CPP17 v Minister for Immigration
[2019] FCCA 3593
•28 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CPP17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3593 |
| Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 |
| First Applicant: | CPP17 |
| Second Applicant: | CPQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 230 of 2017 |
| Judgment of: | Judge Vasta |
| Hearing date: | 28 October 2019 |
| Date of Last Submission: | 28 October 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 28 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Rutherford |
| Solicitors for the Applicant: | CAMATTA LEMPENS |
| Counsel for the First Respondent: | Ms Butler |
| Solicitors for the First Respondent: | AUSTRALIAN GOVERNMENT SOLICITOR |
ORDERS
The application filed 14 June 2017 be dismissed.
The Applicants pay the respondent’s costs fixed in the sum of six thousand nine hundred dollars ($6,900.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 230 of 2017
| CPP17 |
First Applicant
| CPQ17 |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
On 22 May 2017 the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, CPP17, and her daughter, CPQ17, protection visas. By application filed on 14 June 2017, the Applicant has asked this Court to review that decision.
The background to the matter is that the Applicant and her child are citizens of Vietnam. They left Vietnam on 29 May 2013 and arrived in Australia on 18 June 2013.
The IAA looked at the information that it had before it. The Applicant had been interviewed soon after arrival in what is commonly called the arrival interview. That occurred in July and August 2013. In that interview, she had told the authorities that she was of the Catholic faith and Kinh ethnicity. She said that she had lived in her village since birth and was a farmer, first on her parent’s farm, and then on her own and she cultivated peppercorns.
She said that she had completed 12 years of schooling and, in 2012, commenced a pharmacist course at the Hong Bang International University but had not completed that course. She had told the authorities that she had been married to a man who was born in 1963 and they had a son who was born in September 1994 and that that son lives with her parents.
She told the authorities that she remarried in 1998 and her second husband was born in 1951. They had a daughter who was born in February 2009, who is the Second Applicant. The Applicant said that she and the husband separated in 2012 but remained living under the same roof until she left Vietnam.
In the arrival interview, she spoke of difficulties she had raising her children. She saw that Vietnamese Australians who came to visit were able to help out their families financially. She wanted to come to Australia and work.
She funded the cost to come to Australia from her savings and she also told the authorities, at that interview, that she suffered domestic violence and that if she were to return, she would be arrested and put in jail. She said that her mother had been summonsed for an interview regarding her whereabouts after she left Vietnam.
The Applicant was able to lodge an application for a protection visa and did so on 5 October 2016. In that application, her claims were that she left Vietnam because she was in constant fear of being put in prison.
In the application, she said that the authorities had always had an eye on Catholics and thought that they were plotting to overthrow the Government. She said that Catholics were forbidden to apply for decent jobs. She said that she had been followed home from church by two men that she suspected to be undercover police when she was 17 years old.
She said that, on 7 April 2012, the Government advised they wished to reoccupy the school attached to the village church and two days later armed police were sent to reoccupy the property, but it was defended by all the women of the parish including the Applicant.
She said that she attended Mass on Sundays and prayer sessions at the chapel each night, but, in August 2012, two of their sessions were disrupted by the police who kicked everybody out of the chapel. After that, the nightly sessions were held at the homes of the parishioners on a rotating basis. Two weeks later some men burst into one of the private homes of the parishioners and disrupted the prayer meeting in a similar manner.
She said, in the application, that her second husband was an alcoholic and he beat her; that she wanted to divorce him but the law in Vietnam requires the parties to attend reconciliation before they approve a divorce application. She said that if one party bribes the conciliator with money not to approve an initiating divorce application then, regardless of the other party’s wishes, the divorce cannot proceed.
Finally, she said that on 16 August 2013, after she had come to Australia, the police invited her older brother to the police station to discuss the Applicant’s escape from Vietnam. Because of all of these things she strongly believes she will be beaten and imprisoned if she returns.
The IAA noted that the Applicant expanded on her claims during the interview. She spoke of what had occurred with regard to the disrupting of meetings of the Catholic group, Children of Mother Maria.
She said, in the interview, that, in relation to her domestic situation, society in Vietnam does not look kindly on women. She said that her husband had violated and oppressed her, but no-one would protect her. She said that the violence started when she was pregnant with her daughter.
She spoke to a local women’s group who came and spoke to her husband. He said that he would mend his ways, but he did not. The delegate asked the Applicant whether she had applied for a divorce and she advised that she and the husband had undertaken a cultural ceremony but not the legal one. The delegate asked whether this meant that they were not in fact legally married and the Applicant responded that because she had been divorced once before she was not able to do it again.
In relation to her fear of harm in the future should she return to Vietnam, she said that she feared what “the authorities” would do to her. She worried that her daughter would not be allowed to attend school because she had been schooled in Australia. In relation to fear for herself, she said that the situation is worse now than when she left; that if the authorities want to seize her land, they will. She said the authorities already hated her and she will be persecuted if she returns.
Because she left the country, she said she will be considered a deserter which is a major crime. She said that she will be put in prison, beaten, and tortured, and the guards will put drugs in her food and poison her.
She said that she is not able to relocate to another area. She had tried to relocate once before and took her son to be schooled in the city, but the authorities would not allow it.
The IAA then went through those claims and assessed them in what would seem to me to be a fairly thorough manner. The IAA accepted that the Applicant was a Catholic and accepted all of the background that she had given except her current marital status.
The IAA was not satisfied that the Applicant was legally married to her husband. And I will keep using the word “husband” for the rest of these reasons, notwithstanding that there has been a finding that they were not legally married.
The IAA looked at the position that the Applicant was in because of her Catholic faith and especially what had happened in 2012 regarding Government acquisition of church land. The IAA had some reservations about these matters mainly because the Applicant had not mentioned anything in the nature of being subject to oppression because of her Catholic faith at the time that she participated in the entry interview.
She was asked the question, in her entry interview, as to whether the police impacted on her daily life and she said “no”. And yet when she made her protection visa application three years afterwards, she gave detailed claims that they were oppressing her and impacting her daily life because they were disrupting prayer meetings.
The IAA accepted that a prayer meeting, which the Applicant attended, may have been disrupted by some men but did not accept the allegations that the Applicant made that the men who disrupted it were alleging that the participants in the prayer meeting were plotting to overthrow the Government.
The IAA noted that the Applicant had not claimed that she received any adverse attention from the authorities due to her continued participation in those nightly prayer meetings. The claim that the Catholics were forbidden to apply for particular work, the IAA noted, was given without any details.
The IAA noted, as well, that the Applicant had only worked as a farmer and she had not said, nor was she asked, whether she had sought work in any other field. The Applicant had commenced studies in pharmacy in 2012, presumably with a view to working in the pharmacological field, but the IAA did not accept that the Applicant faced any restrictions on her employment due to her religion at any time. The Applicant had given no detail of any problem, in any event.
The IAA then looked at the domestic violence aspect. And I will read paragraphs 19 and 20 into the record. Paragraph 19:
19. The applicant mother has also stated that she was a victim of domestic violence at the hands of her second husband. I accept her evidence that her husband was violent towards her and that she reported this to the Dong Lim Hamlet Women’s Association, who visited the husband on 7 March 2013 (minutes of Family Conciliation Meeting were provided with the applicants’ PV applications). The applicant mother stated she reported the assaults to the police, but that was told they did not interfere in domestic matters. Country information indicates that domestic violence remains a concern.
20. Although I accept that domestic violence occurred, I note that she has at no point during the arrival interview or in her PV application process claimed that she fears [her husband] or fears that he will harm her in the future, should she return to Vietnam. The applicant states she is now separated from [her husband] and there is no indication that the threat of violence is ongoing. I have found that they were not legally married therefore the applicant mother’s claims that she could not divorce him are irrelevant. The applicant mother also claimed that she tried to relocate but was not able to. This is not consistent with the country information, which states that internal relocation is common, with large scale urbanisation occurring in recent decades alongside other migration for economic purposes. It appears that the farm was owned by the applicant mother, as she stated that her parents gave her the land when she first married. During the discussion about identity documents in her first arrival interview, the Applicant mother stated that they were at her home in Vietnam but that the home was empty. She added that her mother had recently informed her that the house had been broken into. I conclude from this that [the husband] moved out of the family home at or around the time that the applicants came to Australia. His whereabouts were not discussed at the PV interview. I am not satisfied that there would be ongoing conflict between [the Applicant and the husband] should the applicants return to Vietnam.
The IAA then looked at the question of what would happen to the Applicant from the authorities upon her return, noting that there had been a data breach which did allow, at one particular stage, her information to be accessed by outside bodies. As she was in detention at that time, if it had been accessed by an outsider, it would have referred to her name and the fact that she was from Vietnam.
The IAA also noted that there is, in Vietnam, a requirement the household registration book is accurately maintained, and it includes the requirement that residents notify the authorities of changes in address, temporary absences, and the reasons for those absences. The Applicant’s evidence that, she said her mother in the arrival interview and then her brother in her PV application, had been invited to speak to the authorities about the absence of the Applicant, was something that the IAA was satisfied had actually happened. However, they were not satisfied that the Applicant’s brother did actually attend the police station and was satisfied that no further action occurred in relation to this.
The IAA then looked at whether the Applicant had met the refugee criteria. The IAA looked at the position of Catholics in Vietnam noting that there were 6.5 million Catholics in Vietnam out of a general population of 93.4 million people, and that the Catholic Church was registered in Vietnam. The IAA noted that a number of new congregations were approved in 2013 in response to a growing demand for the Church in certain communities.
The country information was that Catholics, who attended churches and are not politically active or opposed to the state, face a low risk of harm as those that worship quietly in a manner that conforms to Government policies and sensitivities. It is those that attend unregistered churches that are considered by the Vietnamese authorities to be opposed to the Government and they are likely to be monitored, harassed, detained, or arrested. The IAA noted that apart from an incident where a prayer meeting was disrupted, the Applicant did not claim to have experienced any difficulties in the past despite regularly attending church and prayer meetings.
She had not stated that any members of her family have experienced any harm or discrimination due to their Catholic faith. The Applicant had not made any suggestion she had modified her religious practice in the past to avoid harm or would need to do so in the future.
The IAA was accepting of the Applicant’s claim that she was involved in an event opposing the acquisition of Church land in 2012 but concluded that she was not the subject of adverse attention due to this. The IAA concluded that the Applicant was not an activist, nor would she be perceived to be one, nor would she engage in religious activism on return to Vietnam.
On this basis, having regard to the country information, the IAA found that there was not a real chance of her being harmed in the basis of her activities or Catholic faith.
The IAA accepted that the Applicant was the victim of domestic violence from her husband but found that the threat of violence was not ongoing and was not satisfied that there was a real chance that she would be at risk of harm from the husband should she return to Vietnam.
With regard to the data breach the IAA found that this was not a matter that led to there being a real risk of harm.
The IAA then looked at the country information as to what would happen upon her return to Vietnam given that she did depart illegally. The IAA found that she could be fined, or briefly detained, for that departure but found that the country information is that people who have paid money to people smugglers are viewed by the Government as victims of criminal activity rather than as criminals facing the penalties allowed in the law for departing Vietnam illegally.
The IAA did not accept the Applicant’s claim that she would be considered to be a deserter or that she would be imprisoned. The IAA did not accept that there was a real chance that she would suffer torture, physical abuse, or sexual abuse if briefly detained, or that her food would be drugged or poisoned.
As to a claim that her farm may be the subject of compulsory acquisition by authorities, the IAA referred to country information that confirmed that land use is still a contentious issue in Vietnam. It noted that all land is formally owned by the state which issues land use rights to citizens but retains significant power over land use including compulsory acquisition powers. The Applicant has not claimed that there is any indication that her land is to be acquired and the IAA was not satisfied that there was a real chance that this would occur in the foreseeable future.
The Applicant claims that her child may be denied schooling because she attended school in Australia, but the country information indicated that education is compulsory, tuition fee free and universal to age 14. The IAA did not accept that claim of the Applicant. For those reasons the IAA found that the Applicants didn’t meet the requirements of the definition of refugee.
The IAA then turned to the complementary protection assessment. At paragraph 34 the IAA said:
34. I have concluded that the Applicant mother does not face real chance of harm on the basis she is a Roman Catholic, that she was involved in land acquisition protest in 2012, from [her husband], as a result of the Department’s data-breach, or as an asylum seeker returning from Australia. I have not accepted that there is a real chance that the applicant mother’s land will be acquired by the Government or that the applicant child will be denied schooling in Vietnam. As a ‘real risk’ and ‘real chance’ involve the application of the same standard, I am also not satisfied the Applicant mother would face a real risk of significant harm for the purposes of s.36(2)(aa) on these grounds.
The conclusion reached, therefore, was that there were not substantive grounds for believing as a necessary and foreseeable consequence of being returned from Australia to Vietnam that there was a real risk that the Applicants would suffer significant harm.
The IAA looked at the fact that the second Applicant was a member of the same family unit as well and found, because the Applicant didn’t meet either the definition of refugee or satisfy the complementary protection criteria, that the child did not so either. For those reasons, the IAA affirmed the decision.
By amended application, that was filed on 21 October 2019, the grounds of this review application are:
1. The authority committed jurisdictional error by failing to review the delegate’s decision within the meaning of subs473CC…
2. In the alternative, the authority committed jurisdictional error in that it erred in the proper construction and application of subs.36(2B)(a)…
In essence, the claim made by the Applicant is that the IAA did not grapple with a claim that was made well and truly on the case, or facts, or submissions put forward by the Applicant; that is, that the Applicant was a victim of domestic violence and if she is returned to Vietnam she is at risk of further domestic violence.
This is really a matter that goes to the complementary protection criteria more than the refugee criteria. However, I am of the view that there is somewhat of a cross-over here. The authorities are clear that the IAA must deal with claims that are made by the Applicant and claims that are reasonably discernible on the claims that have been brought forward.
In this matter it is clear that the Applicant has been consistent that she has been a victim of domestic violence. She said so in her arrival interview, she said so in her application, and she said so in her interview for the protection visa.
She also has the benefit of supporting material which is quite compelling in respect of her claim to have been a victim of domestic violence. The first of those was the minutes of the family conciliation meeting. They are at page 125 of the court book. They read:
Today, Thursday 7 March 2013 at 16:00, we, the Dong Linh Hamlet Women’s Association consisting of:
Association head…
Association deputy head…
Came to the house of the [the applicant] who is a member of group 7 of the Dong Linh Hamlet Women’s Association to provide conciliation services.
Details of the conciliation:
[The Applicant], born in 1971, married to [the husband], born in 1951, have one daughter named [CPQ17], born 2009. Both are farmers.
[The Applicant] on multiple occasions confided to her group leader that [the husband] often got drunk and committed violent acts against her. Since their house is located deep within the fields, far from residential areas, no one can intervene in time and therefore, she has had to suffer bouts of her husband’s beating. After hearing this report from the group leader, the association’s executive board decided to visit her family with the hope of a peaceful resolution, preventing the situation from being prolonged leading to break up. Due to her having to pick up their daughter [the Applicant] was absent from the meeting.
With the presence of [the husband] and a few close ones, the association head talked about the role of marriage, the role of a husband - wife in a family -the parent’s influence on the children, especially about the law of marriage – family, and articles of the law on domestic violence prevention and control.
With advices on the bond between humans, between a couple and among family members, all present wanted [the husband] to make efforts to stop drinking to build a happy family.
[The husband] promised that he would try to be better.
The meeting ended warmly and amicably.
The Women’s Association said they will provide support if there were any help needed in job seeking, and school fee assistance…
The conciliation meeting concluded at 1745 of the same day and it was signed by the deputy head and the husband. As well as that there was another statement – which is found at page 128 of the court book – by a neighbour who said:
During the period of early 2012 to the present [the Applicant], born in 1971, who lives near us, has on multiple occasions, come and stayed at my house for the following reason: being assaulted by her husband… born in 1951, whenever he got drunk. For a couple of times, she turned up at my house with bruises on her eyes or red marks on her cheeks, being assaulted by her husband. Recently, she has asked me to come over to see household objects smashed by her husband when he is drunk. She has also confided to me that she does not want to live with her husband any more. She would like to lodge a divorce application. However, since she does not want her daughter…born in 2009, to be devoid of the love from either parents she has tried to tolerate her husband’s violence.
Having been suffering for quite a long time now, she would like me to act as a witness for her husband’s assault to support her divorce application.
I guarantee that all information provided in the above statement is true.
As signed by the neighbour on 20 April 2013.
The Applicant says that it is clear that by putting all that information before the delegate and, therefore, before the IAA, the Applicant is not only just saying “I left Vietnam because I was the victim of domestic violence and I can prove that I was the victim of domestic violence”. The Applicant, it is submitted, is also saying “I am fearful of this violence continuing if it is that I am returned to Vietnam”. The question is whether this latter aspect does truly arise on the evidence that is before the delegate and then before the IAA.
At the beginning of paragraph 20, it is clear that what the IAA has noted is technically correct; that is, that the Applicant has at no point during the arrival interview or in her PV application process claimed that she fears the husband or fears that he will harm her in the future should she return to Vietnam.
The IAA then notes that the Applicant gave evidence that the house was empty and that her mother said that the house had actually been broken into. Justifiably, on that evidence, the IAA concluded that the husband had left that house. The evidence is that the land is the land owned by the Applicant, not by the Applicant and the husband.
The evidence is that the Applicant lived on that land with her former husband until they divorced and was then living on that land with the husband – the second husband – the one I have been speaking of. It is also clear on the supporting evidence that the violence that the Applicant is subjected to occurs when the husband gets drunk. It is also apparent on the evidence that the Applicant considered that they were separated but they were living under the same roof. The evidence also is that the Applicant has not physically removed herself or attempted to have the husband removed because she wanted the daughter to grow up with the love of both parents.
The Applicant, though, has now left Vietnam and has been away from the husband since 2013. That was a period of some four years at the time the IAA was making their decision.
Having looked at that evidence, it does not seem to me that the claim that is now being put forward, that supposedly arises in the NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 sense, is a claim that actually did arise. The domestic violence that occurred, occurred because the Applicant and the husband were together. Now that the Applicant and the husband are not together there is no fear of domestic violence.
It seems to me that it cannot be said that, on the evidence that had been placed before the delegate and the IAA, that the Applicant was truly saying that there would be a well-founded fear of domestic violence if she returned to Vietnam. Nothing that has been put forward that would suggest there would be a chance of cohabitation resuming with the husband upon the Applicant being returned to Vietnam.
Because of these reasons, I do not accept that the claim that is now being made was one that fairly arises on the material. Because that claim does not arise on the material there was no need then for the IAA to look at the question of relocation. Relocation will only become a matter that the IAA needs to look at if it is satisfied that there is a well-founded fear that has been established.
For those reasons I am of the view that the grounds of the application do not illustrate any jurisdictional error.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 12 December 2019
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