CIF18 v Minister for Home Affairs
[2019] FCCA 346
•30 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CIF18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 346 |
| Catchwords: MIGRATION – Application for protection visas – United Nations Convention on the Rights of the Child – convention not binding – no jurisdictional error demonstrated – application for review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473CB, 473DD, 473DE, 473DB |
| Cases cited: BSG16 v Minister for Immigration and Border Protection [2017] FCCA 1478 Singh v Minister for Immigration and Border Protection & Anor [2018] FCCA 3180 |
| First Applicant: | CIF18 |
| Second Applicant: | CII18 |
| Third Applicant: | CIJ18 |
| Fourth Applicant: | CIK18 |
| Fifth Applicant: | CIL18 |
| Sixth Applicant: | CIM18 |
| Seventh Applicant: | CIN18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 439 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 30 January 2019 |
| Date of Last Submission: | 30 January 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 30 January 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr Hii |
| Solicitors for the Applicants: | Australasia Law |
| Solicitors for the First Respondent: | Ms Helsdon |
ORDERS
IT IS ORDERED THAT:
The application for extension of time to file the application for review out of time is granted.
The applicant is ordered to pay the first respondent’s costs of and incidental to such amendment, including the costs of the appearance at Court on 24 January 2019 thrown away by reason of the failure on the part of the applicant to comply with Court orders, such costs to be assessed on the applicable Federal Circuit Court scale of costs unless agreed.
The amended application for review filed on 23 January 2019 is dismissed.
The First Applicant and the Second Applicant pay the First Respondent’s costs of and incidental to the proceeding fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 439 of 2018
| CIF18 |
First Applicant
| CII18 |
Second Applicant
| CIJ18 |
Third Applicant
| CIK18 |
Fourth Applicant
| CIL18 |
Fifth Applicant
| CIM18 |
Sixth Applicant
| CIN18 |
Seventh Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first applicant and the second applicant (respectively the male and female parents of the other applicants) filed an originating application for review on 30 April 2018. That application had one ground, namely: that their five children, all under the age of eighteen (18), were entitled to protection by the Australian Government under the Convention on the Rights of the Child, of which the Commonwealth of Australia is a signatory.
Subsequently, the applicant filed submissions, on 25 October 2018, which set out three grounds for review. The three grounds were set out in paragraph 2 of those submissions as follows:
(a) (First Ground) the Authority erred in affirming the decision not to grant the Applicants protection visas on the ground that the Authority failed to consider a relevant consideration being the bests interests of the Third to Seventh child Applicants.
(b) (Second Ground) the decision of the Authority was affected by jurisdictional error and/or legal error in that it failed to take into account relevant considerations when finding that the Applicants do not have a well-founded fear of persecution being the Applicants’ written submissions dated 9 December 2016 regarding the prosecution of asylum seekers which had been returned to Vietnam contrary to written assurances.
(c) (Third Ground) the decision of the Authority was affected by jurisdictional error and/or legal error by reason that it was unreasonable and had misconstrued the Applicants’ evidence in finding that the Applicants did not have a well-founded fear of persecution namely finding that the First Applicants’ claim that he had been summoned to attend a police station due to his protest was inconsistent, and failing to articulate the basis for finding that the Applicants were prevented from praying or attending church daily.
This matter came before the Court on 24 January 2019. It was apparent that one day earlier, on 23 January 2019, an amended application had been filed on behalf of the applicant, setting out four grounds for review. That amended application was filed out of time. Order 1 of the orders made by this Court on 4 December 2018 required the filing and service of any amended application by 4 pm on 18 December 2018.
The grounds set out in the amended application filed on 23 January 2019 were as follows:
1. The Authority erred in affirming the decision not to grant the Applicants protection visas on the ground that the Authority failed to consider a relevant consideration being the best interest of the Third to Seventh child Applicants.
2. The decision of the Authority was affected by jurisdictional error and/or legal error in that it failed to take into account relevant considerations when finding that the Applicants do not have a well-founded fear of persecution being the Applicant’s written submissions dated 9 December 2016 regarding the persecution of asylum seekers which had been returned to Vietnam contrary to written assurances.
3. The decision of the Authority was affected by jurisdictional error and/or legal error by reason that it was unreasonable and had misconstrued the Applicant’s evidence in finding that the Applicants did not have a well-founded fear of persecution namely finding that the First Applicant’s claim that he had been summoned to attend a police station due to his protest was inconsistent, and failing to articulate the basis for finding that the Applicants were prevented from praying or attending church daily.
4. The Authority erred in law in relying on material which indicated that the Applicants first arrived in Australia in Christmas Island, thereby:
a) failing to comply with sections 473DD, and 473DE of the Migration Act 1958; and
b) breaching the rules of natural justice by failing to disclose the material to the Applicants without first disclosing those materials to afford the Applicants an opportunity to make a rebutting submission.
The first respondent conceded that, for the purposes of today’s hearing, it relies solely upon the argument that, substantively, the grounds contained in the amended application for review are without merit, and that that alone justifies the basis of the submission that the application for extension of time for the filing of the application for review (the application for review was filed three days out of time) should be refused.
In that regard, the Court is not satisfied that the grounds set out in the amended application for review are entirely without merit. The Court is satisfied that the grounds are at least arguable. It is recognised that the amended application was filed well out of time, and without the leave of the Court. It has also been acknowledged by counsel on behalf of the applicant, on a previous occasion, that that was the case. The matter was adjourned from 24 January 2019 for hearing today because the applicant had not complied with previous Court orders.
In all of the circumstances, it is appropriate to grant the application to file the application for review out of time, predominantly because of there being no prejudice demonstrated to the first respondent in that regard, and for the other reasons set out above.
It has to be acknowledged, however, that the conduct of the application by the applicant has resulted in delay, and the incurring of costs on the part of the first respondent that ought not to have been incurred. It is appropriate in the circumstances that the applicant be ordered to pay the first respondent’s costs thrown away as a result of the adjournment of the hearing on 24 January 2019.
As to the substantive application for review, the first applicant is a Vietnamese male citizen. The second applicant is a citizen of Vietnam, who is the wife of the first applicant. The third, fourth and fifth applicants are the biological daughters of the first and second applicants, aged 15, 13 and 10 years respectively. The first applicants arrived at Broome, in Australia, on 13 July 2013, as “irregular maritime arrivals”. The sixth and seventh applicants, who are also the biological daughters of the first and second applicants, were born in the Northern Territory, in 2013 and 2015 respectively.
The applicants lodged a combined application for protection visas on 14 December 2016. On 15 February 2018, a Delegate of the Minister refused to grant to the applicants a protection visa. On 20 February 2018, the Delegate’s decision was referred to the Immigration Assessment Authority (“the Authority”) for review. On 12 March 2018, the applicants’ then migration agent provided further documents to the Authority in support of the review on behalf of the applicants. The documents were not accepted by the Authority, as it was considered that there were no “exceptional circumstances” justifying their consideration. On 23 March 2018, the Authority affirmed the Delegate’s decision to refuse to grant protection visas to the applicants.
On 30 April 2018, the applicants filed an application for review, seeking an extension of time within which to seek judicial review of the decision of the Authority, dated 23 March 2018. During the course of the hearing earlier today, the Court granted the applicants’ application for extension of time to file the application for review.
It is common ground that the Delegate refused to grant the visa to the applicants on the basis that the applicants were not persons in respect of whom Australia had protection obligations.
At [9] of its reasons, the Authority set out the bases on which the applicants claimed protection. Those claims were recorded as follows:
·There is no freedom of religion in Vietnam. As Catholics they are not treated equally. They were prevented from attending their prayer meetings and threatened with violence if they attended church;
·There are no human rights in Vietnam. If a person wants to work they have to pay to get a job;
·The authorities took their land and did not pay them adequate compensation;
·In May 2013 the applicant was summoned to attend the local police station. When he attended they asked him what he had done wrong and beat him. He was released later that day. He consequently produced some leaflets saying “look at what the communists do, listen to what the communists say” which he posted around his village. When they discover that he was responsible for these leaflets he will be harmed;
Those claims were set out in the context of having already been recorded in the decision record of the Delegate, as set out on page 347 of the court book.
As to the first ground, the Authority made relevant findings as follows:
a)the third, sixth and seventh applicants had not been discriminated against at school by reason of their Catholicism ([14] of Authority reasons);
b)the Authority was not satisfied that the children would be disadvantaged in terms of their securing employment in the future based upon their Catholicism ([25] of Authority reasons);
c)the children would not be questioned or separated from their parents or otherwise harmed if returned to Vietnam ([30] of Authority reasons);
d)the children would not be denied education due to their parents’ illegal departure from Vietnam ([30] of Authority reasons);
e)the Authority did not accept that the fourth and fifth respondents, who had been born in the Northern Territory, would be considered as stateless, finding that they would be considered Vietnamese citizens ([30 of authority reasons]).
f)the children did not face a real chance of serious harm or a real risk of significant harm, should they be returned to Vietnam ([32] and [38] of authority reasons).
In BSG16 v Minister for Immigration and Border Protection [2017] FCCA 1478 at [44]) it was found that there was no requirement for the Authority to consider the best interests of children, having regard to the United Nations Convention on the Rights of the Child, the court there finding that such was not a mandatory consideration that the Tribunal was bound to take into account. See also Singh v Minister for Immigration and Border Protection & Anor [2018] FCCA 3180 at [16]. There was no demonstrated jurisdictional error as claimed by the applicants in respect of ground 1 of the application for review.
As to the second ground, it is asserted that the Authority failed to take into account relevant considerations when finding that the applicants did not have a well-founded fear of persecution. First, it was held in WAEE v Minister for Immigration [2003] 75 ALD 630 at [46] that it is not necessary for the Authority to refer to each piece of evidence or every submission made to it by an applicant in its final written reasons when handing down its decision. At [4] of the reasons of the Authority, it was noted that the Authority had had regard to the material given to it by the secretary pursuant to the provisions of Section 473CB of the Migration Act 1958 (Cth) (‘the Act’). It was further specifically noted that the applicant’s representative had made submissions dated 9 December 2016 which were lodged with the visa application ([8] of authority reasons).
Though accepting that if returned to Vietnam the applicants may be identifiable upon re-entry as people who had sought asylum in Australia ([21] of authority reasons), the Authority, after referring to articles provided by the representative of the applicants relating to the arrest and imprisonment of returnees to Vietnam ([28] of authority reasons), relied on recent DFAT information in making findings that it was not satisfied that the applicants would face persecution on the basis that they had departed Vietnam illegally; that they had spent time in Australia; that they had been the subject of a department’s data breach; or that the applicants had unsuccessfully sought asylum in Australia ([29] of authority reasons). There is no merit to the contention that the authority overlooked any relevant matters when arriving at its conclusion that led to its findings relevant to ground 2. No jurisdictional error was demonstrated.
As to the third ground of review, the authority dealt with the assertions made on behalf of the applicants. The authority rejected the applicant’s claims that in Vietnam they were prevented from practising Catholicism and were required to attend a police station, the authority finding that there were substantial inconsistencies in the first applicant’s versions of historical events ([13] and [20] of the reasons of the authority). The Authority weighed up the various claims made by the applicants and arrived at an adverse conclusion after it had done so. It based its conclusions after having made factual findings as set out in [11-22] of its reasons.
It was asserted on behalf of the applicants that the findings of the authority were unreasonable, and that the authority had misconstrued the applicant’s evidence in finding that the applicants did not have a well-founded fear of persecution. The Authority, in that regard, was not obliged to accept the applicant’s claims without critically examining each of them. Adverse credibility findings made by the Authority against the applicants were based on rational grounds and were arrived at upon consideration of matters that were logical and cogent (SeeDAO16 v Minister for Immigration and Border Protection [2018] FCAFC 1). As to the contention that the findings of the authority were unreasonable, such was an attempt to bring to light alleged factual errors. This Court is not permitted to undertake a merits review of findings of fact made by the relevant authority, and the contention made on behalf of the applicants in that regard is without merit.
As to ground 4 of the application for review, it is asserted by the applicant, and accepted as fact on behalf of the first respondent, that rather than having arrived at Christmas Island, as was found by the authority at [8] of its reasons, the first applicant, second applicant, third applicant, sixth and seventh applicants, in fact arrived at Broome on the northern coast of Australia. It is asserted by the applicants that such error somehow disadvantaged the applicants in the consideration of their claim, and constituted a jurisdictional error on the part of the authority. First, it has long been held that the making of a wrong finding of fact does not necessarily give rise to any legal jurisdictional error. [1]
[1] Waterford v Commonwealth of Australia [1987] 163 CLR 54 at [77] per Brennan J.
It has also been held that an error of fact will not ground judicial review unless it relates to a jurisdictional fact, or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. [2]
[2] Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] 144
FCR at [53].
It was suggested that the authority had not appropriately considered the matter because the insertion of “Christmas Island” as the point of arrival of the applicants as unauthorised maritime arrivals evidenced some “cut and paste” exercise on the part of the authority - namely, that the authority had failed to properly consider the facts of the matter before it and had had recourse to another set of reasons in another matter for the purpose of deciding the claims of the applicants before it.
The suggestion made on behalf of the applicants, conceded to be made without direct evidence, was baseless speculation. So too was the assertion made on behalf of the applicants that the reference to the applicants having arrived at Christmas Island constituted some source of new information, thereby requiring the authority to consider new information surrounding that finding pursuant to Section 473DB or, alternatively, section 473DD or, alternatively, section 473DE of the Act. It was submitted that it was a breach of natural justice that a decision-maker should base a decision on information, evidence or findings not disclosed to a party, thereby depriving that party of the opportunity to address any adverse information that may have been used against them for the purpose of the authority making adverse findings.
In this case, the most likely reason why it was not recorded that the applicants had arrived at Broome in Northern Australia was an innocent error on the part of the decision-maker rather than some deliberate departure from well-accepted practice in fact finding by the authority. As was conceded by counsel on behalf of the applicants, there is no evidence in support of either of the contentions advanced in support of ground 4 of the application for review. The findings of the authority, on the contrary, were soundly based after a detailed consideration of the facts before it. It cannot be said that no other rational or logical decision-maker could not have made the same decision as, indeed, the authority in this case. [3]
[3] Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611
Neither could it be said that the decision was legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [66] and [76] where it was said: The application for review is without merit.
[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness134. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power135. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
...
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification
The application for review is without merit. The application for review is without merit and is dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 20 February 2019
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