CSQ16 v Minister for Immigration

[2018] FCCA 432

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSQ16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 432

Catchwords:
MIGRATION – Protection visa application – application for judicial review of decision of Administrative Appeals Tribunal – procedural fairness – Tribunal’s conduct did not entail unfairness – decision open – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 425A, 476, 478

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

SZBEL v Minister for Immigration and Border Protection (2006) 228 CLR 152

First Applicant: CSQ16

Second Applicant: CSS16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2055 of 2016

Judgment of: Judge A Kelly

Hearing date: 15 March 2017

Date of Last Submission: 15 March 2017

Delivered at: Melbourne

Delivered on: 1 March 2018

REPRESENTATION

First Applicant: In Person

Second Applicant: In Person

Counsel for the First Respondent:

In Person

Mr Young

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The applications filed 21 September 2016 be dismissed.

2. The Applicants pay the First Respondent’s costs fixed at $5,800.00. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2055 of 2016

CSQ16

First Applicant

CSS16

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application dated 30 August 2016, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming decisions of a delegate of the first respondent (Minister) not to grant each of the applicants a protection visa.

2. The only grounds of review set out in the application are that the decision of the Tribunal was affected by an error of law and that the applicants were denied procedural fairness.

3. Although given an opportunity to do so by consent orders made on    23 November 2016, the applicants have not filed any amended application setting out any additional grounds of review nor any written submissions or affidavits.

4. In these circumstances, the court is necessarily heavily reliant upon the written submissions of the Minister and its own examination of the reasons of the Tribunal.

Background

1. The applicants, being nationals of Vietnam, are a married couple who arrived in Australia on tourist visas on 19 December 2014.  

2. On 19 March 2015, the first applicant’s visa expired.  The applicants were intercepted in May 2015.

3. On 17 August 2015, the first applicant lodged her application for a protection visa and included the second applicant in that application on the stated basis that he was a dependent.  The applicants claimed to fear harm on the basis that they were perceived as anti-communist, had not received any compensation for land that had been confiscated, were threatened by loan sharks and government officials, were Catholics and had a disabled son.

4. On 1 March 2016, the applicants attended an interview with a delegate of the Minister for the purposes of their protection visa applications.

5. The delegate found that the applicants’ visa applications were valid.

6. On 13 July 2016, the delegate advised the first applicant that her visa application had been refused on the ground that they did not satisfy the criteria for such visas as prescribed by sub-s 36(2) of the Migration Act 1958 (Cth) (Act).  The delegate was satisfied that the parties were Vietnamese nationals and that they were members of the same family unit.  However, the delegate was not satisfied that the first applicant was a credible witness and found that the evidence which had been put forward significantly contradicted the claims which were relied upon as grounding the application for a protection visa.  The delegate also had regard to the first applicant’s delay in lodging her application citing Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 (Heerey J).

7. The delegate’s decision was reviewable, relevantly, under Part 7 of the Act but is not open to review by this court: sub-ss 476(2)(a), 476(4).

8. On 19 July 2016, the applicants sought a merits review by the Tribunal.  The application for review to the Tribunal did not append or seek to add any materials in support of the application, nor did the applicants otherwise forward any additional material to the Tribunal.

9. On 2 August 2016, the applicants were invited to appear before the Tribunal to give evidence and to present arguments on the issues arising on their applications for review: s 425(1).

10. On 25 August 2016, the applicants attended a hearing before the Tribunal.  At this hearing the applicants were self-represented but assisted by an interpreter.  In addition, before the Tribunal was a ‘combined statement’ of the applicants signed on 10 August 2015.  The combined statement provided in outline a statement of the bases on which the protection visas were sought.  I note that para 19 of the combined the statement included a further claim that threats had been made to the applicants’ children in Vietnam by gangsters. The primary claim put was that the applicants face risk of harm if returned on the basis of their religion and imputed anti-communist views.

11. On 30 August 2016, the Tribunal affirmed the decisions under review.  The Tribunal provided a statement of its decision and written reasons for its decision (Reasons).

12. On 23 September 2016, the applicants filed their application in this court seeking judicial review of the Tribunal’s decision and an order that that decision be quashed: ss 476(1), 478(a). The application was supported by an affidavit sworn by the first applicant on 21 September 2016 which exhibited a copy of the Tribunal’s decision and Reasons.

13. The Minister sought dismissal of the application on the ground that the Tribunal decision was not affected by jurisdictional error.

14. On 23 November 2016, directions were made affording the applicants an opportunity to file and serve any amended application (containing proper particulars of the grounds to be relied upon), affidavits and written submissions.  No amended application, affidavits or submissions were filed by the applicants.

15. The Minister filed detailed submissions.

Tribunal’s decision

1. The Reasons correctly identified the criteria for a protection visa as set out in s 36 of the Act and schedule 2 to the Migration Regulations 1994 (Cth): Reasons, [3]-[8]. The Tribunal then identified the claims upon which protection visas were sought and the evidence which was relied upon: Reasons, [9]-[15]. The Tribunal then undertook its assessment of each of the applicants’ claims arranged as follows: (a) land confiscation and loan from gangsters; (b) religion; (c) leaving Vietnam; (d) family background; (e) disabled son; (f) human rights and corruption; and (g) cumulative assessment.

Land confiscation and loan from gangsters

1. The Tribunal set out reasons why the Tribunal member did not regard the applicants as credible witnesses: Reasons, [16]. They were found to have given fundamentally inconsistent evidence on a critical matter. The critical matter was the alleged beating of the husband in 2010.  While the applicants had given evidence to the Tribunal that the husband had been beaten on one occasion, the parties’ combined statement had said that the beatings had occurred over a period of four years and had involved detention by the authorities

2. The Tribunal also noted that, following their arrival in Australia on tourist visas, the applicants had delayed for a substantial period of time before applying for protection visas.  The delay in doing so was considered in the context of the applicants’ daughter having married an Australian citizen and the applicants being asked to explain why they had not sought a protection visa before the expiry of their visas.

3. The Tribunal also noted that the material before it provided evidence of the husband’s personal income, his ownership in 2014 of two land titles in Vietnam and that he held bank funds of over VND $1 billion. The Tribunal found these matters significantly contradicted the applicants’ claims as put forward in their protection visa application.  The Tribunal did not accept the applicants’ claims that they had paid a bribe of VND $1 million to the Australian Embassy for their visas.

4. The Tribunal accepted that the applicant husband had scars on his body but did not accept his account as to how these had occurred.

5. Given the Tribunal’s concerns as to the applicants’ credibility, it did not accept that the applicants’ land had been re-possessed in 2010 or that they had attempted to make a complaint through government officials. Nor did it accept that these matters were still unresolved.  The Tribunal, likewise, did not accept that the husband had tried to lodge a complaint and have the matter heard in court, and did not accept his claims of mistreatment. The Tribunal also did not accept that the applicants had taken out a personal loan and that there had been any threats by gangsters arising from such loan.

Religion

1. The Tribunal accepted that the applicants were Catholics but found that ‘Neither gave any evidence at the hearing that they had been personally or individually harmed on account of their religion beyond being observed at religious gatherings.’  The Tribunal noted DFAT advice that Catholics who worship quietly are able to do so with a low risk of official interference.  It did not accept that the applicants had ever taken part in activities which were inconsistent with government policies or practices or would do so if they returned to Vietnam.

2. The Tribunal concluded that on the basis of all the evidence and the country information, the applicants did not face a real chance of persecution in the reasonably foreseeable future on account of their religion.  It concluded there were not substantial grounds for believing that, as a necessary or foreseeable consequence of being removed from Australia to Vietnam, they would suffer significant harm.

Leaving Vietnam

1. The Tribunal considered the question of the applicants having left Vietnam. The Tribunal noted that the Applicants, who had left Vietnam lawfully, had not claimed to have been involved in any political activity and in the light of the country information available, concluded there was no likelihood of the applicants being exposed to a risk of harm on this ground.

Family background

1. The Tribunal went on to consider the applicants’ family background, including the applicant’s father having served in the South Vietnamese army. The Tribunal found at paragraph [34]:

   The evidence of the applicants’ finances indicates they have done well in life and been able to own and operate their own farm and they have stated that the Vietnamese government helped their daughter to study overseas.  The applicants have not claimed that they have ever been politically active.  Considering the country information as a whole and the individual circumstances, I find they do not face a real chance of persecution in the reasonably foreseeable future on account of their membership with particular social groups consisting of their family or those with a bad family background or their actual or imputed  political opinion (anti-communist).

2. Based upon their individual circumstances and independent country information, the Tribunal concluded there were not substantial grounds for believing that there was a real risk the applicants would suffer significant harm if returned from Australia to Vietnam.

Disabled son

1. In relation to the disability of the applicants’ son, the Tribunal accepted that the son was disabled and that the Vietnamese government had not provided them a wheelchair for his assistance.

2. The Tribunal noted the several legislative schemes which existed in Vietnam for the support of persons with disabilities.

3. The Tribunal concluded that this claim did not give rise to protection or complementary protection obligations.

Human rights & corruption

1. Concerning the issues of human rights and corruption which the applicants had raised in the hearing in a generalised way, the Tribunal accepted that Vietnam was a one party state and that corruption was deeply entrenched.

2. The Tribunal, noting that neither applicant had made claims to have undertaken any political activity, concluded that these claims did not give rise to protection or complementary protection obligations.

Cumulative assessment

1. The Tribunal considered the applicants’ claims cumulatively, including the available country information, and concluded that the first applicant was not a person to whom Australia owed protection obligations or to whom Australia owed complementary protection obligations. 

2. In those circumstances, the second applicant was not a non-citizen falling within the criteria provided for members of a family unit as prescribed by paras 36(2)(b) or (c).

3. On those bases the Tribunal affirmed the delegate’s decision.

Consideration

1. The applicants’ grounds of application are so generalised that it is difficult to discern the basis for the claim of jurisdictional error or want of procedural fairness.  They were afforded, but did not take the opportunity to amend their application, file affidavits or submissions.

2. The content of the obligations expressed in Div 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relations to the matters with which it deals.

3. Nothing in the Tribunal’s reasons or the materials relating to the Tribunals dealings with the applicants in the period following the lodgement of their application for review indicate any failure to observe them procedural fairness. The applicants were invited to a hearing: s 425. They were provided an interpreter. They gave evidence before the Tribunal. They were afforded an opportunity to present arguments on the issues arising on their application: s 425A. They took that opportunity. The applicants were on notice of the determinative issues arising from the delegate’s decision: SZBEL v Minister for Immigration and Border Protection (2006) 228 CLR 152.

4. The evidence, which they had filed in support of their applications for tourist visas, would suggest that the applicants are persons of some financial means.  The applicants travelled to Australia following their daughter’s marriage to an Australian citizen and made no application for protection visas until after the expiry of their tourist visas and indeed their interception whilst travelling in Queensland.

5. The Tribunal’s findings were in large part based on credibility matters which were based, in no small measure, upon what the applicants had said to the Tribunal.  It was for the Tribunal to evaluate the veracity of the applicants’ claims.  It did so.  The conclusions which it reached were open on the evidence before it, including the country information that was available for its consideration.  The Reasons disclose an evident and intelligible justification for the conclusion reached: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [76]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, [44], [47], [48].

6. I conclude that the Tribunal’s decision was not affected by jurisdictional error. Nothing in the record of the Tribunal’s dealings with the applicants or of the Tribunal hearing indicates a basis for a conclusion that the proceeding was affected by procedural unfairness.

7. In all the circumstances, each application must be dismissed with costs.            

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 1 March 2018