DAA17 v Minister for Immigration

[2018] FCCA 1128

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAA17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1128

Catchwords:
MIGRATION – Temporary protection visa – credibility findings – denial of procedural fairness – where the applicant claims that interruptions to the video link between Sydney and Darwin deprived him of a meaningful opportunity to participate in proceedings – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: DAA17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 20 of 2017

Judgment of: Judge Young

Hearing date: 27 April 2018

Date of Last Submission: 27 April 2018

Delivered at: Darwin

Delivered on: 27 April 2018

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Ms Griffin

Solicitors for the Respondents: Australian Government Solicitor

THE COURT ORDERS THAT:

1. The application filed 5 July 2017 be dismissed.

2. The Applicant pay the First Respondents costs in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 20 of 2017

DAA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

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 of the AAT made on 15 June 2017 which affirmed a decision of the Minister’s delegate made on 30 April 2015 to refuse the applicant a temporary protection visa.  The primary reason, as I read the Tribunal’s decision, for affirming the delegate’s decision is that the Tribunal did not accept the applicant as a credible witness.  Essentially, the Tribunal proceeded by comparing the statement made by the applicant in his entry interview with later statements, in particular, his statutory declaration attached to his application to the delegate, which does not have a date but it appears at page 67 of the Court book, along with the statements made to the Tribunal during the Tribunal hearing on 15 June 2017.  In the applicant’s entry interview he gave a detailed statement about his reasons for leaving Vietnam. I will summarise the statement.

3. He said that his father had been seriously ill.  He said that it was very difficult to do business in Vietnam.  He said that the government had reclaimed – which I understand to mean expropriated – his land in 2011 with inadequate compensation.  He said that he sued, or “we” – presumably a reference to his family – sued the government but was unsuccessful in relation to the compensation.  It was said that the land was expropriated for the building of an industrial zone and he was promised work in the industrial zone, as I understand it, which did not eventuate.

4. He was also asked in his entry interview statement whether he had been involved in any armed conflict or fighting, and he said “yes”.  He referred to an event in 2008, that is, some five years before his departure for Australia, when there had been a dispute about the government again attempting to expropriate land which had been used for a soccer field.  There was a confrontation between some youth of the town or the village and the authorities.  His statement makes it clear that there was no violence:

   Verbally, we tried to stop them …

5. He denied there being any violence. 

6. In his statement attached to his application for a temporary protection visa a different story is told.  He said that in 2009 the Vietnamese authorities entered local church land and tried to seize it to build a bus terminal.  He said that he was a youth member of the church and there was a confrontation with the authorities, using violence, and those resisting hit back.  He said that he was arrested and taken in a van but the van was stopped by a group of Catholics who wanted to rescue him and others with him.  He said he was then able to escape and run away.

7. He said that as a result of this confrontation some members of the community were taken to a police station and one of them died as a result of a beating received from the police.  He said that he fled to a neighbouring province and remained in hiding for a considerable period.  He said that he returned to his home village occasionally.  He said that he tried to get a birth certificate because his daughter had been born in the interim but was unable to obtain a birth certificate.

8. The Tribunal member was concerned about not only the inconsistency between that statement and the statement in the entry interview but aspects of the later statement, in particular some inconsistency, as related by the applicant, between what happened immediately after the confrontation with the authorities concerning the church land.  The Tribunal member was concerned that in the applicant’s statement to the Tribunal he had indicated that he was rescued before getting into the van.  In my view, that alone would be a relatively inconsequential inconsistency.

9. The Tribunal was also concerned about the applicant’s later statement, that his newborn daughter was able to obtain a ho khao, which is, as I understand it, an identity document. The Tribunal member considered that that was inconsistent with the statement I have referred to: that the daughter was unable to obtain a birth certificate because of her father’s identity and her father’s profile, according to him, as a Catholic opposed to the government.  The Tribunal considered those claims, as is clear from the post-hearing correspondence to the applicant from the Tribunal, and put those concerns to the applicant, including the concern about the inconsistency between the entry interview and the later statement.

10. That was also put to the applicant in the hearing itself, as was revealed, because I listened to a tape recording of the entirety of the AAT hearing.  The applicant’s answer to that was that he was unsure of his position in Australia once he arrived and he was concerned about whether there would be repercussions if he told the full story, or the “correct story”, using his words.  He said that he held back on that information.  That was not accepted by the Tribunal.  It appears to me that that conclusion was open to the Tribunal, particularly given the detailed nature of the claims made in the entry interview and the quite inconsistent detailed claims made later on.

11. The question, of course, of whether a credibility finding is open really depends on whether or not that conclusion is reasonable.  In my view, whether or not it was right – and I do not have to decide that – it was, I believe, clearly open to the Tribunal member.  The Tribunal also considered complementary protection and other matters that were raised in the hearing.  The application of the applicant is not drafted by a lawyer, or does not appear to be, and simply relates to four un‑particularised grounds, (1) the decision is affected by bias, (2) the applicant was denied procedural fairness, (3) the decision did not take into account all relevant information and (4) the decision was not made according to law.

12. The applicant did not file any written submissions and he did not make any oral submissions to me about those matters. In circumstances where they stand as simply un‑particularised claims there is really no matter that I can consider.  Obviously if I saw, having read the decision of the Tribunal, material that would support either those grounds of jurisdictional error or any other grounds of jurisdictional error, I would have paid attention to them, as I must.  But I did not. I am satisfied that the un-particularised grounds are not made out. 

13. At the commencement of the hearing, however, I was informed that the applicant sought to rely on an affidavit filed yesterday.  It was brought to my attention at the commencement of the hearing as I had not previously seen it.

14. The affidavit, which is apparently drafted by a lawyer, asserts that at the AAT hearing on 2 May 2017 the applicant was denied procedural fairness during that hearing.  He said:

    (5) For the duration of my hearing which was conducted in Sydney, I appeared by video link from Darwin.  This was the only way that I could attend the hearing.

    (6) I was alone in Darwin in the room that was broadcast to the AAT via video link.

    (7) The procedure was explained to me at the beginning of the hearing.

    (8) I was instructed that I would speak to my interpreter in Sydney from Darwin, who would then interpret and speak on my behalf at the hearing in Sydney.

    (9) I was instructed that for the duration of the hearing, if at any time I would like to comment on, clarify or question, something that arose during the hearing, that I should raise my hand so that I would come to the attention of those present for the hearing in Sydney, and I could be heard.

15. The affidavit then goes on to refer to technical difficulties with the link between Sydney and Darwin and says that the video link was interrupted at times.  The affidavit, in its terms, does not say that the sound was interrupted but says that the video was interrupted.  That is significant.  At paragraph 12, the applicant said:

    I struggled for at least five minutes, possibly longer, to notify the interpreter, by waving my hand, as I was instructed to do so by the member, if I needed to contribute or clarify anything.  During this time, I was still participating in the hearing, but as I said, I was disorientated.  I did not feel as though I could interrupt the proceedings, as I was instructed to provide only visual cues.  I was not confident in the proceeding.  The process was all new to me, and I also did not want to give the Tribunal member any reason to be angry with me.

16. The gist of that affidavit is to suggest that the applicant was denied procedural fairness in the hearing because he was instructed to interrupt proceedings, to clarify or otherwise be heard, by giving a visual cue, and given the interruptions to the vision during the video link, he was unable to interrupt.  I have listened to the entirety of the hearing on an audio recording that was provided by the Minister, on a USB stick that was played in Court, running over about one-and-a-half hours.  It is clear to me that the affidavit of the applicant very significantly misrepresents what happened in the hearing.

17. There is no evidence at all that the applicant was told to use visual cues.  On the contrary, the applicant was told, it would appear by the Tribunal member, that she would listen to him and ask him questions, and then she would listen to Ms Coffey, the applicant’s migration agent, who attended the hearing in Sydney, apparently by telephone.  At about 10 minutes into the hearing, the applicant is recorded as saying:

    There is nothing on the screen.

18. It is clear from that that there was no vision but the audio continued.  The Tribunal member was aware of that and she said words to the effect that she did not consider it necessarily important that the applicant be able to see her.  And after about 30 seconds, the applicant is heard to say:

    I can see you now.

19. During that period, nothing of consequence occurred.  Indeed, there was some short discussion about re-establishing the vision link.  That interruption certainly did not deprive the applicant of a meaningful opportunity to participate in any sense.  The Tribunal member also instructed the applicant that if he did not understand anything he should notify her immediately.  There is no mention of indicating a visual cue and I am satisfied that there was no indication of that at any point during the hearing. At about 33 minutes there was another apparent interruption of the vision.  My note of what was said is that the interpreter said:

    I can’t see you now.

20. And the member replied:

    That’s okay.  We can keep talking.  Please go on.

21. Again, there is a series of questions after that, put to the applicant.  There is no interruption to the audio.  At about 43 to 46 minutes of the hearing the entire connection was lost – that is, sound and vision.  That is clear from the noise on the tape, which was white noise in substance.  After three minutes the link was recovered.  At that point, the member returned to the question that had been interrupted by the broken link, and repeated it and the interview went on.  It is clear from listening to the entire interview that the applicant was given an opportunity to respond to questions.  No part of the proceeding, as far as I can see, was undertaken at any point unless there was at least an audio connection.

22. The interruptions to the vision appeared to have been, as I say, on two occasions and for relatively short periods.  I am not satisfied that the interruptions to the video connection, while the audio connection remained, deprived the applicant of a meaningful opportunity to participate in the hearing at all.  I am satisfied that the questions and answers, which were delivered through an interpreter of course, were clear, were at an appropriate pace, that the applicant was given appropriate instructions to tell the member if he did not understand any question or did not understand any part of the procedure and that the only sign of confusion that the applicant portrayed in the questions was when he was being questioned about some inconsistencies of the kind that I have just referred to. 

23. However, that confusion did not, to me, indicate confusion about the nature of the questions but simply difficulty in responding appropriately to the Tribunal member.  The applicant’s affidavit says that after the hearing was completed he had a telephone conversation with his migration agent.  In cross-examination, he confirmed that he did not make any complaint about the hearing to his migration agent.  The migration agent’s post-hearing submission made no mention of any difficulties the applicant may have had with the hearing.  When it was put to the applicant that his statement that he had been instructed to provide only visual cues during the hearing, if he wished to interrupt, was inconsistent with the sound recording of the interview or of the hearing he said, ultimately, that that was on another occasion, and that related to an interview while he was in detention at Yongah Hill.  I was not told what interview that was.  It may have been an interview by the Minister’s delegate – it was not said.  However, the applicant’s affidavit is unequivocal.  He said that these events occurred during the hearing before the AAT on 2 May 2017.  I find it difficult to accept that the applicant, who had the assistance of a lawyer at the time the affidavit was drafted, could be so fundamentally mistaken about such a matter.

24. It is unnecessary for me to make any finding about whether the applicant was deliberately untruthful in his affidavit.  It is enough to say that I do not accept the affidavit as accurate, in any sense, and I am not satisfied that there has been any denial of procedural fairness during the AAT hearing.  I propose to dismiss the application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  8 May 2018