CRD18 v Minister for Immigration

[2020] FCCA 865

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRD18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 865

Catchwords:
MIGRATION – Visa – protection visa – impermissible merits review sought – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.423A

Cases cited:

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

Applicant: CRD18

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 199 of 2018

Judgment of: Judge Heffernan

Hearing date: 3 March 2020

Date of Last Submission: 3 March 2020

Delivered at: Adelaide

Delivered on: 16 April 2020

REPRESENTATION

The Applicant: In person with an interpreter

Counsel for the Respondents: Mr Retallick

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant is to pay the costs of the first respondent in the amount of TWO THOUSAND SEVEN HUNDRED DOLLARS ($2,700).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 199 of 2018

CRD18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 3 May 2018.  That decision affirmed an earlier decision of a delegate of the Minister for Home Affairs refusing to grant the applicant a protection visa.

2. The applicant appeared before me self-represented and with the assistance of an interpreter in the Vietnamese language.  The application raises one ground reproduced verbatim as follows:

   “The AAT – Migration & Refugee Division is not giving consideration to the evidence provided by the effect that the Applicant will be harmed upon his return to home country. The Applicant also stated that the creditors of the Applicant’s home country will possible kill him and his wife if they return to home country. The tribunal has not given consideration to the evidence provided to claims. Accordingly the tribunal as erred as a matter of Law.”

3. On 29 June a Registrar of this Court gave the applicant leave to file and serve an amended application by 7 September 2018.  He was also given leave to file and serve any further material on which he sought to rely including the transcript of the Tribunal hearing.  Finally, he was ordered to file and serve an outline of submissions at least 10 business days prior to the hearing before me.  No amended application has been filed and the applicant did not file either an outline or any further materials.

Background

1. The applicant is a Vietnamese citizen who travelled to Australia on a Sponsored Family Visa (subclass 679) in 2010 and again in late 2016.  He applied for the subject visa on 3 March 2017 – six days before his second visa was due to expire.  A delegate of the first respondent refused to grant him a protection visa on 11 September 2017 and the applicant applied for review by the Tribunal a few days later.

2. The Tribunal placed the applicant on notice of the fact that it was in possession of adverse information.  It wrote to him in February of 2018 to advise of the fact that it regarded a number of answers to specific questions in his visa application as being identical to the answers given by a number of other Vietnamese asylum seekers whose claims were at that time presently before the Tribunal[1] and put him on notice of the fact that, subject to any comments he may make, that fact would lead the Tribunal to the conclusion that his claims for protection were not genuine.  The effect of that would be that the applicant could not meet the criteria for the grant of protection visa and it would have no alternative but to affirm the decision under review.  The applicant did not respond to that letter.

   [1]     Court Book (‘CB’), 105 [18].

3. The applicant was invited to a hearing on 6 March at which he attended and participated with the assistance of an interpreter in the Vietnamese language.  During the course of the hearing, noting that he had made new claims, the Tribunal invited the applicant to submit further evidence in support of them.[2]  The applicant did not take up the opportunity of providing further evidence.

   [2] CB, 109 [48].

Decision and Reasons of the Tribunal

1. The Tribunal noted the claims first made in the visa application.  As I have observed above, it also noted that the applicant made new claims before it to the effect that in approximately 2014 he had started a Hui loan scheme with the assistance and at the instigation of his wife.  The scheme depended upon subscribers depositing money.  He told the Tribunal that some subscribers had failed to make repayment to the applicant and his wife and this forced them into a position where they had to borrow money.  They were unable to repay the money and they feared harm from creditors who had smashed up their home and threatened to kill them.  The applicant told the Tribunal that thugs had been hired to go to his family home and threaten family members in Vietnam.  A further new claim was raised by the applicant, namely, his association with the Khmer Krom ethnic group.[3]

   [3]     CB, 106-109.

2. During the course of the Tribunal hearing, the applicant provided it with a number of documents in Vietnamese with English translations.  The applicant informed the Tribunal that he had spoken to a Vietnamese lawyer who had assisted him with presenting his claims.  The documents all purported to support the applicant’s claim to have borrowed significant amounts of money.[4]  The Tribunal noted that, even though one of the lenders identified in the documents had the same name as his mother-in-law, they were, in fact, two different people.

   [4] CB, 106 [20].

3. The Tribunal found that the applicant was not a credible witness.[5]  It took into account that the applicant had poor English language skills when considering whether to draw any adverse inference against the applicant on the basis of his credibility for having made new claims after the decision of the delegate.[6]  It concluded that the applicant did not have a reasonable explanation for having made significant new claims and providing significant new documentary evidence only after the delegate had made her decision.[7] The Tribunal drew an inference unfavourable to the applicant’s credibility pursuant to section 423A of the Migration Act 1958 (Cth) (‘the Act’).

   [5] CB, 109 [51].

   [6] CB, 110 [54].

   [7] CB, 109 [52].

4. The Tribunal made a series of findings adverse to the applicant, relating to the timing of his protection visa application, the inherent implausibility of his claims being genuine when they were worded identically to those of other Vietnamese applicants seeking asylum, inconsistency between written claims and claims made before the Tribunal before the first time, inconsistencies as to the threats that he had experienced in Vietnam and the authenticity of the document that he proferred in support of the application.[8]

   [8]     CB, 110 [56]-[61].

5. The conclusion of the Tribunal was that the claims made by the applicant were not genuine and that, in response to the delegate having rejected his claim for a protection visa, the applicant had deliberately manufactured evidence to further support that application.[9]

   [9] CB, 111 [63].

6. The Tribunal was not satisfied that the applicant met the criteria for a protection visa on the basis of either his status as a refugee or pursuant to the complementary protection obligations.[10]  As a result, it affirmed the decision of the delegate.

   [10]   CB, 111-113.

Submission

1. The applicant made brief oral submissions before me.  He told the Court that he did not speak English very well and did not understand the Australian legal system.  He said that he had searched with his wife for assistance but they had not been able to ascertain what was correct or incorrect about the Tribunal’s decision.  He told the Court that he had no assistance from an interpreter to submit materials to the Tribunal.  That submission appears to be in contradiction to his evidence before the Tribunal.[11]

   [11] CB, 106 [20].

2. Further, the applicant said that he did not have enough time to get all the evidence ready for the Tribunal or to raise sufficient money to obtain the assistance of a lawyer.  That submission would also appear to be not entirely consistent with his evidence to the Tribunal and the documents that he provided to it.  He acknowledged that he had the assistance of an interpreter at the Tribunal hearing.

3. The applicant did not make any submission as to why he said the Tribunal was in error.  He agreed with a submission made by his wife in the related matter of CRB18 v Minister for Home Affairs & Anor [2020] FCCA 864,[12] that the Tribunal should have taken into account the fact that he had an association with the Khmer Krom ethnic group and, as a result, would be in danger if he were to return to Vietnam.

   [12]   The wife of the applicant made a separate application to the Court in identical terms. The matters were heard together.

4. The first respondent relied on its outline of submissions and made the further submission that it was clear from the decision record of the Tribunal that the applicant had not been the subject of any procedural unfairness such as to produce a jurisdictional error.

Consideration

1. I am not satisfied that the applicant has demonstrated that the Tribunal fell into jurisdictional error.  He made no attempts to identify any error made by the Tribunal and simply confined his submissions to a complaint about his lack of familiarity with the Australian legal system and not having had sufficient time to prepare.

2. The Tribunal record does not indicate that the applicant made a request for an adjournment or for the purpose of obtaining legal representation.  It provided him with a further opportunity to submit evidence in support of his claim.  He did not avail himself of that opportunity.  Nor did he provide any response to the letter which put him on notice of the adverse information in the Tribunal’s possession.  He specifically told the Tribunal that he had had some assistance from a Vietnamese lawyer in the presentation of his claims.

3. The Tribunal’s adverse findings as to his credit were open to it.  In particular, the Tribunal’s concern was reasonable in relation to the documents which purported to provide evidence of the existence of various loans which seemed to have been prepared very shortly prior to the Tribunal hearing.  Further, it was open to the Tribunal to draw an adverse inference with respect to the lateness of the new claims made before it.  Those matters were clearly of significance and it was not unreasonable, irrational or illogical for the Tribunal to conclude that they were lacking in merit, given that they had not been raised either at the time of the initial application or with the delegate.

4. The Tribunal correctly identified and addressed all of the claims made by the applicant.  There is no substance in his complaint that the Tribunal should have considered his association with the Khmer Krom ethnic group.  It clearly did so.  It is also apparent from the decision record of the Tribunal that it identified the criteria for a protection visa and, in particular, the mandatory considerations relevant to the grant of such a visa and summarised those matters in a manner that was unexceptionable.[13]

   [13]   CB, 103 [3]-[8].

5. It was clear from both the ground of application and the failure of the applicant to articulate any substantive complaint about the decision of the Tribunal that, in truth, he was complaining about the outcome and the findings of fact that the Tribunal had made.  That, of course, would amount to an impermissible merits review, upon which this Court does not have jurisdiction to embark.

6. As with the related application made by his wife, the comments of the Full Court in the decision of NAHI[14] are relevant to the applicant’s position in this matter.

   “….the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S 157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

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

7. The applicant has failed to demonstrate that the decision of the Tribunal was affected in any way by jurisdictional error.  Accordingly, I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date: 16 April 2020