CNU17 v Minister for Immigration

[2017] FCCA 2900

FEDERAL CIRCUIT COURT OF AUSTRALIA

CNU17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2900

Catchwords:
MIGRATION – Temporary Protection (Class XD) (Subclass 785) visa – where Tribunal refused to take news article – whether refusal amounted to jurisdictional error – no jurisdictional error demonstrated.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.18B

Migration Act 1958 (Cth), ss. 36(2)(a), 36(2)(aa), 48A(1), 441F

Applicant: CNU17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 539 of 2017

Judgment of: Judge Jarrett

Hearing date: 21 November 2017

Date of Last Submission: 21 November 2017

Delivered at: Brisbane

Delivered on: 24 November 2017

REPRESENTATION

Counsel for the Applicant: Mr Mac Giolla Ri

Solicitors for the Applicant: Mackenzie Mitchell Solicitors

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 8 June, 2017 be dismissed;

2. The applicant’s litigation guardian, Hien Thi Chu, pay the first respondent’s costs fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 539 of 2017

CNU17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant was born in Australia on 25 April, 2015.   However, he is not an Australian citizen.   Nor are his parents.   In the circumstances explained below he came to make an application for a Temporary Protection (Class XD) (Subclass 785) visa.   That application was refused by a delegate of the first respondent and then again on a review by the second respondent.

2. This is his application for judicial review of the decision of the Administrative Appeals Tribunal made 5 May, 2017 to affirm the delegate’s decision not to grant him a visa.   He has commenced these proceedings and prosecutes them by his litigation guardian, who is his mother.

3. In summary and as articulated by counsel for the applicant, this application concerns the claim put forward by the applicant that as a failed asylum seeker he will face relevant harm if returned to Vietnam.   He argues that there was a body of evidence before the delegate and the Tribunal that certain children, recently returned from Australia to Vietnam, had been subjected harassment and mistreatment at school or had otherwise been denied public services and education.   He argues that the Tribunal’s finding that the applicant would not be subjected to that harm is affected by jurisdictional error because the Tribunal did not take into account some evidence that the applicant’s mother wished the Tribunal to take into account.  He says that the decision is otherwise unreasonable.

4. The first respondent opposes the application.   The second respondent entered a submitting appearance.

Background

1. The applicant’s parents arrived in Australia as unauthorised maritime arrivals in March, 2013. Together with the applicant’s brother (their first child), they applied for Protection (Class XA) visas on 6 September, 2013. A delegate of the first respondent refused to grant those visas on 14 December, 2014. That decision was subsequently affirmed by a refugee review tribunal on 25 March, 2015.

2. The applicant was born in Australia on 25 April, 2015.   On 22 July, 2016 the applicant’s mother applied for a Temporary Protection (Class XD) (Subclass 785) visa.   The applicant, his brother and mother were included in the application as members of the same family unit.  However, the applicant and his brother pressed his own independent claims.  The application was accompanied by a statement which purported to be made by the applicant (who at the time was about two years of age), but signed on his behalf by his mother.

3. On 29 September, 2016 the Department notified the applicant’s parents that their visa applications were invalid by reason of s.48A(1) of the Migration Act 1958. That section provides:

   48A  No further applications for protection visa after refusal or cancellation

   (1)  Subject to section 48B, a non‑citizen who, while in the migration zone, has made:

   (a)  an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

   (b)  applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);

   may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non‑citizen is in the migration zone.

4. A notification was also sent by the Department to the applicant and his brother acknowledging receipt of their applications.   Initially, both applications were considered valid applications.  On 21 November, 2016 the applicant’s mother attended an interview with the delegate.   

5. The applicant’s claims for protection were articulated in a statement purportedly made by him but signed on his behalf by his mother, which accompanied his visa application.  It can be summarised as follows:

   a)He is Catholic and was baptised in Australia.   He feared he would be targeted and prohibited from practising the Catholic religion in Vietnam;

   b)He feared return to Vietnam as his parents were practising Catholics who left Vietnam illegally and were failed asylum seekers who would be branded traitors by the Vietnamese government and the community generally.   As a result he feared that he would be imprisoned with his parents or alternatively separated from his parents if they were imprisoned and consequently he would be orphaned or abandoned.   He feared that he would be branded a traitor, stigmatised and shunned by the community, and would be denied public services and an education.   

6. On 12 December, 2016 a delegate of the first respondent refused the visa applications of each infant, in separate decisions. The delegate found that neither of them met the criteria in s.36(2)(a) or s.36(2)(aa) of the Act in their own right, or as members of each other’s family unit.

7. On 19 December, 2016 the applicant and his brother applied to the Tribunal for review of the delegate’s decision.   On 6 April, 2017 the applicant and his brother were invited to attend a hearing before the Tribunal.   That hearing took place on 24 April, 2017.   The applicant’s mother attended the Tribunal hearing and gave evidence with the assistance of an interpreter in the Vietnamese and English languages.   Two witnesses, Trung Viet Doan and My Linh Do, also gave evidence by telephone.    Subsequently, the Tribunal invited the applicant to attend a further hearing on 5 May, 2017.

8. At the second hearing on 5 May, 2017 the applicant’s mother gave to the Tribunal member further documentation including letters from Eva Fritz (Registered Psychologist) dated 4 May, 2017 and Saddah Musson-Seedat (Clinical Psychologist) dated 15 July, 2016.   She also attempted to give to the Tribunal member two news articles, one described as being a report from the ABC dated 14 November, 2016 and found at and a report from SBS, dated 15 February, 2017, found at  The Tribunal member did not take the articles from the applicant’s mother.

9. The applicant’s mother was accompanied by a support person at both Tribunal hearings.   That person, Erin Kennedy, has given evidence before me, by way of affidavit about one aspect of the second hearing concerning the SBS article.   Ms Kennedy swears:

   5.  The second article, from SBS, dated February 15, 2017, ‘Women flee Vietnam for second time following tum-back from Australia’  I have printed this page and attached it to this affidavit as exhibit ‘EK2’.

   6.   Ms Chu took both printed articles with her to the hearing, during which she handed them to the Member.   Member Hawkins glanced at them, and said he had already seen them, handing them back.

   7.   Member Hawkins wou1d have seen the ABC article from November last year however he cannot have seen the February 15 article, which Mrs Chu did not submit in person at the hearing on April 24 or at any other time online before 5 May 2017.

   8.   After the hearing that morning, I helped Mrs Chu to submit the SBS article online at 10:39am, before she received an email later that afternoon at 4:36pm notifying her that a decision had been made.

10. Ms Kennedy’s evidence was not challenged.

11. On 5 May, 2017 the Tribunal affirmed the delegate’s decision under review.

12. The Tribunal noted that the first issue for its consideration was whether the application of the applicant’s brother was valid. It dealt with that and determined that it was subject to the proscription set out in s.48A(1) of the Act and was therefore invalid. The Tribunal set aside the delegate’s decision in respect of the applicant’s brother and substituted a decision that his visa application was not valid and could not be considered.

13. As to the present applicant, the Tribunal accepted that the applicant had been baptised, was a Catholic and was the child of parents who were practising Catholics.   However, it did not accept any of the applicant’s claims to fear harm, and made the following findings:

    a)The applicant’s parents had not been harmed, caught up or involved in a certain incident described in the material as the “Con Cuong Church protest” and were not the subject of any resulting discrimination or harm;

    b)Neither parent had expressed any political or anti-government views and would not be perceived to hold them;

    c)Notwithstanding that the Vietnamese authorities were aware that the applicant was in detention in Australia and had applied for protection, the Vietnamese government was facilitating the return of failed asylum seekers and did not harm people because they had applied for asylum in another country or had departed illegally;

    d)The applicant’s parents had paid people smugglers to get them to Australia and would be perceived as victims of crime.   It did not accept that his parents would be imprisoned on return and found at worst, they may be subject to a fine;

    e)The applicant would not be prevented from practising his religion;

    f)The applicant’s parents would not be imprisoned, they were not anti-government and the applicant would not be left to fend for himself, become homeless, trafficked, exploited or kidnapped;

    g)The applicant would be of no interest to the Vietnamese authorities;

    h)The applicant would not be unable to access public services and essential rights like education or have problems attending school;

    i)The applicant would be able to acquire Vietnamese citizenship through the process for registration of overseas births;

    j)It was plausible that some returnees were held for questioning by reason of their involvement in the organisation of people smuggling ventures and/or their political opinions, but the applicant’s mother was not an organiser of people smuggling ventures and had paid a people smuggler;

    k)The applicant would not be impacted by a criminal conviction that his father had received in the United Kingdom.   

14. In the course of its reasons, at [143] the Tribunal expressly referred to the ABC article I have referred to above, but did not refer to or mention in any way, the SBS article the subject of Ms Kennedy’s evidence.

15. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under either s.36(2)(a) or s.36(2)(aa) of the Act. It affirmed the decision under review in relation to the applicant.

The grounds of review

1. The applicant’s grounds of review are as follows:

   1. The tribunal breached the hearing rule and denied the applicant procedural fairness by:

   a.    Not accepting documents from the applicant at the hearing on 5 May 2017.   

   b.    Not raising with Mr Doan or Mrs Chu whether the harassment suffered by the returned children they referred to in their evidence could not extend to the applicant because his parents were not people smuggling organisers.   

   2.   The decision is irrational in the relevant sense because there was no basis for concluding that the applicant would be spared harassment at school because his parents had not been people smuggling organisers.   

   3.   The Tribunal committed a factual and/or legal error of a jurisdictional nature in concluding that the harm that would be caused to the applicant by harassment at school would not amount to serious harm or significant harm.   

2. On 7 August, 2017 the Court made orders that permitted the applicant to file an amended application if he wished to do so and to serve written submissions 14 days prior to the hearing date for the application.   Despite the applicant being legally represented, nothing was filed and served by that date.   

3. However, the applicant (by his solicitor) did file and serve a written outline of his argument on 14 November, 2017.    So too, did the first respondent.   

4. In his written outline, the applicant formally abandoned ground two of his grounds of review.

Ground 1

1. Counsel for the applicant explained in his oral submissions that ground 1(b) was not a ground to be considered on its own but should be considered along with and in the context of ground 1(a).

2. The applicant argues that the Tribunal failed to consider the SBS article referred to in the evidence of Ms Kennedy and that the applicant’s mother gave to the Tribunal by email following the hearing on 5 May, 2017.

3. In my view the article was material that was relevant to the matters that the Tribunal was considering on the review.   It is certainly the case that the Tribunal did not expressly refer to that article in its reasons for decision.

4. The first respondent argues that I should infer that the Tribunal took it into account because it appears in the Court Book as being part of the material held by the Tribunal for the purposes of the review.   It was given to the Tribunal by email before the Tribunal made its decision.

5. However, I am not prepared to draw that inference because the unchallenged evidence of Ms Kennedy was that the Tribunal member’s view was that he had seen the articles before and did not need to take them.   He was mistaken about that.  Ms Kennedy’s evidence tends to suggest that the Tribunal member was unlikely to refer to the email that was later sent, given his mistaken belief that he had already seen the articles.  That the ABC article was referred to expressly in the reasons for decision but the SBS article was not, supports that conclusion. 

6. Drawing upon s.441F of the Migration Act, s.18B of the Administrative Appeals Tribunal Act 1975 (Cth) and s.5.4 of the Migration and Refugee Matters Practice Direction issued by the President of the Tribunal on 30 June, 2015 the applicant argues that “It was not lawful for the Tribunal to refuse the SBS article, even if that mistake was an innocent error on the Tribunal Member’s part.” However, I am not satisfied that it was unlawful. The Tribunal has power to inform itself on any matter in such manner as it thinks appropriate: s.33(1)(b) of the Administrative Appeals Tribunal Act 1975.

7. What is more relevant, however, is whether by refusing to take the document and have regard to it, the Tribunal deprived itself of relevant material that may have had a bearing on the outcome of the case.

8. The applicant’s case was that if he was returned to Vietnam his parents may be subject to sanctions that would see them imprisoned and he and his brother would be left to fend for themselves.  Even if that did not happen, he and his family would be identified as traitors and treated badly by being subjected to a denial of public services and education.

9. In support of the applicant’s claims, his mother placed evidence before the Tribunal from Mr Trung Doan which referred to and included a transcript of a conversation he had with a Mrs Lua, who had been repatriated to Vietnam after apparently being intercepted in a boat on her way to Australia with a group of other people.  The statement and Mrs Lua’s statement in the conversation were said by the applicant’s mother to support the claims being made.

10. At [111] and [115] of its reasons, the Tribunal recorded (citations omitted):

    111.  DFAT assesses that persons who paid money to organisers of people smuggling operations are viewed by the government as victims of criminal activity (people smuggling) rather than as criminals facing the penalties allowed in the law for departing Vietnam illegally.  While some returnees may be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people smuggling operations.  DFAT understands this to be the case in relation to several individuals who were on board vessels returned to Vietnam in April and July 2015, as part of investigations into people smuggling operations.  On 22 April, the Vietnamese Government invited the UNHCR (in a message conveyed by the Australian Government) to interview individuals who had been on board the vessel returned in April, including those who had been detained.  At the time of release of this report, UNHCR had not sought to interview any of those individuals.

    112.  The Tribunal confirmed with Mrs Chu that she and her husband had paid a people smuggler.  She stated that she and her husband had sold up all their assets and would have given the money to anyone who could take them.

    113.  At the 5 May hearing, the Tribunal asked Mrs Chu how much they had paid the people smuggler.  She said she couldn’t be sure, as her husband looked after the finances, but seemed to recall that he may have said to her it was US$10,000.  She was adamant that neither she or her husband were organisers of the boat or the other people.

    114.  Other information is that those involved in anti-regime activities overseas are likely to be interviewed by security officials and to contact their families in subtle intimidation.  However those who are critical of the government while overseas are not usually treated in this fashion as there is a tolerance for “critical views” but not anti-regime activity.

    115.  The Tribunal asked Mrs Chu whether she or her husband had expressed any political views, anywhere.  She said they definitely hadn’t expressed any political views.

11. The Tribunal then considered the claims relating to the denial of public service and education.   It referred to the evidence from the two witnesses I have identified above and to the two letters that the applicant’s mother had given the Tribunal.   At [142] the Tribunal found:

    142.  The Tribunal does not accept that the applicant faces any harm as it does not accept his parents will be imprisoned, that they are antigovernment or that he will be left to fend for himself or homeless or on the streets or trafficked, exploited or kidnapped or in any way harmed.  The Tribunal accepts that by reason of his young age that he will be of no interest to the Vietnamese authorities.  The Tribunal does not accept the applicant will not have anyone to look after him as the Tribunal does not accept his parents will be unable to as it is has found they will not be imprisoned or harmed upon return.  Further, Mrs Chu has said her parents would be able to assist in looking after the children should they ever be detained for questioning.  Further, as referred to in the country information above, the government considers anyone born to at least one Vietnamese citizen parent may also acquire citizenship and there is a procedure for registration of overseas birth which the applicant can access.  Based on the country information and his circumstances, the Tribunal does not accept the applicant will be unable to access public services and essential rights like an education or have problems attending school or suffer any serious or significant harm.   Further, the tribunal does not accept that Mrs Chu’s fear that the children would not be given an education or that the children will not be treated fairly or equally.

1. The Tribunal then referred to the differential treatment of people who paid people smugglers and the people smugglers themselves.   In this context, the Tribunal referred to the ABC article identified above and said (again, citations omitted):

   143.  The Tribunal also acknowledges the applicant’s submission (ADD2016/1749972 pp 13-22) which included a media article from Australian Broadcasting Corporation entitled ‘Asylum seekers who came on boats to Australia jailed in Vietnam, advocacy groups says’ and a submission from Voice Australia’s spokesman and witness to this hearing, Mr Doan about two groups of Vietnamese asylum seekers who were returned in July 2015.  His account states that 5 ‘boat people’ have been in indefinite detention, under repeated questioning and all told by police that they will be jailed for several years.  He further reports that at least one person has been charged and another not detained has been made unemployable because their papers are marked as an ‘illegal departee’.

   144.  Considering the country information discussed above, and the statement of the witness Mr Doan, the Tribunal accepts that it is plausible that some of the returnees that were held for questioning may have been so held by reason of their involvement in the organisation of the people smuggling venture and/or their political opinions.  The Tribunal notes that Mr Doan was quoted In the Sydney Morning Herald as stating that from one group of 43 persons were allowed to return home and three were detained for questioning (CXBD6AODE17950).

   145.  The Tribunal also noted the evidence of the two witnesses in relation to the treatment of the children of returned asylum seekers at school particularly with respect to the use of loud speakers.  The Tribunal notes the reference to the children of Mrs Lua as being the ones who were traumatised.  The Tribunal also notes, from the finding in the preceding paragraph, that Mrs Lua was one of the people held for questioning in relation to the organisation of the people smuggling.  Mrs Chu was not an organiser - she paid a people smuggler.  Her situation is different to that of Mrs Lua.  For this reason the concerns of the psychologists can be distinguished.  Furthermore, even if Mrs Chu’s community formed an opinion about the applicant’s family and harassed the applicant at school, the Tribunal is not satisfied that the applicant would be prohibited from obtaining public services and an education and does not find this harm would rise to the level of threat to his life or liberty or to other forms of serious harm as required by s.5(J)(5), or to significant harm as required by s.36(2A).

2. The SBS article in question is entitled: “Women flee Vietnam for second time following turn-back from Australia”.   The article contains the following statements:

   At least three of the women on board - Tran Thi Thanh Loan, Tran Thi Lua and Nguyen Thi Phuc - were among a group of 46 asylum seekers who were returned to Vietnam by the Australian Government in 2015.

   The original group of 46 were held by the Aus1ralian Navy at sea for more than a month before being returned to Vietnamese authorities, a detail not revealed until a Senate estimates hearing in late May, 2015.

   Some of those who were returned were later handed jail terms by Vietnamese authorities, who accused them of leaving the country without official approval.

   The charges were brought despite Australian and local officials reassuring the group that they would not face retribution after their return in 2015.

3. The balance of the article refers to the fears of the group should they be repatriated to Vietnam again, the fact that the husbands of some of them are in jail and that “The People’s Committee of Binh Thuan province instructed border guards and local police to “strictly punish” those who organise people to illegally go abroad by sea…”.

4. The Tribunal’s reasons make it clear that it accepted that persons who were involved in organising people smuggling operations were treated harshly by the Vietnamese authorities.  Equally it is clear that the Tribunal accepted that those who were seen as victims of people smugglers were not treated in the same way.  The Tribunal concluded that as the applicant’s family paid others, the risk of harm to the applicant on return was remote.

5. On its face, the SBS article adds very little to the information already before the Tribunal.  The essential content of the article was already before the Tribunal in the country information to which the Tribunal had regard, the ABC article but more particularly in the statement by Mr Doan and the telephone transcript of his conversation with Mrs Lua about the repatriation of the group dealt with in that article, which seems to have been the subject of Mrs Lua’s telephone conversation with Mr Doan.   

6. Counsel for the applicant suggested that whilst three people were named in that article (in the sentences extracted above), only two were clearly identified as people smuggling organisers.   There was an absence of evidence concerning the third.   I think that submission is correct as far as it goes.  Counsel’s submission was that the third person might well have been a person who paid a people smuggler but was not an organiser and the article afforded some evidence that the application of differential treatment identified by the Tribunal was not always the course adopted by the Vietnamese authorities or the community more generally.  However, in the absence of some material that demonstrated that the third person identified in the article was not a people smuggler, having regard to the Tribunal’s reasoning and its reliance upon the DFAT country information, the failure by the Tribunal to receive the SBS article does not demonstrate jurisdictional error on the part of the Tribunal.

Ground 3

1. The Tribunal had before it evidence from a psychologist (Ms Eva Fritz dated 4 May, 2017) that the conduct described by Mrs Lua in her telephone interview with Mr Doan could result in “anxiety disorder, school refusal and post-traumatic stress disorder” for children exposed to that conduct.   The applicant argues that at [145], the Tribunal found that the concerns of the psychologist, however, did not apply to the applicant because, on the material before the Tribunal, a distinction could be drawn between the treatment of the families of people smugglers and the applicant’s family.   However, at [145] the Tribunal says:

   …even if Mrs Chu’s community formed an opinion about the applicant’s family and harassed the applicant at school, the Tribunal is not satisfied that the applicant would be prohibited from obtaining public services and an education and does not find this harm would rise to the level of threat to his life or liberty or to other forms of serious harm as required by s.5(J)(5), or to significant harm as required by s.36(2A).

2. The applicant argues that “on the assumption that the Tribunal accepts that the harm described by Ms Fritz would arise, the Tribunal erred in finding that such harm could not satisfy s.5(J)(5) or s.36(2A)”.  But the Tribunal did not accept that the harm identified by Ms Fritz would arise on the facts of the case.   The Tribunal found that the applicant would not be treated the same way as Mrs Lua’s children because his parents were not organisers of people smuggling operations, whereas Mrs Lua was such a person.   Given that finding, the conclusion reached by the Tribunal that the harm identified by Ms Fritz would not befall the applicant was clearly open to it.

3. The first respondent submits that ground three is no more than a request for impermissible merits review and generally indicates the applicant’s dissatisfaction with the Tribunal’s decision.   I accept that submission.

Conclusion

1. The application does not identify any jurisdictional error on the part of the Tribunal.  It must be dismissed.  The applicant’s litigation guardian should pay the first respondent’s costs of the application. 

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  24 November 2017