BPL17 v Minister for Immigration
[2017] FCCA 1712
•24 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BPL17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1712 |
| Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Subclass 790 visa – whether the Authority failed to afford procedural fairness –whether the Authority failed to take into account a relevant consideration – whether the Authority was affected by bias – whether the Authority misapplied the law – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DC, 476. |
| Applicant: | BPL17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 207 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 24 July 2017 |
| Date of Last Submission: | 24 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2017 |
REPRESENTATION
| The applicant appeared in person via video link. |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 207 of 2017
| BPL17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) for a Constitutional writ in respect of a decision of the Immigration Assessment Authority under Part 7AA made on 10 March 2017, affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Vietnam and applied for a Safe Haven Enterprise Subclass 790 visa on 21 August 2016. The applicant claimed to fear harm on return to Vietnam for reasons of his Catholic religion and/or his actual political opinion or imputed political opinion and as a failed asylum seeker and as a result of the Department’s data breach.
The applicant arrived in Australia at Christmas Island as an unauthorised maritime arrival on 17 March 2013. On 30 December 2016, the delegate refused to grant the applicant a protection visa and found that the applicant failed to meet the criteria under the Act. The delegate found the applicant was not an excluded fast-track applicant.
The Authority’s Decision
On 11 January 2017, the Authority wrote to the applicant, explaining that the matter had been referred to the Authority for review. The letter explained that there were only limited circumstances in which the Authority could consider new information. The letter attached a fact sheet and Practice Direction, giving the applicant an opportunity to put on submissions and new information.
Information before the Authority
The Authority, in its decision dated 10 March 2017, identified the applicant’s background and identified having regard to the material referred to the Authority under s.473CB of the Act. The letter also identified submissions and supporting information provided to the Authority on 3 February 2017 and also on 17 February 2017.
The Authority explained that it was not satisfied that there were exceptional circumstances for receiving the new information provided with the submissions of 3 February 2017. The Authority was not satisfied that the document dated 17 February 2017 was new information and had regard to that information.
The Authority made reference to the release of information to the applicant under the Freedom of Information request and did not regard that to be new information within the meaning of s.473DC. The Authority identified having regard to new information, being the Department of Immigration and Border Protection email dated 3 March 2017. The Authority identified, consistent with the statutory obligations, giving the applicant an opportunity to comment on that new information by letter dated 6 March 2017.
By letter dated 8 March 2017, the applicant’s migration representative responded to that request and put submissions, including country information dated 23 February 2017. The Authority was satisfied that there were exceptional circumstances to justify consideration of that new information.
Claims for protection
The Authority set out the applicant’s claims and evidence and the applicant’s claim that he feared, on return to Vietnam, he will be harmed, arrested, tortured, imprisoned or killed by the Vietnamese authorities, including the police, because he has a profile with the Vietnamese authorities because he was convicted of a crime for which he was forced to confess in 2006, his return from the United Kingdom in 2010, his attendance at a mass at a particular location in August 2012, his unlawful departure, the inadvertent release of some information of his personal details on the Department’s website, his personal details being provided to the Vietnamese Ministry of Public Security, and his return to Vietnam as a failed asylum seeker.
The applicant also feared, on return to Vietnam, he will be harmed because the way he departed Vietnam will cause the Vietnamese authorities to perceive him to be involved in people-smuggling operations.
Familial connections to a catholic Father
The Authority accepted that the applicant would continue to practice his faith on return to Vietnam.
The applicant made claims in submissions advanced to the Authority concerning his parents having an adopted son. The Authority was not satisfied the applicant is a credible witness in regard to those claims and did not accept that a catholic Father was adopted by the applicant’s parents and that the applicant and his family have suffered any discrimination. Nor were they considered to be rebels because of their familial relationship to that Father.
2006 Parade and conviction
The Authority also made reference to the applicant’s claims concerning the 2006 parade and conviction. The Authority was not satisfied the applicant is a credible witness regarding his claims that he was involved in a parade. The Authority did not accept the applicant was involved in a parade in May 2006 and was watched by the police and did not accept that this event had any connection with the applicant’s conviction in 2006.
2010 conviction
The Authority accepted that the applicant, in October 2010, was deported from the United Kingdom to Vietnam. The Authority accepted that the applicant was released on the same day and returned to his home area.
2012 incidents
The Authority made reference to the applicant’s claims of an incident on 1 July 2012 and a further incident on 23 August 2012 and had concerns about the applicant’s veracity relating to his involvement in the event at a particular church in August 2012 and the subsequent summons he allegedly received.
The Authority identified differences in the explanation advanced by the applicant in relation to this claim. The Authority was not satisfied with the applicant’s explanation in relation to those differences concerning this claim. The Authority found the applicant was not a credible witness in regard to his protection claims regarding his alleged event at the particular church. The Authority did not accept the applicant attended the church on 23 August 2012 or was involved in events as claimed. The Authority did not accept that the applicant received a summons as a result of his involvement in the event at that church on 23 August 2012.
The Authority did not accept the applicant was of interest or being sought by the Vietnamese authorities including police on the basis of involvement in the event at the church prior to his departure to Australia in 2013.
Release of personal details to MPSI
The Authority made reference to the applicant’s claim that he would suffer harm because of a fear that his personal details may have been released to the Vietnamese authorities whilst he was held in immigration detention.
The Authority found that the personal details concerning the applicant’s name and date and birth, which was provided by the applicant upon his arrival, being a particular name and date, was different to that that was provided in the applicant’s protection visa application, supported by identification documents. The information released to MPSI was that which the applicant provided upon his arrival. The Authority did not accept that there are similarities between the details provided to the MPSI and accordingly it followed that the Authority found that the applicant’s personal details, in terms of his real name and date of birth, were not released in 2013.
Release of personal details on the Department’s website
The Authority found that at the date of the release of information from the Department’s website on 31 January 2014, the applicant had not provided his correct personal details to the Department. The Authority found that the only information released was the false information provided by the applicant as to his name and date of birth.
The Authority considered whether the personal details inadvertently released were different from those of the applicant. The Authority did not accept that there were sufficient similarities in the details published to give rise to the suggestion that they were referring to the applicant. The Authority found that it did not accept that the applicant’s personal details were inadvertently released on the Department website in 2014.
Returning Asylum Seeker
The Authority found that the applicant departed Vietnam unlawfully and may be identified on the terms of a person who sought asylum.
Refugee Assessment
Religion
The Authority correctly identified the relevant law. Relating to the applicant’s practice of religion, the Authority was not satisfied the applicant’s level of participation would be perceived to be acts of a political religious activist by the State or otherwise viewed adversely. The Authority was satisfied the applicant’s manner in which he practices his catholic faith does not involve him curtailing his religious practice or modifying his behaviour, including the need to restrict the practice of his religion to avoid harm.
The Authority found that the applicant does not face a real chance of harm as a catholic on return to Vietnam now or in the reasonably foreseeable future.
Past convictions
The Authority was not satisfied that the applicant faced a real chance of serious harm as a result of his past convictions on his return to Vietnam now or in the reasonably foreseeable future.
Returned asylum seeker
The Authority was not satisfied the applicant faces a real chance of serious harm on return as a practicing catholic who has past convictions, who left unlawfully and has sought asylum in Australia.
Conclusion
The Authority found the applicant failed to meet the definition of refugee in s.5H(1) of the Act and that the applicant does not meet the criteria under s.36(2)(a) of the Act.
Complementary protection assessment
The Authority found that there were not substantial grounds for believing as a necessary and foreseeable consequence of the applicant being returned from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm.
The Authority found the applicant did not meet the criteria under s.36(2)(aa) of the Act and affirmed the decision under review.
Proceedings before this Court
On 1 June 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit and submissions; no such documents were filed.
Grounds in the application
The grounds in the application as follows:
I. I think the Decision maker did not consider all of the evidence or did not take into account relevant considerations.
2. I was not afforded procedural fairness.
3. I think the Decision is affected by bias.
4. I think the Decision maker misinterpreted the law.
Nature of the hearing
At the commencement of the hearing, the Court explained to the applicant this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be an excess of statutory power or a denial of procedural fairness.
The Court explained that, in summary, this meant the Court was considering whether the Authority’s decision was unlawful or unfair. The Court explained, that if satisfied the Authority’s decision was unlawful or unfair the decision will be set aside and sent back for further hearing. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the application would be dismissed.
The Court explained it would have identified the evidence and then hear submissions from the applicant and then hear submissions from counsel for the respondent and then the applicant would be given an opportunity to put submissions in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.
Submissions from the bar table
From the bar table, the applicant complained that the Authority had not believed him and maintained that what he had told the Authority was true. The applicant submitted that the decision was unfair because of what had happened to him and that he was here to be a refugee.
The applicant did not want to be returned to Vietnam and feared that he would be put in jail. The applicant complained that he had been in detention for a long time and he had not committed any offence.
This Court does not have power to review the merits of the matter. This Court’s power is confined to considering whether or not the Authority committed a jurisdictional error. In substance, the applicant’s submissions from the bar table invited this Court to engage in impermissible merits review. Nothing said by the applicant from the bar table identified any jurisdictional error.
Consideration
Ground 1
In relation to Ground 1 of the application, the un-particularised allegations of a relevant consideration not taken into account or an irrelevant consideration taken into account, fail to identify any jurisdictional error.
Ground 2
In relation to Ground 2, on the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review.
On the face of the material before the Court, the Authority complied with its obligations of procedural fairness by giving the applicant an opportunity to put on submissions and new information and by the steps taken in compliance with the statutory regime in taking into account the applicant’s submissions and in respect of the new information upon which the applicant was invited to comment. On the face of the material before the Court, there was no denial of procedural fairness by the applicant.
No jurisdictional error is made out by Ground 2.
Ground 3
In relation to Ground 3, no conduct was identified to support an allegation of bias. The adverse decision by the Authority is 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 matters.
On the face of the material before the Court the Authority approached the review with an open mind reasonably capable of persuasion. Nothing on the face of the material supports the allegation of bias. No jurisdictional error, as mentioned in Ground 3, is made out.
Ground 4
In relation to Ground 4, the Authority correctly identified the relevant law. No basis has been identified upon which the Court could find that the Authority has misinterpreted the law or misunderstand the law in its application to the applicant’s review.
Ground 4 fails to make out any jurisdictional error.
Conclusion
As the application fails to make any jurisdictional error, the application is dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 14 September 2017
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