BQD24 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 1200

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BQD24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1200

File number:

PEG 124 of 2024

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

15 November 2024

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Protection visa – no illogicality, irrationality or legal unreasonableness in the Tribunal decision – no merit – no jurisdictional error established – application dismissed – costs.  

Legislation:

Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 499.

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593

BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Goswami v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1017

NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

54

Date of hearing:

6 November 2024  

Place:

Perth

Counsel for the Applicant:

Self-represented litigant

Counsel for the First Respondent:

Mr Lettenmaier

Solicitor for the First Respondent:

Ms Tyagi (MinterEllison)

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

PEG 124 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BQD24

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	15 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,900.00.

THE COURT NOTES THAT:

A.The costs order was made in the absence of the Applicant, and they may seek to be heard as to this matter.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE D HUMPHREYS

INTRODUCTION

1. This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (“the Tribunal)” dated 7 March 2024. The Tribunal affirmed a decision of a delegate of the Minister for Home Affairs (“delegate”) not to grant the applicant a Protection (Class XA) (subclass 866) visa (“the visa”).

   BACKGROUND

2. The applicant is a citizen of Vietnam.

3. On 26 June 2015, she arrived in Australia on a student visa. The applicant met her husband in Australia, and they had their first child on 15 December 2017.

4. On 30 April 2019, the applicant applied for a protection visa, claiming to fear harm in Vietnam on the basis that she would be persecuted, as her husband was of interest to the Vietnamese police. She feared the police and Government may detain her or impose restrictions on her movements, and as a female she may be subject to sexual harassment and her life may be in danger.

5. On 22 June 2020, a delegate of the Minister refused to grant the applicant a protection visa. The delegate was not satisfied that the applicant met ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (“ the Act”) and did not accept that the applicant had a profile that would bring her to the attention of authorities, or state and non-state actors if she were to be returned to Vietnam, on the basis of any actual or imputed political opinion,

6. On 14 July 2020, the applicant applied to the Tribunal for review of the delegate’s decision. On 7 March 2024, the Tribunal affirmed the decision under review.

7. The applicant now seeks judicial review of that decision in this Court. For the reasons set out below, the application must be dismissed.

   ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION

8. The Tribunal’s decision runs to some 24 typed pages. It is a detailed and comprehensive assessment of the applicant’s evidence and consideration of her claims.

9. The Tribunal set out the criteria for a protection visa in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (“Regulations”) wherein an applicant must meet one of the alternative criteria in ss 36(2)(a), (aa), (b) or (c). The Tribunal stated the applicant must be either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such as person, and that person holds a protection visa of the same class.

10. At [10], the Tribunal listed the mandatory considerations required under Ministerial Direction No. 84 made under s 499 of the Act. These included the requirement for the Tribunal to consider the ‘Refugee Law Guidelines’ and ‘Complementary Protection’ assessments prepared by the Department of Home Affairs. It was also required to consider country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

11. At [11] – [34], The Tribunal set out all the claims and evidence provided for in the protection visa application, delegate’s decision and the Tribunal review application.

12. The Tribunal set out the applicant’s evidence relating to her background, family, education and employment in Vietnam. This evidence was accepted by the Tribunal. It was noted at [49] that the applicant’s husband had applied for a protection visa which included the couple’s then unborn child. This application was refused by a delegate in October 2018. The Immigration Assessment Authority (“Authority”) affirmed the refusal of the husband’s protection visa in January 2019. He is currently an unlawful non-resident who is unable to work.

13. The Tribunal formed a view that the applicant and her husband had not been truthful about key aspects of their evidence before the Tribunal. The Tribunal had concerns and doubts about the veracity of the applicant and her husband’s evidence as to claimed events in Vietnam and their overall credibility [58].

14. In assessing the applicant’s claims for protection, the Tribunal had regard to the timing and content of the protection visa application at [59] – [67]. The Tribunal noted that, on the evidence advanced by the applicant, that there was a clear link between the timing of her protection visa application and the refusal of her husband’s protection visa application [62]. The varying accounts the applicant provided for the timing of her protection visa application were regarded by the Tribunal as detracting from her overall credibility.

15. The Tribunal found at [67] that the applicant did not include the details of her husband’s claimed circumstances in Vietnam because the claims overall lacked credibility.

16. In relation to events in Vietnam, the Tribunal raised with the applicant when she became aware of her husband’s circumstances in Vietnamese and was informed about her husband’s encounter with Vietnamese authorities just before he departed Vietnam in 2013. The applicant claimed that she was made aware of her husband’s situation before and soon after their marriage, and because of this she had no intention of returning to Vietnam. At [73] the Tribunal did not accept that the applicant had spoken to her husband’s family in Vietnam and had received confirmation about his circumstances or that he was wanted by authorities. The applicant’s responses to the Tribunal were found to be vague and unpersuasive.

17. The applicant raised further claims to the Tribunal, which are summarised by the Minister in their written submissions at [13]. These additional claims are as follows:

    a.her husband's family had been stripped of fertile land by the government. Her husband opposed the acquisition, engaged in peaceful protests and was now considered as dissident or activist as a result (CB 201; CB 205);

    b.her husband's father had died under suspicious circumstances (CB 202; CB 208);

    c.her husband had been summonsed by local police and subsequently threatened by them. He left Vietnam as a result (CB 203; CB 205);

    d.whilst in Australia her husband had been affiliated with groups like the Viet Tan which is likely to have exacerbated the situation (CB 206);

    e.her children's association with their father's alleged activities and ensuing stigma could adversely affect their safety, well-being and future prospects in Vietnam (CB 208)

18. The Tribunal found that the applicant did not give consistent details in relation to the husband’s land dispute as well as the husband’s fathers claimed arrest and death at the hands of authorities. After putting its concerns about the husband’s father’s death to the applicant, the Tribunal did not find the applicant’s responses persuasive. The Tribunal did not accept the applicant's explanation as to why she did not provide documentary evidence or supporting statements from family members. It noted the issues regarding the lack of supporting evidence were made clear at hearing as well as in the Authority's decision on the applicant's husband's SHEV (CB 292-293 at [93]).

19. The Tribunal did not accept that the applicant was unaware that she had to provide supporting documentary evidence or statements from family members. In addition, the applicants had been informed of this by their Migration Agent.

20. At [95] – [98] in assessing the applicant’s credibility, the Tribunal did not accept the following:

    ·That the applicant’s husband or his family had expressed anti-government sentiments or that they were known or perceived as anti-government.

    ·That after the applicant’s husbands departure the police had inquired about the applicant or that police in plain clothes were lingering around their house, or that a further summons was issued by authorise in 2014. The Tribunal found that these claims were only presented in response to questions at the hearing. Further, given the applicant’s brother was residing at the house on the land which is the subject of the dispute, the authorities would have sought to cause issues or harm the applicant’s brother if the applicant’s husband was of any adverse ongoing interest to the Tribunal.

21. The Tribunal was not satisfied that the applicant would face any real chance of harm at the hands of Vietnamese authorities.

22. In relation to claims about the husband’s activities in Australia, the Tribunal was willing to accept that the applicant's husband attended a protest in Australia in 2015/2016 as well as another in 2018/2019, that he may have participated in some fundraising events and that his photograph was put on the Viet Tan association's Facebook page some years ago (CB 294-295 at [105]). The Tribunal did not accept however that there was any credible evidence to find that the authorities in Vietnam have monitored the applicant’s husband’s activities in Australia or have become aware of his limited association with the Viet Tan association in Australia.

23. This, along with the applicant’s husbands limited engagement with the association and lack of engagement with political groups in Australia, caused the Tribunal to doubt that the applicant's husband had any intention or desire to continue to engage with the Viet Tan association, or other groups, in Australia or if returned to Vietnam [108].

24. The Tribunal was not satisfied the applicant would face any real chance of harm by reason of her husband’s limited engagement with the Viet Tan association in Australia.

25. The Tribunal was not satisfied the applicant would face any issues in relation to her husband departing Vietnam on a fake passport and that the challenges or difficulties her children may face in enrolling in a new school amounted to serious harm [110]-[113].

26. Accordingly, the Tribunal was not satisfied the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act (CB 296 at [116]) or under s 36(2)(aa) of the Act (CB 297 at [121]).

27. Further, the Tribunal was not satisfied the applicant was a member of a same family unit of a person who satisfied ss 36(2)(a) or 36(2)(aa) of the Act (CB 297 at [128]).

28. The Tribunal affirmed the decision under review at [130].

    GROUNDS OF JUDICIAL REVIEW

29. The applicant advances three grounds of judicial review which are contained in an Originating Application filed on 12 April 2024. The grounds are as follows (verbatim):

    1.The Administrative Appeals Tribunal has erred in saying at [108] that nor the applicant or her husband would continue to engage with Viet Tan or engage with other political activities if return to Vietnam. The applicant would continue to engage in political activities in Vietnam.

    2.The applicant has raised claims for her children’s higher school fee due to her political activities in Australia but the Tribunal have not assessed those claims.

    3.The Tribunal did not consider all claims made by the applicants, therefore the Tribunal has committed a jurisdictional error.

    THE APPLICANT’S SUBMISSIONS

30. The applicant appeared before the Court unrepresented.  She was assisted by an interpreter.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been served on her and she understood them.  The Court also ensured the applicant had access to a pen and paper so she could take notes during the course of the hearing should she so wish to.

31. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

32. Despite Court orders, no written submissions or other material was provided to the court by the applicant in support of her case.  The applicant told the Court that she feared going back to Vietnam and the Tribunal’s role , she was of the view that probably the government would chase me and find out about my husband. She stated she needed some insurance / assurance that it was safe to go back to Vietnam.

33. She disagreed that education was free in Vietnam for children and if she went back with her children this would impact on their capacity to receive a good education. If she went back by herself, there would be no one to look after her and she would not feel safe. She felt the Tribunal did not trust the applicant OR her husband for some reason.

34. The applicant was reminded that these matters only went to the merits of the matter and the Court could not involve itself in merits review. She stated she would have no safety or freedom in Vietnam.

35. At the conclusion of the respondent’s oral submissions, the applicant was asked if she wished to state anything in reply.  She answered that freedom would not be there for her or her family in Vietnam. She felt she would have to undergo some retraining or re-education if she went back to Vietnam but was not sure.

    THE FIRST RESPONDENT’S SUBMISSIONS

36. As to ground one, the ground misconstrues the claim as well as the Tribunal’s reasons. The applicant was asked in the second Tribunal hearing about her engagement in political groups. She stated that she was involved in social activities within the Vietnamese community in Australia but was not a member of any political group. The applicant also confirmed that she sought protection solely because of her marriage to her husband. Accordingly, there was no evidence to suggest that the applicant claimed to have engaged in political activities in Australia or that she had the intention to do so if she returned to Vietnamese.

37. The Tribunal did not make a positive finding as to the applicant or her husband’s possible engagement with the Viet Tan association or any other political groups if they were to return to Vietnam. The Tribunal’s finding that the applicant did not face a real chance of harm because of her husband’s limited engagement with the Viet Tan association was open to it for multiple reasons. These reasons include firstly that her husband was not an official member, second, he had not engaged in activities for the previous three years, third no evidence indicated that the authorities in Vietnam had monitored the applicant’s husband activities in Australia or were aware of his limited involvement. Finally, the husband did not advance claims that he intended to continue his involvement.

38. The Tribunal, consistent with the findings of the Court in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142 at [168] per Hayne and Heydon JJ and also see Gleeson CJ at [11] considered what the applicant or her husband would do in the future if they returned to Vietnam and did not divert from their determination of the fears held by the applicant.

39. Ground two is a complaint that the Tribunal failed to consider the claim relating to the applicant’s children’s higher school fee. This claim was considered by the Tribunal, in the context of country information which provided that education in Vietnam was free and there was no indication that the applicant’s children would be denied access to education. The Tribunal considered the applicant’s claim and made findings which were open to it for the reasons that it gave. It is not required for the Tribunal to refer to each piece of evidence and contention made by the applicant in its written reasons, and that this this claim is subsumed into findings of a higher level of generality citing Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [45] – [48] per French, Sackville and Hely JJ.

40. The Tribunal found that the children were not part of the protection visa application and were not review applicants. On that basis, in the alternative, any error made in considering this claim could not be material.

41. Ground three is a summary of the earlier grounds or alternatively an unparticularised assertion of error. Absent any particulars the ground is too broad to establish any jurisdictional error, in the decision of the Tribunal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J; Goswami v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1017 at [9] per Griffiths J.

    CONSIDERATION

42. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:

    … An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

1. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451].

2. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348].

3. It is well settled that the country information and the weight it gives to that information is a matter for the Tribunal Authority: NAHI v Minister for Immigration & Multicultural &Indigenous Affairs [2004] FCAFC 10.

4. It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].

5. In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19] Abraham J said the following:

   It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].

   Ground one

6. Ground one is a claim that the Tribunal erred in coming to its factual finding at [108] that the applicant or her husband would not continue to engage with Viet Tan or engage with other political activities if returned to Vietnam. The applicant only ever claimed that she had participated in social activities with the Vietnamese community in Australia. At [99] – 109], the Tribunal sets out in detail the evidence that was before it as to the husband’s limited engagement in political activities in Australia. The Court is satisfied that the conclusion drawn by the Tribunal was open to it based on the evidence that was before it and for the reasons it gave. There is nothing illogical, irrational, or legally unreasonable in the manner in which the Tribunal dealt with this claim and the conclusion it reached. If anything, this ground is merely vehement disagreement with the factual conclusion reached by the Tribunal.

7. The Court is not satisfied there is any jurisdictional error present in ground one.

   Ground two

8. Ground two is a claim that the applicant’s children’s school fees would be higher due to her political activities. First, the applicant’s children were not part of the protection visa application and were not review applicants. At [113], the Tribunal recorded it had discussed country information with the applicant that education in Vietnam is free and compulsory for children up to age 12. Further, there was no indication that her children will be denied access to education. The Tribunal acknowledged there may be some challenges and difficulties in obtaining relevant documents to enable the children to be enrolled at school but at [114] the Tribunal concluded it was not satisfied the applicant’s children will be denied access to education for any reason.

9. As a result of this it was not satisfied that the applicant faced a real chance of serious harm for this reason if returned to Vietnam. As set out above, selection, use and weight given to country information is a matter for the Tribunal. The Tribunal relied on country information to rebut the assertion of the applicant that her children would face high school fees. Given the Tribunal found that the applicant was not politically active in Australia, the Court is satisfied that the claim she would face higher school fees due to her political activity, as correctly found by the Tribunal, could not be made out. Again, there is nothing illogical or irrational or legally unreasonable in the finding which was open to the Tribunal on the evidence that was before what and for the reasons it gave. Ground two has no merit.

   Ground three

10. Ground three is an unparticularised bare assertion that the Tribunal did not consider all claims made of the applicant. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW at [35]. In the absence of some particulars, noting nothing appears to have been raised in the oral submissions of the applicant, ground three cannot be sustained. Accordingly, ground three has no merit.

    DETERMINATION

11. As the applicant is unrepresented, the Court has perused the relevant court book together with the Tribunal decision record but is unable to ascertain any unparticularised jurisdictional error.

12. In these circumstances, the application must be dismissed.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       15 November 2024