BSE17 v Minister for Immigration

[2018] FCCA 201

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSE17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 201

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: BSE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 820 of 2017

Judgment of: Judge Riethmuller

Hearing date: 22 September 2017

Date of Last Submission: 8 November 2017

Delivered at: Melbourne

Delivered on: 31 January 2018

REPRESENTATION

Counsel for the Applicant: Ms S. Kelly

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the First Respondent: Mr Hosking

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 820 of 2017

BSE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 April 2017. 

2. The applicant is a citizen of Vietnam.  He arrived in Australia by boat on 19 May 2013 and ultimately applied for a protection visa in 2014.  The delay in his application for a protection visa was due in part to the fact that in his original interview as an irregular maritime arrival, he stated that the reason he left Vietnam was as follows (at court book p.10):

   It is very hard to find job and I try to do business but still very hard and I am very much in debt, the region is very hard on people and our citizen right has been jeopardised.

3. The form inquired as to whether there was any other reason why he left his country of nationality, to which he responded “no”, and asked what was his principal reason, to which he responded “lack of economic opportunity”.  Where the form asked what would happen if he were to return to Vietnam, the person completing it stated:

   ….. emotional, cause I don’t know what to do to or how to pay back the debt.

4. In June 2014 the applicant applied for a protection visa (a copy of the application appears at court book pp.22 to 85).  As a result of some confusion as to the appropriate visa category, the delegate refused to grant the applicant a Protection (Class XA) visa, which was originally affirmed by the Refugee Review Tribunal.  The decision was set aside by the Federal Court on 18 July 2016 and the proceeding remitted to the Tribunal to be determined according to law on the basis of a consideration of whether or not a Protection (Class XD) visa should be granted to the applicant.

5. The Tribunal provided the applicant a number of opportunities to appear and give evidence and present arguments: in December 2016, January 2017, and March 2017.  On 12 April 2017, the Tribunal decided to refuse to grant the applicant a Temporary Protection (Class XD) visa. 

6. Before the Tribunal, the applicant listed a large number of bases for his claim for a protection visa, conveniently outlined in paras.8(a)–(g) of the submissions by the Minister in these proceedings:

   (a) because of his previous involvement in protests in Vietnam, including:

   (i) a protest in 2000 at the Cau Rong Church in Vinh City [CB 929 at [41]]; and

   (ii) a melee in 2007 involving the police and government employees who were trying to excavate a cemetery in Nghe An province [CB 929 at [38], [42]];

   (b) because his grandparents were involved in arguments with local authorities [CB 935 at [59]];

   (c) because he would be unable to practise his Catholic faith on return to Vietnam [CB 935 at [60]];

   (d) because he would participate in political activism (including online activism and attending protests) on return to Vietnam [CB 938 at [71]];

   (e) because he remained outside of his home province without permission [CB 941-942 at [92]];

   (f) because he left Vietnam illegally [CB 944 at [103]], used people smugglers [CB 944-945 at [104]], and sought asylum in Australia [CB 945 at [104]]; and

   (g) because he would be imputed with a political opinion that would put him at risk of serious or significant harm by reason of his involvement in the 2007 protest, refusal to be interviewed by Vietnamese officials while in detention in Australia, the Australian government data breach, his long stay in Australia, being Catholic, and having grandparents who had arguments with officials [CB 946-947 at [111]].

7. Ultimately the Tribunal was not satisfied that the applicant would face a real risk of serious harm for any of the reasons upon which he relied. 

8. The principal basis upon which the applicant sought a protection visa was his claim that he had participated in a peaceful protest with respect to the relocation of a cemetery.  The applicant said there were 100 protestors, with about 70 on the side of the government, and arguments and fighting.  The applicant said that, as a result of the fighting that broke out during the protest (following the government protestors or officials using poles and sticks and the protestors responding with tree branches), he was hurt but fortunately escaped. 

9. The Tribunal accepted that the government had been confiscating cemetery land as a result of reports widely circulated (see Tribunal decision at para.42).  The applicant also provided a copy of a summons that he said he received to attend upon the police, which the Tribunal accepted was a legitimate summons (see Tribunal decision at para.43). 

10. At para.44 of the decision (a paragraph that runs for a number of pages), the Tribunal analysed the applicant’s evidence and his statements made on different occasions.  The Tribunal identified a number of differences in the versions of events that the applicant had given, saying:

    … When asked how many people were requested to attend at the police station [the applicant] first said three and that he knew them, subsequently in the resumed hearing he said he knew five, six or seven.  When challenged with the inconsistency he claimed that he knew only half of them.  He initially claimed that the people who presented to the police station were arrested, but subsequently it became arrested, beaten and sent to a re-education camp.  He claimed at the first session that his father didn’t know more than that they were arrested and yet subsequently his father appears to have known more.  I find the extent of these inconsistencies material to the credibility of his claim as to what happened to others involved in the protest.

    In considering how to proceed I have reviewed prior submissions by the applicant on this matter:

    Ÿ In his statutory declaration accompanying his protection visa application he does not mention any one else being arrested, beaten or sent to a re-education camp

    Ÿ In his second statutory declaration following the delegate’s decision he does not mention any one else being arrested, beaten or sent to a re-education camp (Statutory declaration dated 5 March 2015 in Tribunal folder 1500060 [unmarked folio])

    Ÿ In the representative’s letter of the first Tribunal hearing that recapitulates the protest there is no mention of arrests of other protestors nor that they were beaten or sent to a re-education camp (Letter from Dr Tanya McIntyre, dated 8 March 2015 in Tribunal folder 1500060 [unmarked folio])

    Ÿ At the prior Tribunal hearing, according to the Tribunal decision record, the applicant did not mention arrests of other protestors nor that they were beaten or sent to a re-education camp (Applicant appeared before the Tribunal on 9 March 2015 in Tribunal folder 1500060 [unmarked folio])

    Ÿ Country information suggests that the Vietnamese government used re-education camps from 1975 to the late 1990s but ‘Nowadays, however, the Vietnamese government appears keen to avoid the international opprobrium that such overt repression provokes and to prefer to use other, less obvious means to try and silence key political and religious dissidents.’ (Human Rights Watch The Silencing of Dissent, May 2000 available at accessed on 24 March 2017) (When put to the applicant he replied I still heard the name Cau Dong and that means it existed until that time.  Maybe they changed the names of re-education centres.  After 200 I still heard that name).

    I consider that were others arrested, beaten and sent to a re-education camp it would be a major element of the applicant’s concerns.  I believe that it would not be an easily forgotten piece of evidence.  As the representative has noted in a submission following the first hearing, the applicant’s mental health and the long term detention could contribute to inconsistencies as the events are a significant time in the past.  This leads me to add greater weight to earlier submissions untainted by the passing of time and the applicant’s deteriorating mental health status.  Because of the contradiction between the narratives presented at this Tribunal’s hearing with earlier evidence, having reviewed earlier information provided by the applicant and considering country information, I accept that some people were requested to attend the police station including the applicant.  I do not accept that any were beaten or sent to re-education camps.  While some may have been detained, I do not accept that any were charged and convicted because were that the case then the applicant, his father and the applicant’s friends would have known and this would have appeared in his statements.  

11. The Tribunal went on to decide:

    45. At the resumed session of the hearing the applicant claimed that during the melee he hit a policeman who subsequently became the police chief.  Despite this being a new piece of information provided at the hearing, the possibility of a policeman involved in the response to a melee rising to become the senior hamlet police officer is high and as such I accept that the current senior officer in the applicant’s village was involved in the melee and that the applicant hit that policeman.

    46.  The applicant claims that he subsequently fled to Vinh City where he continued to work with the same employer, his uncle’s photo-shop business, for the next three years.  He claims that he had to move around regularly to avoid being caught by the police.  He claims that he worked in all four locations where his uncle had a business.  In three of those he lived and worked in the same building while in the fourth, Vinh City, he slept in his uncle’s house and travelled to work.  I accept that the applicant worked and lived in all four of his uncle’s business locations.  I do not accept that it was fear that had driven him to move between his uncle’s business locations as I have not accepted that anything happened to others who were requested to attend to the police station. 

12. After further discussion, a consequential finding was made at para.68 where the Tribunal said:

    68. I have previously accepted that the applicant received a summons in 2007 and that no harm befell those others who presented to the police following a similar summons.  As such I conclude that the purpose of the summons was not to arrest or beat the applicant as claimed in the resumed hearing, a claim which I did not accept, but rather for other purposes.  This may include, for example, ascertaining the facts that may have in turn led to a mutually agreeable remedy which would explain why the applicant’s presence was never prursued by the police.  This view is reinforced by the translation provided by the applicant of the summons, which states as the reason for the applicant’s attendance being required, ‘To solve the incident in regard to opposing officials on duty’ (Translations of summons in Tribunal folder 1500060 [unmarked folio]).

13. The applicant also sought judicial review of the findings with respect to his risk as a returned asylum seeker.  This was discussed at length at paras.103 – 110 of the decision, where ultimately the Tribunal did not accept that the applicant’s background profile or act of seeking asylum in Australia would result in him being detained for an extended period if he were returned to Vietnam: see para.110.

Ground 1

1. The applicant’s first ground in his amended application is as follows:

   1.  The Tribunal erred by making findings of fact that were not supported by any evidence.

   Particulars

   a. In relation to the applicant’s claim that other persons involved in a melee with local police were charged and convicted over the events, the Tribunal made a finding that those others were not charged and convicted because, were that the case, then the applicant, his father and the applicant’s friends would have known and this would have appeared in his (meaning the applicant’s) statements.

   b. That reasoning was impermissible. 

   c. Having rejected the applicant’s positive evidence about what happened to those others, the Tribunal was required to make findings of fact about whether the applicant’s fear of harm arising from a summons to attend the police station was well-founded.

   d. The Tribunal was not entitled to make a positive finding of fact from the absence of any evidence as to the fate of those others.  Further, the question of what happened to those others does not answer the question of whether the applicant’s fear of harm was well-founded.

   e. The Tribunal constructively failed to exercise its jurisdiction. 

2. The substance of this ground is the question of whether or not it was open to the Tribunal to make the findings that it did based upon the evidence before it.  The crucial evidence was the evidence of the applicant that he was unaware of any others being beaten or sent to re-education camps, despite having been requested to attend at the police station, as set out in para.44 as quoted above. 

3. The applicant argued that it was not open to the Tribunal to draw the inference that others had not been beaten or sent to re-education camps from the evidence of the applicant that he did not know of any person who had suffered such consequences who were within the protesting group.  In this case, the evidence was that the protest took place in a village in a province that was his hometown (see para.42).  There is also evidence that there were only 100 protestors (see para.42).  The applicant also said that he left the village in the province to move to a city as he was concerned about going to the police station as summonsed.  The applicant’s evidence on different occasions varied as to whether or not his family had told him that people had suffered detention or been sent to re-education camps. 

4. Counsel argued strongly that it was illogical or unreasonable for the Tribunal to have formed the conclusion that the applicant would have been made aware directly or indirectly if these things had been suffered by people in his hometown and province.  Whilst the case remains a circumstantial case, it appears to be logical to have regard to whether or not a person became aware of any of the neighbours or friends being detained or sent to re-education camps among a group in one’s hometown in a province where there was a protest involving 100 people.  In the Tribunal, there is no rule prohibiting hearsay.

5. To the extent that the applicant had referred to these things occurring, it was not consistently stated.  On the state of the evidence it was rejected by the Tribunal.  On the Tribunal’s credibility findings there was no evidence that it accepted that there were any reports to the applicant of such adverse consequences for members of the protesting group.  If there were no evidence of adverse consequences in circumstances where one would reasonably expect him to be aware of them, the inference is open that no adverse consequences came to pass. 

6. Counsel argued that the Tribunal ultimately made positive findings that no harm befell the people who presented to the police following a similar summons to that issued to the applicant and that this was not open as a result of the absence of evidence before the Tribunal (see para.15 of the applicant’s outline of argument).  In circumstances where one would ordinarily expect a person to become aware of events, the absence of any knowledge or awareness of events is circumstantial evidence that the events had not taken place.  Once the Tribunal concluded that it was not persuaded that the events (beating or sending to re-education camps) occurred, then the Tribunal could reason from that finding as to the purpose of the police summons, as it did in para.68.  In this case the Tribunal did not need to make positive findings with respect to others.  It was sufficient that the Tribunal was not satisfied that harm befell others to undermine the basis of the claim of fear of attending on the police.

7. Ultimately I am not persuaded that the Tribunal acted without evidence or illogically, rather the findings that the Tribunal made were open to it on the circumstantial evidence that was before it. 

Ground 2

1. Ground 2 was framed as follows:

   2.  The Tribunal erred by failing to consider an integer of the applicant’s claim and/or by failing to take into account relevant information.

   Particulars

   a. The Tribunal failed to consider whether the general approach of the Vietnamese authorities to failed asylum seekers is different to those classes of failed asylum seeker in relation to whom the Vietnamese Government has specific information about the nature and content of the protection claim.

   b. The Tribunal failed to have regard to country information that showed that failed asylum seekers are liable to imprisonment on return to Vietnam in conditions that constitute serious harm. 

First Limb

1. This ground was argued on the basis that it contained two limbs.  The first limb, contained in the first particular, relates to whether or not the Tribunal considered whether the Vietnamese Government would treat the applicant differently as a result of having information about him. 

2. There are a number of important features to this case that flow from the findings of the Tribunal.  The Tribunal concluded that the applicant did not depart illegally: see para.103.  The applicant was visited by Vietnamese officials at a time when the Department was seeking to ascertain his identity, and those officials may have had access to his original application.  The Tribunal accepted that the officials could have been provided with this document (see para.107).  The Tribunal concluded that the applicant had not been involved in people smuggling or trafficking and that as such he would not be distinguished from the general group of failed asylum seekers on return (see para.109). 

3. The Tribunal noted that the information in the entry form provided by the applicant referred to him effectively being an economic migrant, and gave him an opportunity to comment upon what may have been contained within the form that would give rise to a risk, on the basis that officials may have seen it, concluding at para.108:

   108.  I asked the applicant what information from his entry form did he fear was made available to the Vietnamese interviewer that made him concerned for his safety.  He responded that he is afraid that if the Vietnamese government had information about the way that he left the country that they may think he is against the government.  I asked why he thinks that if they had the information about how he left that they would think that he is against the government to which he responded that in the past those boat people who left Vietnam were seen to be against the government.  I explained that the Australian government believes that the Vietnamese government sees asylum seekers as leaving for economic reasons.  He claimed that of course the Vietnamese Government would say so in order to avoid the bad reputation because they are oppressing the people for their political opinion.

1. Counsel referred to question and answer 38 on the entry form (at Court Book p.11) which stated: 

   Police / Security / Intelligence Organisations Impact

   38. Were you ever arrested or detained by the police or security organisations?

   No

   38a. Did the police and security or intelligence organisations impact on your day to day life in your home country?

   Yes

   If ‘Yes’ provide details.

   Since 1998 when I have start involve church activities they come and demolish house when trying to build on church land and try every which way to interfere and questioning about family bike and who owns and questioning and difficult.

   38b. Have you ever been arrested or detained and/or charged with any offences? (Explore whether detained by police/military/other organisations.  What were they?  Length of imprisonment, outstanding warrants for arrest, issues whilst in custody)

   No

2. Counsel argued that this should have been specifically considered by the Tribunal.  The applicant did not raise this as a basis for a risk when asked (as recounted at paragraph 108 of the decision).  A fair reading of this section of the Tribunal’s decision (which runs from paras.103 – 110) indicates that the Tribunal did carefully assess the individual circumstances of the applicant in assessing his risk on return to Vietnam as a failed asylum seeker.  Whilst asylum seekers may be categorised loosely into different categories or classes when considering their return, and in some cases this may be helpful, the most appropriate course is to consider the actual circumstances of the individual seeking protection and identify their particular risk on the information available.  This is the approach that the Tribunal took.  I am not persuaded that the applicant has shown an error in this regard.

Second Limb

1. The second limb of this ground is contained within the second particular.  There is an allegation that the Tribunal failed to have regard to country information showing that the applicant would suffer harm from imprisonment on return to Vietnam.  Counsel in her outline argued that the Tribunal had erred in relying upon information from the Department of Foreign Affairs and Trade (“DFAT”) report dated July 2013 (footnoted with respect to findings by the Tribunal) rather than specifically considering the terms of the Vietnamese Criminal Code and an ABC News Article that was referred to the Tribunal in the submissions by the applicant’s advisor. 

2. The advisor (whose submissions appear at pp.863 – 864 of the Court Book) set out that the Vietnamese Criminal Code criminalises fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration.  It imposes various penalties of between three and 12 years.  The submission stated that “since 2015 at least eight failed asylum seekers have been imprisoned for attempting to journey to Australia”.  This is supported by reference to a 2016 ABC News article which is titled “Four asylum seekers behind boat journey to Australia sentenced to jail, Vietnamese group says”.  Whilst the Tribunal did not specifically refer to the evidence of the ABC News article, it is not apparent that it is relevant to the applicant’s particular circumstances, as the Tribunal had concluded that the applicant was not a people smuggler and had left Vietnam legally.  In these circumstances, the consequences to those who were either people smugglers, or even those who left illegally, is based upon different circumstances than those of the applicant. 

3. As the material does not bear directly upon the applicant’s individual circumstances, I am not persuaded that it indicates an error by the Tribunal that there is not a specific reference to it in the reasons.  Whilst the Tribunal did not specifically refer to the Vietnamese Criminal Code, it is apparent from the reasons that the Tribunal was aware that imprisonment was possible, but relied upon the DFAT information to conclude that the applicant would be released shortly after being interviewed without being harmed: see para.110.  I accept counsel’s submission that “had the Tribunal taken into account all relevant information, there was potentially a logical pathway from which it could have concluded that the applicant was a person to whom Australia owes protection obligations”:  However it was also open to the Tribunal to find that protection obligations were not owed.  It is a matter for the Tribunal to make findings of fact.  On the material before it, the conclusion that the Tribunal reached was neither unreasonable nor illogical.  The fact that there was a logical pathway from which it is open to find alternative facts is the very reason that Tribunals and Courts are required to determine factual questions. 

4. At the hearing in this Court it became apparent that counsel for the applicant did not have access to the DFAT report referred to in the decision of the Tribunal.  Arrangements were made for the documents to be provided and further submissions were made to the Court, raising further arguments.  The relevant passage in the Tribunal’s reasons is:

   105.  I read to the applicant recent country information that provides insight to the general situation of returnees and asked for his comment:

   a. DFAT has not received information suggesting different treatment being applied by the Vietnamese Government to persons known or believed to have sought asylum in other countries unless they were involved in trafficking.  It is understood that the Vietnamese Government’s view is that such individuals are generally doing so to achieve residence in countries such as Australia for economic reasons (Department of Foreign Affairs and Trade, “Treatment of failed asylum seekers on return to Vietnam”, Department of Foreign Affairs and Trade (DFAT), 24 July 2013, CX311927)

5. In the further submissions Counsel identifies that the report referred to in para.105 of the Tribunal’s decision is a ‘post’ report not a general country report.  The report does not identify the sources of the information it contains.

6. The applicant argues that the Tribunal ought not to have given the report any weight because it contains no sources or references.  A lack of sources or references is a factor that weakens such a report, however with all country information sources are often not specifically identified.  Ultimately it is for the Tribunal to determine the weight to be attached.  This report is from DFAT and prepared by a departmental officer, and as such it is directly open to the Tribunal to place weight upon it, even if it does not set out its sources.

7. The applicant also argues that the summary of the information by the Tribunal at para.105(a) of the reasons is inaccurate.  It is argued that the information provided was not that DFAT had received no information (as set out in the decision) but that only ‘post’ had not received such claims.  Whilst there is a distinction between ‘post’ and DFAT generally it is a fine distinction to make in the context.  All DFAT reports must be authored by an officer.  ‘Post’ is an officer of the department who responded to the Tribunal’s enquiry.  I am not persuaded this slight looseness of description by the Tribunal shows any real misunderstanding of the information nor a judicially reviewable error.

8. The applicant also argues that it was not open to the Tribunal to draw the inference that there is no differential treatment of returnees on the basis of an absence of reports of differential treatment.  The Tribunal does not require strict proof in a scientific sense, but must form a view on the inferences available from the evidence.  This is not a case where the Tribunal treated the information as positive evidence, but was well aware the report was of the absence of reports.  Just as the absence of evidence of two people having the same fingerprints is not absolute proof, it makes the proposition so unlikely that courts regularly conclude that evidence of fingerprints are unique.  Of course, there are examples of situations where the absence of evidence provided an unreliable guide (for example the European belief that all swans were white prior to the discovery of black swans in the antipodes).  Ultimately, the assessment of the likelihood is uniquely for the Tribunal.

9. The applicant also argues that the Tribunal placed too much weight on the ‘post’ material as it used the word “generally”.  The summary in the decision at para.106(a) makes clear that the Tribunal member was well aware of how far the evidence went.  This argument is effectively a merits review argument.

10. The final additional argument is based upon the conclusion of the Tribunal in para.109 that:

    109.  Having accepted as a finding of fact that information about the applicant’s detention is available to the Vietnamese government as well as the type of information, I do not find that his interview with A-18 exacerbates the negative circumstances of the applicant on return to Vietnam as according to country information officials do not prejudice returnees who have sought asylum if they are not involved in the people smuggling trade.  I note that the applicant has not been involved in trafficking and as such I find that the applicant would not be distinguished from the general group of returnees reported on by country information.

11. The applicant argues:

    16.  Third, the report was not capable of supporting the conclusion reached in paragraph 109.  There, the Tribunal concluded that the country information was such that official do not prejudice returnees who have sought asylum.  In answer R3, Post “assesses that ordinary citizens, known or suspected to have made asylum claims in other countries, are not treated differently on that basis after their return”.  That does not speak to the circumstance in which the Vietnamese Government knows, or has information about, the content of the claim.  Here, it is accepted that Vietnamese Government officials may have been provided with the information in the applicant’s entry interview, which contained the relevant anti-government statements described above.  The question of whether, in that situation, the Vietnamese Government would view the applicant as an “ordinary citizen” (whatever that may mean) or whether that differentiated the applicant from persons “known or suspected” to have made asylum claims is not answered by the report.  The report was not capable of supporting the conclusion reached in paragraph 109.

12. Had the Tribunal not recounted a summary of the information at para.105, identifying that the evidence was that there was an absence of information or reports, this argument would have been far stronger.  However, it is clear that the Tribunal, first, had regard to the “Post” report, and secondly, drew inferences from it.  It is these inferences that para.109 appears to rely upon.  This argument does not show a basis for judicial review.

13. In the circumstances, I therefore dismiss the application.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  31 January 2018