CGK15 v Minister for Immigration
[2016] FCCA 1463
•16 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CGK15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1463 |
| Catchwords: MIGRATION – Refugee application – Vietnamese citizen – lack of credibility. |
| Legislation: Migration Act 1958 (Cth), ss.36(2A), 424A, 477 |
| Cases cited: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 Thevendram v Minister for Immigration and Multicultural Affairs [2000] FCA 1910 |
| Applicant: | CGK15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | DNG 63 of 2015 |
| Judgment of: | Judge Young |
| Hearing date: | 3 June 2016 |
| Date of Last Submission: | 3 June 2016 |
| Delivered at: | Darwin |
| Delivered on: | 16 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Nguyen |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for an extension of time is granted.
The application filed 30 October 2015 is dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 63 of 2015
| CGK15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision by the Administrative Appeals Tribunal to reject an application for a protection visa.
The applicant is a citizen of Vietnam. He is 43 years old. The applicant claimed to have a well-founded fear of persecution because of his agitation in 2011 or 2012 against corruption by officials in his village. The delegate and the Tribunal found he lacked credibility and his claim was rejected.
Chronology
It is useful to set out a chronology:
2007 - 2008applicant convicted of producing drugs, imprisoned for 15 months and deported from UK to Vietnam
2011 – 2012 applicant claims persecution by officials in Vietnam
8.3.2013applicant left Vietnam legally on tourist visa to Indonesia
5.4.2013applicant arrives in Australia and undergoes entry interview and states that he has not resided in any other country
21.8.2013applicant interviewed by Vietnamese immigration officials at Yongah Hill IDC
contemporaneous record of interview questions made by Australian official
1.4.2014UK authorities provide information that applicant had entered the UK illegally in 2007, been convicted of drugs production and sentenced to 15 months imprisonment, made an application for asylum which was withdrawn on 20.2.2008 and was deported on 18.6.2008
6.6.2014applicant applies for refugee visa and falsely states that he has not been convicted of any offence, has not been imprisoned and has not been deported from another country
27.10.2014interviewed by delegate. Applicant admits entering the UK illegally in 2007, being convicted of drugs production and imprisoned for 15 months, making an application for asylum which he withdrew on 20.2.2008 and being deported on 18.6.2008
9.1.2015 application rejected by delegate
19.1.2015application to Tribunal signed by applicant and attaching delegate’s decision
4.2.2015letter to applicant from his lawyers enclosing decision record of delegate and advising him of interview with the Tribunal on 20.3.2015
applicant’s lawyers advise applicant that they no longer act for him
7.3.2015Ms Thompson, a refugee advocate, meets applicant at Yongah Hill IDC
20.3.2015 Tribunal interview is adjourned
Ms Thompson makes FOI application on behalf of applicant for “records of his stay in immigration detention”
23.3.2015 applicant transferred to Wickham Point IDC, Darwin
26.3.2015 Ms Thompson authorised to become “authorised recipient”
8.4.2015Tribunal advises Ms Thompson as authorised recipient that interview is scheduled for 14.4.2015
Ms Thompson seeks adjournment on basis that applicant “still doesn’t have a copy” of the delegate’s decision and she is still waiting on a response to her FOI request
9.4.2015Tribunal notifies Ms Thompson that it refuses to adjourn interview
10.4.2015Department sends documents to Ms Thompson in answer to FOI request including 100 pages of the “departmental file” but not including the “detainee dossier” and audio recording of applicants interview with delegate which are put on a CD and sent by post
14.4.2015 Tribunal interview
15.4.2015Ms Thompson invited to make written submissions on behalf of applicant
20.4.15Ms Thompson makes written submissions
30.5.2015 Tribunal decision
3.6.2015 decision emailed to Ms Thompson
30.10.2015 application to court
The application identified eight grounds of review but at the hearing the applicant relied on grounds 1, 4, 7, and 8 only. The grounds were not argued in that order at the hearing and it is convenient to deal with the arguments in the order addressed in the applicant’s submissions.
Ground 1
Ground 1 is:
The [Tribunal] denied the applicant procedural fairness at his refugee review hearing when it denied his request for adjournment of the hearing date to enable his representative to obtain the decision of the Immigration Delegate and other relevant material.
It is potentially misleading to refer to the applicant’s “representative”. The applicant was not represented before the Tribunal by a lawyer or migration agent. A lay person interested in refugee matters, Ms Thompson, assisted him.
On 4 February 2015 the applicant’s former lawyers wrote to him and enclosed the delegate’s decision record and notice that the applicant was invited to attend before the Tribunal on 20 March 2015. The lawyers advised the applicant that they would no longer represent him.
On 7 March 2015 Ms Thompson visited the Yongah Hill Immigration Detention Centre and met the applicant. On that day the applicant signed a form which nominated her as his authorised recipient for communications with the Tribunal. On 20 March 2015 Ms Thompson made a FOI application on behalf of the applicant seeking “records of his stay in immigration detention”. On 8 April 2015 Ms Thompson was notified that the applicant’s interview before the Tribunal would go ahead on 14 April 2015. On that day she sought an adjournment of the hearing on the basis that the applicant “still doesn’t have a copy” of the delegate’s decision and was still awaiting the information sought in the FOI request. On 9 April 2015 the Tribunal wrote to Ms Thompson and advised that it refused the application for adjournment. On 10 April 2015 the department answered the FOI request by email. It included 100 pages of the “departmental file” and advised Ms Thompson that the “detainee dossier” and the “audio recording” of the interview before the delegate would be sent separately by post in a CD.
On 14 April 2015 the hearing went ahead. The applicant appeared by video-link from Wickham Point Immigration Detention Centre in Darwin and the Tribunal and Ms Thompson were present in a hearing room in Perth. Ms Thompson deposes that she was not permitted to speak but she was able to hear the Tribunal’s questions and the applicant’s answers. It might be assumed that as Ms Thompson was neither a lawyer nor a migration agent that the Tribunal took the view that she had no right of appearance on behalf of the applicant. Nevertheless Ms Thompson was an observer during the interview. She deposes that the interpreter “on quite a few occasions” asked the applicant to repeat his answers and that he often had to ask her to repeat her questions. Ms Thompson deposes that she subsequently spoke to the interpreter who said the applicant spoke an unusual dialect which she found “hard to understand”. No objection was taken to the admission of this evidence.
On 15 April 2015 the Tribunal notified Ms Thompson by email that she would be allowed to make written submissions on behalf of the applicant by 24 April 2015. Ms Thompson subsequently filed a nine page submission[1] which dealt with the following matters:
a)Country information compiled by Human Rights Watch and a publication by Campaign to Abolish Torture in Vietnam “Vietnam: Torture and Abuse of Political and Religious Prisoners”;
b)Material relating to Article 91 of the Vietnamese Penal Code dealing with those “who flee abroad or defect overseas with a view to opposing the people’s administration”;
c)A Human Rights Watch publication: “Deaths in Custody and Police Brutality in Vietnam”;
d)Material concerning the International Convention on Civil and Political Rights and the Convention on Torture;
e)Information about the data breach or release of personal information in February 2014 when some personal information about detainees was accidentally posted on the departmental website. A KPMG report about that incident was enclosed;
f)Submissions relating to interviews by Vietnamese immigration officials (“A18”) on 21 August 2013 of Vietnamese detainees at Yongah Hill Immigration Detention Centre and some information relating to the Commonwealth Ombudsman’s enquiry into that matter; and
g)A submission relating to complementary protection concerning police abuses and torture of people in custody in Vietnam.
[1] Court book 177 – 185.
The submission included extensive attachments. There was no submission about the applicant’s credibility or his alleged persecution in Vietnam before his departure to Australia and there was no submission about the delegate’s decision. There was no reference to the delegate’s decision record not being available.
I asked counsel for the applicant to say in what specific way the procedure was unfair to the applicant given that Ms Thompson was present, was aware of the matters of concern raised by the Tribunal and was permitted to make later written submissions on the applicant’s behalf. Counsel for the applicant submitted that I should conclude that the applicant was at a disadvantage in the Tribunal hearing because neither he nor Ms Thompson had access to the delegate’s decision record. It was said this constituted a significant disadvantage because the Tribunal questioned him extensively about inconsistencies between information given to the delegate and information given to the Tribunal. It is true that the applicant was extensively questioned about such inconsistencies as is apparent from the Tribunal’s decision record. It recorded in some detail the inconsistencies it found between the applicant’s statements to the delegate and his statements to the Tribunal. It is apparent from the Tribunal’s decision record that these inconsistencies were put to the applicant for a response.
It was submitted that I should infer that Ms Thompson had not received that document because her affidavit did not expressly state that she had received the delegate’s decision record in the documents she deposed to receiving by email on 10 April 2015. There are two difficulties with that submission. First, it is for the applicant to make out his grounds and if it were the case that a significant document was not available to him at the time of his Tribunal interview it is appropriate he make that claim. It is notable that Ms Thompson’s affidavit does not make that claim. The Minister submitted that, in the absence of such a claim, I should infer that the delegate’s decision record had been received by Ms Thompson on 10 April 2015 along with the other documents released pursuant to the FOI application. I accept that submission. Secondly, it is apparent from the documents before me that the applicant has had the delegate’s decision record in his possession at various times. His application to the Tribunal dated 19 January 2015, although prepared by his then lawyers, was signed by him and enclosed the delegate’s decision record. The letter from the applicant’s lawyers dated 4 February 2015 to him at Yongah Hill Immigration Detention Centre states that the decision record was enclosed. I see no reason to conclude other than that the record was sent to the applicant on that date and received a short time later. I think it is likely that the delegate’s decision record was given to the applicant at the latest in February 2015 and to Ms Thompson at the latest on 10 April 2015. No other relevant material was identified as being unavailable to the applicant at the interview.
The applicant’s written submissions stated that:
the sequence of the evidential hearing and the submissions made by the applicant’s supporter [Ms Thompson], rendered the proceeding procedurally unfair because the hearing presented the opportunity for the Tribunal member to “put” to the applicant any adverse factual findings she was to make against him, for his comments and/or evidence. The Tribunal made a number of adverse factual findings involving matters brought up by Ms Thompson in her written submissions, without enabling the applicant an opportunity to respond. These include the Tribunal’s findings about:
a) The conduct of the A18 interviews;
b) The purpose of the interviews and the role of the A18 Vietnamese officers;
c) The Vietnamese government’s treatment of failed asylum seekers; and
d) The Vietnamese government’s approach to application of its laws criminalising departure from Vietnam without permission.
The submission went on to claim:
that the denial of the applicant the opportunity to adjourn, and the circumstances surrounding his appeal to the Refugee Review Tribunal, denied him natural justice to the extent that a miscarriage of justice has resulted.
The submission appears to suggest that if the Tribunal proposed to make adverse findings about the matters included in the written submissions made by Ms Thompson on behalf of the applicant that the Tribunal was obliged to “put” that to the applicant. The written submissions by Ms Thompson were general submissions and might be characterised as mostly concerned with country information. Any matters concerning the applicant directly, such as the visit of Vietnamese officials to Yongah Hill, were dealt with in general terms with only peripheral reference to the applicant. It is not clear that the Tribunal in fact rejected those submissions. It appeared to distinguish some of the information as not relevant or applicable to the applicant and some of the information it accepted and found supported its own conclusions[2].
[2] An example is the Tribunal’s acceptance at [75] of some of the information from the Campaign to Abolish Torture in Vietnam publication, Vietnam: Torture and Abuse of Political and Religious Prisoners.
Section 424A of the Migration Act 1958 requires the Tribunal to give to an applicant clear particulars of any information that it considers would be the reason, or a part of the reason, for affirming the decision under review. However, the section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided only by the applicant to the Department …
All of the information included in Ms Thompson’s submission falls in to one or other of these categories.
I am not satisfied that the delegate’s decision record was not available to the applicant. I think it was probably given to him well before the Tribunal hearing. I think it was probably given to Ms Thompson some days before the hearing at the latest. The Tribunal identified the inconsistencies it saw between the applicant’s claims to the delegate and to the Tribunal and asked him to respond. This procedure was calculated to bring to the applicant’s attention those inconsistencies and to allow him to respond. I am not satisfied that there was any procedural unfairness even if the delegate’s decision record was not in fact available to him during the hearing. I am satisfied that the written submissions of the applicant was information excluded from the operation of section 424A of the Migration Act 1958.
This ground is rejected.
Ground 7
Ground 7 is:
The Tribunal’s conclusions regarding the A18 Vietnamese immigration officials visit were unreasonably arrived at, as it wholly rejected the applicant’s account of the visit and it otherwise wholly accepted the department’s representations about the A18 visit without any evaluative assessment of his claims.
The applicant argued that it was unreasonable for the Tribunal to fail to make enquiries about information readily available concerning the contested circumstances of the interviews by Vietnamese immigration officials (“A18”). He submitted that the Tribunal blindly and unreasonably accepted the delegate’s findings.
The governments of Australia and Vietnam had entered into an agreement to allow Vietnamese immigration officials to interview certain detainees in Australia for the purpose of identification and, in appropriate cases, for provision of travel documents for deportation to Vietnam.
The applicant claimed that during an interview by Vietnamese immigration officials on 21 August 2013 at Yongah Hill Immigration Detention Centre he was threatened by those officials and told that he would be punished for leaving Vietnam illegally and for opposing the Vietnamese government[3]. This was said to have occurred in the presence of a Vietnamese speaking Australian immigration official. The applicant had not made his refugee application at that stage but, if correct, the claim would add substance to the applicant’s claimed fear of persecution in Vietnam.
[3] Tribunal decision [28]
Both the delegate and the Tribunal refused to accept the applicant’s claim. The delegate and the Tribunal referred to the “Declaration of interview” completed by an Australian immigration official. This document[4] appears to be contemporaneous and records in a pro forma way the questions asked of the applicant during the interview. It also has provision for the Australian official to make additional comments about the content of the interview. The only comment recorded is that the applicant did not want to depart and his daughter was studying in Melbourne.
[4] Court book, pages1-2
The Tribunal, having previously made a finding that the applicant lacked credibility, rejected his claims about being threatened in the interview. It observed that the applicant had departed Vietnam legally on his own valid passport and so discounted the possibility of him being punished for an illegal departure. Further, in relation to the claim of being punished for opposing the Vietnamese government, the Tribunal found that a Vietnamese speaking Australian official had been present during the interview and nothing to support the applicant’s claim was recorded in a contemporaneous document. It inferred that the Australian official would have been aware of the terms of the protocol agreed between the governments. That protocol did not permit anything more than the gathering of basic personal information with a view to identification and repatriation of the interviewee. The Tribunal inferred that the Australian official would have been likely to note any departure from the agreed protocol.
The applicant submitted that the Tribunal’s responsibility in the circumstances went beyond this and it ought to have made further inquiry and if it had done so material was readily available to the Tribunal to support the applicant’s claims. The applicant relied on Prasad v Minister for Immigration & Ethnic Affairs[5] where Wilcox J said:
But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.
[5] (1985) 6 FCR 155 at 170
Accordingly, and (ultimately) without objection from the respondent, I allowed the applicant to rely on an affidavit from Dr Judyth Watson. Dr Watson described herself as a retired member of state parliament and a volunteer refugee advocate. Her affidavit refers to surveys carried out by an advocacy group of a “small cohort” of Vietnamese detainees following the interviews by Vietnamese immigration officials. The applicant was not a participant in the surveys. Dr Watson’s affidavit annexes a detailed complaint to the Commonwealth Ombudsman dated 25 October 2013 and a complaint in similar terms to the Australian Human Rights Commission dated 12 September 2013 about the conduct of the interviews. The complaints alleged that interviewees were forced to participate in the interviews, the Vietnamese officials asked inappropriate questions going beyond the agreed protocol, spoke in offensive terms and generally instilled fear in the interviewees. Neither of the complaints alleged that the Vietnamese officials made express threats against an interviewee in general or in the particular terms alleged by the applicant. The complaints confirmed that an Australian official was present during the interviews and that, at least in one case, an interviewee had been advised by Australian officials not to answer any questions beyond those permitted.
Also annexed to Dr Watson’s affidavit was a letter dated 28 May 2015 from a Mr McKiernan, an investigation officer with the Commonwealth Ombudsman’s office, outlining the results of an investigation of the complaints. Mr McKiernan said that a number of detainees had been interviewed, a number of cases had been examined in detail and records were reviewed regarding the organisation and conduct of the interviews. He said that the Ombudsman’s office had examined allegations that detainees were forced to participate in interviews and that the interviewers used inappropriate language during the interviews. He said that the Ombudsman’s office was “not able to substantiate these claims as there wasn’t any independent evidence to support the claims. We made no finding in regard to these claims.”
As is apparent, no complaint was made that interviewees had been threatened with punishment for opposing the Vietnamese government. The Ombudsman’s office made no investigation of that particular claim but found that other complaints were not substantiated.
The letter went on to outline various shortcomings with the process and described a number of suggestions made to the Department to improve its procedures including that such interviews should be conducted by Departmental staff with the assistance of foreign officials rather than by the foreign officials themselves and that future interviews should be audio recorded.
The complaints to the Commonwealth Ombudsman and the Australian Human Rights Commission predated the Tribunal’s interview of the applicant on 14 April 2015 and may, had the Tribunal been aware of them, been available to it. These documents were not brought to the attention of the Tribunal. It may be doubted whether the Tribunal would have reached a different conclusion about the applicant’s claims in any event. It is noteworthy that the complaints do not refer to any threats against interviewees by the Vietnamese government officials. The complaints confirm that Australian immigration officials were present during interviews and that at least one detainee had been advised not to answer questions beyond those permitted. In my view the information contained in the complaints, if anything, tends to undermine the applicant’s credibility on this point rather than bolster it.
The letter from the Commonwealth Ombudsman’s office post-dated the Tribunal’s deliberations. Nevertheless, that letter, reporting on an investigation which failed to substantiate less serious complaints, confirms that no other material that was relevant to the Tribunal’s considerations was available to it and, accordingly, it was not unreasonable of the Tribunal to fail to make further inquiries.
This ground is rejected.
Ground 4
Ground 4, as amended during submissions, is:
The Tribunal failed to ask itself the question “what if I am wrong” in its assessment of the applicant’s claims and credibility in so far as it concerns his claims about the A18 visit.
The applicant’s submissions criticised the Tribunal’s rejection of his claims about being threatened by the Vietnamese officials as “blind” acceptance of the delegate’s conclusions and as inadequately based findings of “implausibility”. He relied on Thevendram v Minister for Immigration and Multicultural Affairs[6] and, in particular, paragraph [50] where Merkel J, referring to the leading judgement of Lee J, said:
I also have concerns about the confidence with which some members of the Refugee Review Tribunal find themselves able to make adverse findings on credibility on the basis that the evidence given by claimants is “implausible”, “incredible” or “concocted”. Anyone experienced in fact-finding would be well aware that in the usual course clear and cogent evidence is necessary before such strong findings are made against a witness.
[6] [2000] FCA 1910
In that case Lee J made a number of statements emphasising the necessity for a proper basis for factual findings, including findings of lack of credibility. At [26] he said:
If a Tribunal finds that an event or circumstance did not occur as represented in oral or documentary material before the Tribunal, and finds further that the falsity of the representation was known to the applicant at the time the applicant sought to rely upon it, such findings of fact may lead the Tribunal to determine that it is not satisfied that the applicant has a well-founded fear of persecution. But if the Tribunal does no more than assert that some part of an applicant’s account of past events is “not credible”, or is “implausible”, and relies upon that assertion not to make findings of fact on material issues in the applicant’s case, the decision-making process engaged in by the Tribunal may require analysis… If general statements to the effect that claims of an applicant are “not credible”, or are “implausible”, are regarded as “credibility” findings not dependent on findings of fact, and that any decision based thereon is beyond the scope of judicial review, there is a real risk that reasons for decision will be constructed accordingly.
At paragraph [30] his Honour referred to a passage from the reasons of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu[7] describing a basis for judicial review: “It would permit review in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds”. Later at paragraph [34] Lee J said:
An apparent finding on credibility that amounts to no more than an assertion that aspects of an applicant’s claim are “implausible”, or are “not credible”, raises the issue whether the decision-making process has been duly disclosed and explained.
[7] (1999) 197 CLR 611 at [145]
The applicant’s submissions went on to refer to a passage from the Full Court decision in Kopalapillai v Minister for Immigration[8] emphasising the importance of the decision-maker being sensitive to the lived experience of many asylum seekers who may have reason to be distrustful of officials and other persons in authority and pointing out that even clear evidence of a lack of candour does not necessarily negate a claimant’s need for protection. The submissions referred to comments by Foster J in Guo v Minister for Immigration and Ethnic Affairs[9] to similar effect:
It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witnesses is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected[10].
[8] (1998) 86 FCR 547 at 557
[9] (1996) 64 FCR 151 at 194
[10] Although not referred to in the submission the passage went on to say “Exaggeration or even fabrication of parts of a witness’ testimony does not exclude the possibility that there is a hard core of acceptable evidence within the body of the testimony”.
These passages emphasise the necessity for decision-makers to have a proper basis for adverse credibility findings and are a reminder that lack of candour, even evasiveness, does not necessarily mean that an applicant is not entitled to protection as a refugee. However, they do not suggest that a finding of lack of credibility made on a proper basis may be ignored. On the contrary, as the first sentence in the passage quoted from Lee J’s decision above indicates, a deliberately false representation may lead a Tribunal to conclude that the applicant does not have a well-founded fear of persecution.
In this case the applicant, in seeking protection, made a false statement that failed to disclose a criminal conviction, imprisonment and deportation from the UK. His explanation for failing to disclose those matters was implausible and was not accepted. A finding of lack of credibility was unavoidable. The Tribunal considered the applicant’s claims about the interview by the Vietnamese immigration officials and declined to accept them. Although there was an absence of any express countervailing evidence to disprove the applicant’s claims, the Tribunal’s reasoning, relying on a contemporaneous record and an assumption that Australian immigration officials would be unlikely to permit a departure from agreed procedures, is not without foundation or rational basis. Taking into account the compelling evidence of the applicant’s lack of credibility, its conclusion was open to it.
This ground is rejected.
Ground 8
Ground 8 is:
The RRT failed to apply the test for complimentary protection under section 36(2A) of the Migration Act by failing to properly consider and apply the applicable law defining “significant harm” to the facts as raised by the evidence.
The applicant submitted that he would be subjected to punishment on his return to Vietnam as a failed asylum seeker. It was submitted that asylum seekers are mistreated on their return to Vietnam and, specifically, that the applicant would be subject to prosecution and imprisonment pursuant to Article 91 of the Vietnamese Penal Code which makes it an offence to “flee abroad or defect overseas with a view to opposing the people’s administration”.
It was submitted by the applicant that Article 91 “clearly criminalises the conduct of seeking asylum”. That this is so is not clear from any material identified by the applicant. Attempting to interpret the purpose and ambit of a provision of the Vietnamese Penal Code is, in the absence of expert evidence, speculative but the English translation referred to by the Tribunal[11] appears to target political opposition. There is nothing in the translation that indicates that seeking asylum is necessarily equated to “opposing the people’s administration”.
[11] Tribunal decision [75]. The translation is taken from the applicant’s written submissions to the Tribunal.
More generally and more usefully, the Tribunal referred to country information from the Department of Foreign Affairs and Trade and the US Department of State indicating that, while some returning asylum seekers are subject to harm in Vietnam, the information indicates that many of those have “heightened profiles” with the Vietnamese authorities for other reasons[12]. The Tribunal also relied on country information submitted by the applicant which indicated that “Others, who engage in identical conduct for some other motive – economic, social or even political so long as the political opinion in question is not anti-government – are not punishable”[13].
[12] Reasons for decision [75]
[13] Ibid.
The applicant submitted that the Tribunal failed to state:
“any reasons or basis upon which it prefers the DFAT and US Department of State information over information given by independent non-governmental organisations such as Amnesty International and Human Rights Watch”.
I do not accept this submission. The Tribunal referred to the country information submitted by the applicant and, as noted above, observed that many of those referred to:
“have other attributes that have meant they have heightened profiles with the Vietnamese authorities… There is nothing in the information provided that indicates that asylum seekers per se are mistreated on return to Vietnam”.
The Tribunal found that the applicant was unlikely to be perceived as a political opponent by the Vietnamese authorities and unlikely to be subjected to any punishment. As such the question of whether that punishment would amount to “significant harm” did not arise. The Tribunal’s treatment of the country information, including that submitted by the applicant, was rational and discriminating. It examined the country information provided by the applicant and concluded that it was not inconsistent with the country information from DFAT and the US Department of State and, in an important respect, supported it.
This ground is rejected.
Extension of time
The applicant also sought an extension of time pursuant to section 477 of the Migration Act 1958. This provides that an application must be made to the court within 35 days of the date of the migration decision. The court may extend the 35 day period on written application if it is satisfied that it is “necessary in the interests of the administration of justice”.
The relevant decision was made on 30 May 2015 and communicated to Ms Thompson, the applicant’s authorised recipient, by email on 3 June 2015. The application ought to have been made by 4 July 2015. The application was made on 30 October 2015, almost 4 months late.
On 3 June 2015 Ms Thompson contacted a Ms McIntyre, a migration agent, seeking advice. On 13 June 2015 Ms McIntyre sent an email to the Northern Territory Legal Aid Commission asking that legal advice be provided to the applicant. Ms McIntyre’s email advised that there was a 35 day limit for applications to this court but identified the deadline as 8 July 2015. On 7 July 2015 Mr Hutton, a solicitor, wrote to Ms Thompson advising that he was “in the throes of preparing [the applicant’s] application”. Mr Hutton noted that the “time from making the application expires tomorrow, 8 July 2015”. Counsel for the applicant informed me that the applicant had been granted legal aid to make his application but she did not say when the grant commenced. However, it would appear that from at least 7 July 2015 the applicant was legally represented. Thereafter there is no explanation for the delay in making the application. Counsel for the applicant submitted that I should infer that the delay was due to the difficulties of communicating with the applicant who did not speak English and was in detention.
There is no particular formula for assessing what is “necessary in the interests of the administration of justice”. The test has recently been described by Bromwich J in SZUWX v Minister for Immigration and Border Protection[14] as one where
…Parliament has deliberately set a test for granting or refusing an application for an extension of time that accommodates a myriad of facts and circumstances by which an application to review came to be lodged outside the 35-day statutory time limit. I can see no warrant for putting any additional gloss or qualification on the words used by Parliament.
[14] [2016] FCAFC 77, [12]
No prejudice is asserted by the respondent. The explanation for the delay is not satisfactory but I assume the applicant believed that his legal representatives would prosecute his application within any applicable time limit. I also note that the applicant does not speak English, or speaks little English, and was in detention at all relevant times. Any culpability for the delay would appear to rest largely with the applicant’s lawyers. I consider the application unmeritorious but, as I have found that the responsibility for the delay was not the applicant’s, I propose to extend time and dismiss the application.
The application is dismissed with costs in the sum of $6,825.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 16 June 2016
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