BUD17 v Minister for Immigration

[2017] FCCA 2325

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUD17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2325

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – no relevant consideration identified that the Tribunal failed to take into account – Tribunal raised with the applicant the substance of the adverse information the subject of the s.438 certificates – no denial of procedural fairness in the conduct of the review – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 189, 424A, 438, 476

Cases cited:

SZGIZ v Minister for Immigration and Citizenship (2013)212 FCR 235

Applicant: BUD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 228 of 2017

Judgment of: Judge Street

Hearing date: 22 September 2017

Date of Last Submission: 22 September 2017

Delivered at: Sydney

Delivered on: 22 September 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The hearing will continue by audio link.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 228 of 2017

BUD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 March 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Vietnam and his claims were assessed against that country. The applicant arrived in Australia on 10 October 2010 as the holder of a subclass TR-676 (Visitor) visa, which remained in effect until 24 October 2010. The applicant then remained in Australia after expiry of his visitor visa unlawfully and was located and detained pursuant to s.189 of the Act on 30 July 2011.

3. On 11 August 2011, the applicant lodged an application for protection, which was refused by a delegate on 14 September 2011. The applicant applied to a Tribunal for review on 21 September 2011 and on 2 December 2011, the Tribunal affirmed the decision not to grant the applicant a protection visa.

Delegate’s Decision

1. Following the decision in SZGIZ v Minister for Immigration and Citizenship (2013)212 FCR 235, the applicant lodged a further application for protection on 5 August 2013. That application was refused by the delegate on 12 January 2015. The applicant applied for review and on 25 May 2015, the Tribunal affirmed the delegate’s decision.  The applicant sought judicial review and on 23 June 2016, a Judge of this Court remitted the matter for further hearing before a differently constituted Tribunal. 

Current Tribunal

1. The applicant was invited by letter to attend a hearing before the current Tribunal on 14 March 2017. The applicant appeared on that date to give evidence and present arguments. Following the hearing, the applicant provided further submissions to the Tribunal sent by email on 20 March 2017. 

2. The applicant claimed to fear harm by reason of criminal charges that he faced in Vietnam and his fear that senior ranking Vietnamese officials with whom he was involved in bribery would harm him, and/or fear of gangsters to whom he still owed money, by reason of release of his personal information as a result of a data breach, by reason of being a failed asylum seeker, and by reason of his exposure to a harsh penalty, being the death penalty. 

3. The Tribunal identified the background to the application for review and set out the relevant law in relation to complementary protection.  The Tribunal summarised the applicant’s claims and evidence, and accepted that there were substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that he will be arrested and tried within the Vietnamese judicial system for the offence of appropriating property through swindling under Article 139 of the Vietnamese Penal Code.  The Tribunal did not accept that the article does contain the death penalty as a possible sentence. 

4. The Tribunal referred to the applicant being afraid that he would be charged and convicted under three other articles of the Vietnamese Criminal Code.  Those articles were identified in the supplementary submissions of the applicant post the hearing on 20 March 2017.  The Tribunal identified the provisions the subject of those submissions.  The Tribunal also identified, taking steps to make inquiry in relation to the exposure that the applicant may have in respect of the death penalty. 

5. The Tribunal adopted the most favourable basis for the applicant, that there is a possibility that those involved with the applicant in past criminal behaviour and those already charged and convicted of other offences could in the future be charged under Article 278(4)(a) and that accessorial liability under this provision could also be imposed on the applicant, and that the applicant could be charged and convicted under that provision. The Tribunal took into account the applicant’s claims that he was a ringleader and expressly referred to the applicant’s written and oral claims of his and other’s past conduct, but found that this was only a remote possibility and not a real one.

6. The Tribunal then provided detailed reasons in support of that adverse finding, which were logical, rational and reasonable and open on the material before the Tribunal. The Tribunal referred to the other two sections under which the applicant expressed concern about being prosecuted, being Article 279 and Article 289.  Those are the two other articles identified in the submissions of 20 March 2017. The Tribunal found, having regard to all the facts of the case, that the prospect of the applicant being charged and convicted under these provisions was only a remote possibility and one that is not real. 

7. It was in these circumstances that the Tribunal found that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Australia to Vietnam there is a real risk that the death penalty will be carried out on him. 

8. The Tribunal made reference to the applicant’s claims concerning his fear of senior ranking officials.  The Tribunal found that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk the applicant will face significant harm, including arbitrary deprivation of life from any Vietnamese officials.

9. The Tribunal made reference to the applicant’s concerns in respect of fear of gangsters.  The Tribunal did not accept that the applicant owes money to gangsters or that there is a real risk of significant harm by gangsters and found that the risk of applicant being significantly harmed by them is more than remote. The Tribunal found there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk that the applicant will face significant harm including the arbitrary deprivation of life from gangsters. 

10. The Tribunal referred to the applicant’s fears in respect of the data breach and being a failed asylum seeker. The Tribunal found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk that he will suffer significant harm on the basis of the data breach and for being a failed asylum seeker. 

11. The Tribunal made reference to the gaol sentence and prison conditions.  The Tribunal found that the treatment and conditions the applicant faces at the hands of the Vietnamese authorities and in being in prison for a long period of time do not amount to acts or omissions inconsistent with the articles of the International Covenant on Civil and Political Rights (ICCPR). The Tribunal found that any act or omission would only arise and be inherent in or incidental to lawful sanctions that are not inconsistent with the Articles of the ICCPR. The Tribunal found that it would not be inconsistent with Article 7 of the ICCPR taking into account if the applicant is imprisoned, it will be for the punishment of a serious crime. The Tribunal found that any act or omission would only arise from, and be inherent in or incidental to lawful sanctions that are not inconsistent with the articles of the ICCPR.

12. Based on country information, the Tribunal found that the risk the applicant faces of torture or the arbitrary deprivation of life when detained and imprisoned is remote.  The Tribunal did not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is real risk that he will suffer significant harm on this basis. 

13. The Tribunal made express reference to the existence of section 428 certificates in the present case. The Tribunal was of the view and stated that the certificates were invalid in the present case and raised the contents of the documents with the applicant during the hearing.  The Tribunal noted the applicant did not comment on the validity of the certificates or seek to obtain further details about the information.  It is apparent from the Tribunal’s reasons that the Tribunal put to the applicant the nature of the adverse documents, including the charge faced by the applicant which was the subject of an Interpol Red Notice. This Interpol document was the subject before this Court of a claim for public interest immunity. All the other documents the subject of certificates and the certificates were otherwise put into evidence before the Court. 

14. It is apparent on the material before the Court, that the process to which the applicant was exposed in the course of the hearing was one in respect of which the applicant had the opportunity to make submissions in respect of the validity of the s.438 certificates because the certificates were raised in the course of the hearing by the Tribunal with the applicant. Further, it is apparent that the Tribunal complied with the requirements of procedural fairness in the process of the review by informing the applicant of the nature of the documents the subject of the certificates.

15. The Tribunal, considering all the claims individually and cumulatively found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk the applicant would suffer significant harm. The Tribunal found the applicant does not satisfy the criterion under s.36(2)(aa) of the Act and affirmed the decision under review.

Proceedings in this Court

1. The grounds in the application are as follows:

   I. The Tribunal erred and failed to take into account relevant considerations in coming to the decision

   2. There was certain adverse information used by the Tribunal to affirm the decision under review.

   3. The Tribunal took irrelevant considerations into account in coming to decision.

   4. The Tribunal identified wrong issues and asked wrong questions.

   5. I am affected by jurisdictional error because I was not provided with an opportunity to see the substance of adverse inf01111atio11.

   6. The Tribunal denial the applicant Procedural Fairness by refusing to accept the significant harm or to face death penalty that possible happened when the applicant return to Vietnam. Please request a Guarantee safety paper from Decision Maker to ensure about my safety when return to Vietnam, if the decision maker is so certain in his decision. (I will send it to Human Rights lawyer to ensure about my safety when return to Vietnam or to make sure the Decision Maker will take all responsible for his decision or he will face consequence in his wrong decision about my case).

   7. The Administrative Appeals Tribunal had incorrect the date the applicant appeared before the Tribunal as it should be on 14 March 20 l 7 (as clause 3 - page 2, AA T Decision Record).

   8. The Administrative Appeals Tribunal had not given correct time to the applicant to submit\supporting document. The final hearing on 14 March 2017. The date 15/3/2017 the applicant makes a requested to submit supporting document on phone and got accepted. The applicant had send it to the AA T on 21/V2017 but the applicant not sure it has been read by the Tribunal or not. Because the applicant had received AA T's decision on 22 March 2017.

2. At the commencement of the hearing, the matter started by video link and the applicant had explained to him that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary the Court was considering whether the Tribunal’s decision was unlawful or unfair.

3. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs. 

4. The Court explained it would have identified the evidence, then hear submissions from the applicant, then hear submissions from counsel for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

5. In the course of seeking to have adduced the evidence, problems with the video connection to Christmas Island arose in respect of ascertaining whether the applicant had any objection to an affidavit annexing the s.438 certificates and the material the subject of those certificates.

6. Following an adjournment, the Court established an audio link and both the applicant and the first respondent were invited to indicate whether they objected to the continuation of the hearing by audio link. The Court took into account that there was no objection to that course and took into account the considerations identified in Division 5 of Part 6 of the Act and made an order for the continuation of the hearing by audio link.

7. The further evidence was then identified and the applicant had no objection to the Court receiving the affidavit the subject of the certificates or the material the subject of the certificates. There was one document identified which was pages 175 and 176 that was not the subject of production and in respect of which the first respondent sought to make a claim for public interest immunity. The first respondent identified that it had a sealed affidavit upon which it wished to rely in support of the claim it was the subject of public interest immunity.

8. On the face of the description of the document, its nature was such that the Court was satisfied that the claim for public interest immunity was properly made and the Court did not require affidavit evidence in support of the contention that the Interpol document was of a kind in respect of which the claim for public interest immunity was properly made. The proposed secret affidavit was returned as MFI1 to the first respondent. It is apparent on the material before the Court that the pages 175 and 176 being an Interpol Red Notice were also part of the content of which the Tribunal raised with the applicant in the course of the hearing.

The Applicant’s submissions from the bar table

1. From the bar table, the applicant sought to explain his background and what he alleged to be the corrupt nature of the Vietnamese Government and sought to take issue with the nature of the findings of the Tribunal and the nature of his conduct as well as his exposure potentially to the death penalty.  The applicant wanted the benefit of a certificate of some kind to ensure if he were returned to Vietnam, he would not be subjected to the death penalty. The Court informed the applicant that no such document could be provided by the Court and that the Court’s powers were limited to considering whether the Tribunal’s decision was unlawful or unfair.

2. The applicant continued to put submissions in relation to why the applicant believed the Tribunal’s decision was unfair to him and suggested that the Tribunal had not carefully taken into account the applicant’s claims and evidence. On the face of the Tribunal’s decision, the Tribunal’s decision reflects an orthodox approach to the conduct of a review and a careful assessment of the applicant’s claims and evidence and the making of dispositive findings that were open to the Tribunal in respect of the applicant’s claims concerning complementary protection.

3. The applicant submitted that there was an error in relation to the hearing date in the Tribunal’s reasons. I accept that there is an immaterial error in relation to the hearing date. I do not regard that error as having any consequence or materiality in respect of the determination of the applicant’s claims.

4. In the course of the applicant’s submissions, the applicant made reference to sending a document to the Tribunal shortly before the Tribunal delivered its reasons. There is in evidence the submission provided on 20 March 2017 sent to the Tribunal.  The substance of that submission was dealt with in the Tribunal’s reasons although there is no express reference to the written submission.  I accept the first respondent’s submission that the substance of the matters identified in the submission of 20 March 2017 are the subject of consideration and findings by the Tribunal in dealing with the applicant’s claims.  Given the reference to the particular provisions concerning the three charges in the Tribunal’s reasons, I am satisfied that the Tribunal took into account and had a real and genuine intellectual engagement with the substance of the submissions raised on 20 March 2017 as well as the other submissions  and evidence of the applicant.

5. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of a review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. Nothing said by the applicant from the bar table identified any jurisdictional error.

Consideration

Ground 1

1. In relation to ground 1, the general assertion of error or the failure to take into account relevant considerations does not identify any proper jurisdictional error. There is no relevant consideration identified that the Tribunal failed to take into account. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to ground 2, insofar as this is a reference to the material the subject of the s.438 certificates, it is apparent from the material before the Court that as a matter of process, the Tribunal raised with the applicant the substance of the adverse information the subject of the se.438 certificates and for that reason, there is no denial of procedural fairness in the conduct of the review arising from the taking into account or reference to the documents the subject of the s.438 certificate. No jurisdictional error is made out by ground 2. Further, no information was identified enlivening any obligation under s.424A of the Act.

Ground 3

1. In relation to ground 3, there was no irrelevant consideration taken into account identified. The bare allegation was insufficient to identify any relevant error.  Ground 3 fails to make out any jurisdictional error.

Ground 4

1. In relation to ground 4, the Tribunal correctly identified the relevant law in respect of complementary protection and the assertion of wrong  identification of issues or wrong questions does not identify any relevant legal error.  Ground 4 fails to make out any jurisdictional error.

Ground 5

1. In relation to ground 5, it is apparent that the Tribunal invited the applicant to attend the hearing and that the applicant was given an opportunity to present claims and evidence at the hearing. 

2. On the face of the material before the Court, I am satisfied that the applicant had a real and meaningful hearing as found above. Insofar as ground 5 refers to the applicant not being shown the documents the subject of the s.438 certificates, there is no obligation as a matter of procedural fairness for the Tribunal to do more than identify the nature of the documents the subject of the certificates sufficiently for the applicant to understand the nature of what was being taken into account by the Tribunal and to have a fair opportunity to respond.

3. On the face of the material before the Court, it is apparent that the applicant appreciated the nature of the material the subject of the certificates, as explained in detail by the Tribunal in respect of each of the folios the subject of the certificates. On the face of the material before the Court there was sufficient disclosure of the material the subject of the certificates for the applicant to have a fair opportunity to respond. No denial of procedural unfairness arose by reason of the non-disclosure of the whole of the documents the subject of the certificates to the applicant.  No jurisdictional error is made out by ground 5. 

Ground 6

1. In relation to ground 6, this reflects a disagreement by the applicant with the adverse findings by the Tribunal in respect of the applicant’s claims concerning significant harm or the death penalty.  The adverse findings by the Tribunal were open and ground 6 fails to make out any jurisdictional error. 

Ground 7

1. In relation to ground 7, the reference to the incorrect date was as the Court has earlier identified, a matter of no materiality and did not affect the Tribunal’s understanding or determination of the assessment or determination of the applicant’s claims or reflect any unfair process in the review.  Ground 7 fails to make out any jurisdictional error. 

Ground 8

1. In relation to ground 8, for the reasons already given, I am satisfied that the Tribunal took into account the submissions made on 20 March 2017. Insofar as ground 8 seeks to refer to a document sent on 21 March 2017, the Court sought to explore with the applicant whether that was the document that was the subject of the submissions sent on 20 March 2017.  The applicant confirmed that that was the case. 

2. For the reasons I have earlier given, those submissions are ones the Court finds was the subject of real and meaningful consideration by the Tribunal. It was not necessary for the Tribunal to expressly refer to the submissions.

3. A Registrar of the Court made orders on 5 July 2017 giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed the amended application and put on a further affidavit. That affidavit identified the submissions sent on 20 March 2017 sent to the Tribunal and did not identify or annex any other submissions. No jurisdictional error is made out by ground 8.

4. The amended application fails to make out any jurisdictional error.  Accordingly, the amended application is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  12 October 2017