CSH17 v Minister for Immigration
[2018] FCCA 3643
•10 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CSH17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3643 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – purported certificate issued under s.438 of the Migration Act 1958 (Cth) – relevant document disclosed to the applicant and comments sought under s.424A – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 438, 440 |
| Cases cited: AID16 & Ors v Minister for Immigration & Anor [2017] FCCA 253 |
| Applicant: | CSH17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1916 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr A Markus of Australian Government Solicitor |
ORDERS
The application filed on 20 June 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1916 of 2017
| CSH17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
On 10 December 2018 I dismissed the judicial review application in this matter, and made a fixed costs order. The following are my reasons for those orders.
The applicant sought judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 22 May 2017. The Tribunal set aside a decision of a delegate of the Minister (delegate) to refuse to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister filed on 6 June 2018.
The applicant is a 24 year old citizen of Vietnam who applied for a protection (Class XA) visa on 25 June 2014. On 23 December 2014, the delegate refused that application.[1] On 24 June 2016, the Tribunal (differently constituted) set aside the delegate’s decision and substituted a decision to refuse to grant the applicant the visa (the 2016 decision).[2]
[1] Court Book (CB) 83-110
[2] CB 126-137
The applicant filed an application for judicial review of the 2016 decision. On 18 October 2016, this Court ordered by consent that the 2016 decision be quashed and remitted the review application to the Tribunal for reconsideration.[3]
[3] CB 1-2; the applicant’s pseudonym in the prior judicial review proceedings was BYS16
The applicant appeared before the reconstituted Tribunal on 28 April 2017 and, on 3 May 2017, the applicant was invited to comment on or respond to information under s.424A of the Migration Act 1958 (Cth) (Migration Act).[4] On 10 May 2017, the applicant provided a response.[5]
[4] CB 172-174
[5] CB 175-194
On 22 May 2017, the Tribunal set aside the delegate’s decision and substituted a decision to refuse to grant the applicant the visa (the 2017 decision).[6]
[6] CB 197-227
The applicant filed this application for judicial review within the statutory time limit on 20 June 2017, supported by an affidavit attaching a copy of the 2017 decision.
Protection claims
The applicant claims to fear harm in Vietnam for reason of his Catholic faith and imputed political opinion as a result of attending a Catholic church service in Con Cuong, in Nghệ An Province on 1 July 2012, where police broke up the service by throwing eggs and hitting attendees with batons. The applicant also claims to have prepared protest banners for his own church in Xa Doai and to have been present at a second incident on 14 July 2012, when three police tanks attended his church.
The applicant further claims to fear harm from the “A18” Vietnamese special police, who visited the Yongah Hill detention centre in August 2013 and met with Vietnamese asylum seekers. The applicant also claims to have been affected by the Minister’s Department’s “data breach” in February 2014 and that this increased the likelihood that he would suffer harm as a failed asylum seeker returned to Vietnam. Finally, the applicant claims to fear harm for his illegal departure under the Vietnamese penal code.
Tribunal decision
The reasoning of the 2017 decision is as follows.
Religion and political opinion
The Tribunal accepted the applicant’s status as a Catholic who worshipped weekly at Xa Doai in Nghệ An.[7] However, the Tribunal found that the applicant’s ability to practise Catholicism had not been impinged by the Vietnamese authorities. In making this finding, the Tribunal considered that the applicant was able to pray every day and publicly profess to being a Catholic.
[7] CB 223 at [74]
The Tribunal was not satisfied that the applicant attended the gathering at Con Cuong on 1 July 2012, nor was it satisfied the applicant was implicated in that event, or had been beaten by police as claimed.[8] In reaching this conclusion, the Tribunal had regard to independent country information and the applicant’s inconsistent evidence given about his attendance at that event and why he was not pursued by authorities.
[8] CB 223 at [75]
The Tribunal did not accept that the applicant’s attendance at his church on 14 July 2012 attracted, or would attract in future, any interest towards him by Vietnamese authorities.[9] In making this finding, the Tribunal did not accept that the applicant had any role in organising a protest banner for his church, and found that independent evidence suggested thousands of banners and posters were hung in Nghệ An and that the applicant had exaggerated his level of contribution.
[9] CB 223 at [77]
The Tribunal found that, in the event of return to Vietnam, the applicant would not involve himself to any significant extent in land dispute protests or demonstrations or peaceful gatherings relating to land policy or other socio-political activities because he was not personally interested in being involved in those activities.[10] In reaching this position, the Tribunal had regard to the applicant’s lack of grasp of the details of relevant disputes.
[10] CB 224 at [80]
The Tribunal found that the applicant did not face a real chance of persecution in the reasonably foreseeable future for separate or cumulative reasons of being a Catholic or a Catholic sympathetic with the Church’s stance in relation to land disputes.[11]
[11] CB 224 at [80]
Illegal departure / returnee
The Tribunal was not satisfied that the applicant would be subject to serious harm on return to Vietnam as a result of his illegal departure.[12] The Tribunal considered that the applicant would likely be questioned about his illegal departure, but would not be imputed to have been involved in organising the illegal departure of others from Vietnam and would therefore not be detained upon re-entry.
[12] CB 225 at [84]
Further, the Tribunal did not accept that the applicant would be singled out for any actual or imputed past involvement in church protest activities or due to his status as a Catholic from Nghệ An.[13]
[13] CB 225 at [84]
Data breach
The Tribunal was not satisfied that the applicant faced a real chance of persecution in Vietnam for reason of the February 2014 data breach.[14] In reaching this conclusion, the Tribunal at [38] and [47]–[48] considered that the specific visa sought by the applicant had not been disclosed, and there was no evidence that the Vietnamese authorities had accessed that information or would act on it.
[14] CB 225 at [83]
A18 Yongah Hill visit
In relation to the visit by A18 Vietnamese officials, the Tribunal was also not satisfied that the applicant faced a real chance of persecution in Vietnam.[15] In making this finding, the Tribunal at [46] considered that the applicant had not been interviewed by the A18 officials, and there was no evidence suggesting that the Minister’s Department would have passed his details on to the officials.
[15] CB 225 at [83]
Cumulative consideration
Even when the applicant’s claims were considered cumulatively, the Tribunal was not satisfied that there was a real chance that the applicant would be persecuted in Vietnam in the reasonably foreseeable future for any Convention reason and found that the applicant did not satisfy the criterion in s.36(2)(a).[16]
[16] CB 225 at [85]
Complementary protection
The Tribunal considered the complementary protection criterion and, having regard to the applicant’s claims, found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, the applicant would suffer significant harm.[17] Therefore, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations in s.36(2)(aa) of the Migration Act.[18]
[17] CB 226 at [90]–[91]
[18] at [92]
The current proceedings
These proceedings began with a show cause application lodged on 20 June 2017. The applicant continues to rely upon that application. On 13 June 2018 I conducted a show cause hearing into the application and found that the grounds in it were not arguable. Nevertheless, I made the following show cause order:
1. Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted in relation to the apparently invalid non-disclosure certificate reproduced at page 147 of the court book and the documents purportedly covered by that certificate, being exhibit ANM-3 to the affidavit of Angela Nanson made on 6 June 2018, and the Irregular Maritime Arrival Entry Interview reproduced at pages 3-19 of the court book.
In addition to the book of relevant documents filed on 18 October 2017, I have before me as evidence the affidavit of Angela Margaret Nanson made on 6 June 2018, to which were exhibited, in a sealed envelope, the documents covered by the purported s.438 certificate.
Only the Minister filed pre-hearing written submissions. I invited oral submissions from the applicant at the trial on 10 December 2018. He explained that he was unable to make any, given his lack of legal training. I called for oral submissions by the solicitor for the Minister and then invited the applicant to make submissions in reply. Again, he expressed the view that he was not in a position to make any submissions. That is understandable as the issue raised in the show cause order is a technical legal one.
Consideration
There is a non-disclosure certificate (certificate) on the Minister’s Department's file (CLF2014/91157).[19]
[19] CB 147
The certificate was purportedly issued under s.438 of the Migration Act and covers the following documents:
a)the applicant's Irregular Maritime Arrival entry interview (the IMA entry interview) (folios 68-76);
b)previous disclosure decision checklist dated 23 December 2014 (the previous checklist) (folio 96); and
c)internal documents relating to reconsideration, including internal email and matter details summary (the reconsideration documents) (folios 113-116).
The documents at folios 68-76 were included in the court book in the applicant's judicial review proceeding concerning the 2016 decision, and have been included in this court book.[20]
[20] CB at 3-19; see annexure 1 of the affidavit of Angela Nanson
The remaining documents are annexed to the affidavit of Angela Nanson.[21]
[21] see annexures 2 and 3
The certificate contains the recitation that “disclosure of this information would be contrary to the public interest because the aforementioned folios contain information relating to an internal working document and business affairs”.[22] This is identical to the terms of the certificate in MZAFZ v Minister for Immigration,[23] and is invalid for the reasons given by Beach J at [35]-[38].
[22] CB 147
[23] (2016) 243 FCR 1
The Tribunal’s decision is silent on the certificate. That may be because the Tribunal was unaware of the certificate, or chose to ignore it, or treated it as invalid or for some other reason.
What is important is that the only document of any significance to the review was the applicant’s IMA entry interview which comprises exhibit AMN1 to the affidavit of Ms Nanson. The same documents are reproduced from CB 3. As in the case of SZSZT v Minister for Immigration & Anor,[24] which I dealt with on 17 August 2018, the applicant was provided with the irregular maritime arrivals interview document in connection with his earlier judicial review application. However, the Minister’s position in this case is stronger than in SZSZT in that, as is detailed in the Minister’s submissions, the Tribunal invited comment from the applicant, purportedly pursuant to s.424A, in relation to the issue of consistency of evidence which the Tribunal saw as arising from that document. The other documents purportedly covered by the certificate relate only to the fact of reconsideration by the Tribunal following the earlier successful judicial review application.
[24] [2018] FCCA 1663
I otherwise agree with the Minister’s submissions concerning the issue identified in the show cause order.
The IMA entry interview
In relation to the IMA entry interview, no issue of procedural fairness arises for two reasons.
First, the applicant had been provided with a copy of the IMA entry interview as part of his previous judicial review application. In circumstances where an applicant has obtained the documents covered by a s.438 certificate by some other means than from the Tribunal (for example under freedom of information) procedural unfairness of the type considered in Minister for Immigration v Singh[25] is said by the Minister not to arise.[26]
[25] [2016] FCAFC 183
[26] see eg AID16 & Ors v Minister for Immigration & Anor [2017] FCCA 253 at [84]; Chhor v Minister for Immigration & Anor [2017] FCCA 2135 at [40]-[44]; AVO15 v Minister for Immigration [2017] FCA 566
I do not accept that the position is that simple, but I accept that this matter is distinguishable from the decisions of SZMTA v Minister for Immigration[27] and CLY15 v Minister for Immigration & Anor,[28] because no inference should be drawn that the Tribunal acted on the certificate. The Tribunal gave information to the applicant covered by the certificate under s.424A,[29] but did not give a direction under s.440 of the Migration Act as required by s.438(4) of the Migration Act. As Judge Manousaridis found in CKG15 v Minister for Immigration & Anor:[30]
that indicates the Tribunal was ignorant of the Certificate, or it was aware of the Certificate but did not consider it to be valid, or the Tribunal simply decided to ignore the Certificate. In these circumstances, it cannot be said the Tribunal acted on the basis of the Certificate.
[27] [2017] FCA 1055
[28] [2017] FCCA 2504
[29] see CB 173-174
[30] [2017] FCCA 938
The second reason why the applicant was not denied procedural fairness was that the material issues arising from the IMA entry interview were put to the applicant under s.424A of the Migration Act[31] and the IMA entry interview was discussed with the applicant at the hearing.[32]
[31] see CB 173–174. The question of whether disclosure was required by the section may be put to one side
[32] see CB 221 at [67]
The previous checklist and the reconsideration documents
In relation to the previous checklist and the reconsideration documents, on assumption that the certificate was invalid, I accept that the Tribunal did not act on the certificate.[33] That is because the documents themselves did not, and could not have, had any bearing on the consideration by the Tribunal of the applicant's protection claims.[34] The decisions in CQZ15 and BEG15 are currently subject to an appeal before the High Court of Australia. However, I proceed on the basis that the decisions are correct and remain as binding authority on this Court.
[33] see Minister for Immigration v CQZ15 [2017] FCAFC 194 [65]; cf MZAFZ
[34] BEG15 v Minister for Immigration & Anor [2016] FCCA 2778, [64], affirmed on appeal in BEG15 v Minister for Immigration [2017] FCAFC 198
I also agree with the Minister’s submissions concerning the grounds of review advanced in the application, which I have previously identified as not disclosing an arguable case of jurisdictional error.
The application for judicial review contains four grounds, which are summarised as follows:
a)the Tribunal decision, case 1617316, is affected by legal error;
b)the Tribunal failed to consider relevant information regarding country information about the repression of members of the Catholic church;
c)the Tribunal failed to consider information regarding the visit by A18 officials to Yongah Hill detention centre and the data breach; and
d)the Tribunal misconstrued human rights in Vietnam regarding the return of refugees to Vietnam.
Ground 1
Ground 1 is a general allegation of legal error and does not identify any error.
Ground 2
This ground is plainly misconceived and must fail. The Tribunal considered country information provided by the applicant,[35] and consulted other relevant information,[36] including a DFAT country information report. The DFAT report detailed Catholics’ freedom to worship in Vietnam, albeit quietly and in a manner conforming to government policies and sensitivities. Having considered that information, and noting the clear distinction between the applicant’s claims as a Catholic and his claimed involvement in debates about land use by the church, the Tribunal found that the applicant’s ability to practise as a Catholic was not impinged by the Vietnamese authorities in any way.
[35] see CB 218 at [53] and CB 222 at [73]
[36] see CB 205 at [34]
The applicant appears to be merely disagreeing with the Tribunal’s reliance on country information and engaging in impermissible merits review.[37]
[37] see NAHI v Minister for Immigration [2004] FCAFC 10 at [11]
Ground 3
Contrary to what this ground alleges, the Tribunal did consider information regarding the visit by Vietnamese officials to Yongah Hill detention centre. However, given the applicant was not interviewed, there was nothing to suggest that the A18 delegation gathered any information about him at all. Further, the applicant ultimately stated at hearing that he no longer considered himself negatively affected by the visit. In these circumstances, it was open to the Tribunal to find that the incident did not give rise to any reason for the applicant to fear harm.
Likewise, the Tribunal considered the possible impact of the data breach on the applicant. The Tribunal had regard to an independent report of the Office of the Australian Information Commissioner about the data breach and considered information on the situation for failed asylum seeker returnees to Vietnam. While the applicant’s name, gender, citizenship, date of birth, length of detention, location, arrival details and reason for unlawfulness were potentially disclosed and accessed as a result of the data breach, on the evidence available there was no suggestion that the Vietnamese authorities had in fact accessed the applicant’s information or that there was any way to tell that the applicant had sought asylum in Australia. It was open to the Tribunal to conclude that the applicant did not face a real chance of persecution as a result of the data breach.
Ground 4
There is no evidence to support this claim. In assessing whether the applicant would be subject to harm on return to Vietnam as a result of his illegal departure, the Tribunal considered the applicant’s status as a failed asylum seeker and had regard to relevant country information in relation to the treatment of persons who have departed Vietnam illegally. The Tribunal noted that country information indicated that people who merely depart Vietnam illegally are not prosecuted or persecuted on or after return to Vietnam, and that the applicant had not arranged his own or any other illegal departures. Further, given the Tribunal’s findings as to the applicant’s lack of involvement in protests, it was open for the Tribunal to find that the applicant would not otherwise come to the attention of the authorities on his return.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 12 December 2018
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