CJM24 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 1195

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CJM24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1195

File number:

PEG 146 of 2024

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

15 November 2024

Catchwords:

MIGRATION - Administrative Appeals Tribunal – protection (class XA) (subclass 866) visas - whether the Tribunal failed to consider a claim – no clearly articulated claim – no jurisdictional error established – application dismissed.  

Legislation:

Migration Act 1958 (Cth) ss 5J, 5J(1), 5J(4)(c), 5J(5), 36, 36(2)(a), (aa), 414.

Migration Regulations 1994 (Cth) sch 2.

Cases cited:

 Abebe v Commonwealth of Australia (1999) 197 CLR 510

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214, [36].

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263

NAHI v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCAFC 10

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

ReMinister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2000) 58 ALD 609

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Division:

Division 2 General Federal Law

Number of paragraphs:

44

Date of hearing:

5 November 2024

Place:

Perth

Solicitor for the Applicants:

Mr Glenister (William Gerard Legal)

Counsel for the First Respondent:

Mr Lettenmaier

Solicitor for the First Respondent:

Ms Mumford (Australian Government Solicitor)

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

PEG 146 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CJM24

First Applicant

CJN24

Second Applicant

CJO24 (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	15 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to ‘Minister for Immigration and Multicultural Affairs’.

2.The name of the Second Respondent be substituted to ‘Administrative Review Tribunal’ in these proceedings.

3.The application is dismissed.

4.The First and Second Applicant pay the First Respondent’s costs fixed in the sum of $8,371.30.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE D HUMPHREYS

INTRODUCTION

1. This is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) on 25 March 2024 to not grant the applicants Protection (class XA) (subclass 866) visas (“protection visas”).

   BACKGROUND

2. The applicants are a family from Vietnam. The first applicant, CJM24 is the husband. The second, third and fourth applicants are the first applicant’s wife and two children respectively.  On 17 June 2019, the applicants arrived in Australia. On 2 July 2019, the applicants applied for protection visas.

3. On 18 May 2020, a delegate of the Minister for Home Affairs (“delegate”) refused to grant the applicants protection visas. On 22 May 2020, the applicant sought merits review of the decision in the Tribunal.

4. The applicant’s matter was originally constituted to a Member of the Tribunal on 22 June 2022, the matter progressed to a hearing in September 2022. However, the Tribunal did not complete the review as the Member who had conducted the first hearing became unavailable. The matter was then reconstituted to another Tribunal member to enable the review to be finalised. A further Tribunal hearing was held in February 2024. The Tribunal had regard to evidence that was before the previous Tribunal member, together with evidence provided during the course of the second hearing.

5. On 25 March 2024, the Tribunal affirmed the delegate’s decision.

6. For the reasons set out below, the application must be dismissed.

   THE ADMINISTRATIVE APPEAL TRIBUNAL’S DECISION

7. From [4] to [9], the Tribunal instructed itself as to the criteria for a protection visa as set out in s 36 of the Migration Act 1958 (Cth) (“the Act”) and Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

8. In accordance with Ministerial Direction No.84 the Tribunal considered policy guidelines prepared by the Department of Home Affairs and relevant country information assessments by the Department of Foreign Affairs and Trade.

9. At [10], the Tribunal provided a summary of the applicant’s claims arising out of the combined protection visa applications:

   •The applicant and his wife participated in anti-government demonstrations due to extraordinary high electricity tariffs imposed by the government which made earning a livelihood from their restaurant impossible. Their restaurant was the subject of regular vandalism and malicious property damage after their participation at the protest.

   •The applicant expressed his anti-government thoughts to the 'landlord'. She told him that the authorities will persecute them, place him and his wife in jail, and his children will be harmed or trafficked. The landlord's son worked with the local police.

   •It is unlawful to participate in anti-government activities. The applicant and his wife also participated in an anti-China protest and belonged to a group of people who encouraged people to go against the government.

   •The applicant and his wife were unable to secure a loan from the banks nor were they able to get government loans because they did not meet the criteria. They borrowed money from 'black lenders/loan sharks' with high interests to meet the high costs of running their business, their children's school fees, and to support their parents. They borrowed an amount equivalent to AUD31,000 with a 20 per cent interest rate. There was no written agreement and they had until April 2019 to repay the loan.

   •As their business continued to decline, they were unable to repay the money. They asked for an extension but were refused. The moneylenders threatened to harm the family. They were unable to seek help from the authorities as they are corrupt and work with loan sharks and act with impunity.

   •The applicants did not relocate to another part of the country because of the difficulties associated with obtaining household registration. The process was lengthy and required payments of bribes. It was also difficult to rent a place away from the city. The government controls the whole country.

   •The applicants fear harm at the hands of the authorities because of the applicant's and his wife's participation at protests. They also fear harm at the hands of the moneylenders who have threatened to harm them.

10. At [63] onwards, the Tribunal instructed itself as to its role in determining whether the applicant was entitled to protection in Australia. At [67] they concluded that:

    … the applicant and his wife have not been truthful regarding some key aspects of their claims for protection. I found aspects of the applicant's and his wife's evidence to lack credibility, in that they provided evidence that was at times internally inconsistent and shifted and evolved in response to my inquiries about the details of their claims. As discussed below, I also found that the applicant and his wife, at times, failed to genuinely engage with my concerns put to them at the hearing. Their vague responses and inability to provide cogent explanations in response to my concerns about their claims and evidence further affirmed my view that the applicant and his wife attended the hearings before the Tribunal with no intention of being entirely forthcoming about their circumstances in Vietnam.

11. At [84], the Tribunal found the applicant’s evidence, that they were of concern to the authorities in Vietnam due to their participation in two large scale protests prior to leaving Vietnam and that their landlord increased their rent due to that involvement, to be unconvincing. The Tribunal did not accept that the applicant or his wife were part of any groups of people who encouraged other people to go against the government or that they encouraged others to participate in non-government activities at [85].

12. At [87], the Tribunal also noted that although the applicant and his wife may have participated in events within the Vietnamese community in Australia, they have not engaged in anti-government or politically natured activities during their time in Australia.

13. The Tribunal found at [88] that it was not satisfied the applicant, or his wife, would have the commitment or desire to engage in any activities that would bring them to the attention of the Vietnamese authorities or that would give a perception of them as being anti-government. Further, because of the applicant and his wife’s limited activities, the Tribunal did not accept that they will refrain from engaging in activities that could be perceived as anti-government in fear of persecution.

14. The Tribunal did not accept the claim by the applicants’ representatives that the applicants had been blacklisted or that their freedom would be restricted.

15. The applicants, in the submissions presented on their behalf, made reference to being targeted by people smugglers or for human trafficking. The Tribunal noted at [124] that they had received volumes of submissions and country information that referred to matters of general crime and safety issues faced by the population in Vietnam. With reference to the submission that the applicants would be targeted by people smugglers and will be shown pathways to travel to Europe and Australia, the applicant’s representative told the Tribunal that if the applicant returns to Vietnam he will struggle and then people smugglers will entice him to go to Europe and Australia again. The Tribunal did not find these submissions compelling, noting that the applicant had already stated at the first hearing, that he had not been targeted by people smugglers whilst living in Vietnam.

16. At [130] the Tribunal found in regard to this claim:

    On the evidence before me, I am not satisfied that there is a real chance that the applicants will be targeted by people smugglers or for human trafficking, that they will be targeted for bribery by human traffickers or the government, or that they will face any treatment or challenges, in terms of accessing the employment market or education services, or renewing documents, that would amount to serious harm. I am not satisfied that the applicants face a real chance of serious harm for these reasons if returned to Vietnam now or in the reasonably foreseeable future.

17. The Tribunal found that none of the applicants met the definition of refugee or satisfied the complementary protection obligation, none of the applicants were a member of the same family unit as a person who satisfied s 36(2)(a) and (aa), as such the Tribunal affirmed the decision to not grant the applicants a protection visa.

    GROUNDS OF JUDICIAL REVIEW

18. The applicants rely on a sole ground of review contained in an Originating Application filed on 6 May 2024 which is as follows (verbatim):

    1.The Second Respondent (Tribunal) made a jurisdictional error by failing to consider the claim that the Applicants would face risk of harm as business owners independent of any risk of harm due to their political activities.

    THE APPLICANT’S SUBMISSIONS

19. The applicant submits that the task of the Tribunal, under s 414(1) of the Act is to consider an application afresh and determine whether it satisfies the criteria for the grant of the visa. In undertaking this role, the Tribunal fails in its task when it does not consider a claim, representation, contention or submission: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, [55], [63]; EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214, [36]. Determining this failure to consider a claim is a question of fact which can be decided by drawing inferences. An inference may be drawn where there is a failure to expressly deal with an issue in the reasons for a decision, that there has been a failure to consider that issue. The applicant submits that the inference can be strengthened where an application raises a contention that, if resolved one way would be determinative on the review; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (“WAEE”), [47].

20. The applicant complains that the Tribunal dealt with the applicant’s safety claims in a cumulative manner and as such they failed to consider “whether in the event the Applicants had to re-establish a business in Vietnam to support themselves whether their profile would be such as to expose them to ‘general criminal and safety issues’ to a greater extent than the population at large”. There was an evidentiary basis for the applicant’s claims given they had repeatedly claimed what issues they faced as restaurateurs in Vietnam. It was submitted that small business owners or small business owners who fail to pay bribes were a particular social group under s 5J(1) of the Act. Further, state tolerance or condonation of criminal behaviour and systematic discriminatory implementation of the law is sufficient to satisfy s 5J(4)(c) of the Act. Under s 5J(5) serious harm can be constituted by significant physical harassment of the person, significant physical ill - treatment of the person or significant economic hardship that threatens the person's capacity to subsist.

21. The claims of the applicant as to fear of persecution due to their participating in protests and taking loans from illegal money lenders arose from the materials and could have satisfied the criteria for the grant of protection visas. The Tribunal was required to consider the claims in its review.

22. The applicant argues that there was a realistic possibility of a different outcome if the applicant’s safety claims had been considered and as such the Tribunal’s failure was material and constituted jurisdictional error.

    THE FIRST RESPONDENT’S SUBMISSIONS

23. The first respondent submitted that the Tribunal’s consideration of the safety claims did not involve error as alleged.

24. The Tribunal did refer to safety claims at [124] of its reasons. Secondly, there was not a clear and articulated claim that the applicants would face harm if they returned to Vietnam by reason of the generalised crime and safety issues. The claim was not made out because the Tribunal did not accept the basis for the alleged vandalism and disturbances faced by the applicants at their restaurant.

25. The applicant’s statement that it would be difficult to reestablish a business or find jobs in Vietnam was inconsistent with the material before the Tribunal.

26. The applicant’s evidence at [37] – [38] of the Tribunal decision, that only people aged between 18-35 could secure employment, is inconsistent with the first and second applicant’s own evidence as to their employment.

27. The Tribunal did not consider that the applicant’s had to return to Vietnam and necessarily re-open a restaurant. The Tribunal believed that the applicant’s would be able to secure employment and did not accept that the applicant’s capacity to subsist would be threatened.

28. The applicant’s family support, education and history of employment was emphasised to the first and second applicant.

29. The first respondent submits that the Tribunal is not required to engage in a “line-by-line refutation of the applicants’ claims”, as such no inference can be drawn to suggest that the Tribunal did not have regard to the applicant’s claim that they might face harm as business owners.

    CONSIDERATION

30. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:

    … an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister.  The Court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

31. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.

32. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348].

33. It is well settled that the country information and the weight it gives to that information is a matter for the Tribunal: NAHI v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCAFC 10.

34. It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].

35. In WAEE (2003) 236 FCR 593 at [604], the Full Court of the Federal Court (French, Sackville and Hely JJ) stated as follows:

    [46]     It is plainly not necessary for the Tribunal refer to every piece of evidence and every contention made by an applicant in its written reasons....there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87] to [97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications… its reasons are not to be scrutinised "with an eye keenly attuned to error ”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

    [47]     The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

    (emphasis added)

1. Nor is the Tribunal required to engage in a line by line refutation of the relevant material: ReMinister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2000) 58 ALD 609 at [67]. The Tribunal is also not required to refer to each and every piece of evidence provided by an applicant: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [67] – [68], [73] – [74], [77], [89] and [90].

2. The sole ground of judicial review relied upon is that the Tribunal failed to consider the claim that the applicants would face a risk of harm as business owners. At page 43 of the Transcript of the Tribunal hearing, which was made available to the Court, the Tribunal Member indicated they wished to discuss with the applicant’s representative:

   There have been …references to general criminal activities in Vietnam…. Now these issues appear to me to be faced by the population generally. There is no indication that they would be targeted for the essential significant reason under 5J, your race, religion, nationality or membership of a particular social group… Can you explain to me what are these submissions for?

3. In the transcript that follows this exchange a number of issues are discussed. However, it is only at page 61 that there is a reference to the applicant’s having to pay a large bribe as people will think they have a lot of money having been absent for so long from Vietnam. The issue of safety issues arising from having to pay bribes as members of a social group being business owners is not directly raised at any point.

4. At [124] of the Decision Record, the Tribunal specifically notes the volume of submissions in country information including general criminal and safety issues faced by the population at large. The Tribunal stated that it

   … explained that I was of the view that such issues were faced by the population generally and there is no indication that the applicants will be targeted or face these issues due to any of the reasons under s 5J(1) of the Act. The applicants nor their representative made any comments in this regard.

5. This was in circumstances where the Tribunal had not accepted the applicants had taken a loan from illegal money lenders who then caused issues at the restaurant and threatened them. It did not accept that this was the substantial base for the alleged vandalism and disturbances of the applicant’s restaurant.

6. Further, the Tribunal did not accept that the applicants were unable to gain employment and that the only basis upon which they could earn a living would be to re-establish a business. Accordingly, the Court accepts the submission of the first respondent that there was no clearly articulated claim that the applicants would have to reopen a restaurant business upon return to Vietnam and as a result if they did not open the business, they would be unable to subsist. Further, the applicant’s representative did not take the opportunity when the general claim of ‘safety issues’ was raised by the Tribunal to follow up on this aspect of the claim. Had this occurred and the Tribunal ignored the matter, the Court may have been persuaded that there was jurisdictional error.

7. The Court is not satisfied that the claim that the applicants would be at risk of harm as members of a social group of “business owners” was clearly articulated such that it required a specific response in circumstances where the claim of “safety issues” was otherwise dealt with.

8. The Court is not satisfied that the failure to clearly deal with this claim amounts to a jurisdictional issue. Even if the Court is wrong, given the otherwise comprehensive nature of the reasons given by the Tribunal, the Court does not perceive any error to be material, in that, were the matter to be remitted to the Tribunal there is a real chance of a different outcome.

   DETERMINATION

9. For these reasons, the application must be dismissed.

   
   

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       15 November 2024

SCHEDULE OF PARTIES

PEG 146 of 2024
Applicants
Fourth Applicant:	CJP24