. The Authority accepted that the applicant’s family have been involved in a land dispute with Vietnamese government and that the Vietnamese government is seeking to acquire the family’s land and demolish the family home. The Authority also accepted that the family home had been rebuilt after it was demolished.

12. The Authority did not, however, accept the applicant’s claims that he disrupted the people who came to demolish the family home, or that he had been arrested many times. The Authority identified the inconsistent information provided by the applicant at his entry interview in that regard. The Authority did not accept that the applicant had ever been arrested or detained prior to his departure to Australia or that he was physically harmed.

13. The Authority did not accept the applicant’s claims that the government recently went to his home and had an altercation with his mother, causing her to go into hiding. The Authority did not accept that the applicant faced a real chance of harm on the basis of the land dispute on return to Vietnam now or in the reasonably foreseeable future.

14. The Authority was not satisfied that the applicant’s inability to complete his schooling constitutes serious harm.

15. The Authority did not accept that the applicant’s father was invited to attend a police station to answer questions and did not accept that the applicant faced a real chance of serious harm on this basis on return to Vietnam now or in the reasonably foreseeable future.

16. The Authority referred to the applicant’s claimed fear of harm of “police brutality”, “forced prostitution”, “jail”, and “torture”. The Authority did not accept that the applicant holds any subjective fears regarding being forced into prostitution or criminal gangs and referred to the applicant’s own evidence that he does not have a fear of harm for these reasons. The Authority was not satisfied that the applicant faced a real chance of serious harm on this basis on return to Vietnam now or in the reasonably foreseeable future.

17. The Authority referred to the applicant’s claimed fear of harm by reason of the data breach and his illegal departure. The Authority accepted that the applicant departed unlawfully and may be briefly detained and fined for that departure.

18. The Authority was satisfied that the applicant would not be suspected of any involvement in people smuggling. The Authority was not satisfied that the applicant faces a real chance of serious harm because he sought asylum or sought asylum unsuccessfully. The Authority was satisfied that the applicant, as a returning asylum seeker who departed Vietnam unlawfully, does not face a real chance of serious harm on these bases on return to Vietnam now or in the reasonably foreseeable future.

19. The Authority was not satisfied that the applicant, as a returning asylum seeker who departed Vietnam unlawfully and whose details were released other than in respect of his protection claims, would be gaoled, tortured, subject to police brutality, or considered a traitor, or forced to do whatever he was told.

20. The Authority accepted that the applicant may be fined under Vietnamese law for having left unlawfully and found these provisions are laws of general application and are not applied in a discriminatory manner or selectively enforced.

21. The Authority found that any process or penalty the applicant may face on return to Vietnam because of his illegal departure would not amount to persecution for the purpose of ss 5J(1) and (4) of the Act.

22. The Authority was not satisfied that the applicant faces a real chance of serious harm on return as someone who departed Vietnam illegally and sought asylum in Australia and by reason of the limited disclosure of his details on the Department’s website.

23. The Authority found that the applicant does not satisfy the definition of ‘refugee’ in s 5H(1) of the Act and that the applicant does not meet the criteria in s 36(2)(a) of the Act.

24. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Vietnam, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 6 April 2017. On 21 June 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

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

3. The applicant identified that he had been in Australia for seven years and he regarded himself as no longer Vietnamese, but Australian, and that he had a family here. 

4. The Court explained to the applicant that it could not determine the matter on compassionate or discretionary grounds and that it had no power to do so.

5. The applicant maintained that he could not return to Vietnam. The Authority expressly considered whether the applicant would be exposed to real risk or real chance of serious harm or significant harm on return to Vietnam and found that the applicant would not in the reasonably foreseeable future. Those findings were the subject of logical and rational reasons as summarised above and on the face of the Authority’s reasons, the Authority correctly identified the relevant law and complied with its statutory obligations in the conduct of the review.

6. The applicant’s disagreement with the adverse findings by the Authority does not identify any jurisdictional error by the Authority. Nothing said by the applicant identified any jurisdictional error. 

7. The grounds in the application are as follows:

   1.I think the Decision maker misinterpreted the law.

   2.I think the Decision is affected by bias.

   3.I think the Decision maker did not consider all the evidence or did not take into account relevant considerations.

   4.I was not afforded procedural fairness.

Ground 1

1. In relation to ground 1, for the reasons already given, it is apparent that the Authority correctly identified the relevant law. Without particulars, this ground is incapable of making out any error. There is no basis to support the assertion that the Authority misinterpreted the relevant law. 

2. The Authority made findings dispositive of the applicant’s claims both under the Refugee Convention and in relation to complementary protection, which were open for the reasons given by the Authority. Those reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence.

3. No jurisdictional error is made out by ground 1. 

Ground 2

1. In relation to ground 2, without particulars, this allegation cannot succeed. There is no conduct identified by reason of which it could be said that the Authority’s decision is affected by bias. In any event, the adverse findings by the Authority are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits.

2. Given the nature of the statutory review required under pt 7AA of the Act, there is nothing on the face of the Authority’s reasons to suggest that the Authority did other than approach the review with an open mind reasonably capable of persuasion as to the merits. Further, it is apparent that the Authority did accept part of the applicant’s claims and provided logical and rational reasons in support of the adverse findings. No case of bias is made out. 

3. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, again, without particulars, this ground is incapable of making out any error. There is no relevant consideration that has been identified that the Authority failed to take into account. The Authority does not have to refer to the whole of the evidence and it was a matter for the Authority to determine what evidence it accepted. 

2. No jurisdictional error is made out by ground 3. 

Ground 4

1. In relation to ground 4, no submissions or material were provided to the Authority requiring consideration under s 473DD of the Act or requiring any exercise of power under s 473DC of the Act. Further given the adverse findings by the Delegate, this is not a case where the Authority was required to expressly consider exercising the powers under s 473DC of the Act. No new information was taken into account enlivening any obligation under s 473DE of the Act.

2. Taking into account the provisions of pt 7AA and, in particular, s 473DB of the Act, that ordinarily the Authority is to conduct a review on the papers without accepting or requesting new information and without interviewing the applicant, there is no basis in the circumstance of the present case to find that there was any denial of procedural fairness or any failure to comply with the statutory requirements in the conduct of the review by the Authority. 

3. Accordingly, no jurisdictional error is made out by ground 4.

4. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 9 June 2020