CAY17 v Minister for Immigration and Anor

[2018] FCCA 3577

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAY17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3577

Catchwords:
MIGRATION – Application for judicial review – protection visa – matters not considered before the Tribunal – application allowed.

Legislation:

Migration Act 1958 (Cth)

Applicant: CAY17

First Respondent: MINISTER FOR IMMIGRATION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 13 of 2017

Judgment of: Judge Riethmuller

Hearing date: 19 October 2018

Date of Last Submission: 19 October 2018

Delivered at: Melbourne

Delivered on: 19 October 2018

REPRESENTATION

Counsel for the Applicant: Mr McBeth

Solicitors for the Applicant: Russell Kennedy Solicitors

Counsel for the First Respondent: Ms Grinberg

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 12 April 2017.

2. A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.

3. The First Respondent pay the Applicant’s costs fixed at $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DNG 13 of 2017

CAY17

Applicant

And

MINISTER FOR IMMIGRATION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 12 April 2017.  The applicant is a citizen of Vietnam who came to Australia and applied for a protection visa on 11 June 2014.  The protection visa application was refused by the delegate on 30 June 2015.  The applicant sought review of the delegate’s decision by the Tribunal.  A hearing was held before the Tribunal on 22 March 2017, following which on 12 April 2017 the Tribunal refused his application and affirmed the decision of the delegate.

2. The thrust of the applicant’s claims before the Tribunal related to the fact that he was a Christian and part of an anti-abortion movement which he operated or facilitated out of a coffee shop that he ran in Vietnam.  When the applicant first arrived in Australia, as is usual, he was interviewed by way of an entry interview, the details of which are annexed to an affidavit filed in these proceedings.  A sideline issue arose in that initially, for reasons that are inexplicable, the Minister’s officers issued a certificate so as to prevent the applicant from seeing the entry interview information that he had given on his arrived.  However, the Tribunal quite properly concluded that this was an invalid certificate and then put the substance of that entry interview to him for comment during the course of his hearing before the Tribunal.

3. In that entry interview, the applicant said that he had left Vietnam because he was a fisherman, had been borrowing money, and eventually had to sell his boat.  The applicant said that he did not want to return as he had debts and nowhere to stay and that his house had already been put into somebody else’s name for the money: see questions 32 to 33 of the entry interview.  It is immediately apparent that the version of events given at the entry interview is quite inconsistent with the case that the applicant put in support of his visa application, and the case that was run before the Tribunal.  Not surprisingly, this led the Tribunal to have some real concerns about the applicant’s credibility. 

4. Ultimately, the Tribunal rejected the application, in substance because they did not accept the applicant’s version of events.  The significant point that has been raised by counsel for the applicant relates to whether or not the Tribunal properly engaged with the material and the nature of the case that was put by the applicant.  The applicant was not unaware of the inconsistency in his statements made at the entry interview and later when he appeared before the Tribunal.

5. When the applicant put his full version of events (which he says is the correct version, relating to the coffee shop) it was given around three months after the entry interview.  The applicant had been told by the Serco guards early on that his case had been screened out based upon the version he had given in his entry interview, although had not raised further matters with them until he gave a statement to the department in August 2013.  In the applicant’s statement to the department, he gave a clear explanation about why he had given a false statement at his entry interview.  This appears at Court Book (‘CB’) p.175 in the submissions from the applicant’s lawyers.

6. In the submissions made on 3 June 2015, which appear at CB p.116, the applicant’s advisor sets out:

   5. The Applicant instructs that upon arrival he was misled by other people who he travelled with. He instructs that they informed him to advise that he was a fisherman as it would result in the authorities believing he was poor and in need of assistance. He was ill advised that if he stated that he was a coffee shop owner he would be considered wealthy and not afforded assistance in Australia. The Applicant instructs that he was scared and unfamiliar with the immigration process, as such relied on the ill advice he received and stated that he was a fishermen. The Applicant is very remorseful for not providing full information about his life in Vietnam upon arrival to Australia.

   Furthermore, the applicant instructs that he did not provide his claims when initially screened out as he was very fearful that by providing such information he would place his family in Vietnam at risk of harm. It was later after understanding the process better he felt comfortable forwarding all relevant information.

   The Applicant instructs that at his entry interview, he still did not understand the process. He instructs that it was the first formal interview that he had ever attended and did not fully understand what information was relevant to provide to the Department. He further states he was very overwhelmed at the interview and fearful for the wellbeing of his family. He instructs he felt very unsettled at the time and was not in a good mindset. He further instructs that he did not understand the relevant law and was misinformed he was required to state Australia is a good country and that would be enough to obtain protection.

   The Applicant wishes to reiterate that he did not mention his ownership of the coffee shop, pro-life work and issues stemming from same until August 2013 as it was at that time he came to understand that the information was relevant to the assessment in Australia. He instructs he further understood the relevant law and process when meeting with his lawyer and as such at that time was able to fully forward his claims for protection.

   The Applicant wishes to reiterate that he did not mention at his entry interview that he had issues with the authorities as he was fearful it would negatively affect him and his family in Vietnam if the Australian Authorities came to know the Authorities in Vietnam were not agreeable to his actions.

7. Clearly, the applicant’s case was that he was advised to give a false version of events, that is, that he was a fisherman which would result in authorities believing that he was poor and in need of assistance and that if he gave the true version of events, he would not be afforded any assistance in Australia.  If true, it was most misleading advice, as it had placed him in a position where he gave a false version of events that would inevitably result in him not getting a visa rather than, on his case, the true version of events which provided a prima facie basis for being granted a visa.

8. In the decision, the Tribunal did not directly engage with this claim that the applicant had been given advice to falsely describe his circumstances in Vietnam and the reasoning of the person who gave him that advice.  The Tribunal said, in the core part of their decision:

   57. The Tribunal acknowledges the submissions made about the applicant's nervousness at hearing, his poor memory and his low level of education but this does not alleviate the Tribunal's concerns in relation to the applicant's claimed religious devoutness.  As noted above the Tribunal considers the applicant's demonstrated knowledge of significant Catholic religious events does not support he was a regular and devoted church goer in Vietnam. Therefore the Tribunal is not inclined to accept that he was invited by his priest to join the Life Protection anti-abortion group as claimed. The Tribunal has considered the applicant's responses to the matters put to him pursuant to s.424aa of the Act along with the written submissions made to the Tribunal about factors to be considered in assessing the applicant's credibility. While the Tribunal accepts the applicant may have been bewildered, exhausted and nervous upon arrival to Australia and that this may have impeded his ability to fully outline his claims for protection it does not accept this accounts for the further delay, after being informed there was no basis for his claims, in raising the full extent of his claims.

9. This paragraph clearly addresses the exhausted, bewildered and nervous state a person may be in by the time they reach Australia by sea and recognises how such a course of events may impact upon their credibility.  However, that, in a sense, applies to almost any applicant who arrives by boat into Australia, because most applicants arriving by boat come after a particularly arduous journey in less than appropriate conditions on board a poorly maintained vessel.  The significant factor in this case was not simply the overall circumstances, but the applicant’s detailed explanation, or particularised explanation about why it was that he gave a version of events quite different to what he says is the true version of events.  That is, it is hard to see how an arduous journey, exhaustion or nervousness alone would explain a falsehood of the type that was put forward: it would not, of itself, provide a credible explanation for the applicant saying that he was a fisherman rather than his true version of events. 

10. However, the explanation the applicant gave in his submissions about being advised to give the falsehood and the reasoning given to him to persuade him to take that course does provide a version of events that may well be considered credible by a decision maker (or, alternatively, may be rejected but this is ultimately a matter for the merits of the case):  in short, the explanation the applicant gives was not incredible, or so incredible that it could be disregarded. 

11. Counsel for the Minister refers to a number of other parts of the decision to argue that the decision maker did have regard to this explanation and argued, that although it was not specifically mentioned or engaged with by the decision maker that does not mean that it was not taken into account and dealt with at a more general level.  In particular, counsel refers me to [28] of the decision where the following is said:

    28. With respect to the fact the applicant did not fully disclose his protection claims on arrival to Australia it is submitted that the purpose of the entry interview is to ascertain basic information about applicants and their journey to Australia. As such it should not be relied upon to discount the applicant's claims for protection. The applicant was traumatised by the long and arduous journey to Australia and not able to fully articulate his claims in detail on entry. Further, he was misinformed by other individuals who travelled with him about the particulars of information to disclose upon arrival. Once he understood his information was going to be kept confidential he felt at liberty to disclose the full extent of his claims to the Department. Furthermore, the Delegate noted the applicant provided information to Serco that was inconsistent to his claims. It is submitted that the veracity of the records of information provided to Serco is questionable and should not be relied upon to discount the applicant's credibility.

12. In the centre of that paragraph there is the statement that the applicant was ‘misinformed’ by others who travelled with him about the particulars to disclose.  As was discussed in argument, there is a qualitative difference between advice to be careful not to disclose many particulars or information compared to advice, with a reasoning process attached to it, to give false information upon arrival.  This statement in the reasons, of itself, does not indicate that the Tribunal has in fact engaged with the core argument that the applicant was putting. 

13. It is also argued that paras [28] and [57] of the Tribunal’s decision (as set out above) taken together show that the Tribunal has, in substance, engaged with the claim as put.  The reasons given above set out why these paragraphs are insufficient to show that the Tribunal has engaged with the core thrust of the argument that the applicant put, rather than recounting the general circumstances or background in which he was persuaded to put what is now said to be a falsehood.  Counsel also refers to the general statements (in [59]) that, the material generally was all considered by the Tribunal.  That paragraph says:

    59. Having carefully considered the applicant's responses and the submissions made on his behalf, for the above reasons, the Tribunal does not accept the applicant regularly attended church in Vietnam, that he was involved in an anti-abortion group, that he operated a coffee shop which became the meeting place for this group, that he became known by, and was regularly monitored and oppressed and physically harmed by the Vietnamese authorities or persons acting on their behalf for his leading involvement in the anti-abortion group or that he was summonsed to attend the local and district police stations in connection with his activities. The Tribunal acknowledges that the letter from the applicant's priest and the copies of summonses which have been provided to the Department offer some support for the applicant's claims. However, as discussed with the applicant at hearing DFAT's advice on the prevalence of fraudulent documents in Vietnam supports the possibility that these documents may have been manufactured as evidence of the applicant's claims. This, when taken together with the above concerns, caused the Tribunal to give the documents no weight in arriving at this decision.

14. Ultimately, in cases such as this, one must consider the terms of the decision.  A decision is necessarily a set of reasons for why a decision has been made, not a narrative of every single thing that has happened in a case.  This requires one to determine whether or not an incident or matter is of such significance that if it is properly considered by the decision maker it must be specifically mentioned or engaged with, or whether it is one of the facts and circumstances surrounding a matter that is sufficiently dealt with by a more general statement, before drawing an inference that a matter has not been properly considered.

15. For the reasons set out above, this particular point is a point that is not adequately dealt with by a more general statement.  This was a point that needed to be directly engaged with by the decision maker. 

16. Counsel also refers me to [52] of the decision which says:

    52. After a break in which the applicant spoke with his representative he indicated that he would like his representative to respond orally to the information. The applicant's representative submitted that when the applicant first arrived to Australia he was scared to provide all the information to the Australian authorities as he was worried the information might get back to the Vietnamese authorities and place him at greater risk if required to return. She stated that it was only later when he had more knowledge of the process that he felt comfortable to disclose the full extent of his claims.

17. No copy of the transcript of the interview with the Tribunal has been provided to the Court. The Tribunal’s summary (at [52]) does not show that the applicant recounted from the explanation that he gave as to why he gave a false version of his circumstances at the entry interview nor is it entirely clear whether or not that explanation was repeated. It certainly does not appear that the key explanation has been squarely dealt with by the Tribunal in saying what they have in [52].

18. The result is that ultimately the Tribunal have not properly engaged with the issue put by the applicant to explain the falsehood that he gave at the entry interview.  It may be that, ultimately on the merits, the fact that he was able to be persuaded to give a falsehood at the entry interview, coupled with some of the other significant difficulties with his credibility, leads to the same outcome.  However, that is not a matter for this Court to determine.  It is more appropriate that the decision maker consider the case as a whole, having regard to the key point that the applicant makes to explain the falsehood given early on, when assessing his overall credibility and making a decision according to law.  If I were to engage in such assessment myself, I would be moving from judicial review to merits review. 

19. It is appropriate that the matter go back for a further hearing as it is not a case where it’s appropriate for the Court to exercise a discretion not to grant relief. 

20. As I have allowed the matter on the basis of ground 2, it is not necessary to proceed to determine the more nuanced issues that arise under ground 4 in the context of this particular case. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  5 December 2018