DGN16 v Minister for Immigration

[2019] FCCA 1427

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGN16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1427

Catchwords:
MIGRATION – Application for judicial review – whether the Tribunal’s decision was affected by an error of law – whether the Tribunal failed to provide the Applicant procedural fairness – whether the Applicant was a local activist – whether the Applicant was a higher level activist.

Legislation:

Migration Act 1958 (Cth), s.91R(2).

Cases cited:

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16.

Applicant: DGN16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2370 of 2016

Judgment of: Judge McNab

Hearing date: 20 May 2019

Date of Last Submission: 20 May 2019

Delivered at: Melbourne

Delivered on: 2 July 2019

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondent: Ms Nyabally

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed 2 November 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.

3. The title of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2370 of 2016

DGN16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 2 November 2016 the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) to affirm a decision of a delegate (‘the Delegate’) of the Minister (‘the Minister’) to refuse to grant the Applicant a temporary protection (Class XD subclass 785) visa (‘the visa’).

2. For the reasons which follow I have concluded that the application should be dismissed.

Background

1. The Applicant is a 37 year old Vietnamese male who first arrived in Australia on 19 May 2013 as an irregular maritime arrival.

2. An entry interview was conducted on 5 June 2013. In the course of that interview the Applicant claimed that he left Vietnam principally due to a lack of economic opportunity. He did not make a protection claim at this time.

3. On 12 August 2013 the Applicant made a statement to the Department of Immigration and Border Protection (‘the Department’) claiming to fear harm if he returned to Vietnam due to his involvement in a protest in 2006 against a mineral exploration company (‘the protest’).

Applicant’s claims

1. The Applicant claims that as a result of his involvement in the protest he was arrested. He was then taken to the local government office, beaten and accused of committing a crime. At an interview on 12 August 2013 with the Department, the Applicant also informed the Department that he had provided false identity information when he first arrived in Australia. He then submitted identity documents with his correct name and date of birth.

2. On 1 July 2014 the Applicant applied for the visa.

3. That application contained a statutory declaration which raised two additional claims:

   a)that the Applicant was forced to bribe local government authorities in order to obtain fishing permits which caused him to leave Vietnam for Taiwan between 2009 and 2012; and

   b)he participated in further protests in 2012.

4. The Applicant claimed that he was again beaten and, subsequently, charged with ‘confronting the law enforcement officer during the course of his duty and fighting the government’.[1] He claimed that the police harassed his family after the 2012 incident and that he was forced to pay bribes in order to obtain a birth certificate for his child and to allow his child to go to school.[2]

   [1] Tribunal’s decision record, 27 September 2016 [21].

   [2] Tribunal’s decision record, 27 September 2016 [21].

5. In the visa application and at an interview before the Delegate, the Applicant claimed to fear harm by Vietnamese authorities as a person with a profile as a local activist arising out of his involvement in protests against the government. He further claimed to have a profile as a failed asylum seeker because his details had been the subject of a data breach (on 12 March 2014 the Department wrote to the Applicant advising that in February 2014 a routine report released on the Department’s website unintentionally enabled access to some personal information about people in detention on 31 January 2014.[3] This included the Applicant.[4]

   [3] Court book page 34.

   [4] Court book page 34.

6. On 21 April 2015 the Delegate refused to grant the visa.

7. On 27 April 2015 the Applicant applied to the Tribunal for review of the Delegate’s decision.

8. On 2 August 2016 the Tribunal invited the Applicant to attend a hearing scheduled for 23 September 2016 to give evidence and present arguments. The Applicant appeared before the Tribunal on 23 September 2016 and the hearing was conducted with the assistance of an interpreter.

9. On 27 September 2016 the Tribunal affirmed the Delegate’s decision.

Tribunal Decision

1. The Tribunal’s decision sets out in detail the claims made by the Applicant. In particular, [23] of the decision record sets out in detail the claims made by the Applicant to the Tribunal on 23 September 2016.

2. At [33] of decision record the Tribunal considered whether the Applicant was involved in protest activities and, if so, whether he has an adverse profile with local authorities or anyone else due to these protest activities. The Tribunal took into account, at [33], that:

   a)the Applicant gave a false identity on arrival in Australia, noting that the Applicant told the Tribunal that he did so because, while on the boat, he was advised to give a different identity so as not to be detected by the Vietnamese authorities;

   b)the Tribunal observed that the Applicant was advised of the confidentiality of the Australian entry and protection processes and would expect that he provide correct details about himself, and his failure to do so detracts from his general credibility;

   c)the Applicant did not make any claims for protection in his entry interview, noting that the Applicant stated that he wished to stay and work in Australia because he is in debt and wants to repay the debt;

   d)the Applicant’s claims have shifted over time – notably that his 2013 statement did not refer to protest activities in 2012.

3. The Applicant explained that he did not mention his claims regarding the 2012 protest originally as he was particularly fearful about this incident and did not want the Vietnamese authorities to become aware of it.

4. The Tribunal considered the Applicant’s claims but did not accept them largely for credibility reasons.

Grounds of review

1. The Applicant’s grounds of review are, quoting directly:

   1. The decision of the Tribunal

   (a) is affected by an error of law; and

   (b) denied the applicant procedural fairness.

   2. I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.

2. Directions were made in the proceeding by Registrar Ryan on 26 April 2017 allowing the Applicant to file and serve any amended application with proper particulars of the grounds on or before 22 April 2019.

3. The Applicant did not exercise this right but did appear before the Court with the assistance of an interpreter.

4. The Court questioned the Applicant as to what errors he alleged were in the Tribunal’s decision.

5. The Applicant answered by stating that he had been dealing with local police and not the central police and that he had been arrested and provided with a piece of paper that told him to report to a police station. The police then kept him for the whole day instructing him to stay in the area and wait for the higher authorities. He stated that he left the village before being notified by the higher authorities.

6. He said that when he arrived in Australia he was told by people in Vietnam that several people had been arrested in relation to the above event, and those people had to pay money to the police. He said that the police had come to his house after he had left Vietnam and his wife did not tell the truth about where he was.

7. He stated that he was very scared and frightened to return to Vietnam, claiming that the authorities think that he follows an anti-Communist group.

Consideration

1. The Tribunal considered the Applicant’s claims under the heading ‘Findings and Reasons’.[5]

   [5] Tribunal’s decision record, 27 September 2016 [24]-[61].

2. At [34] of the decision record, the Tribunal noted that the Applicant was able to obtain the agreement of local officials to be part of a labour export scheme whereby the Applicant was able to travel to Taiwan  to work. The Tribunal considered the opportunity to work in Taiwan was a valuable opportunity – the Applicant informed the Tribunal he would earn more money in Taiwan than in Vietnam. The Tribunal noted that the Applicant claimed to have bribed officials to obtain this privilege. However, and notwithstanding the bribe and that country information confirms corruption is prevalent in Vietnam, the Tribunal did not believe that it was plausible that the authorities would extend the privilege of working in Taiwan to a person with an adverse profile.[6]

   [6] Tribunal’s decision record, 27 September 2016 [34].

3. The Tribunal was also not satisfied that the Applicant had an adverse profile as a higher level of local activist.[7] Passports in Vietnam are provided by the central government in conjunction with local authorities who verify their identity.[8] Vietnamese authorities, according to country information, may limit the ability of known dissidents to travel.

   [7] Tribunal’s decision record, 27 September 2016 [34].

   [8] Tribunal’s decision record, 27 September 2016 [34].

4. Consistent with the Applicant’s oral claims before this Court, the Tribunal considered his response that he was dealing with local government. The Tribunal concluded, however, at [34] of the decision record that:

   Taking all the evidence into account, including the independent country information which indicates that the Vietnamese government withholds passports to people who have an adverse profile, the Tribunal is not satisfied the applicant had an adverse profile as a higher level of local activist, on this basis.

5. The Tribunal considered the Applicant’s claim that the authorities had been harassing his family since his departure.[9] The Tribunal noted that the Applicant had mentioned a visit to his home on two occasions shortly after his departure by unknown people enquiring about his whereabouts. It also noted that the Applicant had stated there had been no further enquiries about him since that time.

   [9] Tribunal’s decision record, 27 September 2016 [37].

6. The Tribunal did not accept the evidence of the Applicant at the hearing that authorities had been harassing his family since he left Australia. The Tribunal found that the chance or risk that in the reasonably foreseeable future the Applicant or his family will be subjected to serious harm or significant harm on this basis was remote.[10]

   [10] Tribunal’s decision record, 27 September 2016 [37].

7. The Tribunal also considered the Applicant’s status as a returning asylum seeker.[11] At [48] of the decision record, the Tribunal accepted that if the Applicant returns to Vietnam he will be identified as a failed asylum seeker and that his use of people smugglers to arrive in Australia may be of interest to authorities. However, country information indicates that Vietnamese authorities do not detain people for lengthy periods or jail them for being asylum seekers, as the Vietnamese authorities view returnees as victims of people smuggling.

   [11] Tribunal’s decision record, 27 September 2016 [45].

8. It was noted by the Department of Foreign Affairs and Trade country information that those people suspected of people smuggling by the Vietnamese authorities may be detained or jailed, but the Tribunal found that the Applicant was not involved in the people-smuggling operations after the Applicant gave evidence to that effect.

9. The Tribunal did not accept that the Applicant will be harmed during questioning upon his return. The Tribunal further regarded that any sanction for the use of people smugglers was a law of general application and therefore did not amount to persecution as defined in section 91R(2) the Migration Act 1958 (Cth).

10. In my view, the Tribunal has comprehensively set out the Applicant’s claims, considered those claims and rejected the claims on the basis of credibility findings which are founded on comprehensive and intelligible reasons: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130].[12]

    [12] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130] (Crennan and Bell JJ).

11. As to the claims that the Tribunal denied the Applicant procedural fairness, the Applicant has not pointed to any conduct to support this claim.

Conclusion

1. I am therefore of the view there is no jurisdictional error disclosed in the decision of the Tribunal and in those circumstances the Court finds that the application must be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 2 July 2019