DAK19 v Minister for Immigration
[2020] FCCA 2820
•15 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAK19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2820 |
| Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (Class XE) visa – unparticularised grounds – whether the reasoning of the Authority was irrational or illogical– no jurisdictional error – application dismissed with costs. |
| Legislation: Migration Act 1958, ss. 36, 473CB, 473DA, 473GA, 473GB, Division 3 of Part 7AA |
| Cases cited: SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| First Applicant: | DAK19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | PEG 308 of 2019 |
| Judgment of: | Judge Blake |
| Hearing date: | 28 September 2020 |
| Date of last submission: | 28 September 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 15 October 2020 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the respondents: | Mr Murano |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The Application filed on 7 August 2019 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 308 of 2019
| DAK19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 9 July 2019. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a Safe Haven Enterprise (Class XE) visa (‘visa’).
For the reasons that follow, I have decided to dismiss the application for review.
Background
The Applicant is a Vietnamese national. He arrived in Australia in May 2013 as an unauthorised maritime arrival.
On 4 June 2014, the Applicant was notified of a data breach made by the Department which may have led to the Applicant’s personal information being disclosed. The Applicant was invited to provide any concerns regarding the data breach to the Department within 14 days.
On 18 June 2014, the Applicant’s legal representative wrote to the Department setting out that he feared harm from the data breach.
On 27 June 2016, the Applicant was invited to apply for the visa, or for a Temporary Protection (subclass 785) visa. He applied for the visa on 22 August 2017.
The application for the visa contained a Statutory Declaration of the Applicant which set out his claims to fear harm. The Statutory Declaration is contained at Court Book 84-87.
On 13 May 2019, the Applicant attended an interview with a delegate of the Minister (‘delegate’). On 4 June 2019, the delegate refused to grant the Applicant the visa.
On 12 June 2019, the decision of the delegate was referred to the Authority for review. On 9 July 2019, the Authority affirmed the delegate’s decision not to grant the Applicant the visa.
The Applicant filed the Application for Review and an affidavit in support with this Court on 7 August 2019. The Applicant was unrepresented and in detention at the time of filing the Application. Subsequently, the Applicant obtained legal representation and a notice of address for service was filed on 17 September 2019.
Orders for the conduct of the proceeding were made by Registrar Carlton on 26 February 2020. Those orders provided, inter alia, for the Applicant to file and serve any amended application and written submissions 28 days prior to the final hearing, and for the Minister to file a Court Book and written submissions.
The Applicant’s solicitors subsequently ceased to act for him, indicated by a notice of withdrawal filed on 10 September 2020. He has not filed any amended application or written submissions. The Minister filed written submissions on 11 September 2020.
The matter proceeded before me by Microsoft Teams on 28 September 2020. The Applicant, who was not in detention at the time of the hearing, was assisted by an interpreter.
The Application for Review
The Application for Review filed on 7 August 2019 does not contain any grounds of review. Under the heading ‘Grounds of application’ in the Application for Review, the Applicant has stated ‘The grounds are set out in the accompanying affidavit’.
The affidavit of the Applicant, filed on 7 August 2019 (‘Affidavit’) contains nine paragraphs. Paragraph 1 of the Affidavit sets out background information. Paragraph 2 states that ‘the second respondent’s decision made on 9 July 2019 quashed’ (sic). Paragraphs 3 – 9 set out in a bare and unparticularised manner, alleged deficiencies in the decision of the Authority. Paragraphs 3 – 9 of the Affidavit are as follows:
‘3. The second respondent's decision was unreasonable.
4. The second respondent took into account irrelevant considerations.
5. The second respondent failed to take relevant considerations into account.
6. There was insufficient evidence or no evidence to support various findings made by the second respondent.
7. The second respondent in coming to its decision on 9 July 2019 in that it misconstrued and misapplied s36 of the Migration Act 1958.
8. The second respondent's decision involved an error of law.
9. The second respondent's in making the decision did not comply with the rules of natural justice and/or the applicant was denied procedural fairness.’
The grounds above are not particularised. Grounds that are not particularised, and are not more than mere assertions, may be dismissed: see SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21] (Reeves J); WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J). Accordingly, given the nature of the grounds that are set out above, the Court is of the view that they may be dismissed based on the authorities cited above.
To the extent that it is necessary to deal any further with what is contained within the Application and the Affidavit, the Court has also reviewed the Court Book and the decision of the Authority.
The Applicant’s claims for protection are set out in a Statutory Declaration of the Applicant reproduced at Court Book 84-87. The Applicant’s claims were also summarised by the Authority at paragraph [4] of its reasons. In summary, the Applicant’s claims include:
a)if returned to Vietnam, he fears being sent to prison and is also concerned that he will not find work upon release from prison;
b)his father arranged for him to travel to Australia in April 2013. His father did not tell him why he was being sent to Australia;
c)sometime after his arrival in Australia, his father told him he was worried that the Applicant would be kidnapped by people in the underworld because of loans that his father could not pay back;
d)his father told him that he had taken the loans for his mother’s cancer treatment and that the loans were from the bank and also others. The bank subsequently took the father’s property and the father told him that he had left his home area to go to Ho Chi Minh City to get away from the moneylenders;
e)the Applicant understands his father has not repaid his debts and that the moneylenders are still looking for him. His father therefore is constantly on the move;
f)the Applicant is concerned that because he left Vietnam illegally, he will be detained on return;
g)the Applicant is concerned that because people are looking for his father, they will also look for him. He is concerned that the people to whom his father owes money may be connected with the authorities in Vietnam.
In paragraph [3] of the Affidavit, the Applicant asserts that the decision of the Authority is affected by unreasonableness. The Applicant has not identified how any unreasonableness is said to arise.
Further, in paragraphs [4]-[5] of the Affidavit, the Applicant contends that the Authority fell into error because it either failed to take account of relevant considerations, or alternatively, took into account irrelevant considerations. The Applicant has not identified what it is that the Authority erroneously considered, or failed to consider.
The Authority’s approach to the claims may be summarised as follows:
a)the Authority identified the material before it being that material provided by the Secretary under section 473CB of the Migration Act1958 (‘Act’) at [2] – [3] of its reasons;
b)the Authority summarised the Applicant’s claims for protection at paragraph [4] of its reasons;
c)the Authority identified the relevant provisions of the Act necessary for the assessment of whether the Applicant satisfied the refugee criterion (at paragraphs [5] – [6]) and also identified the provisions of the Act relevant to assessing the Applicant’s claims under the complementary protection criteria (at paragraphs [26]-[28]);
d)the Authority considered the Applicant’s claims arising from the debts incurred by his father at paragraphs [9]-[14] of its reasons and noted, among other things, that the Applicant’s evidence was ‘vague and unconvincing’ and that it was not apparent that the Applicant had ever indicated his father had been harmed (at [14]);
e)the Authority was satisfied the Applicant would be able to secure housing and employment on return to Vietnam (at [15]);
f)the Authority was not satisfied that the Applicant would be disadvantaged or face harm because his absence from the country would have resulted in his household registration being cancelled (at [16]);
g)the Authority considered whether the Applicant was likely to face any harm in respect of any religious beliefs he held, and noted that the Applicant had never expressed any fear based on any religion (at [17]);
h)the Authority considered any obligations on the Applicant to undertake compulsory military service, finding there was a real chance he may be required to complete such service if returned to Vietnam. The Authority also found, however, that it was not apparent that the Applicant was opposed to serving in the military and that in any event, there was nothing to indicate that the law in respect of conscription was discriminatory. The Authority found, rather, that it was a law of general application (at [18]);
i)the Authority noted that the Applicant had been affected by a data breach but found he would not face a real chance of harm because the information would do no more than reveal that the Applicant was in immigration detention and that he had sought asylum in Australia ‘which will be apparent in any case as a result of the matter of his return to Vietnam’ (at [19]-[20] of its reasons);
j)the Authority considered whether the Applicant was at risk of harm on return to Vietnam on account of being a failed asylum seeker. The Authority considered information from DFAT and concluded that the Applicant did not ‘have a profile of interest on return, including as an anti-government dissident, such that there is a real chance he would be at risk of harm on that basis, including being imprisoned’ (at [22] – [23] of its reasons);
k)the Authority considered whether the Applicant satisfied the criteria under section 36(2)(a) of the Act either separately or cumulatively and also whether the Applicant satisfied the criteria under section 36(2)(aa) of the Act, however ultimately dismissed the claims (at [26]-[32]).
When the above matters are considered, I am satisfied that the Authority’s findings were open to it. There is nothing in the reasoning of the Authority that appears irrational or illogical. Further, it is not apparent how the Authority has taken into account any irrelevant considerations, or failed to take account of relevant considerations.
In paragraph [6] of the Affidavit, the Applicant claims there was insufficient evidence or no evidence to support various findings made by the Authority. The Authority may fall into error if it makes a finding where there is no evidence to support a finding. However, a review of the decision of the Authority does not indicate that any finding was made in the absence of evidence. Further, to the extent that it is necessary to say so, the weight to be given to the evidence is a matter for the Authority alone.
In paragraph [7] of the Affidavit, the Applicant claims that the Authority misconstrued or misapplied section 36 of the Act. It is not apparent how the misconstruction is said to have arisen. As noted earlier, the Authority correctly set out the relevant provisions of the Act in its reasons. It also annexed to its reasons the applicable law.
In paragraph [9], the Applicant asserts a failure by the Authority to comply with the rules of natural justice and claims he was denied procedural fairness.
Section 473DA of the Act sets out the procedural fairness requirements applicable in the present matter. It relevantly provides that Division 3 of Part 7AA, together with sections 473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule.
In the present matter, the decision of the delegate was referred to the Authority. The Authority subsequently wrote to the Applicant on
12 June 2019 (Court Book 167) to inform him of the referral and to advise him of the process. The Authority also informed the Applicant of the outcome of the decision on 9 July 2019 (Court Book 186). There is nothing in the materials in the Court Book, or in the decision of the Authority, that indicates that the Applicant was denied procedural fairness or natural justice.
For all of the above reasons, I find that the Authority has not committed any jurisdictional error. The Application should be dismissed.
The Minister sought costs according to scale in the amount of $7,467. Costs ordinarily follow the event. I will make an order as to costs in favour of the Minister. I will also make an order, as sought by the Minister, that the name of the First Respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 15 October 2020
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