CWV17 v Minister for Immigration

[2018] FCCA 1469

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWV17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1469

Catchwords:
MIGRATION – Refusal of protection visa – credibility findings – discrimination – applicant not at risk of harm – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DC, 7AA

Cases cited:

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

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

Applicant: CWV17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 262 of 2017

Judgment of: Judge Young

Hearing date: 30 May 2018

Date of Last Submission: 30 May 2018

Delivered at: Darwin

Delivered on: 30 May 2018

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondent: Ms Stokes

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application dated 29 June 2017 be dismissed.

2. The Applicant pay the Respondent’s costs in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 262 of 2017

CWV17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for review of a decision made by the Immigration Assessment Authority on 2 June 2017 to affirm a decision of the delegate to refuse the applicant a Safe Harbour Enterprise visa which I will call a protection visa for short. The grounds of review set out by the applicant, who is not legally represented but was assisted by an interpreter today, are as follows:

   (1)     that the Immigration Assessment Authority made a jurisdictional error in my case;

   (2)     that the Immigration Assessment Authority did not consider country information in regard to persecution of Catholics in Vinh Diocese as distinct from Vietnam as a whole.

3. The background to this matter is as follows.  The applicant arrived in Australia in October 2012 by boat.  She, apparently, said at her initial interview in March 2013 that she had left Australia with her brothers.  She said to the interviewing officer that her brother had been a team leader of a Catholic youth group which organised a mass gathering and the brother had been beaten by police at some point.  She said that her parents had been arrested and held in custody for four days five or six months before her departure to Australia.

4. In a later application for a protection visa the applicant provided a slightly different date of birth, 27 April 1997, as opposed to 27 April 1999. She also said that her siblings remained in Vietnam but she had travelled to Australia with a maternal uncle. 

5. In an interview conducted on 23 February by a delegate of the Minister, the applicant said that she had given the incorrect information about departing with her brothers because she was afraid of being split up from her uncle and her cousins with whom she had travelled to Australia by boat.

6. There were various other aspects of the applicant’s claims that the Authority held were inconsistent. In her statutory declaration she said that she was involved in an incident in July 2012 when the police beat up members of a Catholic congregation at Con Cuong and she also claimed her parents were members of that congregation.  The Authority held that she had not made those claims before, although the Authority accepted that the applicant had attended a rally in support of the Catholic congregation at Con Cuong. According to a reference in the decision of the Authority there were widespread rallies in support of that congregation across some parts of Vietnam.

7. The Authority was concerned about these inconsistencies and did not accept the applicant as a credible claimant and, in other words, made adverse findings about her credibility.  The Authority accepted some of the applicant’s claims, that is, that she had been discriminated against at school before she left for Australia when she was a school student and accepted that she had been subject to some discrimination at school but it was not discrimination that would merit the description “serious risk”, as constituting a serious risk of harm.  In any event, the Authority found the applicant was no longer of school age.

8. Having regard to its adverse credibility findings about the applicant and its refusal to accept the more serious claims made by the applicant, it found that the applicant was not at serious risk of harm and it also found that the applicant was not at risk of harm as a returnee to Vietnam.  The applicant does not specifically take issue with any particular conclusion of the Authority but, as can be seen from ground 2, asserts that the Authority failed to take into account the situation in Vinh diocese, in particular.

9. Ground 1, as an unparticularised claim of error, is not one that I have to consider further.  I have read the decision of the Authority and no error was apparent to me on reading that decision. In those circumstances, I am not obliged to inquire further in relation to an unparticularised claim of jurisdictional error such as occurs in ground 1. 

10. In relation to ground 2, the Minister accepted that the authority did not consider country information in regard to the persecution of Catholics in Vinh diocese as distinct from Vietnam as a whole. In other words, the Minister accepted the factual assertion made by the applicant in ground 2.

11. It is apparent from reading the decision of the Authority that it relied on country information about Vietnam and that country information is identified in the Authority’s decision. There are two pieces of country information referred to: first, a document published by Department of Foreign Affairs and Trade called “Vietnam Country Information Report  August 2015” which is referred to extensively in footnotes in the Authority’s decision and the other document is another from the Department of Foreign Affairs and Trade – “Vietnam: Treatment of Returnees”.

12. There is, in those references to country information which are footnoted in the decision, no reference to Vinh diocese or indeed any particular region in Vietnam, apart from a reference at paragraph 22 to a statement by a police official from Nghệ An province talking about the treatment of returnees. The substance of the country information referred to by the Authority relates to the treatment of Catholics in Vietnam and the gist of the information referred to is that the country information says that Catholics who attend registered churches and are not politically active or opposed to the state are at low risk of harm, as are those that worship quietly in a manner that conforms to government policies and sensitivities.

13. The Authority concluded that the applicant was not a political activist and was not likely to be politically active in opposing the government on her return to Vietnam and she would not be imputed with the profile of a political activist on return. It concluded on the basis of that finding, that is, on the basis of the applicant’s individual circumstances and on the basis of the DFAT country information about the treatment of Catholics in Vietnam more generally that the applicant was not at real risk of harm because of her Catholic faith in the foreseeable future in Vietnam.

14. The weight to be given to country information is a matter for the authority and the Minister referred to the well-known case of NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at paragraph [11]. I accept that the weight to be given to country information and its interpretation, as long as that interpretation is reasonable, is a matter for the authority.

15. In relation to the particular complaint that the Authority failed to consider information specific to Vinh diocese, or perhaps the applicant’s particular home region, the applicant herself did not bring forward any country information and in this application for review did not point to any country information that had been ignored by the Authority. The Minister submitted that in those circumstances there was no requirement under section 473DC of the Migration Act or part 7AA of the Act for the Authority to make its own inquiries. The Minister referred to the decision of Plaintiff M174 v Minister [2018] HCA 16 at paragraph [23] as authority for the proposition that that section is facultative and the Authority may seek further information but is not obliged to.

16. I accept that submission and in the circumstances where there is no particular country information that the applicant can point to as having been overlooked by the Authority it seems to me that ground must fail and, accordingly, I dismiss the application. 

17. In relation to costs I accept, as Ms Stokes says, that the sum of $6,000 which is sought by the Minister is less than the amount that might be otherwise claimed under the scale, which I think is now in excess of $7,000, so I will make an order accordingly. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  6 June 2018