BZE16 v Minister for Immigration

[2017] FCCA 199

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZE16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 199

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Protection (Class XA) visa – whether the Tribunal failed to take into account relevant considerations – the Tribunal complied with its statutory obligations – the Tribunal was open to make adverse findings – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 476.

Applicant: BZE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1981 of 2016

Judgment of: Judge Street

Hearing date: 7 February 2017

Date of Last Submission: 7 February 2017

Delivered at: Sydney

Delivered on: 7 February 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1981 of 2016

BZE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 June 2016 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. The applicant left Vietnam legally on a genuine Vietnamese passport in May of 2013 and arrived at Darwin on 19 May 2013 as a non-offshore entry person.  The applicant lodged an application for a Protection visa on 30 June 2014.

The Delegate

1. The applicant claims that an incident occurred on 14 April 2013 when the applicant was stopped by police officers with two of his friends.  The applicant alleges that the police officers started beating him. The applicant alleges that he feared being arrested by police officers and that he moved to Saigon. The applicant alleges that police officers searched his parents’ house, asked the applicant’s parents as to his whereabouts and then assaulted his parents. 

2. The applicant also expressed concern that his personal details had been released on the Department’s website. The applicant was afraid that the Vietnamese government would be able to access his interview information with the Department. The applicant fears that he will be killed or harmed by Vietnamese police officers and fears that he will be gaoled by Vietnamese authorities and that he would not be protected by the Vietnamese authorities. 

3. The applicant was asked by the delegate about the false date of birth that he provided to the Department initially and the destruction of his passport. The delegate did not accept that the incident on 14 April 2013 occurred or that the applicant or his family members were of adverse interest to the Vietnamese authorities. 

4. The delegate referred to the limited biographical details that were provided for a short time on the website which did not include the applicant’s interview. The delegate noted that Vietnam was not one of the countries identified as the location of any IP addresses which accessed the information. The delegate noted that there were no details available for access that would identify which detainees had made refugee claims, or accusations of human rights, or other abuses against the Vietnamese government. 

5. The delegate did not accept that even if the applicant’s details came to the attention of the Vietnamese authorities due to the data breach, the applicant would be adversely targeted by the authorities for that reason. The delegate found that there was no indication that the applicant with his lack of profile will suffer serious harm from the Vietnamese authorities as a consequence of his departure from Vietnam and his stay in an Australian detention centre being potentially known to the authorities for the purpose of seeking asylum.

6. The delegate found that there was only a remote chance that the applicant would be subject to serious harm and not a real chance that the applicant would be subject to serious harm for a Refugees Convention reason. The delegate was not satisfied the applicant has a real chance of being persecuted for a Refugees’ Convention reason and was not satisfied the applicant’s fear was well founded.

7. The delegate was not satisfied there are 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 be subject to significant harm. The delegate found that the applicant was not a person to whom Australia had protection obligations and that the applicant did not meet the criteria under section s.36(2) of the Act and declined to grant the applicant a Protection visa.

The Tribunal

1. The applicant applied for review on 27 April 2015. By letter dated 22 April 2016, the applicant was invited to attend a hearing on 11 May 2016. The applicant appeared on that date to give evidence and present arguments. The Tribunal identified the applicant’s background, claims for protection and the delegate’s decision. The Tribunal identified the evidence and submissions given at the hearing on 11 May 2016.

Consideration of credibility  

1. It is apparent from the Tribunal’s decision that the Tribunal raised credibility concerns with the applicant at that hearing. The Tribunal also raised s.91WA of the Act with the applicant in relation to the destruction of his passport. By inference, the Tribunal accepted the applicant’s explanation in respect of the destruction of that record of identity. The Tribunal referred to raising certain country information with the applicant. The Tribunal set out the relevant law and the ministerial direction. The Tribunal set out consistent with the ministerial direction, certain country information particularly in relation to Catholics in Vietnam.

2. The Tribunal found that the applicant was not a witness of truth and that the applicant had exaggerated his claims. The Tribunal identified that it found significant inconsistencies in his evidence and referred to the applicant’s willingness to misrepresent his age to the Department. 

Consideration of protection for Refugees Convention reasons

Consideration of harm for reasons for religion

1. The Tribunal accepted that the applicant was a Catholic but did not accept the applicant’s evidence that the applicant and his friends ran away because the police attempted to hold them for no reason. The Tribunal found that the allegation that the applicant was beaten by the police officers and the different evidence about the number of police indicated that the applicant had fabricated that claim. 

2. The Tribunal was not satisfied that the applicant faces a real chance of serious harm for reasons of practising his religion if he chooses to practise if he returns to Vietnam now, or in the reasonably foreseeable future.

Consideration of harm for reasons of actual or imputed political activity

1. The Tribunal referred to a fear of harm by reason of actual or imputed political activity. The Tribunal found the applicant was of no adverse interest to the Vietnamese police or any other authority, or to any opposing political party such that the applicant would face a real chance of serious harm for reasons of an actual or imputed political opinion. The Tribunal found the applicant does not face serious harm at the hands of anyone in Vietnam.

Consideration of harm for reasons of the Data Breach

1. The Tribunal referred to the applicant’s claims in relation to the data breach and identified the limited information that was released. The Tribunal found that no detail as to whether those persons had lodged protection claims or the details of those claims were released or accessible through the Department’s website. The Tribunal found that the information that may have been available regarding the applicant’s name, date of birth, nationality, gender, details about his detention as to the fact that he was detained, the reason and where, and if the applicant had other family members in detention. The Tribunal found that that information was not downloaded in Vietnam.

2. The Tribunal found that the data breach did not include the applicant’s address or any former addresses, phone numbers or contact information, or any information about protection claims that he or any other person had made or his health. The Tribunal found that the information was only available for a short period of time before it was removed.

3. The Tribunal did not accept the submission that there was a real chance that the Vietnamese government, or any other government, or person may have used the applicant’s personal details and identification to access information about the applicant such that the applicant will be caused serious or significant harm.  The Tribunal did not accept that the applicant was of any interest, adverse or otherwise to the Vietnamese government. The Tribunal did not accept that there is a real chance that the applicant’s son will face serious harm, or that there is a real risk the applicant will face significant harm because of the data breach and release of the applicant’s personal information if the applicant returns to Vietnam now or in the foreseeable future.

4. The Tribunal found that the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future for reasons of his actual or imputed political opinion. The Tribunal found the applicant does not face a real chance of serious harm for a refugee convention reason now, or in the reasonably foreseeable future in Vietnam. The Tribunal found the applicant did not have a well-founded fear of persecution in Vietnam.

Consideration of complementary protection claims

1. The Tribunal found that it was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal there is a real risk that the applicant would suffer significant harm if he returns to Vietnam. The Tribunal found that the applicant is not a person in respect of whom Australia has protection obligations and that the applicant did not meet the criteria under s.36(2) of the Act and affirmed the decision of the delegate.

Before this Court

1. On 6 October 2016, the Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained to the applicant that 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, this meant it was considering whether the Tribunal’s decision was unlawful or whether the Tribunal’s decision was unfair. The Court explained to the applicant that if the Court was satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and the matter would be sent back for further hearing. The Court explained to the applicant that if the Court was not satisfied the Tribunal’s decision was affected by relevant legal error, the application will be dismissed.

2. The Court explained to the applicant that 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.

3. From the bar table, the applicant asserted that the Tribunal should have considered his fear in relation to Catholicism. It is apparent from the Tribunal’s decision that the Tribunal did consider the applicant’s claims in relation to his fear by reason of being a Catholic and that the Tribunal did not accept the applicant’s alleged incident in relation to his Catholicism. The adverse credibility findings made by the Tribunal were open on the material before the Tribunal and cannot be said to lack an evident and intelligent justification.

4. The Tribunal gave reasonable and logical reasons in relation to the adverse credibility findings, including the applicant having not told the truth about his date of birth and identified inconsistencies in the applicant’s evidence. The applicant maintained that he had told the truth to the Tribunal. This Court is not in a position to revisit the merits and cannot make fresh findings of fact.

5. The applicant also maintained that the Tribunal had not taken into account the data breach. It is apparent from the Tribunal’s reasons that the Tribunal took into account the limited information that was disclosed in relation to the data breach. The applicant indicated that he was not happy with the decision and was concerned that he may be harmed if returned to Vietnam. In substance, the applicant was inviting the Court to engage in an impermissible merits review. This Court has no power to revisit the merits.  Nothing said by the applicant from the bar table identified any jurisdictional error.

6. The grounds of the application are as follows:-  

   1. The Administrative Appeal Tribunal decision 1505678 is affected by legal error

   2. The Tribunal failed to take into relevant consideration information about practicing Catholics in Vietnam per 86.

Consideration

1. In relation to Ground 1, the bare assertion of legal error does not identify any jurisdictional error. The Tribunal’s reasons reflect an orthodox approach in relation to the determination of the applicant’s claims. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.

2. On the face of the material before the Court, the applicant had a real and meaningful hearing. The Tribunal correctly identified the relevant law. On the face of the material before the Court, it is not apparent that the Tribunal failed to provide the applicant with procedural fairness.  Nothing said by the applicant identified any basis upon which it could be said that the Tribunal’s decision was affected by relevant legal error.  The Tribunal properly addressed the applicant’s claims, and made findings that were open to the Tribunal. Ground 1 fails to make out any jurisdictional error.

3. In relation to Ground 2, it is apparent that the Tribunal did take into consideration country information in relation to Catholicism in Vietnam. It was a matter for the Tribunal what weight to give that country information. The Tribunal made adverse findings in relation to the applicant’s claim in respect of the applicant’s fear based on the applicant’s religion of Catholicism. Those adverse findings were open to the Tribunal.  Ground 2 fails to make out any jurisdictional error.

Conclusion

1. In these circumstances, the application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 10 February 2017