BOE17 v Minister for Immigration - [2018] FCCA 3454

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOE17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3454

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – where declarations made that the Authority had no authority to review decision – whether the Authority failed to consider the chance of harm arising from an imputed profile based upon the applicant’s father – whether the Authority failed to consider the risk of serious harm as a member of a particular social group – jurisdictional error – writ of certiorari issued.

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:
Penal Code 1999 (Viet Nam), Articles 91, 92

Cases cited:

DBB16 v Minister for Immigration & Border Protection [2018] FCAFC 178
DBC16 v Minister for Immigration & Anor [2018] FCCA 1802
DBD16 v Minister for Immigration & Anor [2018] FCCA 1801
Minister for Immigration & Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184
Morato v Minister for Immigration, Local Government & Ethnic Affairs (1992) 39 FCR 401

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 3454
Decision Date: 30 November 2018

CaseChat Overview and Summary

In BOE17 v Minister for Immigration, the applicant sought judicial review of a decision by the Immigration Assessment Authority (IAA) regarding a protection visa application. The applicant contended that the IAA had made jurisdictional errors by failing to adequately consider the risk of harm arising from an imputed profile based on his father's activities and by failing to consider the risk of serious harm as a member of a particular social group, specifically persons of Catholic faith. The matter came before Judge Smith.

The primary legal issues before the court were whether the IAA had failed to consider the applicant's claim of apprehended persecution based on his membership in the particular social group of Catholics, and whether the IAA had properly assessed the risk of harm stemming from the applicant's association with his father. The applicant argued that the IAA's focus on his past and future actions, rather than his inherent characteristics as a Catholic, rendered its assessment of the particular social group claim fundamentally deficient.

Judge Smith found that the IAA had expressly considered the applicant's association with his father and concluded that there was no credible evidence that this association had resulted in, or would result in, interest from Vietnamese authorities. Regarding the particular social group claim, the court noted that the IAA had acknowledged the applicant's practising Catholic faith but was not satisfied that his activities would lead to him being identified as a political or religious activist. The court referred to the principles in *Minister for Immigration & Multicultural Affairs v Sarrazola (No 2)* and *Morato v Minister for Immigration, Local Government & Ethnic Affairs*, ultimately determining that the IAA had not erred in its consideration of the applicant's claims.

The court issued a writ of certiorari, quashing the decision of the IAA. The applicant was partially unsuccessful on an interlocutory application for summary judgment, but the matter proceeded to a final hearing. The court ordered that the parties bear their own costs for the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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