BVC15 v Minister for Immigration
[2017] FCCA 306
•24 February 2017
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 |
| 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 |
| 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 the delay, namely that the applicant does not speak English and was confined within a detention centre. The application itself raises issues of substance, and there appears to be no real prejudice to the respondents. In the circumstances, I therefore grant an extension of time within which to bring the application.
Grounds of Application
The grounds of the application were set out in the applicant’s Further Amended Application filed on 16 November 2016 as follows:
1. The Tribunal made legally unreasonable decisions to decline adjourning the hearing after the Applicant twice sought adjournments on the basis that he did not understand the delegate’s decision but had procured a person to assist him and who would become a registered migration agent.
2. The Tribunal unreasonably rejected the Applicant’s claim that police sought out the Applicant, by relying on the Applicant’s inability to answer certain questions relating to the motivation of the police, when the Applicant could not have known the answers to such questions.
4. The Tribunal failed to take into account relevant considerations, being:
a. the Applicant’s claims made to his Department case manager that Vietnamese authorities had excluded the Applicant’s parents from the policy that gave residents access to land, by reason of the Applicant having fled to Vietnam;
Particulars
a. At paragraph 62, the Tribunal rejected the Applicant’s claim that Vietnamese authorities had excluded the Applicant’s parents from the policy that gave residents access to land by reason of the Applicant having fled to Vietnam, because the Tribunal concluded that the Applicant had not mentioned this claim previously.
b. The Applicant did in fact mention this claim previously, in written statements he furnished to his Department case manager prior to the Tribunal hearing.
b. the Applicant’s claims of fear of significant harm at the hands of people ‘hired for debt collection’, and the lack of state protection in relation to the risk of that harm.
5. In the alternative to grounds 1-4, the Tribunal had no jurisdiction to make its decision, because the decision which it reviewed was not a lawful decision.
Particulars
a. By section 45AA of the Migration Act 1958 and regulation 2.08F of the Migration Regulations 1994 (the conversion provisions) the Applicant’s application was taken to be for a Protection (Class XD) visa.
b. The conversion provisions required the delegate to make a decision in relation to a Protection (Class XD) visa.
c. The delegate made no such decision.
d. As a consequence, the Tribunal had no lawful decision before it to review.
At the hearing of the matter, the arguments unfolded in a way that did not neatly follow the grounds, instead relating to which documents the department had provided to the Tribunal. This included the cross-examination of two witnesses who had sworn affidavits. However, I have structured the reasons around the grounds of the application.
Ground 1
Ground 1 of the written grounds is in relation to the Tribunal’s failure to adjourn the proceedings. Prior to the hearing, there had been two written requests for adjournment of the hearing on the basis that the applicant had secured the services of Dr McIntyre, but that she had not yet finalised her registration as a migration agent. The applicant was in detention. These applications were refused and, as it transpired, Dr McIntyre was registered as a migration agent prior to the hearing and able to appear and represent the applicant at the hearing. At the start of the hearing, the Tribunal member identified that Dr McIntyre had recently been appointed and asked if there were any written submissions that she wished to make before they commenced the hearing. Dr McIntyre simply advised:
No thank you, Member. I am hoping to make post-hearing submissions because of my recent – you know, appointment as representative.
The member said that they would discuss post-hearing submissions later in the hearing process. At page 24 of the transcript there was a discussion with Dr McIntyre, where the Tribunal member asked if there were any issues that she thought he had not covered and if she would draw those to his attention. A little later, discussions occurred with respect to a date for filing submissions, as set out above.
The initial applications for adjournment did not give any specific date by which registration of Dr McIntyre was expected. It is common in this category of cases for requests for adjournments to be made on the mere hope of obtaining representation, which does not come to pass and simply results in significant delays.
I see no error on the part of the Tribunal in exercising their discretion not to grant an adjournment prior to the hearing, particularly given that the applicant was being held in detention, and that the lawyer who had previously acted for him had ceased to act on his behalf.
Most importantly, Dr McIntyre did not pursue an adjournment of the hearing before the member when she was acting for the applicant at the hearing. Had Dr McIntyre requested an adjournment and squarely articulated a proper reason for that, then the outcome may well have been different. As it transpired, the Tribunal member provided an opportunity for Dr McIntyre to make further submissions. Dr McIntyre’s further submissions did not at any point request a further hearing on the basis that any matters had been omitted.
I am not persuaded that, in the circumstances in which this case unfolded, the Tribunal member’s decision not to adjourn the hearing, nor the way in which the hearing itself was conducted, shows any jurisdictional error.
Ground 2
In ground 2, the applicant complains that the Tribunal member unreasonably rejected his claim that the Vietnamese police had sought him out after he had come to Australia on the basis that he was unable to provide any explanation for the motivation of the police. The applicant argues that he is not in a position to know the motivation of the police and that, therefore, it was unfair to draw any adverse inference against him for failing to articulate a hypothetical motivation on the part of the police.
As paragraph [54] of the Tribunal’s decision sets out:
54. The applicant claimed that since he has come to Australia the Vietnamese police have visited his family home in Vietnam and asked where he was and if he returns he needs to report to the local police and talk to them. He was unsure of what the police wanted or why they came but fears that they were asking questions because he fled to Australia and will be seen as opposed to the government and will be imprisoned when he returns. The Tribunal questioned the applicant about how the police knew that he was in Australia. The applicant said he was unsure.
On the basis of this statement in the decision, it is argued that the Tribunal member drew an adverse inference against the applicant as a result of him being unable to say how the police knew he was in Australia, a fact that he would have been unaware of in any event.
This may be an arguable point when looking at the relevant sentence in isolation; however, on turning to the terms of the decision as a whole and the transcript, it is clear that the Tribunal member did not approach the issue in such a simplistic manner. At page 19 of the transcript, the Tribunal member asked the applicant to recount what the police had told his parents, and then asked him:
…what do you think is the relevance of this visit by the police? You’re not sure what they wanted to talk to you about. What do you suspect? What are you worried about?
The Applicant then gave his thoughts on this issue.
The Tribunal made specific findings on this issue saying:
59. The Tribunal does not accept the applicant’s claim that the police visited his home in Vietnam and asked questions about him. The Tribunal notes that applicant departed Vietnam legally using a Vietnamese passport. The Tribunal does not accept the authorities became aware of his departure because of information the provided to the Vietnamese official in Australia. The Tribunal does not accept the evidence provided the applicant supports this claim. The Tribunal also found the applicant’s evidence about his mother’s neighbour’s arrest vague and lacking in detail. The applicant conceded that he did not know why the neighbour was arrested. No further information was provided about the circumstances of the arrest or the profile of the neighbour’s daughter in Vietnam.
On a fair reading of the Tribunal’s decision in the context of the transcript of the hearing, it does not appear to me that the Tribunal member drew an adverse inference against the applicant because he did not know what was in the minds of the police, nor could not speculate or say what was in the minds of the police but, rather, for the reasons expressly set out in paragraph [59]. That is, in the circumstances of a parity of actual evidence and lack of a rational hypothesis linking the alleged police visit to the applicant. These reasons should be taken in the context of the fact that the applicant had told the Tribunal that his mother’s neighbour’s child that was arrested was a daughter, whereas he had referred to this person as a male friend when before the delegate.
In the circumstances, I am not persuaded that the Tribunal did more than seek out whether or not the applicant knew the specific reason the police had attended (for example, as a result of the police telling his parents the reasons) or knew facts that would support an inference the police were seeking him out. I am not persuaded that they rejected his evidence on the basis that he was unaware of these things. Rather, that this was simply one of the limits to the information that the applicant had, which was relevant given the inference that the applicant sought to draw from his claim that the police had attended.
Ground 3
A further issue, not covered in the Amended Application was argued with respect to the Vietnam Penal Code (No. 15/1999/QH10). This had been ground 3 of the Amended Application on 11 October 2016 and it seems inadvertently omitted in the Further Amended Application of 16 November 2016. It provided:
3. The Tribunal failed to consider the integer of the Applicant’s claim that he feared persecution by reason of imputed political opinion, such integer being that he feared imprisonment under Article 91 of the Vietnamese Penal Code.
The applicant says that the Tribunal failed to have regard to article 91 of the Vietnam Penal Code, which was referred to in the written submissions of the applicant’s representative and referred to in the determination of the delegate.
The Tribunal member considered the applicant’s illegal departure from Vietnam in some detail at paragraphs [65] to [88] of the decision. In the discussion in this section, the Tribunal member referred extensively to various reports and newspaper articles, as well as referring to a decree on entry and exit of Vietnamese citizens and article 274 of the Vietnam Penal Code. Both article 91 and article 274 of the Vietnam Penal Code provide for sanctions for those who leave the country illegally. It is apparent from the submissions by the applicant’s advisor that article 91 refers to those who flee or defect with a view to opposing the people’s administration, whereas article 274 simply deals with those who leave or enter the country unlawfully.
The Tribunal had made findings that would place the applicant outside the ambit of article 91 with respect to his potential political opinions or imputed political opinions in Vietnam saying:
48. The Tribunal also accepts that in certain circumstances, harm arising from exposure of corruption can give rise to persecution for reasons of political opinion. As stated above, the applicant said he had two meetings with local authorities regarding the payment of money to PFC. The applicant and his father complained to the local government and were told that there was nothing that could be done. They did not take any further action. The Tribunal does not accept that the applicant’s objection to payment of money to the PFC has brought him to the attention of the local authorities such that he would be imputed with anti-government political opinion.
49. The applicant was not a public campaigner against corruption. The applicant’s family made a choice to sell the business and commence farming work to make a living. There is no evidence that he is at risk of retribution. The applicant described his family circumstances as stable and there is no suggestion that this has impacted on their capacity so subsist. The applicant’s family has since sold the family furniture business and are earning a living as farmers. The Tribunal notes the applicant has carpentry skills and relevant working experience. He has worked as a factory apprentice. The Tribunal finds that the applicant will be able to obtain work if he returns to Vietnam in the reasonably foreseeable future.
As a result there is no factual foundation in the findings of the Tribunal for the application of article 91, and that the relevant article that potentially applies to the applicant is article 274. In these circumstances, I am not persuaded that the failure to specifically refer to article 91 in the reasons shows that the Tribunal did not consider that article. Rather, that on the facts as found by the Tribunal, the relevant article of the Vietnamese Criminal Code was article 274, which the Tribunal considered at length. It is not incumbent on the Tribunal to traverse every submission or fact alleged, only those relevant to the real issues.
Ground 4
The primary point developed by the applicant was a claim that the Tribunal had failed to deal with an aspect of the applicant’s claim that was disclosed in a written statement that he prepared and provided to the department. In this document he described an incident that occurred shortly before he left Vietnam, saying he discovered his cousin beaten up outside of his home by some classmates. The applicant said that these people came back the next day and wanted to fight with him and that they were later joined by other people with knives and machetes. He said that they did not leave until it was dark. He said the following day, after he finished work, he went to play volleyball and a short time later:
A group of people with yellow, green dye hair appeared. They assaulted me and hit me; two of them had knives in hands. I had to run away.
He went on to explain that the village police chief was there watching, but did not intervene. The applicant said that a friend of his told him that these people had been hired to undertake debt collection and that he should flee because the thugs would kill him if they saw him again. This claim was not dealt with either by the delegate or the Tribunal member.
The document in which this claim is set out did not appear in the Court Book but was obtained by the applicant’s advisors through an FOI request. A copy of it is annexed to the affidavit of Jinane Ghazale. A number of witnesses were placed on affidavit and two cross-examined with respect to the file on which this document was held, and whether or not it was provided to the Tribunal.
The witnesses gave careful evidence that had a ring of truth to it.
I accept the evidence of the witnesses placed on affidavit and cross-examined.
It appears clear that, for reasons that are unable to be fully explained, two separate departmental files were generated for the applicant, and that these documents were on a departmental file that was not later utilised for the purpose of the consideration of his claims, nor the provision of documents to the Tribunal. The delegate was unsure as to why there would be two file numbers generated by the department. It appears to me that this probably occurred simply as a result of an administrative error at some point.
The delegate gave evidence that it was not his practice to request all files prior to interviews, but simply utilise the material on the file that he had been assigned. The delegate would ordinarily expect the administration officers to add the documents to the physical file, but was unsure of the precise administrative arrangements.
Ms Fyland was also cross-examined. She is an Australian public servant who is employed by the Tribunal and has more than 10 years’ experience at the Tribunal. She was cross-examined with respect to the movement of files. It was identified that Ms Sonia Tan had been the case officer in the protection team who had requested the file. Ms Tan was not called to give evidence and no explanation was made for her not being called. Ms Fyland did not have direct knowledge of the file.
Counsel for the applicant made submissions that I should draw an adverse inference against the Minister on the basis that Ms Tan was not called. The documents indicate that Ms Tan had simply filled in a form to request the departmental file. All of the evidence indicates that the delegate had been working from the department’s 2014 file, which did not contain the particular document, which was held on a 2013 file.
Whilst it was disappointing that the person who appears to have actually handled the file was not called to give evidence, in the circumstances of this case I am not prepared to draw an inference that her evidence would have assisted the applicant, nor in the overall circumstances of the case am I persuaded that the relevant documents were provided to the Tribunal.
The applicant also relies upon an argument that, because s.418 of the Migration Act 1958 (Cth) (“the Act”) requires the documents to be provided to the Tribunal, an inference should be drawn that they were so provided unless there is proof to the contrary, otherwise the department would not be acting in accordance with the Act. Whilst, in the absence of any evidence, one may assume that a department of the government would comply with all legislation, in this case there is not a complete absence of evidence. All of the evidence that has been obtained indicates that the relevant documents were not provided to the Tribunal, and admits of a rational explanation for that having occurred. Namely that through an administrative error some years ago a second file had been created which was not accessed or pursued through the delegate’s decision-making process, nor in the Tribunal. There is no evidence that even gives rise to an alternative hypothesis.
Section 418 of the Act provides as follows:
(1) If an application for review is made to the Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.
(2) The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:
(a) sets out the findings of fact made by the person who made the decision; and
(b) refers to the evidence on which those findings were based; and
(c) gives the reasons for the decision.
3. The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.
The section has been the subject of consideration by the Full Court of the Federal Court in SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38 and WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103. In SZOIN, the Minister’s office had failed to provide the Tribunal with a report bearing upon the applicant’s mental health processes, which could well have caused the Tribunal to approach the applicant’s evidence differently. Whilst acknowledging that it was unfortunate in the circumstances, the Court was not persuaded that this amounted to jurisdictional error. The Full Court, whilst acknowledging that there may be circumstances that arise in “an extreme case” that the failure to provide the document to the Tribunal meant that there was no discharge of the Tribunal’s obligations, was of the view that the documents in that case were not such as to fall within that category. Certainly, neither the circumstances of SZOIN, nor the circumstances of the case before me, can be said to involve any conduct analogous to fraud on the Tribunal, as the term was used in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.
SZOIN followed the decision of WAGP where it was reasoned that the obligation to conduct the review of the Tribunal arises from the making of a valid application not receipt of the material (see para. 63). I am not persuaded that I should depart from these two binding Full Court authorities. I note that the applicant’s counsel raised this argument as he wishes to preserve his right to challenge these authorities on appeal, and was not attempting to lead the Court into error.
The applicant’s counsel developed the argument on the basis of a claim that the failure to comply with s.418 of the Act ultimately resulted in a lack of procedural fairness. Importantly, in the present case, the applicant was provided with an opportunity to attend and give evidence and make submissions as required under s.425 of the Act. He attended not only with an interpreter but with the assistance of his migration agent, Dr McIntyre. This argument was thus developed as one analogous with the argument that a failure to accord procedural fairness may occur where the delegate has accepted a proposition and an applicant is not challenged on that proposition before the Tribunal.
In this case, however, the transcript of the hearing before the Tribunal contains nothing to indicate that the applicant had assumed that the Tribunal had received this earlier statement he had made. Nor is there anything in the delegate’s decision to indicate an acceptance of the facts and circumstances within this statement. Indeed, the whole of his case as discussed with the delegate, and his evidence before the Tribunal, proceeded on the basis that his version of events did not contain these particular allegations.
The applicant was also afforded an opportunity to make written submissions after the hearing, which opportunity was taken up by his migration agent who made submissions that are contained within the Court Book from pp.185 to 559. The detail of the criticisms made of the decision of the delegate is extensive, running from pp.185 to 207. Nowhere within this 81 paragraph submission is there any mention of the allegations contained within the document obtained by FOI. At the highest, counsel could only point to a comment at page 3 of the Tribunal transcript where the member said, as part of their introduction:
I have got a copy of the department’s file before me and I understand you also requested a copy. The file contains your statement of claim and an application for a protection visa and various supporting documents.
At page 9 of the transcript, the Tribunal member asked the applicant to describe the reasons why he left his home country, saying:
MEMBER: Thank you for that background information. So now I want to ask you some questions about why you decided to leave Vietnam and why you fear returning there. So first of all tell me why did you leave Vietnam?
INTERPRETER: In Vietnam we don’t have any freedom of speech, and also I have (indistinct) – you know, supress from the local authorities.
MEMBER: Can you just explain the last sentence again because I didn’t quite understand what was said.
INTERPRETER: Lately because of the family business, so – you know, the tax office come to make it difficult for our business, and also – you know, the forest controller come (indistinct) and take our business.
Later, the applicant explained at pp.14 to 15 of the transcript:
MEMBER: So who were the people that were asking for money every week?
INTERPRETER: Yes, the forest controller.
MEMBER: So you decided it was enough, you sold your equipment and closed the shop?
INTERPRETER: Yes, I’m talking about before when they come and demand more money, they say it will be the pay.
MEMBER: So, sorry, I need you to clarify. You told me that you paid on the first occasion, then they were asking weekly, you were fed up and you sold your machines?
INTERPRETER: Yes, because they came and they demand more money and we say we don’t – we didn’t have any money, so they threaten us and blackmail us, that’s why we sold the business.
MEMBER: Did you report the corruption and the demands for money? Did you do anything about it?
INTERPRETER: When we went to the local government talk about that, and they say it’s not their responsibility, so there is nothing they can do.
MEMBER: When you say “we went” was it all the shop owners, your father, you? Who are you talking about
INTERPRETER: The first time my dad went and then, you know, and the other time I did go there.
MEMBER: Did you go by yourself?
INTERPRETER: Yes. Yes, because, you know, the office knew my place.
MEMBER: So what did you do when you went? Tell me about the visit?
INTERPRETER: When I went there I pointed out, you know, the amount of money from the police controller and they – I asked them is any way they can solve a problem and they say there’s nothing they can do.
MEMBER: Did you do anything else?
INTERPRETER: Yes, after this I decided just go home because I think if I do any – I go any further I think they might do thing that make it difficult for other family.
MEMBER: So you didn’t push it any further because you didn’t want any more problems with family, is that what you’re saying?
INTERPRETER: Yes.
The Tribunal member at p.15 went on to explain this preliminary view that included:
So what I’m trying to say is that tax is a part of everyday life and corruption is a part of everyday life. It’s unfortunate. What I have to look at is whether you have a well-founded fear of persecution and it has to be for an essential and significant reason of either your race, your religion, your nationality or what’s been described as a member of a particular social group, membership of a particular social group or because of your political opinion. So far the evidence you have given me doesn’t address those criteria. I accept what you’re told me that your family runs a business, it’s a small family-run business and in 2012 taxes were starting to be imposed and you objected on shopfronts on streets and then the forestry committee started asking for bribes. I accept your evidence in that regard, but that’s not what I’m looking at. I’m looking at whether there’s a well-founded fear of persecution, okay. So is there any other reason why you fear returning to Vietnam?
If the applicant had been reliant upon the material set out in his statement that was placed on the other immigration department file, one would have expected him to outline those events at this point in the interview. Instead he said at p.16:
So my fear is, you know, because I escape from Vietnam, like I left Vietnam without permission so my law I believe that if I came back they’re going to put me in gaol at least five or six years because I’ve betrayed my country.
After that comment, the interpreter decided that a break was appropriate and adjourned the hearing for 10 minutes. Thereafter, the member discussed the applicant’s claims on the basis of being a failed asylum seeker and the data breach point, as set out on p.21 as follows:
INTERPRETER: My other issues is because my family like lived there for more than 10 years. Normally, in general, if we live there about more than five years the Government has to give us some land to work on but because my family did live there more than 10 years and the Government didn’t give my family any land for me to work on – for us to work on.
The member asked the applicant why he had not set that out earlier and the applicant said, as set out p.22:
INTERPRETER: I agree the first time when I have interview with the department officer but then after that they asked us to go back to the room and write out the additional information. I don’t know the reason why they didn’t put into my application.
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]
Thereafter, the Tribunal member and the representative discussed dates for written submissions and agreed upon a date of 30 April 2015, although the member made clear that an extension would be considered if it was justified, saying to the representative (at p.26):
MEMBER: So what that means is that I won’t make the decision until that date. If for some reason you become aware that there is information that will be relevant and you can justify an extension of time, please let me know and I’ll consider it.
The representative did ultimately make submissions which, including annexures, ran for hundreds of pages.
In these circumstances, I am not persuaded that this is a case where the effect of an administrative error within the Department (failing to provide the applicant’s statement to the Tribunal) resulted in any procedural unfairness.
There is nothing to indicate that the applicant ever relied upon the statement having been provided to the Tribunal, nor any assumption that the contents of it had been accepted by the Tribunal member. The applicant’s representative appears to have been aware that documents had not been provided, and was given an opportunity to make inquiries and make further submissions, together with the option being pointed out to her of seeking an extension of time to make submissions if there was a proper reason for it. There was nothing in the document that was not known to the applicant who could have given direct evidence of all the facts alleged in the document, if he had wanted to, at the Tribunal hearing. Indeed he gave evidence that he had made the claims relating to land in the past in a statement to the department.
Despite the extensive and detailed submissions critiquing the decision of the delegate, no mention is made of the further claims that are set out in the document obtained by FOI.
Whilst at first blush this appears remarkable, it is adequately explained if the applicant (with the advice of his agent) made a forensic decision not rely upon the document. Given the fact that the applicant had not raised claims set out in the document, when giving his account orally at the hearing, it was likely to significantly undermine his credibility. The agent was not on affidavit, nor was there evidence of her declining to provide an affidavit. The applicant did not address this issue in his affidavit evidence. It is clear that:
a)The existence of the document was known to the applicant;
b)The applicant knew that the Tribunal did not have the document;
c)Parts of the document contained claims he had not made to the Tribunal;
d)The applicant was on notice he could provide the document after the hearing (and if necessary seek an extension of time to do so);
e)The applicant did not seek to provide the document, nor an extension of time to do so, in his detailed post hearing submissions.
The position of the applicant, post hearing, was one of having to decide whether to provide the document, knowing it rebutted the allegation of recent invention with respect to the land claims, but would potentially undermine his credibility by setting out claims he had not mentioned at either oral hearing. If the applicant made a forensic decision not to pursue the issue in post-hearing submissions it can hardly result in procedural unfairness or jurisdictional error.
In the circumstances, I am not persuaded that the applicant has made out a ground in this respect. Rather, I find that:
a)the technical breach of s.418 of the Act in the circumstances of this case does not amount to a jurisdictional error, relying upon the reasoning set out in SZOIN and WAGP (noting that the applicant argued that WAGP and SZOIN were not correctly decided so as to keep this issue open for potential appeal);
b)having regard to the way in which the delegate’s decision was framed and the hearing was conducted before the Tribunal member, the facts and circumstances did not result in a lack of procedural fairness to the applicant as a result of him presuming that the Tribunal member was aware of the contents of the document, implicitly relying upon the contents of the document, or assuming that the claims in that document had been accepted expressly or tacitly; and
c)the failure of the Department to provide every document to the Tribunal as a result of administrative error, at least in the circumstances of this case, does not amount to a fraud on the Tribunal (in the technical administrative law sense) as discussed in SZFDE.
A further argument was whether, if the issues in the document were taken to have been raised (despite the member having no knowledge of them), they could be taken to be abandoned as a result of the applicant’s conduct at the hearing. The applicant relies upon two cases. Firstly, SZVWF v Minister for Immigration and Border Protection [2016] FCCA 2532 per Judge Manousaridis, and in particular the passage at paragraphs [24] to [31]. In this decision, his Honour carefully distinguishes the decisions of Bennett J in SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798 and Cameron J in SZTFY v Minister for Immigration and Border Protection [2014] FCCA 2087, both of which decisions make the point that, ordinarily, if a claim is not advanced before the Tribunal and it does not arise from the material before the Tribunal (and in particular if the applicant is professionally represented), it can be assumed that the claims the applicant wished to make to the Tribunal were those expressly articulated by him. In SZVWF, the issue was raised in a document that was before the Tribunal.
It does not appear to me that this authority assists the applicant in this case given that the matters he seeks to rely upon now were not raised by him when recounting his narrative of the events, nor the subject of any mention in the very long and detailed submissions made by his advisor some weeks after the hearing. There was nothing to indicate or give the impression that the document was before the Tribunal. Notably, in his affidavit, the applicant states that he had spoken to Dr McIntyre after his Tribunal hearing (although he alleges, remarkably, that Dr McIntyre had not spoken to him prior to the hearing).
The other case relied upon is MZZES v Minister for Immigration and Border Protection [2015] FCA 397. In the judgment, North J said:
26. Mr Hill rightly acknowledged that whilst the representation of the appellant was a factor to be taken into account, the significance of the factor will depend on an assessment of all the circumstances. In the present case, for instance, one of the circumstances was that the appellant did not have the same representative at all stages. Further, it is significant that the people-smuggler claim was made orally at the entry interview. That is to say, it was made by the appellant at an early opportunity in the context of a personal interview with the appellant rather than with the intervention of a professional representative.
However, significant to the decision in MZZES was the statement by the Tribunal recounted at paragraph [27] of the judgment where his Honour said:
27. As in MZYQZ v Minister for Immigration and Citizenship [2012] FCA 948, a central consideration is the statement made by the Tribunal out of the material on which is intended to rely. For convenience, that statement is repeated now as follows:
Now, I have the file of the department of immigration containing your original application. I’ve also had the opportunity of listening to the recording of the interview you had with the officer of the department who made the decision on your application. What I propose to do today is to ask you some questions and you will have the opportunity to mention anything to me which you haven’t already mentioned to the department.
In this case, unlike MZZES, the Tribunal member outlined the contents of the department’s file and said the following to the applicant, at p.3:
So this is your opportunity to present evidence in support of your claim.
When the Tribunal member came to asking the applicant about the events, the questions were carefully crafted to be open-ended. At p.9, the member said:
Thank you for that background information. So now I want to ask you some questions about why you decided to leave Vietnam and why you fear returning there. So, first of all, tell me, why did you leave Vietnam?
Despite the open-ended question, the applicant did not raise any of the matters set out in the document obtained by FOI. Later in the hearing after identifying the claims that the Tribunal did deal with, the Tribunal member asked the applicant (at p.15):
So is there any other reasons why you fear returning to Vietnam?
The applicant did not identify the matter set out in the written statement obtained by FOI but moved on to his fears on the basis of having undertaken an illegal departure.
Even if it is that the applicant can be taken to have raised this claim as a basis for his application, it appears clear it had been abandoned by the time of the Tribunal hearing.
Finally I have considered whether the post hearing submissions reflect a forensic decision, or negligence of the agent. There is no evidence of the applicant as to his discussions with his agent with respect to this issue (although he swears to speaking to her after the hearing). In the absence of evidence the applicant has not made out a case of negligence or breach of duty of the agent. In these circumstances I do not proceed to consider the question of whether such circumstances could result in jurisdictional error by the Tribunal as some form of fraud on the Tribunal.
Ground 5
This ground was not pursued at the hearing or in written submissions. It was not a ground that could succeed as the decision of the Tribunal was effectively a de novo review of the delegate’s decision. There was a valid application for a visa and regardless of any alleged failings of the delegate, the Tribunal was seized of the matter and therefore had jurisdiction unconstrained by the conduct or decisions of the delegate. Thus, the Tribunal had jurisdiction, which it exercised in making its decision.
The application for judicial review is therefore dismissed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 24 February 2017
8
4