CLY15 v Minister for Immigration - [2017] FCCA 2504

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLY15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2504

Catchwords:
MIGRATION – Judicial review – Minister’s delegate notified the AAT under s 438 Migration Act 1958 that certain material should not to be disclosed to the applicant as this would be contrary to the public interest – in fact the material was disclosed in FOI release to the applicant’s migration agent – whether there was a jurisdictional error in relation to the notification – Tribunal may have relied on the notification and therefore committed jurisdictional error – appeal allowed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 375, 424A, 424AA, 438

Freedom of Information Act 1982 (Cth)

Cases cited:

Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901

SZMTA v Minister for Immigration [2016] FCCA 1329

BGZ15 v Minister for Immigration [2017] FCA 1095
MZAFZ v Minister for Immigration [2016] FCA 1081
MZAGE v Minister for Immigration [2016] FCA 630
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1
Stead v SGIC (1986) 161 CLR 141

Applicant:

CLY15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

DNG 67 of 2015

Judgment of:

Judge Young

Hearing date:

27 February 2017

Date of Last Submission:

27 February 2017

Delivered at:

Darwin

Delivered on:

17 October 2017

REPRESENTATION

The Applicant:

In Person Via videolink

Counsel for the Respondent:

Ms Davidson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the decision of the Administrative Appeals Tribunal made on 27 October 2015 be quashed.
That the matter be remitted to the Administrative Appeals Tribunal for rehearing.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 67 of 2015

CLY15

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 of the Administrative Appeals Tribunal (“the Tribunal”) to refuse a protection visa made on 27 October 2015. The Tribunal affirmed a decision of the Minister’s delegate made on 12 May 2015.
The applicant applied to this Court on 24 November 2015. The matter was initially listed for hearing on 23 August 2016. On 19 August 2016 the solicitors who acted for the applicant sought leave to withdraw. It was said that the grounds of review that the solicitors considered to have merit were no longer tenable after the decision of the High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901 which had been handed down on 27 July 2016. I gave the solicitors leave and granted (with some concern because he was in detention) the applicant an adjournment to seek new legal representation. The matter was adjourned for hearing to 27 February 2017.
On 6 February 2017 the Minister filed an affidavit of Ms Mieke Dixon to the effect that on 14 July 2015 the applicant’s migration agent had been given various documents pursuant to a Freedom of Information Act 1982

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 2504
Decision Date: 17 October 2017

CaseChat Overview and Summary

This matter came before Judge Young of the Federal Circuit Court of Australia. The applicant sought judicial review of a decision by the Minister for Immigration, which affirmed a decision of the Refugee Review Tribunal. The dispute concerned the applicant's claims for protection in Australia, based on alleged persecution in Vietnam due to his religious activities, complaints of corruption, and threats from criminal elements. The applicant also raised concerns about a data breach of his personal information.

The court was required to determine whether the Refugee Review Tribunal had erred in law in its assessment of the applicant's claims. Specifically, the court needed to consider whether the Tribunal had made adverse credibility findings against the applicant without a proper evidentiary basis, whether its findings regarding the applicant's religious activities and the risk of harm in Vietnam were supported by the evidence and relevant country information, and whether the Tribunal had adequately considered the impact of the data breach. The court also had to assess whether the Tribunal's findings that certain documents were fraudulent and indicative of bad faith were legally sound.

Judge Young granted the Minister leave to rely on an affidavit and informed the applicant of the Minister's submissions, including that the applicant had received a relevant report through a Freedom of Information release and had provided information about his UK experiences to the Tribunal. The applicant made no submissions in response. The Tribunal had found the applicant lacked credibility due to inconsistencies and implausibility in his claims of proselytising, his failure to disclose his UK travel history and criminal conviction, and his denials of these matters. While accepting the applicant was Christian, the Tribunal found his preaching was too limited to attract adverse attention from Vietnamese authorities and that there was no generalised persecution of Protestants in Vietnam. The Tribunal also rejected claims of adverse attention due to corruption complaints or threats from criminal elements, finding these lacked credibility and that purported summonses were fraudulent, indicating bad faith. Furthermore, the Tribunal found that a data breach would not have informed Vietnamese authorities of anything they did not already know, given the public nature of the applicant's departure, and therefore posed no risk of harm. Consequently, the Tribunal concluded the applicant did not meet the refugee criterion or the alternative criterion of being at risk of significant harm if returned to Vietnam.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I gave the Minister leave to rely on the affidavit. I explained to the applicant in summary terms the submissions made by the Minister and, in particular, that it was asserted and appeared to be true, that he had received the FCC Finger Print Match Report in the Freedom of Information (‘FOI’) release to his migration agent and that he had provided information about the events in the UK to the Tribunal and made submissions about them. The applicant made no submission in response. The Tribunal’s decision The applicant left Vietnam lawfully to work in South Korea between 1997 and 2003. He returned to Vietnam between 2003 and 2006. From 2006 to 2009 he worked lawfully in the Czech Republic. In 2009 he illegally entered the UK. In February 2010 he claimed asylum in the UK. In September 2010 he was convicted of drugs production and sentenced to 2 years imprisonment. In May 2011 he was removed to Vietnam. In May 2013 the applicant arrived in Australia by boat and applied for a protection visa in June 2014. The applicant asserted that he had become a Protestant Christian while working in South Korea. He said that when he proselytised in his village he was subject to persecution by the authorities. He said that he had also complained of corruption by village officials. He claimed to have been threatened or assaulted by criminal elements or the agents of the government as a result of these matters or as a result of his involvement with a criminal gang in the UK. He also complained of the unauthorised release of personal information on the web (“the data breach”) by the Department in February 2014. The delegate made an adverse credibility finding against the applicant based principally on inconsistency and implausibility of his claimed Christian proselytising in his village and on his failure to disclose his earlier travel history and criminal conviction in the UK and his repeated denials of these matters during his interview with the delegate. The Tribunal considered substantially the same claims and reached a similar conclusion. Although it accepted that the applicant was a Christian it did not accept, based on the very limited ambit of the applicant’s claimed Christian preaching, that he had come to the adverse attention of the Vietnamese authorities. It did not accept, based in country information, that there was any generalised persecution of Protestants in Vietnam. The Tribunal did not accept that the applicant had been the subject of adverse attention by the authorities as a result of any complaint of corruption against village officials or that he was threatened or assaulted by criminal elements or thugs acting for themselves or on behalf of the authorities. It found these claims lacked credibility. The Tribunal found positively that documents that purported to be summonses to the applicant from the authorities were fraudulent and found that they were evidence of bad faith on the part of the applicant. The Tribunal found that because the departure of the applicant and his companions by boat was well known to the Vietnamese authorities as evidenced by a news article in official Vietnamese online media that the data breach would not have told the Vietnamese authorities anything they did not already know about the applicant. It did not accept that this knowledge about the applicant gave rise to any risk of harm to him and did not accept that his departure from Vietnam constituted a criminal offence which was likely to result in harm. The Tribunal found that the applicant did not meet the refugee criterion in the Act. The Tribunal also considered the alternative criterion in section 36(2)(aa) and found that the applicant was not at risk of significant harm if he were to be returned to Vietnam.

Ratio Decidendi

Legal Principle Established

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