BNT17 v Minister for Immigration
[2020] FCCA 272
•14 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BNT17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 272 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision of the Immigration Assessment Authority (Authority) affirming decision not to grant safe haven enterprise visa – whether Authority considered applicant’s evidence – whether the Authority relied on information available on the Internet resulting in a biased decision – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), Schedule 1, Part 3 Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476 |
| Cases cited: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | BNT17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1081 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 5 February 2020 |
| Date of Last Submission: | 5 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2020 |
REPRESENTATION
| Applicant in person, assisted by an interpreter |
| Counsel for the First Respondent: | Ms N Laing |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,936.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1081 of 2017
| BNT17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Vietnam, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second applicant (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (Class XE) subclass 790 visa (SHEV).
Background
The applicant is an unauthorised maritime arrival having arrived in Australia on 8 May 2013. On 4 June 2013 the applicant participated in an age determination interview with officers of the Department of Home Affairs (then known as the Department of Immigration, Multicultural Affairs and Citizenship) (Department); and on 6 July 2013 he participated in an arrival and induction interview with officers of the Department (entry interview). On 22 August 2013 the applicant was interviewed by a delegation from the Vietnamese Ministry of Public Security – Immigration (MPSI interview), and a “laissez passer” travel document was issued in relation to the applicant.[1]
[1] CB88, [50]
By letters dated 6 November 2015 and 7 April 2016 the Department invited the applicant to apply for a Temporary Protection (subclass 785) visa or a SHEV. By an application lodged on 15 June 2016 the applicant applied for a SHEV. The applicant was interviewed by the delegate (SHEV interview); and on 1 December 2016 the delegate refused to grant the applicant a SHEV.
Claims for protection
The applicant stated his claims, or provided information relevant to his claims for protection, on a number of occasions, including at the entry interview, in a statutory declaration made on 8 April 2016 that formed part of the applicant’s application for a SHEV (Statutory Declaration), and at the SHEV interview. It would be convenient to set out the claims the applicant made in the Statutory Declaration;[2] and these are as follows:
[2] CB84-91
a)The applicant was born in Ha Tinh Province, Vietnam. The applicant owned land that his parents had passed on to him. The applicant worked with his father in horticulture, specialising in growing bonsai trees.
b)All members of the applicant’s family are practising Catholics. As a growing boy the applicant was initiated into his lifetime commitment to Catholicism by participating in Holy Communion and his being confirmed. The applicant is a member of a prayer group at his local church where all members of his family have longstanding connections. His father had been elected twice for three year terms to the management committee of their church.
c)In June 2010 the government used armed forces and the police to seize land in the applicant’s home town, including land that had belonged to the applicant’s father but which had been transferred to the applicant, as well as land that belonged to other relatives and families in the village. When this occurred “we asked for our land and our homes to be protected”, and “[w]e organised a rally in our home town and we tried to block . . . the land to stop the bulldozers”. The government sent in police and armed forces who used batons and electric prods to “beat and harm us”.
d)The police and army also harmed and beat the applicant. The police hit the applicant on the head with a baton. He was taken into custody. He was bleeding a lot, and “they” called for medical help who administered six or seven stiches. The police also injured the applicant’s leg with a baton. The applicant still has a scar on his forehead and on his leg from these injuries.
e)After assaulting and arresting the applicant and others, the authorities confiscated “our land” to build a bus terminal. The applicant and others were not paid compensation. After his arrest, and the arrest of the others, the applicant and the others were taken to a regional jail. The applicant was in jail for two months. The applicant was released when “everything died down – there were no more protests”, and after the applicant’s parents “paid a kind of a bribe, maybe about two million Dong”, being an amount that covered the cost of paying for a meal for the officials.
f)On 1 July 2012 “we were intimidated by local authorities”; local authorities came to harm many Catholics in two parishes, one at village A, and the other at village B, and assaulted many people that had gathered to pray at village A. The bishop of the diocese called for everyone to respond and support the victims of the assault. Many Catholics came together from all around the diocese to pray for the parishioners who had been attacked by the authorities.
g)The applicant’s prayer group met at the applicant’s local church and then led a procession of about 60 parishioners towards village A which was located about 60 kilometres from the applicant’s local church. The members of the procession travelled by motorbikes. When the procession was between 5-7 kilometres from the parish church, police from village A stopped and questioned the members of the procession. The police said the procession was causing trouble. After some pushing and shoving with the police, the police arrested the members of the procession. The police confiscated the applicant’s driver’s licence, and they forced the procession to turn back and go home.
h)A few days later the applicant received a summons telling him to attend the police station for questioning. The applicant attended. He was one of a group of people who were questioned together. They were questioned about their roles in planning the protest.
i)About seven days later “they called us to the police station for questioning again”, but the applicant and the others were questioned individually. The police accused them of causing trouble in the community. The police hit the applicant with batons across his stomach and hands when the applicant denied he was causing trouble. The police used violence to try to force him to answer “yes” to their accusations that the applicant had tried to overturn, and protest against, the government. After about 30 minutes, and “for no apparent reason”, they let the applicant go.
j)About three days later, when the applicant was driving to the market to sell bonsai plants, the applicant’s wife telephoned him and told him there was a summons asking him to go to the police. She also said the same summons had been delivered to many others. Because the applicant was a long distance from his home, he could not go to the police station. At night the applicant’s wife told him that “the others had not returned from the police station”. The applicant’s wife and father advised the applicant to hide to avoid imprisonment. During that time the police sent many summonses, and they came looking for the applicant. The applicant did not return home. The applicant knew some people through his bonsai business who helped him live in hiding.
k)In early 2012 the applicant’s cousin died in jail. The police said it was suicide but everyone in the community knew the applicant’s cousin was killed from beatings.
l)After the applicant’s experience in 2010 when his land was seized and the applicant was punished heavily, and after hearing that his friends had not returned from the police station, and after what had happened to his cousin, the applicant was extremely fearful of how the authorities would treat him. He could not return to his home.
m)While in detention at Yongah Hill Immigration Detention Centre the applicant was “exposed to the ‘A18’ special branch police from Vietnam”. That is a reference to a meeting the applicant claims he had with two people who spoke Vietnamese, and who told him they were from the Vietnamese government and in charge of issuing travel documents. Before the applicant had started to speak the officials already knew the applicant’s identity, and they held a thick folder of documents, some of which the applicant believes was from his Australian immigration files and files in Vietnam. They questioned the applicant not only about his identity, but also about his home and family in Vietnam, his occupation, and how he left Vietnam. The applicant was asked to sign a document, which he did, but under duress. The applicant has subsequently obtained documents through freedom of information, and he now knows the Department was planning to send the applicant back to Vietnam by force in cooperation with the Vietnamese authorities whom the applicant fears will harm him.
n)The applicant fears the consequences of “the major privacy/data breach when my information was published on the Department’s website in February 2014”.
Authority’s reasons
Claim based on land confiscation
The Authority accepted the Vietnamese government confiscated the applicant’s family land in 2010; that the applicant and other families who had their land confiscated gathered together and protested the government’s actions; that, in response to the protests, government authorities attended and violence ensued and people, including the applicant, were beaten; and that a bus terminal was built on the land the government confiscated.[3]
[3] CB416, [29]
The Authority did not accept, however, that the applicant was arrested, detained, and released after money was paid to the authorities because of the applicant’s participation in the protest. The Authority relied on its finding that the applicant’s claims on this point “have evolved significantly” over time. At the entry interview, when asked whether he had been arrested or detained by the police or security organisations, the applicant said he had previously been detained for a few hours in August or September 2012, but provided no details regarding his detention because of his protesting a land dispute in 2010;[4] and when the applicant first claimed he was arrested in 2010 he said he was detained for three days and released on a payment of 1 million Dong, while in his SHEV application, and during the SHEV interview, the applicant said he was arrested and detained for two months, and released after the payment of 2 million Dong.[5]
[4] CB416-417, [30]
[5] CB417, [31]
The Authority also did not accept that the applicant’s past involvement in the claimed protest would, on his return to Vietnam, result in the Vietnamese government considering the applicant to be anti-government or a political activist. The Authority relied on: a finding that the applicant’s interaction with the authorities at the time of the land confiscation was brief and low level; three years had passed between the protest and the applicant’s departure from Vietnam during which the applicant applied for a travel document and lawfully entered and exited Laos in 2011 relying on that document; in 2013 the applicant applied for and was granted a passport that was issued in his own name; and the applicant has not engaged in “activism activities” such as blogging, or been involved in activities promoting human rights, or being outspoken about the Communist party.[6]
[6] CB417, [33], [34]
Claim based on claimed 2012 events
The Authority accepted that, in July 2012, the applicant, together with other parishioners from his prayer group, travelled to village A to attend a prayer session and, on the way there, they were stopped by the police and prevented from going any further; that the applicant was detained for approximately 20 to 30 minutes and his driver’s licence was confiscated; and the applicant was then released and returned to his home village. The Authority did so because the applicant had consistently claimed there was an incident to this effect in 2012, and that this part of the applicant’s claims was “broadly consistent with the country information”.[7] The Authority, however, did not accept the applicant was of ongoing interest to the authorities, or that three summonses were sent to his home requesting to attend the police station, or that he attended the police station twice and was questioned or harmed before being released, or that the authorities went looking for the applicant at his home, or that the applicant went into hiding. The Authority relied on the applicant’s not having mentioned these aspects of his claims at the entry interview. The applicant mentioned the village A incident, but he did not mention details regarding any summonses, his attending the police station on two occasions, or the continuous attendance of the authorities at his home. The Authority reasoned that, given that these claimed events appear to have been the catalyst for the applicant to go into hiding and to depart Vietnam, the Authority did not accept he would have omitted them, had they in fact occurred. The Authority further relied on the applicant’s not having provided a copy of the summonses he claimed were issued against him.[8]
[7] CB419, [48]
[8] CB419, [49]
The Authority further found that, although it accepted the applicant had two encounters with the authorities, the second being the police stopping him, and confiscating his driver’s licence when travelling to village A, it was not satisfied the applicant’s actions were such that the state would perceive him as a religious or political activist; and, for that reason, the Authority was not satisfied the applicant was of interest or was being sought by the Vietnamese authorities on the basis of an actual or imputed political opinion because of the events of 2010 and 2012.[9]
[9] CB419-420, [52]
Leaving Vietnam
In the entry interview the applicant claimed he left Vietnam by first travelling to Laos;[10] and at the SHEV interview the applicant said he used his cousin’s travel documents because his documents had been cancelled.[11] The Authority did not accept these claims because the applicant’s evidence in relation to his travel documents changed significantly in the course of his dealings with the Department. The Authority noted the applicant did not, in the age determination or entry interviews, claim that he had travelled on another person’s passport, and he appeared to have been forthright and consistent in the answers he gave at the entry interview that he travelled on his own passport issued in Ha Tinh province in 2013. The Authority found the answers the applicant gave at the SHEV interview in relation to his passport to be evasive.[12] In light of those findings, the Authority found the applicant departed Vietnam using his own passport, and he did so legally.[13]
[10] CB10
[11] CB356
[12] CB421, [62]
[13] CB421, [64]
Religious beliefs and practices
The Authority accepted the applicant is a practising Catholic, was part of a prayer group, his father was a member of the management committee of the applicant’s church for six years, and that the applicant was involved in an incident on his way to village A. The Authority, however, was not satisfied that these activities would result in the Vietnamese authorities identifying the applicant as a political or religious activist; and there was no credible evidence that indicated the applicant will participate or has any interest in any conduct in which he would be so perceived.[14] The Authority also accepted that if the applicant returns to Vietnam he would continue to be a regular member of the Catholic Church, and will participate in masses and religious celebrations, and participate in a prayer group. The Authority, however, relying on country information, found that the applicant would be able to practice his Catholic faith freely;[15] and although the Authority accepted that country information also showed that unofficial government policy hampered the advancement of religious adherents, the Authority was not satisfied that this would threaten the applicant’s livelihood or impact on his capacity to subsist, or that it would otherwise constitute serious harm.[16]
[14] CB422-423, [73]
[15] CB423, [74]
[16] CB423, [75], [76]
Cousin’s death
The Authority appears to have accepted that the applicant’s cousin died. The Authority found, however, that although the applicant may believe his cousin’s death was due to the acts of the police rather than suicide, there was no further independent information about the circumstances of the applicant’s cousin’s death to indicate the applicant’s belief was correct.[17] The Authority in any event found that even if the applicant’s cousin died due to the acts of the police while in detention, the applicant would not be considered a traitor or harmed on his return to Vietnam only because he knew of his cousin’s death.[18]
[17] CB423, [80]
[18] CB424, [81]
Unlawful departure, data breach, MPSI interview
The Authority did not accept the applicant departed Vietnam unlawfully, but accepted the applicant, if he returned to Vietnam, would do so as a failed asylum seeker. The Authority also accepted there had been a data breach, and that the representatives of the MPSI interviewed the applicant in 2013.
The Authority accepted the MPSI representatives were aware the applicant had sought asylum in Australia, but it was satisfied that the details of the applicant’s protection claims were not provided to the MPSI representatives.
The Authority referred to country information which reported that it is an offence under the law of Vietnam for its citizens to flee abroad to oppose the people’s administration, but there was no information that suggested that persons who had sought asylum outside Vietnam receive different treatment from the government for having done so; and that people returning to Vietnam usually do so on the understanding they will not face charges because they made asylum applications.
The Authority was satisfied that, even if the details concerning the applicant disclosed by the data breach came to the attention of the Vietnamese authorities, they would have revealed nothing more than what had been revealed to the MPSI representatives, namely, that the applicant had made a claim for asylum; and the Authority had already found there was no information that suggested that persons who had sought asylum outside Vietnam receive different treatment from the government for having done so.
Conclusions
Given these findings, the Authority was not satisfied the applicant met the criteria for the grant of a protection visa contained in s.36(2)(a) or s.36(2)(aa) of the Act.
Grounds of application
The applicant, who is not legally represented, appeared at the hearing before me with the assistance of an interpreter. As is my usual practice, I explained to the applicant the purpose of the hearing and the procedure that would be followed. I informed the applicant that he should tell me why he believes the Authority’s decision should be set aside. I also informed the applicant that, subject to the applicant’s views, I proposed to draw the applicant’s attention to the grounds set out in his application, and ask whether he wished to say anything about them.
In response to my question on why the applicant believes I should set aside the Authority’s decision, the applicant said he is worried that, if he returns to Vietnam, he will be sent to prison. He said he could not tell whether the Authority was right or wrong, but, the applicant said, he was beaten and detained. He said his cousin was beaten, arrested, and died in jail.
These are not matters that disclose any jurisdictional error. They repeat the claims for protection the applicant made, which were not accepted by the Authority.
I then directed the applicant to the grounds contained in the application.
Ground 1
Ground 1 is as follows:
I think the Decision maker did not consider all of the evidence or did not take into account relevant considerations.
I asked the applicant whether he could identify the evidence he claims the Authority did not consider. The applicant said “all the evidence”, and he gave two examples. The first was the applicant’s family’s home being confiscated, and the applicant’s being beaten. The second is the applicant’s cousin’s death. The applicant submitted that, possibly, the Authority did not sufficiently consider his case. In response to my question whether he could identify the considerations he believed the Authority failed to consider, the applicant said that maybe the Authority did not believe him. He said he was confused, and the Authority relied on inconsistencies in his evidence.
The Authority did consider the applicant’s claims and evidence, including the applicant’s claims and evidence concerning the confiscation of the applicant’s family’s land, and the death of his cousin. The Authority in fact accepted the applicant’s claims that his land had been confiscated, and appeared to accept that his cousin had been killed while held by the police. It should be apparent from my summary of the Authority’s reasons that it considered the other claims and evidence that were before it.
It is true, as I have noted above, that the Authority relied on differences between what the applicant claimed or did not claim in the entry interview, and what the applicant later claimed. The Authority referred to the applicant’s stating at the entry interview that he had previously been detained for a few hours in August or September 2012, but without details regarding his detention;[19] and when the applicant first claimed he was arrested in 2010 he said he was detained for three days and released on paying 1 million Dong, while in his SHEV application, and during the SHEV interview, the applicant said he was arrested and detained for two months, and released after paying 2 million Dong.[20] The Authority also relied on the applicant’s not having stated in the entry interview that three summonses had been sent to his home requesting that he attend the police station, or that he attended the police station twice and was questioned and harmed before being released, or that the authorities went looking for the applicant at his home, or that the applicant went into hiding. The inconsistencies on which the Authority relied, and the differences the Authority identified between the applicant’s earlier and later accounts, were matters on which it was reasonably open to the Authority to rely for not accepting the credibility of those aspects of the applicant’s claims.
[19] CB416-417, [30]
[20] CB417, [31]
Also relevant is the applicant’s having stated in his Statutory Declaration that at the arrival interview he was afraid that if he disclosed his full circumstances in Vietnam, he could be sent back to Vietnam and would be in danger; but that he did however explain some of the reasons he fled Vietnam.[21] The Authority addressed this part of the applicant’s Statutory Declaration as follows:[22]
While I have considered the applicant’s explanation that he did not disclose his full circumstances when he first arrived out of fear and because he was told to say he was younger so he would not be sent back, I am not satisfied this sufficiently explains the applicant’s misleading statements about other matters such as his family composition and education history.
[21] CB85, [15], [16]
[22] CB415, [21]
There is nothing before me, however, that suggests the Authority ought to have been aware that the applicant was disoriented or confused on any of the occasions on which he stated his claims, or that, he had ever claimed he had been disoriented or confused on any of those occasions.
For these reasons, ground 1 fails.
Ground 2
Ground 2 claims the applicant was “not afforded procedural fairness”. As stated, the ground must fail because it is not supported by any particulars.
The applicant submitted the Authority did not take into account his having been confused and disoriented. There is nothing before me, however, that suggests the Authority ought to have been aware that the applicant was disoriented or confused on any of the occasions on which he stated his claims, or that he had ever claimed he had been disoriented or confused on any of those occasions.
Ground 2, therefore, also fails.
Ground 3
Ground 3 is that: “I think the Decision is affected by bias”. As stated the ground cannot succeed because it lacks particulars.
At the hearing before me the applicant submitted in relation to this ground that the Authority relied on information it obtained from the Internet which does not reflect the reality in Vietnam, because the Vietnamese government restricts information. The applicant further submitted that, for this reason, the Authority’s decision could have been affected by bias.
There are three matters to note about these submissions. First, they do not identify the information on the Internet on which the applicant claims the Tribunal relied, and which he submits does not reflect the real situation in Vietnam. Second, the Authority principally relied on a report prepared by the Department of Foreign Affairs and Trade, not on material from the Internet. Third, and in any event, as was said by the Full Court of the Federal Court of Australia in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10:[23]
There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. . . . . It is not . . . an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review.
[23] Gray, Tamberlin, Lander JJ, at [11]
Ground 3, therefore, also fails.
Ground 4
Ground 4 is: “I think the Decision maker misinterpreted the law”. This ground, as stated, cannot succeed because it lacks particulars.
The applicant made submissions that in substance repeated the submissions he made in relation to ground 3, namely, that the Authority relied on information that was on the Internet which did not reflect the reality in Vietnam. I do not accept that submission for the reasons I have not accepted the submissions the applicant made in relation to ground 3.
Conclusion and disposition
Given the applicant has not succeeded on any of the grounds or submissions on which he relies, I propose to order that the application be dismissed.
At the conclusion of the hearing I indicated to the parties that I proposed to list the matter for judgment at 9.30 on 14 February 2020. I informed the applicant of my usual practice on giving judgment which is to pronounce my orders, publish the reasons on the basis of which I will have pronounced those orders, and then deal with the question of costs. I informed the applicant that the usual rule about costs is that the successful party is entitled to an order for costs against the unsuccessful party.
The applicant said his preference was that he not attend court when I pronounce my orders. I therefore invited submissions on costs. Counsel for the Minister submitted that if the Minister were to succeed he would seek an order for costs set in the amount of $5,936, which is below the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). The applicant submitted he would be unable to pay any costs that may be ordered against him.
That an unsuccessful party would be unable to meet an order for costs, if made, is not by itself a reason for not ordering costs against such party. Given the applicant has failed there is no reason why he should not be ordered to pay the Minister’s costs, and I am satisfied it is appropriate that he be ordered to pay the Minister’s costs. I am also satisfied that the amount for which the Minister applies for his costs to be fixed is reasonable.
I propose, therefore, to also order that the applicant pay the Minister’s costs set in the amount of $5,936.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 14 February 2020
1
1
3