CBD15 v Minister for Immigration

[2016] FCCA 486

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBD15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 486

Catchwords:
MIGRATION – Whether administrative appeals tribunal’s decision infected by jurisdictional error – no jurisdictional error

Legislation:

Migration Act 1958 (Cth) s.477

SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125

First Applicant: CBD15

Second Applicant: CBE15

Third Applicant: CBF15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 928 of 2015

Judgment of: Judge Vasta

Hearing date: 1 March 2016

Date of Last Submission: 1 March 2016

Delivered at: Brisbane

Delivered on: 9 March 2016

REPRESENTATION

Counsel for the Applicants: Ms Nguyen

Counsel for the Respondents: Mr McGlade

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application filed 7 October 2015 as amended on 14 December 2015 is refused.

2. The Applicants pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,800.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 928 of 2015

CBD15

First Applicant

CBE15

Second Applicant

CBF15

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed 7 October 2015 and by amended application filed on 14 December 2015, the Applicant seeks an extension of time within which to file an application for judicial review. The decision sought to be reviewed is a decision of the Administrative Appeals Tribunal (“AAT”) of 25 March 2015 that affirmed the decision of the delegate of the Minister to refuse to issue protection visas for the Applicants.

2. The Applicant has 35 days from the making of the decision by the Tribunal to ask this Court to review that decision. The present application of the Applicant is 161 days out of time.

3. As I said during the hearing of this matter, I will be looking at the merits of the application in deciding whether I ought to grant the leave.

Background

1. The Applicant and his wife (the Second Applicant) are citizens of Vietnam. They left Vietnam by boat in March 2013. On 14 April 2013, their boat was intercepted by the Australian Navy. On 6 September 2013, the first and second applicants applied for the grant of a protection Visa.

2. On 23 November 2013, the Second Applicant gave birth to the Third Applicant. Shortly after that, the First and Second Applicants made an application for the child to be included in their protection Visa applications. On 25 April 2015, the Second Applicant gave birth to a second child, but that child is not an Applicant before this Court.

3. On 10 February 2014, the Department of Immigration and Border Protection unintentionally enabled access on the Department’s website to personal information about persons in immigration detention on 31 January 2014. This breach included information about the Applicants (the “data breach”).

4. On 12 December 2014, a delegate of the Department refused to grant the protection visas to the Applicants. On 19 December 2014, the Applicants applied to the then Refugee Review Tribunal for review of that delegate’s decision.

5. On 20 March 2015 the Applicants appeared before the Tribunal. Both Applicants gave oral evidence at that hearing. On 25 March 2015, the Tribunal affirmed the decision of the delegate.

6. On 7 October 2015, the Applicants filed the present application in this Court seeking judicial review of the decision of the Tribunal. Pursuant to s.477 of the Migration Act 1958 (Cth), there is a 35 day time limit for such applications to be made. This means that the application to this Court needed to be brought by 29 April 2015. The application is 161 days out of time.

The Claims

1. The First Applicant claims an entitlement to a protection visa in his own right. The Third Applicant (the child) asserts the same right, whilst the Second Applicant (the wife) seeks a protection Visa solely on the basis of her being a member of the family unit of the person entitled to a protection visa. All three Applicants are Catholics.

2. The main claim of the First Applicant is that he fears that he would be persecuted and/or harmed by the Vietnamese authorities were he forced to return to Vietnam because of his involvement in an incident on Sunday, 1 July 2012.

3. On that day, during a Mass being conducted at Con Cuong church, 100 Vietnamese police officers infiltrated the congregation and attacked the attendees. The Applicant claims that he was one of those people.

4. He claims that, as a result of his involvement in this incident, the police required his attendance at the police station on about 20 separate occasions afterwards. When he attended the police station he was held for about 12 hours each time and beaten.

5. By March 2013, the Applicant and his wife decided it would be best if they left Vietnam.

6. The Applicant fears that if he is returned to Vietnam he would be persecuted because of:-

   a)his involvement at Con Cuong;

   b)his Catholic religion;

   c)he would be deemed to have “anti-government” views;

   d)he would be viewed as a failed asylum seeker; and

   e)he illegally departed from Vietnam.

7. The claims of the Second and Third Applicants revolve around an acceptance of the claims of the First Applicant.

The Decision of the Tribunal

1. The central question for the Tribunal was the credibility of the Applicant and much of that hinged around whether the Tribunal was satisfied that he was a person who had attended the Mass that day. The Tribunal did not accept that the Applicant had attended Mass that day and found that the Applicant generally had little credibility.

2. The Applicant produced two documents which he said were corroborative of his claims. The Tribunal did not accept that submission and gave the documents no weight.

3. The Applicant also relied upon the data breach described in paragraph 6 above. He claimed that such information being available, albeit for only a short time, increased his risk of harm if he were to be returned to Vietnam. The Tribunal did not accept that submission.

The Grounds of this Application

1. There were originally seven grounds but the final one was abandoned. The remaining six grounds are as follows:-

   “GROUND 1: The Tribunal failed to undertake its task of review pursuant to section 414 of the Migration Act, and further, committed an error of law, in its placing “no weight” on the documentary evidence submitted by the applicant to support his claims.

   Particulars:

   a) There was no evidentiary basis and therefore no logically probative basis considered by the Tribunal, upon which it could conclude that document fraud is prevalent in Vietnam.

   b) Having made a sweeping assumption about the prevalence of document fraud in Vietnam, unsupported by any evidence, the Tribunal then erroneously implied or inferred that the applicant had committed document fraud, or was otherwise involved in the submission of false documents in support of his claims.

   2. GROUND 2: The Tribunal did not correctly apply the necessary standard of proof required for findings of fraud and dishonesty, in accordance with applicable common law principles.

   3. GROUND 3: The Tribunal denied the applicant procedural fairness in failing to put the allegation of fraud to him, before effectively concluding that he had committed document fraud.

   4. GROUND 4: The Tribunal committed an error of law by failing to impartially judge the evidence before it, and therefore being “unreasonable” in its findings. In particular, the tribunal’s overall conclusion that the applicants were “making things up as they went along” disproportionately tainted its views on everything the applicants said in evidence, such that the tribunal found “inconsistencies” even where there were none.

   5. GROUND 5: The Tribunal erred in its consideration of whether the applicant faced a real chance of persecution because it failed to consider the possibility of error in its evaluation of the applicant’s claims or otherwise failed to ask itself the question “what if I am wrong” in the assessment of the applicant’s claims.

   6. GROUND 6: The Tribunal failed to undertake its task of review pursuant to section 414 of the Migration Act, with respect to the applicant’s claims arising out of the Department’s unlawful disclosure of the applicant’s personal information (“data breach”) in circumstances where the tribunal:

   1. erred in finding that the Department of Immigration’s breach was limited to disclosure of the applicants’ names, dates of birth and that they were in detention

   2. failed to examine the full scope of the applicant’s personal data which the Department had unlawfully disclosed on its website in February 2014, including the actual contents of the applicant’s personal information that was released, and

   3. uncritically relied solely on information provided by the Department of Immigration about its own data breach, when:

   i. what the Department’s “normal processes” for assessing the implications of the data breach for individuals personally (as described in the Department’s letter to the applicant dated 12 March 2014), is still unknown, as it is a matter that is unresolved with litigation still on foot – refer to SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26 (23 January 2015), and

   ii. the processes undertaken by the Minister for Immigration and/or Department of Immigration with respect to its assessment of the implications of the data breach for the applicant, personally, were procedurally unfair (refer to SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125).

The Documents

1. The first three grounds relate to the documents upon which the Tribunal placed no weight. It is instructive to look at the documents and to see what the Tribunal actually said about these documents.

2. The first document purported to be a police summons. It is reproduced at page 109 of the court book and reads as follows:

   “THE SOCIALIST REPUBLIC OF VIETNAM

   Independence –Freedom-Happiness

   Summon (the 9^th time)

   The People’s Committee and Police of Long Thanh Commune

   Request: Vy Van NGUYEN of Phan Thanh hamlet

   To present himself at the office of the Long Thanh commune’s police

   In order to deal with the charges: causing civil disorder and opposing officers who were performing their duty.

   Time: at 8am on 10 August 2012,

   On presentation, bring along this Summon and to meet Mr………..

   You are requested to arrive on time.

   Long Thanh 08/08/2012

   Chief of Commune Police

   Signature and seal

   Tran Van Tinh

   Note: translate from a hardy copy in Vietnamese”

3. The Applicant contends that after the incident at Con Cuong, he was constantly summoned to the police station whereupon he was held captive and beaten before being released. The Applicant submits that this summons corroborates his version. The original document in Vietnamese was tendered before me at the hearing. It is a template with details written in.

4. The second document purported to be a letter from a priest. It is reproduced at page 110 of the court book and reads as follows:

   “LETTER OF CONFIRMATION

   I, Peter LUU Van Thanh, the vicar of Thuong Loc Parish who was the parish priest of Ru Dat Parish, Bao Nham Deanary, Vinh Diocese, confirm that:

   Anthony Vy Van NGUYEN was a parishioner of the Ru Dat Parish.

   On 01 July 2012 he took part in the gathering for praying at Con Cuong parish which later on developed into a violent incident. After this incident, he received a summon from Long Thanh authority.

   Thuong Loc, dated 24/08/2014

   Signed and sealed

   Father Peter Anthony Lu Van Thanh

   Note: translated from a hard copy in Vietnamese.

5. The Applicant contends that this letter also corroborates his version. The original document in Vietnamese was also tendered before me at the hearing.

6. At paragraph 40 of the reasons, the Tribunal discuss their concerns about the authenticity of these two documents. Paragraph 40 reads as follows:

   “The tribunal discussed concerns about the authenticity of the priest letter and police warrant he provided to the department after his interview. The tribunal noted the applicant had not provided the original documents, had provided copies late in the application process, the prevalence of document fraud in Vietnam and inconsistencies with his evidence. The priest letter refers to only one summons to Long Thanh authority which is not consistent with his claims that he was summoned many times. The summons document is incomplete as it asks him to present ‘to Mr……’. Given the tribunal concerns about the applicant’s credibility, concerns about the documents and prevalence of fraudulent documents, the tribunal places no weight on the documents.”

Assessing the First Three grounds

1. In weighing up the contentions of the Applicant contained in the first 3 grounds of appeal, it is quickly apparent that the Applicant has come to the conclusion that the Tribunal has accused the Applicant of committing fraud in producing those documents. A proper reading of paragraph 40 does not support this conclusion.

2. The Tribunal noted that it did not have the original documents (though these were before me) and combined this fact with the inconsistencies in the evidence of the Applicant.

3. The Tribunal also referred to the “prevalence of the document fraud in Vietnam” but did not give any acknowledgement as to how the Tribunal knows of this prevalence. Usually such knowledge comes from “country information”. The country information is either quoted or footnoted, but this was not done in this case, which I take to be an oversight.

4. The Tribunal then spoke about the actual documents. The Tribunal did not make a finding of fraud against the Applicant. The Tribunal did not say that they were using the production of these documents in an adverse way towards the Applicant. The Tribunal simply said that they would not be placing any weight on the documents. In other words, he documents were to be treated in a neutral way.

5. As there was no finding that the applicant had committed fraud, this disposes of grounds two and three. With respect to ground one, notwithstanding that the Tribunal did not acknowledge where it had the information about the “prevalence” of document fraud in Vietnam, this view about the prevalence of fraudulent documents was not the sole, or even substantial, reason for placing no weight on the documents.

6. In the hearing before me, the Applicant submitted that these documents provided strong corroboration for his claims. I do not accept this submission.

7. The Applicant claimed that he had been summonsed many times to the police station after 1 July 2012. This “maligned” summons is the only summons that is produced. It relates to a date some five to six weeks after the Con Cuong incident. The text of the summons makes no reference to Con Cuong and could relate to any incident. For example, if the Applicant has urinated in the street and then resisted arrest, the summons that was produced could equally relate to that sort of incident.

8. The letter purportedly written by the priest is also very curious. It is very sparse in detail and does not talk about any long-lasting persecution. One would think that if the Applicant had been persecuted for over eight months because of his religious affiliation that this letter from the parish priest would attest to that.

9. The Applicant claims that he had been given many summonses by the police however this letter only refers to one summons by the authority. It is not consistent with the version that the Applicant maintains.

10. There was no need for the Tribunal to make a finding as to whether the documents were genuine or were fraudulent and the Tribunal made no such finding. What the Tribunal had to decide was what weight it would give the documents. Unsurprisingly, the Tribunal gave the documents no weight. Such a finding was open on the evidence.

11. For those reasons, ground one also fails.

Assessment of Ground Four

1. It seems to me that this ground is merely an impermissible merits review. The applicant is simply unhappy with the conclusion reached by the tribunal. Just because an unfavourable conclusion is reached, does not mean that the decision is therefore tainted.

2. There is no evidence to suggest partiality or bias on the part of the Tribunal. The Applicant did not truly contend that the Tribunal had a closed mind and was going to come to the conclusion that it came to no matter what the evidence was before it.

3. The conclusion that the applicant was “simply making it up as he went along” was a conclusion reached after an assessment of all the evidence. It was not a preconceived idea that then tainted the approach that the Tribunal took.

4. The conclusions that the Tribunal came to on matters of fact were all conclusions that were open to it. Even if there were “inconsistencies” that were not truly “inconsistencies” at all, this does not amount to a jurisdictional error.

5. For those reasons, this ground also fails.

Assessment of Ground Five

1. The Tribunal was quite certain in the conclusions to which it came. There was very little room for doubt in the reasoning. I do not see any reason why the Tribunal had to apply the “what if I’m wrong” test. Such a test should be applied when it is obvious in the reasons for judgement that the Tribunal had real doubts about the conclusion it was making. That is not the case here

2. At paragraph 18 of its reasons, the Tribunal acknowledges that if it were to make an adverse finding in relation to material claim made by the applicant but was unable to make that finding with confidence, it must then proceed on the basis that the claim might possibly be true. The Tribunal well and truly knew its duties and there cannot be any realistic suggestion that it did not apply the proper tests.

3. For those reasons, this ground also fails.

Assessment of Ground Six

1. This ground is based on what was said by the Full Court of the Federal Court in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125. That case dealt with the same “data breach” with which the present case is concerned. The facts in this case are quite different to those in SZSSJ v Minister for Immigration (Supra).

2. In that case, SZSSJ had already had his application refused by the delegate and that decision had been affirmed by the Tribunal. The Federal Circuit Court and the Full Court of the Federal Court had dismissed his application for review.

3. As a result of the data breach, there was a letter written to SZSSJ. Sometime later, another letter was written to SZSSJ informing him of the investigation and asking him to make submissions. It also referred to an International Treaty Obligations Assessment process (“ITOA”) which would be undertaken.  As a result of there having not been proper disclosure to SZSSJ, the Full Court concluded that there had not been procedural fairness.

4. What can be seen in the facts of that case is that SZSSJ had never had his concerns about the “data breach” addressed or assessed by any independent arbiter.

5. In this case, whilst the Applicant was in detention on 31 January 2014, he had not yet had his application heard by either the delegate or the Tribunal.

6. The evidence before the Tribunal was that the Applicant had received a letter about the “data breach”. (It is the same letter as the first letter sent to SZSSJ). It was upon the evidence of this letter that the Tribunal made the assessment about the data breach.

7. There was no other evidence before the Tribunal. There was no suggestion that an ITOA process was been undertaken in relation to this Applicant. Unlike SZSSJ, it fell to this Tribunal to assess whether the data breach meant that there was a fulfilling of the criteria of the Convention or complementary protection obligations.

8. What this Tribunal found in relation to the data breach is contained in paragraphs 52 and 53 of the reasons which read as follows:

   “52. The tribunal has considered the claims as a failed asylum seeker and in particular that there was privacy data breach by immigration in which the applicants details (not address or protection claims) were disclosed on the website for a short period. However the tribunal notes that the information was available for only a short time, not easily accessible and only included names, dates of birth and that they were in detention. The applicant claimed the internet was fast and the police would be aware and they can beat and kill and would know they had left the country and therefore suffer a serious conviction.

   53. While the privacy date breach was unfortunate, the tribunal does not accept that it increases the applicants’ risk of chance of harm upon return. The details of their claims were not published and remain confidential. If the applicants are returned to Vietnam they will be known as failed asylum seekers in any event because the Vietnamese authorities will issue their travel documents to return.”

1. The Tribunal can only act upon the evidence before it. The criticism levelled at the Tribunal by the Applicant is unsustainable. There was no other information before the Tribunal. It is not the obligation of the Tribunal to go searching for information.

2. However, the Tribunal has acted as if the information that was disclosed on the website was information that was more extensive than suggested by the letter before the Tribunal. The Tribunal has acted as if the information contained all of the items suggested by the affidavit of Ms McIntyre.

3. In that respect it has assessed the claims of the Applicant and concluded that the Convention criteria and the complimentary criterion have not been satisfied. On the evidence before it, such a conclusion was open to the Tribunal.

4. For these reasons, this ground also fails.

Extension of time

1. As earlier noted, this application was made 161 days out of time. The grounds for extending time are as follows:

   “GROUND 1: Lack of access to justice.

   The applicant does not speak English and had no pro bono legal assistance during or shortly after, his Refugee Review Tribunal hearing. Following an adverse decision, he experienced great difficulty accessing proper legal assistance to file an application for judicial review to the Federal Circuit Court.

   EVIDENCE: The application for extension of time relies on the affidavit of Thuy Nguyen, dated 26 November 2015 and medical records from Court Book filed by the Minister on 10 November 2015, at pages 21-23. It is noted that evidence of the medical issues faced by applicants’ second child are also referred to at para 14 of the Tribunal Decision Record dated 25 March 2015.

   PARTICULARS:

   a. It is uncertain when the applicant received the Decision Record, but when he received it, owing to his inability to speak, read or write the English language, he did not know what it was.

   b. Owing to not knowing what the document received was about, combined with the applicant being consumed with caring for his family, particularly for his wife who was, at the time, heavily pregnant with a child who was at risk of having Downs Syndrome, the Decision Record was either lost or misplaced, or otherwise not actioned.

   c. When the applicant became aware of the importance of the Decision Record, after a phone call from the Department of Immigration, he immediately pursued legal assistance from various NGOs, including VOICE, the Romero Centre, DASSAN, individual pro bono lawyers, the Refugee & Immigration Legal Services, and Queensland Public Interest Law Clearing House.

   d. The applicant attempted to file an application to the Federal Circuit Court Brisbane registry multiple times. Each NGO took time to attempt to provide the applicant assistance. However, due to (i) inexperience in lodging applications to the court, and/or (ii) resource constraints, none were able to successfully file his application for judicial review of the Tribunal’s decision. For example, the registry did not accept the applicant’s faxed application. Then it did not accept another application filed with an incorrectly completed “Exemption of Fees” form.

   e. Eventually, on 3 October 2015, with the assistance of a lawyer from Salvos Legal, the applicant was able to successfully lodge an application that was acceptable to the court registry.

2. Those grounds, to my mind, are insufficient to justify an extension of time in the light of the view I have taken about the merits of the application. There is an insufficient explanation as to why this application was not filed within time.

3. In all of the circumstances, I refuse the application to extend time. I order that the application is refused with costs fixed in the sum of $5,800.00.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:9 March 2016