Dak17 v Minister for Immigration

[2017] FCCA 2670

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAK17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2670

Catchwords:

MIGRATION – Administrative Appeals Tribunal – protection visa – whether the applicant was denied procedural fairness – whether the Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error identified – application dismissed.

PRACTICE AND PROCEDURE – Application for an adjournment – whether an adjournment was in the interests of the administration of justice – application refused. 

Legislation:

Migration Act 1958 (Cth), ss.36, 116, 189, 424A, 476

Applicant: DAK17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 367 of 2017

Judgment of: Judge Street

Hearing date: 27 October 2017

Date of Last Submission: 27 October 2017

Delivered at: Sydney

Delivered on: 27 October 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms A Ladhams
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 367 of 2017

DAK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 8 June 2017 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Vietnam and his claims were assessed against that country.

2. The applicant, on the 22 August 2013, applied for a subclass TU573 student visa offshore using his real identity. That application was refused on 20 September 2013. The applicant then applied on 27 February 2014 for a subclass TU-573 Student visa offshore using a false identity. On 20 March 2014, a subclass TU-573 student visa was granted offshore to the applicant using the false identity. The applicant arrived in Australia on 8 April 2014 using that false identity.

3. On 24 July 2015, the applicant was arrested and charged with cultivating prohibited plants in a commercial quantity. On 28 September 2015, the subclass TU-573 visa was cancelled under s 116. On 21 January 2016, the applicant was charged and sentenced to three years’ imprisonment. On 2 January 2017, the applicant was detained under s 189 of the Act upon release from criminal custody and transferred to a detention centre. It was not until 30 January 2017, that the applicant made an application for protection.

4. The delegate, on 19 April 2017, found that the applicant failed to meet the criteria under the Act for the grant of a visa.

The Tribunal’s decision

1. The applicant applied for review on 21 April 2017. The applicant was invited by letter to attend a hearing on 25 May 2017. The applicant appeared on that date to give evidence and present arguments. The applicant also provided material to the Tribunal referred to in the Tribunal’s reasons.

2. In the Tribunal’s reasons dated 8 June 2017, the Tribunal identified the background to the application for review. The Tribunal set out the relevant law. The Tribunal identified that the applicant claimed to fear harm because he was fleeing from Vietnamese police due to him having been near a demonstration that occurred against the government, and the applicant alleged he had been arrested and beaten by the police, and feared he would be arrested and beaten by Vietnamese police if he returns to Vietnam. The applicant provided information alleging that he was detained at two different places from 4 September 2013 until 22 September 2013.

3. The Tribunal identified documents provided by the applicant at the hearing, including untranslated documents, in respect of which the Tribunal gave the applicant an opportunity to have those documents translated.

4. The Tribunal identified relevant country information and identified that the applicant also claimed to fear harm on return to Vietnam based on his forged passport, having left Vietnam on that document, and due to his criminal conviction in Australia.

Credibility concerns

1. The Tribunal identified having credibility concerns in respect of the applicant’s claims in respect of attending the demonstration, being bashed, hospitalised, interrogated or detained by the police, and/or being released on condition to report weekly, and being prevented from studying. The Tribunal gave detailed reasons in respect of the adverse credibility findings, which were logical and rational and, for the reasons given by the Tribunal, open on the material before the Tribunal.

2. The Tribunal referred to the applicant’s request on 2 January 2017 to be returned to Vietnam and identified that as being not consistent with his claimed fears. The Tribunal concluded that the applicant has not been truthful in his claims. The Tribunal concluded, having considered the totality of the evidence, that the applicant had been an untruthful witness and that his substantive claims are untrue.

3. The Tribunal referred to the untranslated documents and the applicant’s failure to provide translations and the determination in the absence of the applicant providing translations of the Tribunal not to proceed to have the documents translated. The Tribunal found the cumulative impact of the credibility concerns are sufficiently damaging to the applicant’s credibility that they would not have been overcome by the support of the alleged supporting documentation, particularly in light of the ease with which fraudulent documents for immigration purposes can be obtained in Vietnam

Factual findings

1. The Tribunal was not satisfied the applicant accidentally became involved in a demonstration that took place in September 2013. The Tribunal was not satisfied the applicant was attacked by police and injured. The Tribunal was not satisfied the applicant was hospitalised. The Tribunal was not satisfied that police were waiting for the applicant on discharge from hospital. The Tribunal was not satisfied the applicant was interrogated or physically harmed by the police. The Tribunal was not satisfied the applicant was suspected of being involved in the demonstration. The Tribunal was not satisfied the applicant was detained for 18 days in a police station and then transferred to a police station in his home province. The Tribunal was not satisfied the applicant was released without charge but on condition to report to police weekly.

2. The Tribunal was not satisfied the applicant was prevented from studying as a result of those issues. The Tribunal was not satisfied the applicant fled to Australia for those reasons. The Tribunal was not satisfied that the police are searching for the applicant following his departure from Australia or that warrants have been issued in relation to him or that the police or authorities have any adverse interest in the applicant.

Protection obligations assessment

1. Given these findings, the Tribunal was not satisfied there is a real chance of the applicant facing serious or significant harm due to not reporting to police, police having ongoing adverse interest in the applicant, or due to any circumstances involving a demonstration that occurred in 2013.

2. The Tribunal referred to the applicant’s claims in respect of his use of the fraudulent passport. The Tribunal was not satisfied of the applicant’s claim, either on the basis of the applicant obtaining or using the fraudulent passport or because of his criminal convictions in Australia, in light of the independent country information and the absence of any independent country information to the contrary. The Tribunal found that the country information indicates to the Tribunal that despite the fact that there may be laws that would prohibit leaving Vietnam on a forged passport, there is no real chance that the Vietnamese authorities will enforce the law against the applicant. The Tribunal found there was no additional independent evidence that would suggest the applicant would suffer any serious or significant harm as a result of being convicted in Australia for drug offences.

3. The Tribunal found it was not satisfied the applicant faces a real chance of serious or significant harm based on leaving Vietnam unlawfully, having acquired a forged passport to leave Vietnam or on the basis of having been convicted of a criminal offence in Australia, including as a result of those matters cumulatively. The Tribunal was not satisfied the applicant has a well-founded fear of persecution for a refugee criterion reason or for any of the reasons claimed, or for any other reason.

4. The Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm for reasons claimed or for any other reason.

5. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

Proceedings before this Court

1. The applicant commenced the proceedings in this Court for a Constitutional writ on 5 July 2017. On 10 August 2017, a Registrar of the Court made orders providing the applicant with an opportunity to put on an amended application, affidavit evidence, and submissions. No such documents were put on.

Nature of the hearing

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by a relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

2. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs. The Court explained that it would have identified the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Adjournment application

1. The applicant had read to him the submissions of the first respondent. The applicant then indicated that he wished to seek an adjournment. The applicant was asked what the utility of an adjournment would be and he identified that it would be so that he could further consider the material in order to put forward submissions and so that he could get legal advice. The adjournment application was opposed by the first respondent.

2. On the face of the material before the Court, the applicant has had ample opportunity, if he was able to do so, to obtain legal advice or legal representation and the applicant’s reference to having contacted a few agents identifies that the applicant took some steps towards doing so. The applicant has had a reasonable opportunity to obtain legal representation and an adjournment is not warranted for that reason. Insofar as the applicant identified wanting an opportunity to consider the information and put on submissions, the applicant has had an ample opportunity to do so since 5 July 2017 at the commencement of the proceedings in this Court.

3. The applicant has identified from the bar table that he is well able to respond to the material that was put on and I do not accept that an adjournment was warranted in the interests of the administration of justice. It is for these reasons the adjournment application is refused.

Submissions from the bar table

1. From the bar table, the applicant made reference to the documents that he provided to the Tribunal, including the untranslated documents, which the applicant said were interpreted to the Tribunal during the hearing. The applicant maintained that it would be unsafe for him to return to Vietnam, and maintained that he was at risk of harm. In substance, the submissions of the applicant from the bar table were to invite this Court to engage in impermissible merits review. This Court does not have power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

Grounds in the application

1. The grounds in the application are as follows:

   I. The Applicant denied procedural fairness, in that the assessor did not disclose for him comment country information that was favourable and which contradicted other adverse country information put to the Applicant

   2. The Immigration Assessment Authority made a legal error in failing to consider the full integers of the applicant's claim with respect to the complementary protection visa criteria.

   a) The Assessment (IAA) officer erred in failing to consider the risk to the applicant's liberty posed by the application of Vietnamese law in respect of fail asylum.

   b) The Immigration Assessment Authority erred in failing to consider the implication of applicant imprisonment on his work against the Vietnamese government.

Consideration

Ground 1

1. In relation to Ground 1, on the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. On the face of the Tribunal’s reasons, the applicant had a real and meaningful hearing before the Tribunal. There is no identification of any information enlivening any obligation under s 424A of the Act.

2. In those circumstances, there is no obligation on the Tribunal to put its proposed adverse credibility findings or adverse finding in respect of country information to the applicant. It is apparent from the Tribunal’s reasons that the applicant’s credibility was clearly raised in the course of the hearing before the Tribunal, quite apart from having been raised before the delegate. Nothing in Ground 1 identifies any jurisdictional error.

Ground 2

1. In relation to Ground 2, both of the alleged integers asserted by the applicant were not raised before the Tribunal and did not arise on the material before the Tribunal. A ground not raised before the Tribunal is not capable of giving rise to any jurisdictional error. Ground 2 fails to make out any jurisdictional error.

Conclusion

1. For these reasons, the application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 10 November 2017