CDJ18 v Minister for Home Affairs
[2018] FCCA 2595
•14 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CDJ18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2595 |
| Catchwords: MIGRATION – Safe Haven Enterprise (Class XE)(Subclass 790) visa – application for review of Immigration Assessment Authority (IAA) affirming decision not to grant visa – show cause hearing – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 425, 473DC, 474 Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.05, 44.12, 44.13 |
| Cases cited: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | CDJ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1122 of 2018 |
| Judgment of: | Judge Kirton |
| Hearing date: | 2 August 2018 |
| Date of Last Submission: | 2 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 14 September 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Solicitors for the Second Respondent: | Having filed a submitting notice |
ORDERS
The Application is dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1122 of 2018
| CDJ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this proceeding judicial review is sought of a decision of the Second Respondent (IAA) made on 26 March 2018. The IAA affirmed the decision of a delegate of the First Respondent (Minister) to refuse an application for a Safe Haven Enterprise (Class XE)(Subclass 790) visa.
The proceeding was listed for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).
I have determined that the proceeding should be dismissed. My reasons follow.
Background
The Applicant is a citizen of Vietnam and is now aged 23 years. He first left Vietnam and attempted to travel to Australia in around June 2012. He left Vietnam by boat but was arrested in Indonesia and was detained there for four to five months. He was then returned to Vietnam where he was detained for about a week.
The Applicant then attempted to travel to Australia for the second time in February 2013. He flew to Laos and then onto Malaysia and Indonesia. He then travelled to Australia by boat.
He arrived in Australia on 17 March 2013 as an unauthorised maritime arrival and was placed into the care of the Minister under the Immigration (Guardianship of Children) Act 1946 (Cth).
On 16 August 2013 the Applicant was released from immigration detention into community detention. On 3 October 2013 the Applicant absconded from community detention and on 8 October 2013 his residence determination was revoked.
The Applicant remained in the community unlawfully for three years until he was located and detained by Victoria Police in March 2017. He was subsequently convicted and sentenced to a term of six months imprisonment for criminal offences committed in Australia. When the Applicant was released from criminal detention in September 2017 he was placed in immigration detention. He is presently in detention at the Christmas Island Immigration Detention Centre.
Delegate’s Decision
The Applicant lodged an application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (SHEV) on 21 September 2017. The applicant was assisted by a solicitor and migration agent (Applicant’s Solicitor) in lodging the application for the SHEV. The Applicant made the following claims for protection:
a)He is of Kinh ethnicity and Catholic faith. His home area is Nghi Quang village, Nghi Lok, Nghe An province in Vietnam.
b)In June 2012 he attempted to leave Vietnam for Australia but was intercepted and detained in Indonesia. After he returned to Vietnam, he was investigated, detained and beaten by police.
c)In February 2013 he left Vietnam again and arrived in Australia in March 2013.
d)He has attended church in Vietnam and Australia. He did not have religious freedom in Vietnam and was harassed by the Vietnamese authorities on his way to church. He will participate in protests for religious rights if returned to Vietnam.
e)His parents live in a coastal area of Vietnam and rely on fishing for their income. They participated in protests about toxins released into the ocean by the Formosa steel company which contaminated the area. The authorities harassed and threatened those who participated in the protests. The Applicant would participate in future protests if returned to Vietnam.
f)He fears harm based on his Catholic religion, his actual and/or imputed political opinion in opposition to the Vietnamese government and his membership of the particular group ‘failed asylum seekers’.
A delegate of the Minister (Delegate) refused to grant the SHEV on 31 January 2018 (Delegate’s Decision). The Delegate accepted that the Applicant was a Catholic of Kinh ethnicity, that he had twice departed Vietnam illegally, that he would be identified as a failed asylum seeker if returned to Vietnam and that he was sentenced to six months imprisonment in Australia.
The Delegate did not accept that the Applicant had engaged in any political activity in either Vietnam or Australia. The Delegate did not accept that the Applicant was of interest to the authorities regarding his political beliefs prior to leaving Vietnam or that he would be in the future. Based on the country information, the Applicant’s evidence and lack of a profile, the Delegate did not accept that the Applicant faced a real chance of serious harm or real risk of significant harm if returned to Vietnam.
Immigration Assessment Authority Decision
The Applicant was referred to the IAA on 5 February 2018. On 16 February 2018 the Applicant’s Solicitor sent to the IAA a further submission supporting the Applicant’s claims for protection (Further Submission) and also a further statement by the Applicant (Further Statement). The Further Submission requested that the Applicant:
…be given an in-person interview to provide detailed evidence in support of his claims for protection in Australia.
On 26 March 2018 the IAA affirmed the Delegate’s Decision (IAA Decision).
The IAA had regard to the Applicant’s Further Submission and Further Statement, however it considered that both reiterated the previous claims made in the Applicant’s SHEV application and responded to the findings of the Delegate and did not contain new information pursuant to s.473DC(1) of the Migration Act 1958 (Cth) (Act).
The IAA considered the Applicant’s request for an interview, particularly if there were credibility concerns. The IAA noted that under the Act it is to conduct its review on the papers. It noted that the Applicant does not have a right to a hearing and there is no obligation on the IAA to conduct a review if adverse credibility findings are to be made.
The IAA also noted that the Applicant was represented throughout the SHEV application process, including at the SHEV interview with the Delegate and that submissions had been put to the Minister’s department both before and after the SHEV interview. The IAA further noted that the Applicant’s Solicitor had not identified any new information that the IAA was to obtain at an interview, other than generally assessing the Applicant’s credibility. The IAA was satisfied that it had enough material before it to make a decision and was not satisfied that an interview to obtain further information was warranted. Further, the IAA noted that it had not made an averse finding as to the Applicant’s overall credibility.
The IAA accepted the Applicant’s identity as claimed in his SHEV interview. The IAA did not draw any adverse conclusions from the Applicant’s initial provision of a false identity for the purposes of assessing his credibility or claims for protection.
The IAA accepted that the Applicant is a practicing Catholic of Kinh ethnicity and that his home area is Nghe An province in Vietnam.
The Applicant’s immigration and criminal history in Australia, including absconding from community detention and criminal conviction, were not adversely relied upon by the IAA.
The IAA accepted the Applicant’s claims to have been discriminated against and harassed by the authorities based on his religion. However it did not accept that being asked for his identification and being delayed for church services amounted to serious harm within the meaning of the Act. The IAA noted that the Applicant was not otherwise harmed and was ultimately permitted to attend church and therefore was not prevented from practising his faith. Having regard to country information which indicated the situation had improved and that the Applicant’s profile did not fit those who were harassed and discriminated against, the IAA was not satisfied that the Applicant faced a real chance of serious harm based on his Catholic faith.
The IAA accepted that the Applicant’s father worked as a fisherman and was affected by the toxic spill by the Taiwanese owned steel company Formosa in April 2016 and that his parents participated in protests on the environmental damage and the rights of Catholics. The IAA had regard to country information which indicated those at high risk of harm were active organisers or political opposition leaders. The IAA considered the Applicant’s parents did not have an adverse political or religious profile due to their past participation in any protests and was not satisfied his parents would engage in political, religious or environmental protests in the future.
The IAA was not satisfied the Applicant would engage in any form of political activism against the government on return to Vietnam, given he had not engaged in any activism in Vietnam or Australia. Moreover given the passage of time since the toxic spill and the improved situation for Catholics, the IAA did not accept the Applicant would be compelled to protest on these issues. Having regard to all the information before it, the IAA did not accept the Applicant faces a real chance of serious harm based on his actual or imputed political opinion in opposition of the Vietnamese government and Communist Party, including the need to protest or the political opinion of his family.
The IAA did not accept that the Applicant would be unable to earn a livelihood, including due to the toxic spill or that he would be unable to find employment or housing on return to Vietnam. This was because the Applicant’s father continues to work as a fisherman, the family still lives in the family home and the fact that his family continues to support his sister studying overseas. The IAA was not satisfied that he faces a real chance of harm for these reasons on return to Vietnam.
The IAA considered country information which indicates that persons convicted of overseas crimes who have completed their sentences and returned to Vietnam, cannot be subject to further trial in Vietnam for the same crimes. The IAA was not satisfied the Applicant faces a real chance of harm due to criminal offences committed in Australia.
The IAA accepted the Applicant first departed Vietnam in 2012 in an attempt to travel to Australia and was arrested and detained in Indonesia for four or five months. He was then forcibly returned to Vietnam where he was investigated on return, hit a few times and held in custody for about a week, after which he was released to his family. The IAA however did not accept that the Applicant and his family were subjected to monitoring and harassment after his release or that he had an adverse profile due to this. The IAA considered that even if he was released as a minor, it would suggest he was not of interest to the authorities. The Applicant was also subsequently issued with a passport notwithstanding that this was achieved with some difficulty and his sister had been able to travel overseas. These two facts indicated that the Applicant and his family were not of adverse interest.
The IAA accepted that the Applicant had departed Vietnam illegally on two occasions and that he would be identified as a failed asylum seeker on return. The IAA noted the Applicant’s claims to fear harm from the same perpetrators of his past harm, however it found that it had been seven years since he was returned from Indonesia and it considered this chance to be remote.
The IAA considered country information which suggested returnees who have experienced harm were not failed asylum seekers or persons who had resided in Australia for a prolonged time, but rather people who had committed criminal offences, were known dissidents or ethnic minorities. The IAA noted the absence of information to suggest people who have departed multiple times to seek asylum faced harm. Having regard to the Applicant’s background and profile, the IAA did not accept that the Applicant faces a real chance of harm for seeking asylum in Australia.
The IAA accepted that the Applicant may be briefly detained and interviewed on return to Vietnam due to his unlawful departure. However the IAA found there was nothing to suggest he had any particular vulnerability so that he would be unable to face a short period of detention, or to suggest he had a profile that would lead to harm during the process of being detained and interviewed. Further, the IAA found the brief detention, being interviewed on arrival and being issued a small fine did not constitute serious harm.
The IAA concluded that the Applicant did not satisfy either s.36(2)(a) or (aa) of the Act.
Procedural History
On 27 April 2018 the Applicant filed in this court an application for judicial review of the IAA Decision made on 26 March 2018 (Application). The Applicant also filed an affidavit to which was exhibited the IAA Decision.
The Application states two grounds:
1. The [IAA] denied the Applicant procedural fairness in its failure to alert the applicant to new issues arising before the [IAA] of which the Applicant was not previously aware and in the alternative the [IAA] denied procedural fairness because the [IAA’s] reasoning departed from the [Delegate’s] reasoning, resulting in a practical injustice to the Applicant (Ground One).
2. The [IAA] constructively failed to review the decision of the [D]elegate, and failed to conduct a review as required under section 473CC (1) of the Act, by failing to inform the applicant of issues arising on review, and failing to consider its discretion under section 473DC to get new information from the applicant
(Ground Two).
By his response the Minister contended that the grounds of the Application were broad and unparticularised and that without further particularisation and application of the facts to the case, they were incapable of establishing a jurisdictional error. The Minister sought dismissal of the proceeding on the basis that no arguable case for jurisdictional error was raised.
The Application was listed for directions on 12 June 2018. On that date the parties agreed in consent orders that the proceeding be listed for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (Rules). Further orders were made giving the Applicant an opportunity to file an amended application with proper particulars of the grounds of the Application and orders relating to the filing of submissions and a court book.
The Applicant did not take the opportunity to file an amended Application or to file a submission.
The Minister’s submissions responded to the Application itself (Minister’s Submission).
The show cause hearing pursuant to r.44.12 of the Rules took place on 2 August 2018 (hearing). It was conducted by video link between Melbourne and Christmas Island. The Applicant had an interpreter to assist him at the hearing. The interpreter was located in the courtroom in Melbourne.
At the hearing the solicitor for the Minister drew the court’s attention to a letter dated 19 July 2018 that the Applicant had sent by email to the court and to the solicitors for the Minister on 21 July 2018 (Letter). The substance of the Letter was in effect a further ground of the Application. At the hearing the Applicant sought to rely upon the contents of the Letter.
Rule 44.13(1) of the Rules provides that at the hearing of an application for an order to show cause, an applicant is confined to the relief sought and the grounds mentioned in the application. However, the court may in the interests of justice dispense with compliance, or full compliance, with any of the Rules at any time: r.1.06(1).
The solicitor for the Minister submitted that the Minister would not oppose an order that the Letter be considered as part of the Application. Therefore at the hearing I ordered pursuant to r.1.06 of the Rules that the Letter was to be considered part of the Application.
Applicable Principles
Show cause hearings
The relief sought in the Application was for an order that the Respondents show cause why a remedy ought not be granted in respect of the IAA Decision affirming the Delegate’s Decision to refuse the SHEV application: r.44.05 Rules.
As set out above, on 12 June 2018 the Application was fixed by consent for a show cause hearing under r.44.12 of the Rules. Rule 44.12(1) gives power to the court at the hearing of a show cause application, to dismiss the proceeding or to adjourn the proceeding for a final hearing or to make final orders in relation to the claims for relief.
At a show cause hearing the course which the court may adopt will depend upon whether the applicant has raised an arguable case for relief: r.44.12(1)(a)-(c).
A dismissal under r.44.12(1)(a) is an interlocutory order: r.44.12(2).
The power conferred by r.44.12 has been described as a form of summary dismissal: MZAJQvMinister for Immigration & Anor [2015] FCCA 593, [13] (Whelan J); SZUTB v Minister for Immigration & Anor [2015] FCCA 1383, [10] (Smith J) (SZUTB).
The principles relating to summary judgment are well settled: Spencer v Commonwealth of Australia (2010) 241 CLR 118 (Spencer). In Unpaid Systems Ltd v Telstra Corporation Ltd (2016) 122 IPR 190 (Unpaid Systems) the Full Court (Perram, Jagot and Beach JJ) considered the principles applicable to summary judgment not to be in doubt. After considering the principles in Spencer the Full Court summarised the relevant principles as follows (at [46]–[49]):
a)First, a proceeding or claim need not be “hopeless” or “bound to fail” for it to have no reasonable prospect of success.
b)Second, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification.
c)Third, the exercise of the power should be exercised with caution, particularly where complex questions of fact and law are involved.
d)Fourth, the intensifying epithets of “clearly”, “manifestly” or “obviously”, “frivolous”, “untenable”, “groundless” or “faulty” should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment.
The propositions stated in Unpaid Systems were endorsed by the Full Federal Court in Nichol v Discovery Africa Ltd (2016) 343 ALR 594, [141] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey [2017] FCA 1136, [15-16] (Kenny J).
In SZUTB Smith J held (at [12]):
The power in r 44.12(1)(a) has two components: lack of satisfaction that an applicant has raised an arguable case for the relief claimed, and a residual discretion whether or not to dismiss the application: Siddique v Minister for Immigration and Border Protection (2014) 144 ALD 328 at [19] citing SZTTW v Minister for Immigration and Border Protection [2014] FCA 837 at [20].
I apply these principles in determining this show cause application.
Legislative Framework
The IAA Decision is a privative clause decision as defined by s.474(2) of the Act. Section 474 operates to prevent the judicial review of all decisions under the Act except those vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
Consideration
Approach to this Application
The Applicant was self represented at the hearing and, as noted above, did not amend the Application to provide particulars of the grounds of the Application or file submissions. The Applicant is also presently in detention. He appeared by video link from Christmas Island with the assistance of a Vietnamese interpreter who was located in the courtroom in Melbourne.
I have assumed that the Applicant was unfamiliar with court processes: cf AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 [44(g)]; Ngu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21, [11]-[15] (Spender J, Branson and Stone JJ agreeing).
The court ought to afford appropriate leniency as to procedural requirements having regard to the Applicant’s lack of legal representation: Hay v Minister for Home Affairs [2018] FCAFC 149 (Hay), [6].
The Applicant nevertheless must comply with requirements to state and particularise his case in a manner that discloses adequately his grounds: Hay [6]; BBT16 v Minister for Home Affairs [2018] FCA 1225 (BBT16), [3]-[5].
As noted above, at the hearing the Applicant was given the opportunity to rely upon a further ground of review contained in the Letter.
At the commencement of the hearing the Applicant was given an opportunity to explain orally the matters that he relied upon as giving rise to the grounds of the Application. At the conclusion of the hearing the Applicant was also given an opportunity to respond to the submissions made by the Minister.
Applicant’s Oral Submission
At the commencement of the hearing the Applicant said that in the process of investigation and assessment through the IAA they said that after he returned to Vietnam he would be put into jail. He questioned whether the IAA fully understood what impact this would have on him. He said that the IAA had disregarded his situation and did not understand fully the issues involved. He also said that he was the one who was the victim of the process.
The Applicant did not identify which ground of review that these comments were directed towards.
The solicitor for the Minister responded to the Applicant’s argument that the IAA did not consider his claims of what would happen to him upon his return to Vietnam. It was submitted that the IAA considered this issue in relation to the refugee assessment in paragraphs 29 to 34 of the IAA Decision. The IAA also considered this issue in relation to complementary protection in paragraphs 44 to 48 of the IAA Decision. In both cases the IAA considered and rejected the claims.
Ground One
The Applicant contends in Ground One that:
The [IAA] denied the Applicant procedural fairness in its failure to alert the applicant to new issues arising before the [IAA] of which the applicant was not previously aware and in the alternative the [IAA] denied procedural fairness because the [IAA’s] reasoning departed from the [Delegate’s] reasoning, resulting in a practical injustice to the Applicant.
The Minister’s Submissions contended that Ground One was bound to fail. In relation to the reasoning in the IAA Decision, it was submitted that the IAA did not depart from the Delegate’s reasoning. Both the Delegate and the IAA accepted the Applicant’s claims, except for his claim to protest if returned. The IAA and the Delegate both found that the Applicant would not be harmed on account of his low profile and the improved situation for Catholics in Vietnam.
It was submitted on behalf of the Minister that there were therefore no new issues before the IAA which were not already in issue before the Delegate.
It was also submitted on behalf of the Minister that in any event, the IAA does not fall into error by departing from the Delegate’s reasoning and that the IAA is not obliged to put the Applicant on notice that it may do so. The Minister’s Submission relied on DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 (DGZ16) where the Full Court of the Federal Court (Reeves, Robertson and Rangiah JJ) said (at [72]):
In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
In relation to the Applicant’s allegation that the IAA denied him procedural fairness, it was submitted on behalf of the Minister that there is no equivalent duty on the IAA to that found in s.425 of the Act. Section 425(1) of the Act provides that the Administrative Appeals Tribunal must invite an applicant to appear before it to give evidence and to present arguments relating to the issues in relation to the decision under review, subject to certain circumstances set out in s.425(2).
The Minister’s Submission in relation to procedural fairness relied on DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 (DBE16) where Barker J said (at [62]):
Section 473DA(1) of the Migration Act makes clear that Div 3 of Pt of 7AA, together with s 473GB, is an exhaustive statement of the natural justice hearing rule in relation to reviews by the Authority. The provision may be contrasted with s 422B(1), which deals with reviews by the Administrative Appeals Tribunal under Pt 7 of the Migration Act. Section 422B(1) provides that Div 4 of Pt 7 is an exhaustive statement of the natural justice hearing rule “in relation to the matters it deals with”, suggesting that there is still some scope for the operation of common law principles of natural justice that are able to operate consistently with the provisions in Div 4 of Pt 7. See Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23. Markedly, s 473DA(1) is not qualified in this manner.
The Minister’s Submission also relied in this regard upon Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (CRY16) where the Full Court of the Federal Court (Robertson, Murphy and Kerr JJ) said (at [67]):
[…] in light of the terms of s 473DA it is important to consider the present issue through the lens of Div 3 and the principles of legal reasonableness rather than the principles of procedural fairness.
Ground Two
The Applicant contends in Ground Two:
The [IAA] constructively failed to review the decision of the [D]elegate, and failed to conduct a review as required under section 473CC(1) of the Act, by failing to inform the applicant of issues arising on review, and failing to consider its discretion under section 473DC to get new information from the applicant.
On behalf of the Minister it was submitted that the Minister understood Ground Two to be alleging two matters, these being that the IAA failed to:
a)Inform the Applicant of the issues on review; and
b)Consider to use its discretion under s.473DC of the Act to get new information from the Applicant.
Relevantly s.473DC of the Act provides:
473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
The Minister’s Submissions contended that Ground Two was effectively making the same argument as that considered in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 (DZU16) and in CRY16. In those matters the IAA found that it was reasonable for the applicants to relocate to areas not previously put to the applicant. In CRY16 the Full Court of the Federal Court held it was legally unreasonable for the IAA not to exercise or to consider exercising its discretion to inform the applicant of the dispositive issue not known to the applicant without an evident or intelligible justification (CRY16, [82]).
It was submitted on behalf of the Minister that the present matter is distinguishable from DZU16 and CRY16.This is because in the present matter the Applicant was aware of the issues before the IAA and these issues were the same as the issues that were before the Delegate. The Applicant provided evidence on these issues at his SHEV interview before the Delegate and also provided submissions on these issues to the IAA. It was submitted on behalf of the Minister that unlike in DZU16 and CRY16, there were no new issues arising before the IAA on which the Applicant could be invited to comment. Any invitation to comment in the present case would be simply asking the Applicant to reiterate the truth of his previous claims and evidence.
It was submitted on behalf of the Minister that the IAA was therefore not required to consider putting any further issues to the Applicant or invite him to comment on them. Further the IAA gave clear and cogent reasons for declining the Applicant’s request for an interview. Therefore it was not legally unreasonable for the IAA not to exercise its discretion to obtain new information from the Applicant, either in writing or at an interview.
It was therefore submitted on behalf of the Minister that Ground Two was also bound to fail.
Letter – Ground Three
The Letter dated 19 July 2018 raised a further ground of review in the Application (Ground Three). As Ground Three was not included in the usual form by way of an amended Application I will set the ground out in full, omitting formal and irrelevant parts.
Ground Three is as follows:
I believe that the IAA made an error in my case by failing to give genuine and proper consideration to the country information and/or making an illogical/unreasonable construction or misrepresentation of the country information where there was no evidence for that construction.
The Authority notes at [30] that there is some information before it that some individuals have been imprisoned on return to Vietnam from Australia, but that the information suggests this was not on the basis of their status as failed asylum seekers or their prolonged residence here, but rather because they have committed criminal offences or were know (sic) political or religious dissidents or members of ethnic minorities [30].
The country information referred to at [30] does not stand for the broad proposition that the Authority claims that it does. The three reports are footnoted at footnotes 20 and 21 are two articles from Human Rights Watch and one from the Guardian. These reports are referred to and discussed in the legal submissions made to the Delegate (CB 133-136).
The Guardian article refers to four asylum seekers returned from Australia who will soon appear in court for illegal departure from Vietnam, and to a further four others already jailed for between two and three years for illegal departure, despite written assurances from the Vietnamese government to Australia that they would not be punished on return. The Guardian article states that the four were convicted under article 275 of the penal code, designed to combat human trafficking for commercial sexual exploitation. The second group of four were charged under the same provision, for their role in organising the trip and by the boat. Whilst the Human Rights Watch article of 1 August 2016 refers to prominent activists and bloggers facing violence and criminal sanctions, it does mention that the sentences for the convictions for the eight individuals mentioned above, under article 275 of the penal code.
As submitted by my lawyers Refugee Legal (CB 133), Article 91 of the Penal Code criminalises fleeing or defecting abroad with a view to opposing the government, which also applies to me. None of the three articles state that the eight individuals charged or convicted were political or religious dissidents or members of ethnic minorities.
When the country information is looked at fairly and as a whole, the Authority’s treatment of it was unreasonable or illogical.
It was submitted on behalf of the Minister that by Ground Three the Applicant contends that the IAA made an error by:
a)Failing to give genuine and proper consideration to the country information; and or alternatively
b)Making an illogical or unreasonable construction or misrepresentation of that country information where there was no evidence for that construction.
It was submitted on behalf of the Minister that the Applicant in particular takes issue with paragraph 30 of the IAA Decision. The relevant part of paragraph 30 is as follows:
There is information before me that some individuals have been imprisoned on return to Vietnam from Australia (21). However, the information suggests this was not on the basis of their status as failed asylum seekers, or their prolonged residence here, but rather because they committed criminal offences, were known political or religious dissidents or were members of ethnic minorities (22).
(citations omitted)
It was submitted on behalf of the Minister that the IAA’s treatment of the county information in paragraph 30 was not unreasonable or illogical.
The first submission in response was that the Applicant had misunderstood the IAA’s finding at paragraph 30 and this was evident in second last paragraph of the Letter which says:
None of the three articles state that the eight individuals charged or convicted were political or religious dissidents or members of ethnic minorities.
It was submitted on behalf of the Minister that in paragraph 30 the IAA has said that there were three distinct groups that were at risk of being imprisoned on return to Vietnam from Australia. These groups are: (1) those who have committed criminal offences; (2) political or religious dissidents; and (3) members of ethnic minorities. It was submitted on behalf of the Minister that the Applicant had misunderstood paragraph 30 to mean that there were only two groups being: (1) those who had committed criminal offences; and (2) political or religious dissidents and members of ethnic minorities.
It was further submitted on behalf of the Minister that the reference to the three articles referred to in footnotes 21 and 22 to paragraph 30 confirmed the Applicant’s misunderstanding in relation to paragraph 30. These three articles were provided by the Applicant’s solicitors and were referred to in the Applicant’s Solicitors’ submission to the Delegate dated 17 November 2017 (Part 3.2 ‘Treatment of Returnees’). Reference was made to an article by Ben Doherty, ‘Vietnamese asylum seekers forcibly returned by Australia face jail’, The Guardian Australia, 24 May 2016 (Guardian Australia article). This article was extensively quoted from in the Applicant’s Solicitors’ submission. The extracts quoted report that in early 2016 four people were convicted and jailed in Vietnam for people smuggling. Reference in the submission is also made to Human Rights Watch, ‘Vietnam: Drop Charges Against Boat Returnees’’, 24 May 2016 and ‘Vietnam: Show Rights Commitment at Australia Talks’, 1 August 2016 (Human Rights Watch articles). A quotation from the 1 August 2016 article in the Applicant’s Solicitors’ submission reports that four other people were convicted in May 2016 and sentenced to imprisonment for two to three years for people smuggling.
It was submitted on behalf of the Minister that having regard to the submissions made by the Applicant’s Solicitors, and the two reports referred to in the preceding paragraph, it was open to the IAA to make the finding that those likely to be imprisoned on return to Vietnam are those wanted for criminal offences such as people smuggling rather than their status as failed asylum seekers.
It was also submitted that to the extent that the IAA made a finding that other groups are likely to be imprisoned on return to Vietnam, those being religious or political dissidents or ethnic minorities, footnote 22 of paragraph 30 relied on 2 further sources. These were the ‘DFAT Country Information Report Vietnam’, DFAT, 21 June 2017 (2017 DFAT Country Information Report) and “Vietnam jails four asylum seekers over voyage to Australia despite ‘no retribution’ promise”, ABC News (Australia), 26 May 2016 (ABC News Report).
The Solicitor for the Minister referred to the Delegate’s Decision, Part 6 ‘Australia’s protection obligations’ where the Delegate referred to the 2017 DFAT Country Report and said (at 8):
The DFAT Report also suggests that in general those who have been detained upon return have been due to their political views (held or imputed) rather than the fact they sought asylum.
It was therefore submitted on behalf of the Minister that in relation to these four articles there was support for the IAA’s finding at paragraph 30, that those likely to be imprisoned on return are those charged with a criminal offences such a people smuggling or were religious or political dissidents. It was conceded that the evidence made no mention of ethnic minorities, however it was noted that the full 2017 DFAT Country Information Report was not in evidence before the Court.
It was submitted on behalf of the Minister that the IAA’s treatment of the Country Information referred to in paragraph 30 and in particular footnotes 21 and 22 was not unreasonable or illogical as contended by the Applicant.
The Applicant responded to the Minister’s submissions in relation to Ground Three. He said that when he returns to Vietnam he could suffer a lot of harm in prison or be persecuted. He questioned how long his term of imprisonment would be. He said that the last time he was imprisoned in Vietnam after being returned from Indonesia in 2012, it was a traumatic and frightening experience for him. He suggested that the Vietnamese authorities would definitely detain him and torture him, which would have a significant impact upon him both physically and mentally. He said that this would also have an effect on his family.
Conclusion
I turn to consider Ground One. This ground is broad and unparticularised and without further particularisation and application of the facts to the case, the allegations made in Ground One are incapable of establishing a jurisdictional error. An applicant must comply with the requirements to state and particularise their case in a manner that discloses adequately the grounds: Hay [6]; BBT16, [3]-[5]. Failure to particularise a ground of review is sufficient basis for it to be dismissed: WZATH v Minister for Immigration [2014] FCCA 612, [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.
At the hearing the Applicant made an oral submission. This submission did not provide any further explanation or information in relation to:
a)Any new issue that had arisen before the IAA that the Applicant had not been previously aware of; or
b)How the IAA’s reasoning had departed from the Delegate’s reasoning.
The consequence is that the failure to provide particulars of Ground One is that it is not known what, if any, new issue arose before the IAA that the Applicant had not been previously aware of. It is also not know in what respect it is alleged that the IAA’s reasoning departed from the Delegate’s reasoning.
Therefore in these circumstances alone I find that the Applicant has failed to disclose an arguable case for the relief claimed for Ground One.
I also consider further the submissions on behalf of the Minister in relation to Ground One. The substance of the Minister’s submission was that the IAA did not in fact depart from the Delegate’s reasoning. There were therefore no new issues before the IAA which were not already in issue before the Delegate. I accept this submission. I also agree with the Minister’s submission that the IAA does not fall into error by departing from the Delegate’s reasoning and that the IAA is not obliged to put the Applicant on notice that it may do so: DGZ16, [72].
I also accept the Minister’s submissions in relation to procedural fairness and that there is no equivalent duty on the IAA to that found in s.425 of the Act: DBE16, [62]; CRY16 [67]. There was no denial of procedural fairness as alleged by the Applicant.
Therefore I find that that the Applicant has failed to disclose an arguable case for the relief claimed and I dismiss Ground One.
Ground Two is also unparticularised. I repeat my observations in paragraph 87 in relation to Ground Two.
The Applicant’s oral submissions at the hearing did not provide any further explanation or information in relation to Ground Two. In particular no information was provided as to:
a)What issues the IAA failed to inform the Applicant on review;
b)What new information could or should have been obtained from the Applicant.
As with Ground One, the consequence of failing to provide particulars to Ground Two is that it is not known what issues arising from the review (if any), the IAA are alleged to have failed to have inform the Applicant about. Further it is not known what new information is alleged could or should have been obtained from the Applicant pursuant to s.473DC of the Act.
In these circumstances alone, I find that the Applicant has failed to disclose an arguable case for the relief claimed in Ground Two.
I also consider further the submissions on behalf of the Minister in relation to Ground Two. The IAA may only obtain new information if it satisfies the requirements of s.473DC(1) of the Act. Further the IAA does not have a duty to get new information: s.473DC(2).
The Minister contended that the in the present matter that Applicant was aware of the issues before the IAA and these issues were the same as the issues that were before the Delegate. There were no new issues upon which the Applicant could be invited to comment. Any invitation to comment would be simply asking the Applicant to reiterate the truth of the previous claims and evidence. I note that the Applicant’s Further Statement substantially reiterated claims made previously. Paragraphs 3 to 6 of the IAA Decision gave clear and cogent reasons for the IAA declining the Applicant’s request for an interview.
I accept the Minister’s submissions in relation to Ground Two. I therefore find that it was not legally unreasonable for the IAA not to exercise its discretion to obtain new information from the Applicant, either in writing or at interview.
Therefore I find that the Applicant has failed to disclose an arguable case for the relief claimed and I dismiss Ground Two.
I turn to Ground Three. The Applicant’s oral submissions made at the hearing were directed to this ground, as set out in paragraph 56 and 86.
The references in footnote 22 of paragraph 30 of the IAA Decision refer to more than just the Guardian Australia article and the Human Rights Watch articles. There is also reference to the 2017 DFAT Country Information Report and the ABC News Report. It is therefore apparent that the IAA has relied on more than just the Guardian Australia Article and the Human Rights Watch Articles in forming its opinions.
The full 2017 DFAT Country Report was not before the Court, however the Delegates’ Decision referred to the 2017 DFAT Country Report and said (at 8):
The DFAT Report also suggests that in general those who have been detained upon return have been due to their political views (held or imputed) rather than the fact they sought asylum.
In my view Ground Three is misconceived and there is no reasonable basis for the allegations made in the Letter. The allegations rely upon information contained in three articles only, the Guardian Australia article and the Human Rights Watch Articles. The allegations ignore the information contained in the 2017 DFAT Country Information Report. The allegations also ignore the findings and all the rest of the information that is contained in the IAA Decision.
In my view the findings in paragraph 30 of the IAA Report were open to the IAA on all of the evidence before it. The findings in paragraph 30 were not illogical or unreasonable as contended by the Applicant.
I find that the Applicant has failed to disclose an arguable case for the relief claimed and I dismiss Ground Three.
I am therefore not satisfied that the Application has raised an arguable case for the relief claimed for any of the grounds. I am satisfied in the in the circumstances that it is appropriate to dismiss the Application pursuant to r.44.12(1)(a) of the Rules.
Orders
I therefore make the following orders:
(1) The Application is dismissed.
(2)The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $3,667.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Kirton
Associate:
Date: 14 September 2018
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