CFT17 v Minister for Immigration

[2018] FCCA 513

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFT17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 513

Catchwords:
MIGRATION – Judicial review – protection visa application – decision of the Administrative Appeals Tribunal failed to reconcile inconsistent findings of fact – decision affected by jurisdictional error.

Legislation:

Migration Law Act 1958 (Cth), s.477

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Applicant: CFT17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 16 of 2017

Judgment of: Judge Young

Hearing date: 9 February 2018

Date of Last Submission: 9 February 2018

Delivered at: Darwin

Delivered on: 9 February 2018

REPRESENTATION

Counsel for the Applicant: Ms Nguyen

Solicitors for the Applicant: Robert Welfare Barristers & Solicitors

Counsel for the First Respondent: Mr Liveris

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. That an extension of time is granted to 25 May 2017.

2. That the decision of the Administrative Appeals Tribunal made on 27 October 2016 be quashed.

3. That the matter be remitted to the Administrative Appeals Tribunal for rehearing by a differently constituted Tribunal.

4. That the First Respondent pay the Applicant’s costs in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 16 of 2017

CFT17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Administrative Appeals Tribunal, made on 27 October 2016, to affirm the Minister’s delegate’s refusal of a protection visa.  The grounds of review are as follows:

   i)The First Respondent’s determination, that the Applicant would not be considered by the Vietnamese government to be an activist, was, in all the circumstances, and on the evidence and findings of facts based on his activities unreasonable (paragraph 27 of the Decision Record).

   ii)The First Respondent erred in its determination of a jurisdictional fact, namely a determination that the Applicant was not at risk of serious harm arising out of his seeking asylum in Australia, in light of evidence about his activities, and evidence that asylum seekers who are returned to Vietnam face treatment amounting to a significant harm upon return to Vietnam.

3. I will deal with ground 2 first.  The applicant sought to rely on an affidavit of a Ms Sebban, a journalist and refugee advocate.  In substance, the affidavit referred to newspaper reports and conversations that Ms Sebban had had with people in Vietnam.  The evidence was, in its terms, hearsay.  The applicant relied on the decision of Wilcox J in Prasad v Minister for Immigration (1985) 6 FCR 155 to assert that the information – that is, the newspaper reports referred to in Ms Sebban’s affidavit – was readily available and centrally relevant to the decision to be made, referring to Prasad at page 170.

4. I am not satisfied that the material satisfied the formula in Prasad.  The applicant submits that the Minister should have put the information set out in the newspaper reports – essentially about mistreatment of returning asylum seekers – to the Tribunal and even went as far as to submit that the Minister had a duty to do that.  Prasad is concerned with the decision-maker responsible for a decision having regard to relevant and readily available information.  The submissions seem to say that the Tribunal was required to make its own inquiries about newspaper or other reports that may be available before making a decision.  Really, the submission, in my view, was nothing more than an attack on the country information used by the Tribunal.

5. I was not satisfied that the information satisfied the test in Prasad of being readily available and centrally relevant and I refuse to allow reliance on the affidavit.  Consequently, ground 2 was not pressed by the applicant.

6. In relation to ground 1, the background is as follows.  The applicant is a practising Catholic from Nghe An province in Central Vietnam.  In 2012 he was involved in Catholic Church protests – or protests, perhaps, by members of the Catholic Church – against the government.  He was involved in a melee at what has been described as a prayer service, where anti-government banners or banners, at least, displaying messages unwelcome to the authorities were displayed.  The police objected and tried to remove the banners and a melee ensued.

7. The applicant was, either later that day or that night, arrested and detained by the police.  He was required to sign a form of confession and refused.  He was assaulted by police on two occasions as a result of his refusal, and when I say assaulted, I mean he was beaten up.  The Tribunal accepted the applicant’s account of those matters.  After three days he escaped from detention when his brother paid a bribe to a police officer to release him.  He then fled to Ho Chi Minh City and lived there for eight months between approximately July 2012 and March 2013.  He then left Vietnam, on his own passport, eventually arriving in Australia in December 2013.

8. After his departure the police issued summonses to him and continued to seek him, up to mid-2014, when the police, apparently, became aware that he was in Australia.  Those matters are also accepted by the Tribunal and there was no adverse credibility finding against the applicant on any point.

9. At paragraph 41 of the reasons the Tribunal considered the elements involved in reaching a conclusion that the applicant was not at risk of serious or significant harm as a consequence of him escaping detention.  The elements that are considered in paragraph 41 are as follows.  He was detained.  His brother bribed a guard or a police officer to obtain his release.  It was noted that there was no claim of “an arrest warrant” and the Tribunal referred to country information suggesting that the police would need to obtain any arrest warrant from an office called the “People’s Procuracy”.  The Tribunal concluded that the absence of any evidence of an arrest warrant, a conclusion reinforced in the Tribunal’s view by the fact that the applicant departed Vietnam on his own passport, supported the view that there was no arrest warrant issued for the applicant.

10. The Tribunal considered that, as a bribe was paid to a police officer, it would be reasonable that the police did not pursue the matter.  The Tribunal said that, considering these elements, it found that the likelihood of the applicant facing serious or significant harm, as described earlier in the Tribunal’s reasons, was remote.

11. The recitation of the elements taken into account by the Tribunal obviously excludes the finding that the police were seeking the applicant in mid-2014, that is, after his departure.  There is no evidence in the Tribunal’s reasons that it had attempted to reconcile these conflicting elements.  I am satisfied that they are conflicting.  The relevant sentence in paragraph 34 is:

    I accept that the summonses are valid based upon having accepted that he fled his detention and this would logical[ly] lead to the authorities pursuing him.  As such I also accept that up to mid-2014 the police were seeking the applicant.

    The relevant sentence in paragraph 41 is:

    Considering that a police official was bribed to release the applicant it would seem reasonable to assume that the police did not pursue the matter further.

12. In my view, those two observations are irreconcilable.  The Tribunal accepted that the police were seeking the applicant until well after his departure from Vietnam.  In enumerating the elements that the Tribunal took into account in reaching a conclusion that he was not at risk of serious or significant harm as a result of his escape that is omitted.  In discussion with counsel for the Minister I said that I was troubled by that omission and invited counsel to explain how those inconsistencies or apparent inconsistencies might be reconciled.

13. Counsel’s explanation, which I do not accept, was that, really, all that was being overlooked were summonses and a visit by the police.  As I say, the finding at 34 is unequivocal, that up until mid-2014 the applicant was being sought by the police.  As that was a central issue in assessing whether the applicant was at risk of serious or significant harm on his return to Vietnam, in my view, it was incumbent upon the Tribunal to attempt to reconcile those matters.  Its failure to do so suggests to me that it either overlooked an integer of the applicant’s claim or that it overlooked a relevant consideration.  It might be that there was some underlying rational process of consideration that had gone on but it is certainly not displayed in the reasons for decision and, in the circumstances, I think I am entitled to infer that the fact that the applicant continued to be sought by the police until well after his departure for Australia was overlooked. I consider that is a jurisdictional error.

14. I will quash the finding and make an order that the matter be returned to the Tribunal for consideration by a differently constituted Tribunal.

15. There is an application for extension of time in this matter.  The applicant relies on an affidavit of Mr Robert Welfare.  That affidavit is very brief but states that on 28 November 2016 which was some three or four days within time to seek review, the applicant was given legal aid to see a lawyer about the decision. Thereafter what happened is a little bit unclear but he apparently attended a civil advice session on 28 November, still within time, although the affidavit says it was then out of time. The affidavit would be mistaken, I think, about that because if the decision was on 27 October then 28 November it would be within time.

16. So, within time, the applicant consulted lawyers, was apparently given advice and, notwithstanding that the affidavit refers to someone unrelated to the proceeding – I take it that it was intended to refer to CFT17, was then referred to Mr Welfare in December and, thereafter, I am told that efforts were made to investigate his case during the Christmas and New Year period and in January and February and March investigations continued.  Ultimately, an affidavit was obtained from Ms Sebban – an affidavit that I found could not be relied on.

17. On 23 March an application for a fee exemption was sought from the registry of this court, then an application was made for legal aid in March.  Apparently legal aid was refused and the application was ultimately not made until it was filed on 25 May.  In my view, that is an extraordinary delay and, in my estimation, is not adequately explained other than by unexplained delay of lawyers.  It does not reflect well on them.

18. On the other hand, I accept that CFT17, the applicant, is unfamiliar with English, unfamiliar with legal processes and was until released – I am not told when in the affidavit – in detention.  I consider all those matters would create great difficulty in him making an application unassisted.  He was therefore dependent upon some assistance, however tardy it may have been.

19. Section 477 of the Migration Act 1958 (Cth) allows for an extension of time if it is in the interests of the administration of justice to do so. The factors to be taken into account are not limited but often include an adequate explanation of the delay; whether or not the respondent is prejudiced and there is no evidence that that is the case here, and the merits of the application. I consider the explanation pretty poor, really, as I have already indicated but I take into account that the applicant was reliant on lawyers. The respondent has suffered no prejudice and, ultimately, I have found that there is merit to the application so I will extend time.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  6 March 2018