CHB17 v Minister for Immigration

[2020] FCCA 1695

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHB17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1695

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to have regard to a relevant consideration – whether the Authority’s decision was legally unreasonable – whether the Authority misapplied the relevant law – no jurisdictional error made out – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 5H, 36, 473CB, 473DC, 473DD, 473FA, 473FB, 476

Applicant: CHB17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 274 of 2017

Judgment of: Judge Street

Hearing date: 24 June 2020

Date of Last Submission: 24 June 2020

Delivered at: Sydney

Delivered on: 24 June 2020

REPRESENTATION

Counsel for the Applicant: Mr S Walker via Microsoft Teams

Solicitors for the Applicant: AUM Legal

Solicitors for the First Respondent: Mr A Chan via Microsoft Teams
Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. Leave is granted to the applicant to rely upon the further amended application and the Court directs that the same be electronically filed and served on or before 30 June 2020.

3. The further amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

Date of order: 24 June 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 274 of 2017

CHB17

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 9 May 2017 affirming the 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. In June 2013, the applicant arrived on Christmas Island as an unauthorised maritime arrival. In October 2016, the applicant applied for a Safe Haven Enterprise visa. The applicant claimed to fear harm, in summary, by reason of his political and religious activism.

3. On 20 February 2017, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

4. On 23 February 2017, the Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise visa had been referred to the Authority for review. That letter attached a fact sheet and practice direction, providing the applicant an opportunity to put on new information and submissions. The practice direction expressly referred to the requirement in respect of providing translations and that both the documents and the translations should be provided. The Court notes that the applicant provided the Delegate with a number of photographs, which appear at pages 97 to 101 of the Court Book, prior to the making of the Delegate’s decision. Following the Authority’s letter, the applicant provided submissions and new information.

5. The Authority in its reasons identified the background to the applicant’s Safe Haven Enterprise visa application.

6. The Authority identified having regard to the material referred by the Secretary under s 473CB of the Act.

7. The Authority correctly identified that with the applicant’s submissions there were an additional ten documents. The Authority then dealt with the new information in paragraphs 4 to 7 of its reasons, to which the Court will return, as follows:

   4. Section 4730D of the Act provides that the IAA must not consider any new information from an applicant unless satisfied there are exceptional circumstances which justify considering the new information and the new information was not and could not have been provided to the Minister, or is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant's claims.

   5. The basis of the applicant's submission is that he would now be at risk of harm should he return to Vietnam because he has been engaged in political activism, including posting items online that are critical of the Vietnamese government. The applicant claims to have been undertaking such activities since he arrived in Australia in 2013. This information was not before the delegate at the time of the primary decision and is new information. No mention was made of such activities at or prior to the PV interview of 24 January 2017, nor was the delegate provided with any information pertaining to this, prior to making his decision on 20 February 2017. The applicant contends that additional documents 1 to 4 comprise his older on-line posts. Examination of these documents indicates that they are Facebook posts made by a … on 7 August 2013, 19 May 2014, 12 May 2016 and 28 December 2016 respectively. There is nothing before me to confirm that Tony Aba is a name used by the applicant. In addition to this, the text of all documents is in Vietnamese, so I cannot ascertain any of the content. The applicant claims he could not have provided the information previously as he didn't know it was relevant at the time. At his PV interview he did however refer to a number of postings on friends' Facebook pages, relating to protests that they attended in Vietnam and pointing out banners bearing protest slogans. He made no mention at that time of any on-line activity of his own so was not asked about such activity. I am not satisfied that this information is credible personal information which was not previously known and may have affected the consideration of the applicant's claims, or that it could not have been provided before the delegate's decision was made.

   6. The applicant further submits that as a result of his more recent on-line activities his father has been interrogated by the police and this is supported by further attached documents. Documents 7, 8 and 9 are further Facebook postings by … on 2 March 2017, 30 March 2017 and undated. Documents 5 and 10 are telephone text conversations and document 6 is a letter dated 30 March 2017, which purports to be a summons for the applicant's father to attend the police station. It would appear that these documents postdate the delegate's decision, are new information and could not have been given to the delegate before the decision was made. Again, however, these documents are all in Vietnamese therefore their content is not known to me.

   7. I note that the applicant was sent a notice by the IAA on 23 February 2017, acknowledging the referral of his matter. This notice included attachments in both English and Vietnamese, setting out relevant parts of the IAA's Practice Directions. These included the requirements that any new information must be given within 21 days of referral and that all documents that are not in English should be translated into English. The applicant's submission and supporting documents in Vietnamese were received 70 days after the matter was referred to the IAA and there is no explanation as to why the requirements of the Practice Directions were not met. Further to this, the applicant was given several opportunities by the delegate to provide details of any claims, both before and after the "natural justice" break in the PV interview. There was no suggestion that he had made any political statements including postings under his own name or a pseudonym, although he referred to the on-line postings of friends. On 27 January 2017 he provided the delegate with additional documents including a photo of his friends with a protest banner from their Facebook pages, but none of the documents subsequently provided to the IAA. As the name … bears no relation to that of the applicant, I do not accept that the local police would be questioning the applicant's father about any posts made under that name. I am not satisfied that exceptional circumstances exist that warrant consideration of this information and have not had regard to it.

8. The Authority summarised the applicant’s claims.

9. The Authority noted that at the time of an interview with an officer of the Department of Immigration and Border Protection (“the Department”) the applicant said that he had come to Australia to study and to support his parents financially.

10. In particular, the Authority referred to and summarised the applicant’s claims in relation to his attendance at a particular church in May 2013. The applicant claimed that the service was stopped and that the following day police came to his family home and gave the applicant’s mother a summons requiring the applicant to attend a local government office the next day to discuss an altercation at the church. The applicant claimed that he was scared that he would be beaten and incarcerated and so he travelled to a particular city. The applicant claimed that there were four summonses issued in his name between May and June 2013 and that the applicant’s brother did not receive any such summons. The Authority then referred to and summarised the expansion of the applicant’s claims at the protection visa interview.

11. The Authority accepted that the applicant is of Kinh ethnicity and is a practising Catholic.

12. The Authority identified as central to the applicant’s claim that he fears harm from the police due to his religion and involvement in an altercation at a particular church in May 2013.

13. The Authority was not satisfied that the applicant was present at the event at the church in May 2013 at which police officers were assaulted and held captive.

14. The Authority referred to the Department data breach in 2014 and accepted that the applicant’s details would have been available on the Department website at that time. The Authority found that the possibility of the Vietnamese authorities accessing or obtaining the information to be highly remote and that, even if this occurred, it would reveal only that the applicant was seeking asylum in Australia.

15. The Authority referred to the applicant not making any suggestion that he had modified his religious practices in the past to avoid harm or that he would need to do so in the future. The Authority referred to there being evidence of activists associated with churches as being targeted for arrest and crimes against the state by the Vietnamese authorities. The Authority, however, found that the applicant is not an activist and would not be perceived as one and would not engage in religious activism on return to Vietnam. The Authority referred to having rejected the applicant’s claims in relation to his attendance at the church in May 2013 and found that there is not a real chance of the applicant being harmed on the basis of his Catholic faith in the future.

16. The Authority accepted that the applicant departed Vietnam without using a passport in violation of Vietnamese law. The Authority was not satisfied that the applicant has a real chance of harm on the basis he departed Vietnam illegally and that he spent time in Australia or that he unsuccessfully sought asylum in Australia.

17. The Authority found that the applicant does not meet the requirements of 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.

18. 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 from Australia, there is a real risk that the applicant will suffer significant harm.

19. Accordingly, the Authority affirmed the decision under review.

Grounds in the further amended application

1. The grounds in the further amended application are as follows:

   1. In deciding that it would not consider new information (furnished in a submission on 3 May 2017) to the effect that the Applicant would be at risk of harm should he return to Vietnam because he had been engaged in political activism, including by posting items online critical of the Vietnamese government, the Immigration Assessment Authority (IAA) made jurisdictional errors in the following ways:

   (a) By failing to have regard to a relevant consideration, namely the practicability of obtaining translations of the documents which were in Vietnamese;

   (b) By making a decision which was unreasonable in that it failed to consider the practicability of obtaining translations of Vietnamese documents, with the consequence that it had no regard to the information contained in the documents;

   (c) By misapprehending the terms of s 473DD of the Migration Act 1958; and

   (d) By constructively failing to exercise its jurisdiction.

   Particulars

   (i) The IAA apparently did not accept that the online posts, copies of which he had provided, were posted by the Applicant, as it stated that there was nothing before it to confirm that the person named as author in the posts was a name used by him, and further that it was not satisfied that the information was credible personal information which was not previously known and may have affected the consideration of his claims;

   (ii) The IAA stated that as the text of the online posts and other documents constituting the new information, namely telephone texts messages and a purported police summons to the Applicant’s father, was in Vietnamese it could not ascertain any of the content;

   (iii) Given that the documents had not been translated, the IAA was bound to consider the practicality of obtaining translations, and it should be inferred in view of that matter not having been mentioned in the decision record that it failed to do so;

   (iv) The IAA failed to have regard to the description given by the Applicant of the content of such documents, when that description was relevant and formed part of the “new information”;

   (v) As a result, the IAA failed to have regard to any such evidence, all of which was probative and relevant;

   (vi) It was an implied condition of the Authority’s powers that it act reasonably;

   (vii) As a consequence of the matters outlined above, the IAA erred in its understanding and consideration of the statutory questions of whether it was satisfied that there were exceptional circumstances to justify considering the new information, and whether it was satisfied that the new information was credible personal information which was not previously known and may have affected the consideration of his claims; and

   (viii) Each of the errors was so fundamental as to mean that the IAA failed to carry out its statutory task.

   2. Further, in deciding that it would not consider the new information referred to in Ground 1the IAA committed jurisdictional errors by misconstruing and misapplying the terms of s 473DD of the Migration Act 1958, in particular by:

   (a) failing to apply the correct test as to whether it was credible personal information, namely whether the information was open to be or capable of being accepted as truthful; and

   (b) failing to have regard to the significance of the new information in the context of the referred applicant’s claims more generally, in the course of its duty to decide whether there were exceptional circumstances justifying it in considering the new information.

Ground 1

1. In relation to ground 1, Mr Walker of counsel on behalf of the applicant submitted that the Authority’s reasons should be read in a way in relation to the considerations under s 473DD of the Act whereby the Authority had failed to give consideration in relation to exceptional circumstances in considering the documents that were referred to as 1 to 4, as opposed to the other documents that were referred to as 5 to 10.

2. The Authority’s reasons must not be read with a keen eye for error. It is apparent that paragraphs 4, 5, 6 and 7 of the Authority’s reasons are to be read together. The reference to the provision of documents that were not translated in paragraph 5 is patently the same topic and subject that is being addressed in the reasoning in paragraph 7. There is no proper basis to find that the Authority did not take into account the whole of the statutory provisions or that the Authority misconstrued the statutory provisions which the Authority correctly identified in paragraph 4.

3. There is no substance in the argument that the Authority bifurcated its attention in relation to the requirements of the documents because of its reasoning referring to documents 1 to 4 and the want of the meeting of the limb in relation to s 473DD(b)(ii) of the Act but no mention of exceptional circumstances. It is clear that paragraph 5 must be read with paragraph 7 and it is clear that the Authority took into account whether there were, in all the circumstances, exceptional circumstances and took into account the whole of the statutory provision.

4. No jurisdictional error arises by reason of the argument advanced by Mr Walker in respect of the focus on documents 1 to 4 not including in paragraph 5 reference to exceptional circumstances. There was no reason for the Authority to do so because the Authority clearly addressed that consideration at the end of paragraph 7.

5. Mr Walker then submitted that there was not a real and genuine engagement by the Authority with the content of the new information. It is clear on the face of the reasons of the Authority that the Authority carefully considered and had a real and meaningful engagement with the information advanced by the applicant that was new information. The real and meaningful engagement includes the reference to the documents 1 to 4, the reference to the documents 5 to 10, the absence of the translation, the nature of the documents that was identified and the reference to the content of the submission advanced in support of those documents, including in paragraph 6 the reference to the online activities of the applicant’s father and him being interrogated by the police and that being supported by the further documents.

6. There is no basis to find that the Authority did not have an active intellectual engagement with the applicant’s submissions and material in the Authority’s determination of whether the requirements under s 473DD of the Act were met.

7. Mr Walker then submitted that there was a conclusory form of reasoning by the Authority that did not permit analysis of the reasons in support of why the requirements of s 473DD of the Act were not met. That is to read the Authority’s reasons with a keen eye for error. It is apparent that the Authority correctly identified the requirements of s 473DD of the Act and had an intellectual engagement with material that was identified correctly as being new information.

8. Mr Walker raised whether or not the Facebook posts, text message or summons were credible could not have been considered in a real way without translations. The Authority identified the Facebook posts that were made under a particular name and the four dates that pre-date the Delegate’s decision. The Authority found that there was nothing to confirm that the particular name was used by the applicant, the text of which was in Vietnamese. The Authority identified that there was no suggestion that the applicant had made political statements, including postings under his own name or a pseudonym. The Authority referred to the additional documents including the Facebook pages from friends but no other documents. The Authority did not accept that a particular name would give rise to the local police questioning the applicant’s father about any posts under that name. Mr Walker’s submission in this respect is, in substance, an invitation to the Court to engage in impermissible merits review.

1. There is no basis to find that the Authority did not take into account the whole of the new information in considering whether the requirements of s 473DD of the Act were met. Nor is the reference to the want of translation to be read with a keen eye for error. The fact that there is an English reference to WA is not a material or significant matter that the Authority had to refer to. Further it is apparent that the Authority understood the dates of the posts to which it refers. The Authority did not have to expressly refer to the whole of the information before it in its deliberations under s 473DD of the Act. There is no substance in the contention that the Authority’s reasoning in respect to s 473DD of the Act was conclusory or reflected some misapplication of the provisions of s 473DD of the Act or a failure to have an intellectual engagement with the material.

2. Mr Walker then submitted that the Authority should have exercised its powers under s 473DC of the Act to obtain translations of the documents because of their significance.

3. The Authority in its reasons identified the practice direction and the instruction to provide translations of documents and the timing in relation to the provision of the documents and the absence of any explanation as to why the requirements for the practice direction were not met.

4. In these circumstances, there is an evident and intelligible justification for the absence of any express consideration of a power under s 473DC of the Act. That justification was the opportunity the applicant had been given by reason of the letter from the Authority dated 23 February 2017 and the new instruction contained in the practice direction. There was no substance in the contention of any breach of s 473DC of the Act. Nor was the Authority required to given any further express consideration to the power under s 473FB(5) of the Act. The absence of being bound by technicalities, legal forms and rules of evidence in s 473FA(2) of the Act does not make out any jurisdictional error where the applicant had an opportunity to provide translations in accordance with the practice direction. That opportunity also means the reference to s 473FA(1) of the Act does not make out any jurisdictional error.

5. Mr Walker then submitted that it was legally unreasonable to fail to obtain the translations. There is an evident in intelligible justification for the absence of the step to obtain the translations in the circumstances of the letter sent by the Authority to the applicant inviting any new information and submissions and the practice direction to which the Authority referred. This is not a case where there was any legal unreasonableness in the Authority not taking steps to obtain translations of the Vietnamese documents. The evident and intelligible justification is the opportunity given by the letter dated 23 February 2017 and the content of the practice direction with which the applicant did not comply. There was no substance in the contention that the Authority misapprehended the requirements of s 473DD of the Act or that it constructively failed to exercise its jurisdiction.

6. Mr Walker then submitted that the reasons of the Authority in relation to the documents the subject of identification as documents 5 to 10 was conclusory and failed to reflect an active intellectual engagement with the information provided.

7. The Court was taken to the submissions and the documents 1 to 10. The submissions in this respect are, in substance, an invitation to this Court to engage in impermissible merits review. The Authority had an active intellectual engagement with the whole of the applicant’s submissions and the material that was the subject of correctly identified by the Authority as being new information.

8. For these reasons, no jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Walker submitted that the Authority had engaged in a process other than the preliminary analysis required under s 473DD of the Act and had engaged in a determination of the truth of the applicant’s claims by reason of the penultimate sentence in paragraph 7.

2. The penultimate sentence must be read in the context of the earlier identification in respect of the want of information before the Authority as to the applicant using that name and the earlier material that the applicant had provided to the Authority on 24 January 2017 in the nature of photographs from friends’ Facebook pages.

3. In the context where the Authority observed that the documents subsequently provided had not been given to the Delegate, the Court does not accept that the Authority was embarking on other than the preliminary analysis required under s 473DD of the Act in its reference to the reasoning as to whether or not the local police would be questioning the applicant’s father about any posts made under the particular name. That was clearly a deliberation in relation to consideration of the requirements under s 473DD(b)(ii) of the Act and was not a determination in relation to the truth of the applicant’s claims which was the subject of the substantive deliberation engaged in by the Authority.

4. Further, insofar as it was submitted by Mr Walker that the Authority’s reasons in relation to the documents 5 to 10 make no reference expressly to the meaning in s 473DD(b)(ii) of the Act, the subject matter of the questioning of the applicant’s father about online posts is clearly a matter of the nature identified by that requirement. There is no basis to find that the Authority did not take into account the whole of the provisions under s 473DD of the Act in considering the documents 5 to 10 and whether there were exceptional circumstances to justify consideration of the same. Nor is there any proper basis to find that the Authority confined its considerations to the credibility test under s 473DD(b)(ii) of the Act.

5. Mr Walker also submitted that the Authority had engaged in conclusory reasoning in respect of documents 5 to 10 and that the Authority’s reasons did not permit analysis of the application of the statutory provisions. There is no substance in this contention and it is really an invitation to engage in merits review. The Authority’s reasons reflect a correct application of the statutory provisions and the contention that the Authority misapplied or misconstrued s 473DD of the Act is not made out.

6. No jurisdictional error as alleged in ground 2 is made out.

7. As the further amended application fails to make out any jurisdictional error, the further amended application is dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 24 June 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 6 August 2020