BOE17 v Minister for Immigration
[2018] FCCA 3454
•30 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOE17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3454 |
| Catchwords: COSTS – Applicant partially unsuccessful on interlocutory application seeking summary judgment – matter heard on a final basis instanter – whether parties should bear their own costs for proceedings – whether reduction in scale amount appropriate – costs ordered in scale amount. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.17A Federal Circuit Court Rules 2001 (Cth), sch.1 Migration Act 1958 (Cth), ss.5AA, 5J, 5H, 46A, 473CA, pts.7, 7AA Other materials cited: |
| Cases cited: DBB16 v Minister for Immigration & Border Protection [2018] FCAFC 178 |
| Applicant: | BOE17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 200 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 22 August 2018 |
| Date of Last Submission: | 14 September 2018 |
| Delivered at: | Sydney and Perth by video link |
| Delivered on: | 30 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr P D Lochore |
| Solicitors for the Applicant: | Putt Legal |
| Counsel for the First Respondent: | Mr B D Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 7 March 2017.
The first respondent pay the applicant’s costs fixed in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 200 of 2017
| BOE17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
On 6 April 2017 the applicant filed an application for judicial review of a decision of the Immigration Assessment Authority made on 7 March 2017. The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
The applicant is a citizen of Vietnam who arrived in Australia on 24 July 2013 within the Territory of Ashmore and Cartier Islands. For the reasons I gave in DBC16 v Minister for Immigration & Anor [2018] FCCA 1802 and DBD16 v Minister for Immigration & Anor [2018] FCCA 1801 the appointment of the purported port within the Territory was found to be invalid and as such the applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958 (Cth). This means the applicant was entitled to have his protection claims reviewed by the Administrative Appeals Tribunal[1] and not by the Authority as a “fast track” applicant[2] as occurred.
[1] Part 7 of the Migration Act 1958 (Cth).
[2] Part 7AA of the Migration Act 1958 (Cth).
At the time of the hearing the Full Court of the Federal Court of Australia had made the same declarations in another matter, without publishing its reasons at the time, regarding the invalidity of the appointment of the port within the Territory of Ashmore and Cartier Islands. Those reasons were published on 19 October 2018: DBB16 v Minister for Immigration & Border Protection [2018] FCAFC 178. Nothing turns on the publication of those reasons for the purposes of the present issue before me.
The applicant filed an application in a case on 27 July 2018 seeking summary judgment under s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) on the basis that DBC16 and DBD16 rendered no prospect of success for the first respondent to successfully defend the application. The applicant also sought declarations to be made in the same terms as those made in DBC16 and DBD16.
On 22 August 2018 the application in a case was dismissed. At the hearing of this matter on 22 August 2018, I made orders granting the applicant leave to amend his application to include a prayer for relief seeking declarations in the same terms as those made in DBC16 and DBD16. Accordingly, I made those declarations and having dismissed the application for summary judgment by consent of the parties, heard the amended application for judicial review on a final basis instanter. By orders of this Court dated 22 August 2018, the parties were to file further submissions with respect to grounds 2 and 3 of the amended application and the question of costs and the remaining issues were to be determined on the papers.
These are my reasons for judgment in respect of grounds 2 and 3 of the amended application and the question of costs.
Background
Having assumed the applicant was an unauthorised maritime arrival, the Minister was required to exercise his power pursuant to s.46A of the Act to enable the applicant to apply for a protection visa. By letter dated 20 June 2016 the applicant was advised that the Minister had exercised this power and on 17 August 2016 the applicant applied for a safe haven enterprise visa, a type of protection visa.
The applicant claimed he left Vietnam as he is a Catholic and as Vietnam is a communist country he has been the target of oppressive policies. The applicant also claimed: he was put under surveillance as he was involved in candlelight vigils to pray for truth and justice for those who were detained and tortured by the communist authorities; he was involved in the Catholic youth movement; when attending school an exam was intentionally organised to coincide with Christmas; the applicant and some of his friends asked the school executive committee to change the date of the exam; he was accused of instigating a rebellion against the school and was expelled; he feared he would be arrested, beaten up and tortured, or killed as his father was.
While the applicant’s claims were largely based on his religious practices as a Catholic and the oppression, discrimination and harm he had faced and feared as a result of his Catholicism, he also claimed that he would be arrested, charged and interrogated on return for having fled Vietnam. Articles 91 and 92 of the Penal Code 1999 (Viet Nam) make this a serious offence that will result in him being put in gaol. The applicant claimed he had no freedom in Vietnam, the authorities are persons who harbour hatred toward him and he has nowhere to go, or relocate, in the country.
The delegate made a decision to refuse the applicant a protection visa on 12 January 2017 and the decision was then referred to the Authority for review under s.473CA. The applicant was not a fast track applicant and therefore his application was not reviewable by the Authority. Nonetheless, the applicant and the Authority at the time of the referral were not aware of this and proceeded to determine the applicant’s visa application in accordance with the statutory procedure under pt.7AA of the Act.
Authority’s decision
The Authority accepted that the applicant was a Catholic, continued to practice as a Catholic while in Australia and, if he returned to Vietnam, would continue to do so. It accepted the applicant’s claims that his father died from injuries sustained as a result of beatings he obtained during his detention by the Vietnamese authorities because of his involvement with the Catholic Church.
The Authority formed the view that the applicant had not been truthful in relation to the claim that he had been expelled from school and found the applicant was not a credible witness in this respect. The Authority was not satisfied that the applicant was a member of the Catholic youth group given that he had not made any mention of this at his entry interview and in circumstances where it was the surveillance and harm by the Vietnamese authorities as a result of these activities which caused him to fear for his life. It did not accept his explanation that he did not tell the authorities because he did not know if the information would be given to the Vietnamese authorities by the Australian government.
The Authority did not accept that the applicant departed Vietnam illegally as the applicant’s own evidence was that he departed Vietnam using his own passport. The Authority rejected as untruthful, vague and inconsistent the claim that the applicant’s mother was visited by an unknown person looking for the applicant after his departure.
While the Authority accepted that the applicant was a Catholic, it was not satisfied that his past and present activities, or any of his future activities, would result in his being identified as someone of interest or someone whom posed a threat to the government. It was also not satisfied the applicant’s association with his father had resulted in any interest from the authorities.
The Authority was not satisfied any discrimination or disadvantage would threaten the applicant’s capacity to subsist and therefore did not constitute serious harm. It concluded the applicant did not face a real chance of serious harm on the basis of his being a practising Catholic.
The Authority then turned to consider if the applicant faced any chance of harm on the basis of being a returning failed asylum seeker. It found that as the applicant had departed Vietnam lawfully using his own passport he was not in violation of any Vietnamese law and would not be detained or liable for a fine upon return. While it accepted that the applicant’s details may have been obtained and accessed as a result of the 2014 data breach, and that the applicant was in immigration detention at the time when a delegation from Vietnam visited, it did not accept that he would be imputed with an adverse profile and so was not satisfied there was a real chance of serious harm now, or in the foreseeable future, if he returned to Vietnam as a failed asylum seeker.
As there was nothing to indicate the applicant had an activist political profile or that he would be perceived to have one on return, the Authority was not satisfied that the applicant would face any real chance of harm for this reason. The Authority was not satisfied the applicant met the definition of a refugee in s.5H(1) of the Act, and for the same reasons was not satisfied the applicant faced a real risk of significant harm. For those reasons the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
Consideration
There are two grounds in the applicant’s amended application; both concern the Authority’s alleged failure to consider the applicant’s claims.
The first is that the Authority failed to consider the applicant’s claim of harm arising from his imputed political opinion as a result of his father’s involvement in the church. The second is that the Authority failed to consider if the applicant was at risk of harm as a member of a particular social group, specifically a member of a religious minority group of persons comprising of the Catholic faith.
Ground 2 – Authority failed to consider the chance of harm arising from an imputed profile based upon the applicant’s father
I accept the applicant’s submission that he had made a distinct claim to fear harm on the basis of his father’s profile.
The applicant’s entry interview records the following[3]:
[3] Exhibit A, p.10.
...
ARE THERE ANY OTHER REASONS YOU LEFT VIETNAM?
Because the Government has taken my father away, I lost my father.
HOW DO YOU KNOW IT WAS THE GOVERNMENT WHO TOOK YOUR FATHER AWAY?
My mother said that is why my father died, my father is / was a member of the Church like a leader where he would start the ceremony and that’s why he was arrested as he was active in the Catholic church and when he returned after being arrested he gradually became very thin and he died.
...
In his protection visa application the applicant further stated[4]:
... MY MOTHER HAS TOLD ME ABOUT MY FATHER’S LIFE. AS A DEVOUT CATHOLIC, MY FATHER WORKED FOR A ORGANISATION WITHIN MY LOCAL CHURCH AND ALWAYS TRIED HIS BEST TO TO HELP THE PRIESTS THERE. BUT HE WAS WRONGLY ACCUSED BY THE COMMUNIST AUTHORITIES OF INVOLVING IN ANTI-GOVERNMENT ACTIVITIES BEFORE HE WAS DETAINED AND BEATEN WITHOUT MERCY…
(Without alteration)
[4] Exhibit A, p.58, question 91.
When summarising the applicant’s claims the delegate made no reference to the applicant having claimed to fear harm as a result of his father’s profile in the Catholic community. At the interview with the delegate, the applicant stated that his father was a member of the Board at his local church, was detained for one week in 2005 and died after his release. The applicant further claimed during the interview that the Vietnamese authorities may have placed him under surveillance as they thought the applicant was going to seek revenge for his father’s death. It was noted that the applicant “added that he is a person of interest to the Government of Vietnam because of his father’s Catholic activities”.
The delegate found that the applicant did not have a position of prominence within the Catholic religion in Vietnam and noted “the time that has elapsed since his father’s death in 2005”. In doing so it referred to country information and noted that the “majority of the Catholics that have faced action by the authorities in Vietnam have engaged in identifiable activism such as blogging, promoting human rights and democracy, or hold a position of prominence within the religion”.
The Authority accepted the applicant’s statements concerning his father had been consistent throughout his protection visa application process and that his father was a practising Catholic whose involvement in the church led to him being arrested and the injuries he sustained during his detainment causing his death. The Authority referred to country information concerning Catholics in Vietnam, and noted at [45] that “people who engage in religious activity which is perceived to actively oppose government policy or pose a threat to the state face a high risk of being subject to close monitoring and government action” and then referred to the same country information noted by the delegate: [47].
At [48] - [49] the Authority stated as follows:
48. DFAT’s overall assessment is that it is not aware of credible claims of societal abuse or systemic discrimination based on religious practices. DFAT assesses that as long as religious practice (including that of Catholics) is exercised within state-sanctioned boundaries and does not challenge the interests or authority of the Government of Vietnam, religious adherence in Vietnam is tolerated, even for some religions not officially recognised by the government.
49. While I accept the applicant is a practising Catholic, I am not satisfied his past and present activities as a practising Catholic church would result in the Vietnamese authorities identifying the applicant as political or religious activist, or someone of interest. I am not satisfied there is any credible evidence to indicate that the applicant’s association with his father has resulted in any interest in the applicant from the Vietnamese authorities. I am also not satisfied there is any credible evidence before me to indicate the applicant will participate or has any interest in participating in any conduct in which he would be perceived to be an [sic] political or religious activist upon return to Vietnam.
(Emphasis added)
These passages reveal, contrary to the applicant’s contention, that the Authority expressly dealt with the claim based on the applicant’s father. While the Authority stated it was satisfied the applicant’s association with his father had not resulted in any interest in the applicant from the Vietnamese authorities in the past, it is evident when reading this last paragraph in its entirety that the Authority also considered the manner in which the applicant would be perceived in the future.
Ground 2 must fail.
Ground 3 – failure to consider the risk of serious harm as a member of the particular social group of the Catholic religious minority
The applicant contends that, as he claimed to fear harm as a Catholic, the Authority should have identified a claim of apprehended persecution based upon his membership of a particular social group comprising persons of Catholic faith. The applicant argued that if the evidence showed a claim of apprehended persecution based upon membership of a particular social group, it must be considered even where the applicant’s submissions did not separately or expressly identify the claim: Minister for Immigration & Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196. In that respect he claimed the Authority failed to consider the claim of the applicant’s membership of a particular social group.
The applicant submitted that the Authority failed to apply the test expounded in Morato v Minister for Immigration, Local Government & Ethnic Affairs (1992) 39 FCR 401 at 404-405 that the primary focus of the “particular social group” convention ground (as stated in s.5J) is on what a person “is” rather than what a person has “done” and while focusing on what the applicant has done, or is likely to do, was valid and probative insofar as it related to the applicant’s fear of harm on the basis of his Catholic faith, it was “fundamentally deficient” to assess the particular social group claim.
I do not accept that the Authority erred in failing to consider that the applicant was a member of a “particular social group”, namely a Catholic. Firstly, the particular social group in question fell entirely within the claim of fear of harm as a Catholic. In other words, any claim based on the existence of a particular social group was subsumed into the finding about religious based harm and it was not necessary for the Authority to make any separate finding about the particular social group.
Secondly, the Authority did not accept the applicant was a member of a Catholic youth group while assessing his possible membership of a particular social group identified as failed or unsuccessful asylum seekers. To the extent the applicant claimed to be a member of a particular social group, or the Authority was on notice of one which could be reasonably inferred from the materials before it, the Authority assessed those claims.
Ground 3 must fail.
Costs
The applicant seeks costs set in the amount of $9,537 and has itemised these costs with reference to the scale set in sch.1 of the Federal Circuit Court Rules 2001 (Cth). The Minister submits this is not an appropriate case in which the first respondent ought to pay all of the applicant’s costs, let alone costs above the amount prescribed in the Rules and submits that each party should bear their own costs if the Minister is not awarded his costs in relation to grounds 2 and 3.
The general rule is that costs follow the event. However, the ground on which the applicant was ultimately successful was not raised until late in the proceedings, the grounds first relied on by the applicant were abandoned and the remaining grounds have been rejected. The amount of costs claimed by the applicant does not properly reflect those facts. However, given the level of costs involved, and the likely expense of taxation, I agree that it is appropriate that there be an order for a fixed amount.
I do not accept the Minister’s submission that each party ought to bear its own costs because the Minister was aware of the error that led to the declarations made by the Court well before the additional grounds were raised. First, the applicant’s visa application indicated that he had arrived in Australia at Darwin: Exhibit A, p.44, question 47. That could never have qualified the applicant as a fast track applicant. Secondly, the issue was foreshadowed on 30 April 2018 when the Court made orders concerning the precise location of the applicant’s arrival in Australia.
In my view, the appropriate order is that the Minister pay the applicant’s costs and that those costs be fixed in the scale amount of $7,206.
Conclusion
No jurisdictional error arises in grounds 2 and 3 of the amended application. The applicant has however succeeded in ground 1 of his application and therefore his costs fixed in the amount of $7,206 should be paid by the first respondent.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 30 November 2018
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