CJN17 v Minister for Immigration

[2019] FCCA 3255

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJN17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3255

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority took into account the applicant’s evidence – whether the Authority did not take into account relevant considerations – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 5H, 36, 473CB, 473DD, 476

Applicant: CJN17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 285 of 2017

Judgment of: Judge Street

Hearing date: 12 November 2019

Date of Last Submission: 12 November 2019

Delivered at: Perth

Delivered on: 12 November 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr S Cummings
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. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 12 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 285 of 2017

CJN17

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 Part 7AA of the Act made on 1 May 2017 affirming the decision of a 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. On 13 June 2013, the applicant arrived in Australia as an unauthorised maritime arrival. On 19 June 2016, the applicant applied for a Safe Haven Enterprise visa.

3. The applicant claimed to fear harm by reason of a person having died in custody in Vietnam in 2012 and his attendance at a protest against the government. The applicant also claimed he feared harm by reason of a visit of a delegation when he was in detention in Australia and by reason of a data breach by the Department of Immigration and Border Protection (“the Department”).

4. On 9 February 2017, a delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. On the 14 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. The letter attached a fact sheet and practice direction which provided the applicant an opportunity to put on new information and submissions.

5. The applicant put on new information and submissions under the cover of an email dated 7 March 2017. Both the new information and submissions were expressly referred to and considered by the Authority in its reasons.

6. The Authority identified the applicant’s submissions and had regard to the same in so far as they engaged with the delegate’s findings and identified new information. The Authority’s reasons reflect an express reference to the whole of the limits of s 473DD of the Act.

7. The Authority found that there were not exceptional circumstances for considering an ABC news article provided by the applicant as new information. The Authority found the same in respect of other articles that were provided by the applicant as new information. The Authority did, however, find that there were exceptional circumstances to justify considering the applicant’s claims in relation to what had occurred in the Vietnamese communities since he had been released from detention.

8. The Authority in its reasons identified the background to the applicant’s Safe Haven Enterprise visa application. The Authority had regard to the material referred by the Secretary under s 473CB of the Act. The Authority also summarised the applicant’s claims and evidence.

9. The Authority noted that the applicant is a Catholic and that at no point has he claimed that he or any of his family members have been harmed or discriminated against due to their religion. The Authority also found that the applicant and his family members have not been so harmed or discriminated against.

10. The Authority referred to the applicant’s claims in respect of the person who died in custody. The Authority concluded that the applicant was not involved in protests which followed that death and was not incarcerated or tortured by the police at that time. The Authority was also not satisfied that the applicant wrote letters of protest relating to that person’s death.

11. The Authority referred to the rally that the applicant alleged that he attended in Vietnam. The Authority, in view of the numbers at that rally and the lack of any stated reason for the applicant to have been particularly targeted, did not accept that the applicant was targeted at that rally or thereafter.

12. The Authority referred to a summons produced by the applicant and referred to country information in relation to the prevalence of fraud and the placement of weight on the summons. The Authority, therefore, placed little weight on the provision of the summons.

13. The Authority also took into account the applicant did not explain why the Vietnamese authorities were threatening and harassing his wife and, accordingly, did not accept that that occurred.

14. The Authority referred to the data breach. The Authority accepted that the applicant left Vietnam illegally. The Authority accepted that the applicant’s details may have been available on the Department website. The Authority found, however, that the applicant was not interviewed by the delegation that attended the detention centre.

15. The Authority referred to the applicant’s submissions in respect of the activities undertaken in Australia since the release of the applicant from detention. The Authority also referred to the letter of support from the Vietnamese Community in Australia. The Authority was satisfied from this evidence that the applicant was involved in social events of the Vietnamese community in Australia. The Authority was not satisfied on this evidence that the applicant has been involved in political activism or protests against the Vietnamese government or that he is a member of, or would be viewed as associated with, the Viet Tan or Bloc 8406.

16. The Authority found that there is not a real chance of the applicant being harmed on the basis of his Catholic faith in the future.

17. The Authority found that there is not a real chance of the applicant being harmed due to his attendance at the rally in Vietnam.

18. The Authority concluded that the applicant’s activities in Australia would not give rise to an imputed political opinion that will lead to a real chance of harm on the applicant’s return to Vietnam. The Authority found that the applicant’s assertion of a conviction to protest was not supported by his actions in Vietnam or Australia. The Authority concluded that the applicant would not be involved in political protests or activism in the future should he return to Vietnam. The Authority found that the applicant’s claimed fear of persecution on this basis was not well founded.

19. The Authority referred to the information which may have been available by reason of the data breach. The Authority identified the limited information which was available during the web data breach and also noted that, at the time of the delegation attendance at the detention centre, the applicant was not in detention. The Authority was satisfied that the applicant’s details were not given to the delegation and that he was not interviewed by the delegation.

20. The Authority referred to the applicant having departed Vietnam in violation of Vietnamese law and that he may be liable for a fine on that basis. Taking into account country information, the Authority was not satisfied that the applicant faces a real chance of harm on the basis that he departed Vietnam illegally, that he spent time in Australia or that he has unsuccessfully sought asylum in Australia.

21. The Authority found that the applicant did not meet the requirements of definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicant does not meet the required criteria in s 36(2)(a) of the Act. The Authority found that there were 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. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.

22. The Authority, therefore, affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 29 May 2017. On 16 August 2017, a Registrar of the Court made orders which provided the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

2. At the commencement of the hearing, the Court explained to the applicant of the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant indicated that what he had told the Authority was true and that he was of the view that the Authority had made his decision too quickly. The applicant also submitted that the Authority had not properly investigated his claims.

4. The statutory regime in relation to Part 7AA of the Act and the making of a prompt decision does not identify any relevant error by the Authority. It was also for the applicant to provide sufficient material to the Authority to satisfy his protection claims. The Authority was under no obligation to conduct further investigations. Further, there was no identified, easily ascertainable material fact which could be ascertained from an identified source. No duty on the Authority to investigate arises from the circumstances of the present case.

5. Insofar as the applicant asserts that he told the truth, it is apparent that the Authority accepted some of the applicant’s claims and provided logical, rational reasons for the adverse credibility findings, which included placing little weight on certain documents produced by the applicant because of the prevalence of fraud.

6. The applicant’s submissions from the bar table convey that the applicant wished to remain in Australia and, in substance, invited this Court to engage in merits review. This Court has no power to review the merits, nor does this Court have power to determine the matter on compassionate or discretionary grounds.

7. Nothing said by the applicant from the bar table identified any jurisdictional error.

The ground

1. The ground in the application as follows:

   1. I think the Decision maker did not consider all of the evidence or did not take into account relevant considerations.

2. Unparticularised, ground one is incapable of making out any jurisdictional error. There has been no evidence identified that the Authority did not take into account and there has been no relevant consideration identified that the Authority did not take into account.

3. The applicant referred to some photographs, which appear to be photographs in respect of the person’s death. The Authority accepted that that person died in detention. There was no other material photograph identified by the applicant which required any express reference by the Authority.

4. The applicant referred to a letter from a Human Rights Lawyer. The Court Book contains a letter from Amnesty International dated 6 April 2016 which identifies the various human right reports that is apparent were provided to the Authority The Authority’s reasons refer to taking into account the applicant’s supporting documentation in both paragraph 15 of the Authority’s reasons as well as paragraph 3. There is no material information identified in that letter which required an express reference by the Authority. The Court does not accept that the absence of an express reference means that the Authority did not have regard to that letter.

5. Given the express references to which the Court has just referred, on the face of the material before the Court, the Authority had an active intellectual engagement with the applicant’s claims and submissions. The Authority made adverse findings which were open to the Authority for the reasons given by the Authority as summarised above. No jurisdictional error is made out by ground one in the application.

6. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 12 November 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  16 January 2020