BVC15 v Minister for Immigration - [2017] FCCA 306

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVC15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 306

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

Legislation:

Migration Act 1958 (Cth), ss.45AA, 418

Migration Regulations 1994 (Cth), reg.2.08F
Vietnam Penal Code (No. 15/1999/QH10), articles 91, 274, 275

Cases cited:

SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38

WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZVWF v Minister for Immigration and Border Protection [2016] FCCA 2532
SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798
SZTFY v Minister for Immigration and Border Protection [2014] FCCA 2087
MZZES v Minister for Immigration and Border Protection [2015] FCA 397
MZYQZ v Minister for Immigration and Citizenship [2012] FCA 948

Applicant:

BVC15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2034 of 2015

Judgment of:

Judge Riethmuller

Hearing date:

14 December 2016

Date of Last Submission:

28 December 2016

Delivered at:

Melbourne

Delivered on:

24 February 2017

REPRESENTATION

Counsel for the Applicant:

Mr Guo

Solicitors for the Applicant:

Asylum Seeker Resource Centre

Counsel for the First Respondent:

Mr Tran

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The time for filing the application for judicial review be extended to

8 September 2016.
The application for judicial review be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2034 of 2015

BVC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Vietnam. The applicant left Vietnam in March 2013 and arrived in Australia by boat as an unauthorised maritime arrival after flying to Jakarta, Indonesia from Vietnam.
The applicant applied for a protection visa in June 2014. The applicant attended an interview with the delegate in October 2014 where he was heard with respect to his claims. Ultimately, the delegate did not accept the applicant’s claims and declined to grant a protection visa on 16 December 2014.
The applicant sought review by the Refugee Review Tribunal (as it was then called) which, after hearing the applicant and allowing the applicant’s representative further time to make additional written submissions, made a decision refusing the application on 18 June 2015. On 8 September 2015 the applicant then applied for judicial review in the Federal Circuit Court with the assistance of the Asylum Seeker Resource Centre.
The applicant also pursued a Freedom of Information application which ultimately produced further documents from the Department on 8 November 2016. On 10 November 2016, the applicant received translations of the applicant’s written statements made to the department, which were annexed to an affidavit in these proceedings. The application before this Court was heard on 14 December 2016.

Extension of time to bring Application

Whilst the application was made some six weeks out of time, there is a reasonable explanation for…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2017] FCCA 306
Decision Date: 24 February 2017

CaseChat Overview and Summary

The applicant, BVC15, sought judicial review of a decision by the Refugee Review Tribunal (RRT) that affirmed the Minister for Immigration's refusal to grant him a protection visa. The core of the dispute concerned the RRT's assessment of the applicant's credibility and the weight given to certain evidence presented during the review process. The matter was heard by Judge Riethmuller in the Federal Circuit Court of Australia.

The legal issues before the court included whether the RRT had erred in its assessment of the applicant's credibility, particularly in relation to his claims about his family's entitlement to land in Vietnam and the reasons for his departure. The court was also required to consider whether the RRT had adequately considered all relevant evidence, including information that may have been available to the Department but not presented to the Tribunal, and whether the applicant's representative had been afforded a proper opportunity to make submissions and for further inquiries to be made.

Judge Riethmuller's reasoning focused on the RRT's finding that the applicant had fabricated aspects of his claim regarding his family's entitlement to land, noting that this evidence was not raised earlier and was vague. The Tribunal also found that the applicant had not adequately explained why he had not raised certain matters with his previous legal representatives or with the original delegate. The judge observed that the applicant's representative indicated a belief that the Department held more information relevant to the applicant's substantive claim, including concerns about corruption, extortion, and potential harm from Vietnamese authorities due to an imputed political opinion stemming from a privacy breach. The RRT member indicated that it was for the applicant's representative to make such inquiries and provide relevant information, rather than for the Tribunal to proactively seek it.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal found, in this respect that:62. The applicant said that if you live in one place for 5 years in Vietnam the government gives local residents land. His family have lived in the same place for over 10 years however his parents have been advised that since the authorities have become aware that he has fled from Vietnam they told his parents that they are not entitled to land. The Tribunal told the applicant it had concerns about the credibility of his claim because he had not mentioned this evidence before. The Tribunal told the applicant it found his evidence vague and lacking in detail. [emphasis added]63. The Tribunal finds that his family have been living in the same area for 13 years, own a house, ran a business and lease farming land. According to the applicant’s evidence they are working and earning a living growing rice. The Tribunal does not accept the applicant’s claim that his parents have been advised that they are not entitled to land because he is in Australia. The Tribunal finds the applicant fabricated this aspect of his claims. The statement on the other department file does not raise this issue, contrary to the reasoning in [62]. Of course, the Tribunal member was unaware of this as the statement was not in the file, nor put before the member in later submissions. Later in the hearing, the applicant’s representative made submissions that the applicant would not have had a detailed understanding of the delegate’s decision which would explain what she described as the “slow sort of teasing out of the facts today”, to which the member responded by pointing out that he was hearing the matter “from scratch”. The member also identified that the applicant was represented by a lawyer in the past and that he had spoken to his lawyers when his decision was refused by the delegate. On a fair reading of the transcript, it is clear that the applicant did not raise the matters set out in the document obtained by FOI before the delegate (other than the land claims) even though, if they were true and to be relied upon, they formed a natural part of the narrative that he provided. Whilst, the Tribunal wrote to the applicant prior to the hearing, stating that it had considered the material before it (see Court Book p.137), it is also clear from the submissions by the applicant’s representative that the representative was of the view that there may be more information to be obtained from the Department. She made submissions, which are set out at pp.25 to 26, that:MEMBER: Sorry – do you remember that? Is it correct?INTERPERTER: Yes.MEMBER: So I think we have established that he was represented at the time. Do you remember a lady called Charlotte?INTERPRETER: Not very clearly.MEMBER: Well, did you talk to your lawyers when your decision was refused?INTERPRETER: Yes. Yes, I have.MEMBER: Ms McIntyre, I’m not really keen on asking [BVC15] to discuss with me what he spoke to about with his lawyers. This is a matter between him and them but anyway, I have established that he was represented and that he did – and I can see that from the file and he did tell me and he just told me he did speak to his lawyers about his decision being refused. So I take all that on board. I don’t really – I mean, I hear what you’re saying but I don’t really – is there anything else you wish to make submissions on?DR McINTYRE: Yes, yes. No, that was just one, I thought, smaller point. Yes, there are other things I want to make submissions on more to do with his substantive claim and that includes that we’ve heard that [BVC15] claims that he was unable to live a normal life and that this – you know, due to the pressure on his family with corruption and extortion and that this was what forced him to flee Vietnam and that if he were returned as a failed asylum seeker he fears that he could be punished and harmed by authorities. We’ve also heard that he has claims in regards to being a refugee (indistinct) and then he said this is due to the fact that he would have an imputed political opinion and that this is the result of the Department’s privacy breach that you mentioned in February 2014. I understand that there’s a complaint before the Privacy Commissioner and that a report from that complaint is still pending and that [BVC15] is listed as a person part of that complaint. I also understand that [BVC15] fears that his details could’ve been provided to, what he calls, the A18 when the Vietnamese authorities visited detention centres in Australia in August 2013 and that he’s concerned that this could affect his profile with the authorities in Vietnam. Our understanding is that the Department has more information about the first two events than what they have revealed. I understand that the RRT can enquire further to the Department to seek more information and that the Department would be obliged to provide the RRT with the information in order for the RRT to be able to make an informed decision about those two events. I’ll have some more details in (indistinct) submission if you will allow me to provide that.MEMBER: Well, I mean, it’s for you to make these enquiries on behalf of your client, but I’ve got information which is presented to – in the delegate’s decision and if you have information that is relevant, then by all means provide it to me. [emphasis added]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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