BYE16 v Minister for Immigration

[2017] FCCA 219

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYE16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 219

Catchwords:
MIGRATION – Administrative review – Protection Visa refused – application dismissed – applicant pay respondent’s costs.

Legislation:

Migration Act 1958 (Cth)

Applicant: BYE16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINSTRATIVE APPEALS TRIBUNAL

File Number: BRG 671 of 2016

Judgment of: Judge Vasta

Hearing date: 1 February 2017

Date of Last Submission: 1 February 2017

Delivered at: Brisbane

Delivered on: 1 February 2017

REPRESENTATION

Counsel for the Applicant: Mr P.J. Wilson

Solicitors for the Applicant: HOPGOODGANIM LAWYERS

Counsel for the Respondent: Ms A.J. Stoker

Solicitors for the Respondent: SPARKE HELMORE

ORDERS

1. The Application filed on 22 July 2016 as amended on 22 November 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 671 of 2016

BYE16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 22 July 2016 and then amended on 22 November 2016, the Applicant, BYE16, seeks judicial review of a decision of the Administrative Appeals Tribunal that had affirmed an earlier decision not to grant BYE16 a protection visa.  In short compass, the facts of the matter are that BYE16 was an unlawful maritime arrival to this country sometime in 2013. 

2. His claims before the Tribunal could be summarised in this way.  He had lived in a village outside Ho Chi Minh City.  His parents had a tract of land.  That land was, to use our terminology, compulsorily acquired by the government. 

3. The Applicant claimed that he believed that such compulsory acquisition was corrupt and without foundation and argued with the authorities.  When the authorities put a fence around the land, the Applicant damaged that fence as a sign of protest.  Because of those actions, he had two summonses filed against him for some form of criminal action. 

4. He then fled and was able to procure a passport, which got him out of Vietnam and to another country, where he was able to get onto boat and land in this country. He fears that if he goes back to Vietnam he will be persecuted because of his stance against the government. 

5. The Tribunal rejected his arguments and found that he was not a credible witness. The Tribunal found that he was not subject to persecution and if returned to Vietnam would not face serious harm as that term is understood. 

6. In the amended application filed on 22 November 2016 there are three grounds or in effect one ground into three different categories. 

   “5. The Tribunal fell into jurisdictional error by:

   (a) Failing to take into account all proper considerations when assessing the credibility of the applicant.

   (b) Making findings of fact about the applicant’s country of origin in the absence of evidence, or by not taking into account the whole of the evidence.

   (c) Failing to consider the whole of the evidence about the potential harm faced by the Applicant in his country of origin as a failed asylum seeker.”

7. I was assisted greatly by the very careful submissions of Mr Wilson, who appeared for the Applicant. 

8. The first aspect of the ground of appeal really is, in effect a merits ground, dressed up in other clothing.  There is actually no consideration that the Tribunal failed to take into account.  It is simply the Applicant’s contention that the considerations were not given proper weight and another conclusion should have been made. 

9. Mr Wilson quite properly conceded that this was not a compelling ground at all, because it is not really whether another conclusion should have been made but whether the conclusion made by the tribunal could have been made.   

10. Mr Wilson put tremendous emphasis on the second part of the ground.  The argument really centred on the gaining of the passport.  At paragraph 37 of the reasons of the Tribunal, the tribunal talked about the evidence that the Applicant gave to them that he obtained a new identification card and passport.  What had been noted by the Tribunal, was that if one considered the truth of the Applicant’s claims that he was on the run from authorities because there were two summonses out for him, the fact that he obtained an identification card and passport, which he had, seems inconsistent with the situation that he said that he was in. 

11. The second statutory declaration that the Applicant had made was that he obtained the identification card and passport through paying a bribe.  However, before the Tribunal the Applicant said that he did not pay any bribe; that his friend worked at the passport office and did that for him. 

12. The Tribunal queried whether the same friend was able to do both the passport and the identification card, and he then said that his friend worked in the identification card office, which was related to the police.  He said that the passport was issued by Customs and not related to the police. 

13. The Applicant told the Tribunal he applied for the passport through a normal application but gave authority for his mother to pick it up for him. He said that he travelled from Ho Chi Minh City to apply for the passport at the Customs Office in the capital city of his home province and paid extra money to deliver the passport. 

14. He said to obtain the passport he had to provide his photographs and fingerprint and a self-declaration and that he paid an extra-urgent application fee.  He told the Tribunal there was no need to obtain a police clearance to apply for a passport and he would only show his ID card or driver’s licence.  He said that he showed his driver’s licence and he was not concerned to show the driver’s licence, even though he had two outstanding summonses, because the passport office was not related to police. 

15. It is this aspect that Mr Wilson zeroed in on at paragraph 38.

    “38. The Tribunal put to the applicant country information that passports are applied to immigration control department of the ministry of public security which is the same ministry as the police…”

16. That country information came from the website, ministry of public security portal. 

17. The Applicant’s answer to that was that at the time he applied for his passport there was no alert for any police; the summonses were issued by the local police in his home village, whereas the customs office where he applied for the passport was supervised by a much bigger city, who had not noticed or recognised that he had the outstanding summonses. 

18. The Tribunal ended up at paragraph 44 finding:

    “44. Due to the inconsistent and implausible evidence of the applicant and his non-persuasive explanations, the Tribunal finds the applicant has fabricated his claims he obtained a new ID card through his friend or that he paid a bribe to obtain a passport…”

19. he reasons of the Tribunal indicate that there was a discussion where this extra-urgent payment was said to be a fee, but then it was said that it was an under-the-table payment to ensure that the passport was done without any vetting by any other agency; in effect, a bribe.  So there was some inconsistency in relation to that claim. 

20. The finding that this claim was a fabrication is a finding that Mr Wilson says permeates the whole of the decision.  The finding has at the core of it, the reliance upon the country information that the ministry that issues passports is the same ministry that runs the police. Therefore if the Applicant were on the run with two outstanding warrants, it would seem incongruous that he would be going to that department to obtain a passport. 

21. Mr Wilson submitted that the lack of true country information, other than just the website, did not derogate from the explanation that it was simply that the police department did not notice, or because of their size and infrastructure, it did not come to their attention that the Applicant had the outstanding warrants.  Therefore the Tribunal ought not to have made such a finding, and if such a finding were not to have been made, then that would not have been able permeate the whole of the manner in which the Tribunal had looked at the matter.  That may seem an attractive argument. 

22. However, what it does ignore is the way in which all of the circumstances have been able to be used by the Tribunal to come to their findings.  Notwithstanding that the Tribunal made a finding that there had been a fabrication, that finding seems more to be based upon the general unreliability and incredulity of the Applicant’s claims.

23. In the same way that one must look at circumstantial evidence, the Tribunal has looked upon all of the circumstances of what the Applicant has said to come to their finding.  To isolate this one incident and then submit that it had permeated everything else is, really, not paying proper attention to how circumstantial evidence or the fact-finding functions of the Tribunal actually operate.

24. If one looks at the cumulative inconsistencies of the Applicant, it leads to an inevitable conclusion that the Applicant could not be relied upon in many, many aspects of what he had said. 

25. In relation to the land taken by the government officials, at first, the Applicant had said that the parents had received a notice that the government was taking this land.  Later, the Applicant said that the government simply turned up without any paperwork to take the land.  On another occasion, the Applicant said the parents were giving the land to the Applicant, and that was when the government stepped in, which made the actions of the government more personal and directed to the Applicant. 

26. The Applicant said that there was no provision at all for any form of compulsory acquisition in Vietnam, which, really, would make Vietnam probably the only country in the world for which there is no form of compulsory acquisition and the Applicant was adamant that what the government was doing had absolutely no basis in law or proper governance procedures.

27. His story gets to a point where the Applicant says that, at the time, he was working for a state-operated entity but he was not working because there was no work for him to do, because he was a contractor.  Later on, he said that he could not go to work because he thought that the government was looking for him and, if he turned up at work, he would be found. 

28. He then said that the state-owned entity had no contact details for him, which made it very strange as to how, if the government entity or state-owned entity had work for him, they were going to contact him to tell him to come in to work. It also leads to the question of why, if they did have those contact details, the government officers who were looking for him simply would not be able to find those contact details in any event. 

29. It is against this background that the whole issue of the obtaining of the passport is then taken into account.  So it is not simply one aspect that the Tribunal looked at as to whether the Applicant had credibility; it was a raft of matters that came down to a point that, when the tribunal looked at the matter cumulatively, as a whole, it was as if they were all twines that were able to be wound together as a rope. The aspect that Mr Wilson complains about is simply one of those twines that, even if one were able to cut that particular twine, it would not be sufficient to in any way damage the rope upon which the finding of there being no credibility of the applicant is based.  

30. So that leads me to the third aspect of the application, which was that the jurisdictional error was also by failing to consider the whole of the evidence about the potential harm faced by the Applicant in his country of origin as a failed asylum seeker.  The only evidence that the Tribunal really had was that of the Applicant. 

31. There was some country information about what had happened to people who had fled into Cambodia or Laos but not people who had come from Australia. 

32. Therefore, it was open to the Tribunal to make the finding that they have about the potential for harm. 

33. Given all of those matters, I am of the view that there was no jurisdictional error made by this Tribunal.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 16 February 2017