BMJ17 v Minister for Immigration

[2020] FCCA 1320

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMJ17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1320

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority considered evidence and took into account relevant considerations – whether the applicant was afforded procedural fairness – whether the Authority correctly interpreted the law – whether the decision was affected by bias – no jurisdictional error made out- application dismissed

PRACTICE AND PROCEDURE – Application for adjournment – no grounds made out for granting an adjournment – application for adjournment refused. 

Legislation:

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

Applicant: BMJ17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 194 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 audio link

Solicitors for the Respondents: Mr S Cummings, Sparke Helmore, via video link

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 194 of 2017

BMJ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND 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 (Cth) (“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 the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa. 

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

3. The applicant arrived in Australia as an unauthorised maritime arrival on 14 April 2013. 

4. The applicant claimed to fear harm by reason of an alleged ongoing land dispute with Vietnamese authorities and/or by reason of the disclosure of her details in the data breach in 2014 and by reason of being a failed asylum seeker and for her illegal departure. 

5. On 13 January 2017, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa (“the Protection visa”).

6. On 19 January 2017, the Authority wrote to the applicant explaining that the application for the Safe Haven Enterprise visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on submissions and new information. No such material was provided to the Authority. 

7. The Authority identified the background to the Protection visa application and had regard to the material referred by the Secretary under s 473CB of the Act. 

8. The Authority summarised the applicant’s claims. 

9. The Authority identified the applicable law in a paginated attachment forming part of the Authority’s reasons.

10. The Authority referred to the applicant’s entry interview and her stating that she left Vietnam because she was poor and her parents could not afford to buy them food, and that the authorities had demolished their family home on two occasions. 

11. The Authority noted that the applicant was asked questions about her interactions with the government authorities and that she stated that neither she nor her members of her family were involved in activities or protests against the government. 

12. The Authority referred to a further interview where the applicant said that she left because she was poor.

13. The Authority referred to the applicant’s additional information provided to the Department on 8 October 2013, referring to the land dispute and the subsequent assertions by the applicant on 23 August 2016 that she left because of “police harassment”, “female slavery and prostitution”, and because of “police and gangs”. 

14. The Authority noted that the applicant informed the Delegate that she had never been involved in slavery or as a sex worker and that she had not had problems with any gangs in Vietnam.

15. The Authority accepted, taking into account country information, that the applicant’s family had been involved in a land dispute with the Vietnamese government and accepted that the government is seeking to acquire the applicant’s family land and has demolished the home and that the family has rebuilt the home after it was demolished. 

16. The Authority did not accept the applicant’s claims that the police attended with “gangsters/black society/thugs”, or that her father was stabbed with a knife or that other members of the family were beaten. The Authority identified this as inconsistent with the applicant’s claims and lacking in detail.

17. The Authority did not accept the applicant’s claim of harm as a result of the land dispute with the government. The Authority did not accept that the applicant was pushed, beaten or her hair grabbed and, on one occasion, that she was arrested and detained. The Authority took into account that the applicant, in her entry interview, was asked if she had ever been arrested or detained and said “no”. The Authority was not satisfied with the applicant’s explanation as to why she would have provided incorrect information on that occasion.

18. The Authority did not accept the applicant’s claims that the government recently went to her home and had an altercation with her mother. The Authority was satisfied that if the government wanted the land, it would have occurred. The Authority did not accept that the land dispute continues or that there was a recent altercation between the police and the applicant’s mother. The Authority was satisfied that the applicant does not face a real chance of serious harm on the basis of a land dispute on return to Vietnam now or in the reasonably foreseeable future.

19. The Authority was also not satisfied that the applicant’s inability to complete her schooling constitutes serious harm. 

20. The Authority referred to the applicant providing invitations apparently received by her father to attend the police station. The Authority referred to the prevalence of document fraud in Vietnam and gave no weight to the documents. 

21. The Authority did not accept that the applicant’s father or mother were invited to attend the police station and answer questions about the applicant. The Authority was not satisfied that the authorities have sought to find out the applicant’s whereabouts for any reason since her departure from Vietnam. The Authority was not satisfied that the applicant faces a real chance of serious harm on this basis on return to Vietnam now or in the reasonably foreseeable future. 

22. The Authority was not satisfied that the applicant faces a real chance of serious harm on the basis of slavery, prostitution, or gangs on return to Vietnam now or in the reasonably foreseeable future.

23. The Authority referred to the data breach and the applicant’s claims and accepted that some of the applicant’s personal information was inadvertently published on the Department’s website. The Authority did not accept that those details included any detail as to her protection claims.

24. It was in those circumstances that the Authority referred to the Vietnamese constitution and the applicant’s departure on a false passport.  The Authority accepted that the applicant may be briefly detained and fined for departing unlawfully. 

25. The Authority found that the applicant was not involved in any people smuggling in that regard and would not be suspected of such involvement.

26. The Authority was satisfied that the applicant would not face a real chance of serious harm because she sought asylum unsuccessfully. The Authority was satisfied that, as a returning asylum seeker who departed Vietnam unlawfully, the applicant does not face a real chance of serious harm on these bases on return to Vietnam now or in the reasonably foreseeable future. 

27. The Authority was not satisfied that the applicant, as a returning asylum seeker who departed Vietnam unlawfully and whose details were released by the Department, would be considered a traitor on return.

28. The Authority was satisfied that the Vietnamese laws in relation to illegal departure are laws of general application and found that the application of the same would not amount to persecution for the purpose of ss 5J(1) and 5J(4) of the Act. 

29. The Authority was not satisfied that the applicant faced a real chance of serious harm upon return to Vietnam as someone who departed unlawfully or sought asylum in Australia or by reason of the disclosure of her details on the Department’s website.

30. The Authority found that the applicant did not meet the requirement of 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. 

31. The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Vietnam from Australia, there was a real risk the applicant would 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 providing the applicant an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed. 

2. On 5 November 2019, this Court fixed the matter for hearing today.  Prior to the commencement of the hearing, the applicant forwarded to the Court an affidavit seeking an adjournment on the basis that the applicant was pregnant and wanting an adjournment for another year. 

3. The applicant provided a medical imaging form that identified the applicant being with child and also identified medication given to the applicant.

4. The applicant also provided a certificate from Dr Ashfaq that identified the applicant as being a number of weeks pregnant and suggested that he understood she was due to attend Court for immigration purposes in May 2020. Contrary to that understanding, the applicant was sent an invitation to appear by Microsoft Teams from her home. The applicant, in fact, participated by telephone from her home.

5. The doctor opined that the applicant is under extreme stress and suffering depression and recommended her Court date be put forward until after she has delivered the baby and that this would be beneficial for her and that she has started antidepressants.

6. The doctor’s certificate does not explain why the applicant would be unable to participate in a video or audio hearing. 

7. The applicant’s assertions as to her physical state and her concern about the baby do not identify a proper basis by reason of which appearing by video or audio link is a hearing would mean that the applicant is not able to meaningfully participate.

8. The adjournment application was opposed by the first respondent. The Court has treated the application forwarded to the Court on 25 May 2020 as being an application in a case and has treated the applicant’s affidavit and supporting doctor’s report as being in evidence. The Court notes that the applicant was not required to attend Court. The Court does not regard the reference to stress and pressure as a proper basis to adjourn these proceedings commenced in 2017. The applicant participated by audio link and whilst the applicant did convey that she wanted an adjournment, the adjournment application was refused, and the applicant was able to meaningfully participate in the hearing. The applicant has had ample opportunity to obtain legal representation if she was able to do so. The Court is not satisfied that there would be any utility in granting an adjournment in the circumstance of the present case and also takes into account the want of merits in the substantive application. 

9. The Court was not satisfied in these circumstances that an adjournment was warranted in the interests of the administration of justice. It is also apparent that in the course of the hearing, the applicant was able to meaningfully participate in the hearing and advance submissions. It is in these circumstances that the Court made an order refusing the application for an adjournment. 

10. At the commencement of the hearing, after the adjournment application was ruled upon, the Court explained to the applicant the nature of the hearing and the applicant confirmed that she understood what was said by the Court.

11. From the bar table, the applicant maintained that she could not be returned to Vietnam because of the data breach. That was a claim that was expressly considered by the Authority and was the subject of adverse findings that were open to the Authority for the reasons given by the Authority. 

12. The applicant also submitted that she could not return to Vietnam because her now husband has a pending application for protection. That is not a matter that was before the Authority and is not capable of giving rise to an error by the Authority.

13. The applicant also maintained that she could not return because she has two children and that if she went to Vietnam, this would result in her going into gaol. The Authority made a finding contrary to the applicant’s contention that she would be placed in gaol and found that she would be detained briefly by reason of her unlawful departure and be subject to a penalty as a result of a law of general application. 

14. The applicant also expressed concern in relation to her now unborn child and who would look after her family. The applicant’s submissions in this regard were, in substance, an invitation to engage in merits review. The court has no power to review the merits of the applicant’s claims. The Court explained to the applicant that it could not determine the matter on compassionate or discretionary grounds.

15. The applicant maintained that she should have been accepted to be a refugee and that the decision of the Authority was unfair. On the face of the material before the Court, the Authority conducted a review in accordance with the statutory requirements under pt 7AA of the Act. Subject to the provisions of pt 7AA of the Act, pursuant to s 473DB of the Act, the Authority is to consider the review material without accepting or requesting new information and without interviewing the referred applicant. Given that the Delegate had also made adverse findings, there is no basis in the circumstances of the present case for the Authority to have had to give express consideration to the requirements of s 473DC of the Act. No new information was identified enlivening any obligation under s 473DE. The applicant’s submissions otherwise invite merits review.

16. No jurisdictional error arises by reason of anything said by the applicant from the bar table.

The grounds 

1. The grounds in the application were as follows: 

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

   2.I was not afforded procedural fairness.

   3.I think the decision maker misinterpreted the law.

   4.I think the decision is affected by bias.

Ground 1

1. There is no evidence identified that the Authority failed to consider and there is no relevant consideration identified that the Authority failed to take into account. Without particulars, ground 1 is incapable of making out any jurisdictional error. On the face of the Authority’s reasons, the Authority made dispositive findings in respect of the applicant’s claims that were open for the reasons given by the Authority, as summarised above. The Authority’s reasons reflect a genuine intellectual engagement by the Authority with the applicant’s claims and evidence. The Authority correctly identified the relevant law and, on the face of the Authority’s reasons, correctly applied the relevant law. 

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

Ground 2

1. In relation to ground 2, the Authority’s reasons support the applicant having had a real and meaningful hearing before the Authority. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. Without particulars, ground 2 is incapable of making out any jurisdictional error. Further, there is no basis to find that the applicant was not afforded procedural fairness in the conduct of the review.

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

Ground 3

1. In relation to ground 3, the Authority correctly identified the relevant law in relation to the Refugee Convention and in relation to Complementary Protection. On the face of the Authority’s reasons, there is no basis to find that the Authority misinterpreted the relevant law.

2. Accordingly no jurisdictional error is made out by ground 3.

Ground 4

1. In relation to Ground 4, bias must be clearly alleged and properly proved. No case of bias is made out. The adverse findings by the Authority are not conduct by reason of which a fair minded lay-observer might reasonably apprehend the Authority might not bring an independent and impartial mind to the determination on the merits. Further the reasons of the Authority support the Authority having approached the review with an open mind reasonably capable of persuasion by the merits.

2. No jurisdictional error is made out by ground 4.

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

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 9 June 2020