CDY17 v Minister for Immigration

[2020] FCCA 1715

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDY17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1715

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority afforded the applicant procedural fairness – whether the Authority failed to consider evidence or take into account a relevant consideration – whether there was actual or apprehended bias by the Authority – whether the Authority misconstrued the relevant law – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473DB, 473DC, 476

Applicant: CDY17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 260 of 2017

Judgment of: Judge Street

Hearing date: 25 June 2020

Date of Last Submission: 25 June 2020

Delivered at: Sydney

Delivered on: 15 July 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Ms S Anicic, Australian Government Solicitor, via Microsoft Teams

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 260 of 2017

CDY17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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 Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act made on 19 April 2017, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Vietnam and his claims were assessed against that country. 

3. The applicant arrived in Australia as an unauthorised maritime arrival on 13 June 2013. 

4. In summary, the applicant claimed to fear harm by reason of his Catholic faith.

5. On 1 February 2017, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. 

6. The Authority wrote to the applicant on 6 February 2017 to explain that the application had been referred to the Authority for review, the letter providing an attached fact sheet and Practice Direction, giving the applicant an opportunity to put on new information and submissions. No such documents were filed.

7. The Authority, in its reasons, identified the background to the Safe Haven Enterprise visa application and had regard to the material referred by the Secretary under s 473CB of the Act. 

8. The Authority summarised the applicant’s claims and, in particular, an alleged incident involving the applicant attending a church in 2012 and events the applicant alleges occurred thereafter.

9. The Authority was not satisfied that the applicant attended the Church on 1 July 2012. The Authority was prepared to accept that the applicant attended at a later date on 15 July 2012. 

10. The Authority was of the view, considering the significant number of people involved in the rallies, that it was not plausible that the applicant was followed home by four individuals. The Authority found that there was nothing in the information about participants in the 15 July 2012 rallies to indicate that they were arrested or questioned by police due to their attendance or involvement. The Authority concluded that the applicant was not issued with an arrest warrant or summons to attend a district police station, due to his attendance. The Authority did not accept that the applicant went into hiding. The Authority did not accept the applicant’s claim that participants in the rally were beaten in prison and had not yet been released. 

11. The Authority found that the applicant had not been the victim of any persecution or adverse attention on the basis of his faith. 

12. The Authority referred to the relevant law, including in an attachment, incorporated by pagination, of the applicable law. 

13. The Authority noted that the applicant has not stated that any members of his family have experienced any harm or discrimination due to their Catholic faith. The Authority found that they had not.

14. The Authority was satisfied that the applicant would not, in the future, be harmed due to his attendance at one of the rallies in July 2012 and the Authority found that the applicant has experienced no direct or indirect harm or harassment during or as a result of his church attendance in the past. 

15. The Authority found that the applicant would not have a profile of a kind that would concern the Vietnamese authorities on return to Vietnam. The Authority found that the applicant is a low-profile member of the Catholic Church. The Authority found that there is not a real chance of the applicant being harmed on the basis of his Catholic faith and his attendance at church.

16. The Authority referred to the applicant’s claims that he would be targeted by the Authorities as a returning asylum seeker, as well as because of the data breach. The Authority found the possibility of Vietnamese authorities accessing or obtaining information, whether in general or in a way that specifically identified the applicant, to be highly remote and also identified the limited nature of the information provided on the website in that data breach. 

17. The Authority accepted that the applicant had departed Vietnam illegally and may be liable to a fine on that basis. The Authority was not satisfied that the applicant faces a real chance of harm on the basis that he departed Vietnam illegally, having taken into account country information, or the time the applicant has spent in Australia, or having unsuccessfully sought Asylum in Australia.

18. The Authority found that the applicant did not meet the definition of refugee in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act.

19. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Vietnam, there is a real risk the applicant would suffer significant harm.

20. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 19 May 2017. On 21 July 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submission. No such documents have been filed. 

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the nature of the hearing, as explained by the Court. 

The grounds

1. The grounds in the application are as follows:

   1.I was not afforded procedural fairness

   2.I think the Decision maker did not consider all of the evidence or did not take into account relevant consideration

   3.I think the Decision is affected by bias

   4.I think the Decision maker misinterpreted the law.

2. The applicant orally submitted that the situation in Vietnam is very different and that he would be put in jail. It is apparent that the Authority took into account the applicant’s claims in relation to his illegal departure and made adverse findings that were open to the Authority for reasons given by the Authority.

3. The applicant’s submissions otherwise referred to alleged or recent events that were not before the Authority. Matters not before the Authority and that did not clearly arise on the material before the Authority are not capable of giving rise to any relevant error in respect of the applicant’s claims.

4. The applicant’s submissions, otherwise, were ones in which the applicant requested a chance to stay in Australia. The Court explained to the applicant that the Court could not determine the matter on compassionate and discretionary grounds. 

5. The applicant’s submissions, orally, invited the Court to determine the matter by inviting impermissible merits review. This Court has no power to review the merits.

Ground 1

1. Nothing said by the applicant identified any basis for a jurisdictional error in relation to ground 1. 

2. The Authority was conducting a review under pt 7AA of the Act and on the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. 

3. There was no new issue of a kind that warranted express consideration by the Authority of the exercise of their powers under s 473DC of the Act. Given the opportunity that the Authority provided to the applicant to put on new information and submissions, the lack of any express reference to s 473DC of the Act cannot be said to lack an evident and intelligible justification.

4. The Authority was required to conduct a review, subject to the provisions of pt 7AA of the Act, in accordance with section 473DB of the Act without accepting a request for new information or without interviewing the referred applicant. 

5. There is nothing on the face of the material before the Court to support a basis for finding that the Authority exceeded its statutory power in the conduct of the review. 

6. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, there is no evidence or relevant consideration that has been identified that was not considered by the Authority. Further, without particulars this ground is incapable of making out any alleged error.

2. On the face of the material before the Court, the Authority correctly identified the applicant’s claims and had a genuine intellectual engagement with the applicant’s claims and evidence and made dispositive findings that were open for the reasons given by the Authority.

3. No jurisdictional error is made out by ground 2. 

Ground 3

1. In relation to ground 3, no conduct has been identified by reason of which a fair-minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits. 

2. On the face of the Authority’s reasons, the Authority conducted the review with an open mind, reasonably capable of persuasion as to the merits. 

3. The adverse finding by the Authority are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits.

4. An allegation of bias must be distinctly made and clearly proved. The general assertion of bias as advanced by the applicant is not sufficient and the Court finds that there was no actual or apprehended bias in the conduct of the review by the Authority. The Authority’s reasons reflect compliance with statutory obligations in the conduct of the review and carefully and independently assessing the applicant’s claims and making findings that were open to Authority on the material before the Authority.

5. Accordingly, no jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, on the face of the Authority’s reasons, the Authority correctly identified the relevant law.

2. Without particulars, ground 4 is incapable of making out any jurisdictional error. On the face of the material before the Court, the Authority correctly applied the relevant law as to whether the applicant met the criteria under the 1951 Refugee Convention, taking into account the statutory provisions and, in relation to complementary protection, taking into account the statutory provisions. 

3. No jurisdictional error as alleged in ground 4 is made out.

4. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Street.

Associate:

Date: 15 July 2020