DHX17 v Minister for Immigration - [2018] FCCA 819

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHX17 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 819

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

First Applicant:

DHX17

Second Applicant:

DHY17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 707 of 2017

Judgment of:

Judge Vasta

Hearing date:

28 February 2018

Date of Last Submission:

28 February 2018

Delivered at:

Brisbane

Delivered on:

28 February 2018

REPRESENTATION

Counsel for the Applicants:

Mr L. Burrow

Solicitors for the Applicant:

Luat Lawyers

Counsel for the First Respondent:

Ms Graycar

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The Application for leave to proceed out of time is refused.
The Application filed on 24 July 2017 as amended on 25 January 2018 be dismissed.
The Applicants pay the First Respondent’s costs of and incidental to the application as agreed between the parties or as assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 707 of 2017

DHX17

First Applicant

DHY17

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

By application filed on 24 July 2017, the Applicant, DHX17, and his younger brother, DHY17, have asked this Court to review a decision of the Immigration Assessment Authority (“the IAA”). DHX17 is the Applicant and DHY17 is a dependant on DHX17, and his claim rises and falls solely on the claim of DHX17.
The IAA decision that is sought to be reviewed was a decision that affirmed a previous decision of the delegate of the Minister not to grant the Applicants protection visas. That decision was made on 6 February 2017. Therefore, the Applicants had 35 days after 6 February 2017 to file this application. As I have already said, the application was filed on 24 July 2017, which is well over four months out of time.
The matters that I need to look at in deciding whether or not I ought grant the extension really come down to three aspects:
a)what was the excuse;
b)what prejudice is there to the respondents; and
c)is there a case on the merits that ought to be argued before the court?
After the application was filed, the matter came before the Registrar on 4 September 2017. She set the matter down for hearing before me on 17 January 2018. In her order were directions for the provisions of any further or amended application and the provision of written submissions.
On 17 January, Ms Costello, who was counsel for the Applicant, made an oral application on that day to amend the grounds of the application, and then proceeded to argue the grounds of the application. When I pointed out to her certain shortcomings with regard to those aspects, she applied for an adjournment of the matter. In the end, I granted the adjournment, though with quite some reluctance, and adjourned the matter to today’s date, 28 February 2018, some five to six weeks after 17 January 2018.
What I asked for was that any amended application be filed by a certain date, and that if there were to be any further evidence adduced it be adduced by a certain date, and I allowed the respondent to file written submissions to these new grounds given that the written submissions given to me on the day by Ms Costello argued those grounds that she sought to add on the day.
There was non-compliance by the Applicant in regards to those matters, in particular the order that I made that the Applicants file and serve any amended application by no later than 4 pm, file and serve any further outline by 4 pm on 22 January 2018, file and serve a further outline of submissions by 23 January 2018.
I have been given today, an affidavit which will be filed in the proper form by Ms Helsdon, who is the solicitor in charge of this particular matter for the respondent. It contained all of the correspondence between her office and those of the solicitors for the Applicant detailing why it was that the orders were not being complied with. In the end, the Applicant did file the amended originating application on 25 January 2018, which was some time later, and there were no further submissions filed, and the Minister then filed their submissions.
The Applicant appeared today now represented by Mr Burrow, who had instructions to ask for a further adjournment. He read into the record the salient points of an affidavit that was going to be filed by the Applicant, which really went to the impecunious nature of the Applicant’s position and that he needed more time to be able to pay Counsel and his solicitors to continue with this matter.
Quite curiously, in the correspondence that is annexed to Ms Helsdon’s affidavit, is a claim by the solicitors that the client did not realise that the matter would be adjourned to another date and this has caused him to be financially embarrassed. I say it was curious because it was the Applicant, himself, who asked for the adjournment on that date and is now blaming his own actions for the reason that he is not able to afford the legal representation. I do note that Ms Costello did return the brief on 30 January.
Given the history of this matter, the fact that it is an application that is four and a half months out of time, the nature of the grounds that have already been put up to the Court, the written submissions, and just the sheer history of the matter, I am not inclined to allow the adjournment. Having made that decision, it seems to me that it is best to look to see whether the third limb of the extension of time argument has been met.
When looking at the merits of the matter, these things become clear. The Applicant and Second Applicant are brothers. They arrived in Australia as unauthorised maritime arrivals in July 2013. When they arrived, there was an arrival interview conducted on 19 July 2013. The Applicant stated he left Vietnam because he wanted to find freedom and that he was not happy with the Vietnamese government and the way the Vietnamese government was leading the country.
He said that he came to Australia to find work, and he did not know what would happen to him if he were to return to Vietnam. He stated that he had been involved in a demonstration in Hanoi at the beginning of 2012. The demonstration was against the Vietnamese government for ignoring action taken by the Chinese government. He said he was arrested by the police and detained for three days.
It is notable that in that interview there were no protection concerns that were raised, at all, by the Applicant. About four weeks later, on 15 August 2013, the Applicant was advised by the department that he would be removed from Australia as it did not appear that he had raised any claims for protection.
On 2 September 2013, he raised the following claims for protection and his removal was aborted. He told the department that he got into an argument with the Vietnamese government and had a fight with them. His family land was forcibly taken by the Vietnamese government, and his family applied to the Court to give their land back.
While waiting for the Court to respond, the police came and his family got into a fight with the police. The Applicant said that he defended himself. He then fled the scene and remained in hiding, and the authorities were searching for him.
He said that he was a Catholic and that the government took away the church where he prayed. The police came and hit a lot of people, and the people became scared so they ceased praying at that church, and he feared returning to Vietnam because he would be put in jail on this basis.
He then made a written statement of claims on 28 January 2016, and was then interviewed by the delegate on 15 October 2016. The delegate, as I have previously said, did not grant the Applicants protection visas. Because this was a fast tracked decision, the matter was referred to the Immigration Assessment Authority.
The IAA summarised the claims in these categories:
a)that the Applicant claimed because of his Catholicism that he would be persecuted and not be able to practice his religion with freedom;
b)the fight that the Applicant and his family had with persons, that is the physical fight over what had occurred with the land;
c)that there was a data breach while the Applicant was here in Australia which has led the Vietnamese authorities to know that he is a person who is claiming asylum; and,
d)lastly, if he returns to Vietnam as a failed asylum seeker, he will be subjected to serious harm.
The IAA assessed those claims. The argument over the land was a matter that the IAA took particular note of. What the IAA set out was that the Applicant first said that he got into a fight with the Vietnamese authorities and that land was taken by the authorities, and his family applied to a Court in order to receive compensation. While they were waiting for the Court to decide the case, he got into a fight with the authorities.
In the written claim that he made in January 2016, he stated that his family land was taken by a developer and that the developers contacted the police when the Applicant was onsite, and that he and the developers got into a physical altercation where he broke a tendon and got a cut on this hand. He said that the Second Applicant, his little brother, was also involved in the altercation and his arm was broken. He said that his mother advised him that the police have been looking for him since his departure.
In his interview with the department, of which I now have a transcript, the summary given by the IAA was this:
“The Applicant stated the fight was with the labourers who were digging up the land. He did not say anything about his family appealing to the court, or that the police were present. The delegate asked him about whether police were present and he stated that they were present prior to the altercation commencing.”
In the written claims, he indicated it was the labourers who had contacted police, and he had also said that he had suffered a broken arm and leg after the altercation, and that his little brother was pushed. In the interview, he said that he had broken a tendon and a cut on his hand, and it was his little brother that had suffered from a broken arm.
Those inconsistencies were concerning to the IAA. At paragraph 19, the IAA said this:
“In addition to these inconsistencies, I find it material that the first Applicant claimed that police were present during the physical altercation yet they allowed him to leave the scene, despite him claiming that they later went to his house to arrest him. During the interview with the delegate, he stated he feared harm from gangsters who were hired by the authorities, however in his written claims for protection he didn’t raise any fear of harm from any gangsters. When this was put to him during the interview with the delegate, he stated that he provided this information to the migration agent and was not sure why it was not put into his written claims.”
The IAA was not satisfied that he had, in fact, told the migration agent. Given that he was represented by a registered agent who had included other detail, such as the police searching for him, etcetera, the IAA could not accept that the registered migration agent would have omitted such a vital aspect of the claims.
The IAA added, in paragraph 19, that:
“In her post-interview submission, the Applicant’s migration agent also stated, “While there is no proof of him providing this information, the benefit of the doubt should be provided to the first Applicant.”
And, not surprisingly, the IAA was not willing to give any benefit of the doubt, mainly because there was not really too much doubt, at all, it would seem.
The IAA concluded, at paragraph 20:
“I am not satisfied the Applicant’s family land was forcibly taken away. It follows I am not satisfied the Applicants were involved in any physical altercation or conflict with any labourers or the authorities on this basis. I am not satisfied the Applicants were forced to relocate to the south of Vietnam on this basis, or that the police or any gangsters have been looking for the Applicants since their departure from Vietnam.”
Those inconsistencies in the account really led the IAA to discount this particular aspect.
The IAA then looked at the Applicant’s Catholicism and, using country information, noted that seven per cent of the population was Catholic. The country information is that they have been allowed to worship as long as their activities are not politically motivated to destabilise the government, and there is no evidence that the Applicant’s Catholicism would be doing any such thing.
With regard to the data breach, whilst the IAA noted that the data breach had happened, and that the Applicant is known by the Vietnamese authorities to be a person who has applied for asylum, the IAA found that there is no harm that would be done to him because of this, and, again using country information, found that there will be no harm done to him if he returned to Vietnam.
On those bases, the IAA affirmed the previous decision.
The grounds of this application, as amended, are as follows, and I will take them seriatim,
“1. The decision of the second respondent (IAA) is affected by jurisdictional error in that it was unreasonable, irrational, or illogical.
Particulars
The IAA’s conclusions at paragraph [18] – [20] regarding purported inconsistencies in the first applicant’s evidence about the land dispute were not supported by probative evidence; there was no logical connection between the evidence and the inferences or conclusions drawn by the IAA.”
I have had the benefit of looking at what was said in the interview by the delegate, and the other written matters that are in the Court book. What was described at paragraphs 18 to 20 of the IAA’s reasons are quite proper summaries of what had been said. The conclusion that the IAA came to was open on all the evidence. Even if the interpretation urged upon me by the Applicant was a correct one, that did not in any way impinge upon the availability of the conclusion that the IAA came to being valid.
In the end, this ground amounted to no more than an impermissible merits review; that is, the Applicant did not like the conclusion that the IAA came to and sought to impugn it.
As was said on the last occasion on 17 January, it is not a matter of whether I, or any other Tribunal of fact, may have come to a different conclusion; it is whether the conclusion made by the IAA was a conclusion that was open to it.
In this case, on the evidence that was before the IAA, the conclusion that the Applicant was not telling the truth about the land fight was a conclusion that was open.
Ground two:
“2. The IAA’s decision is affected by jurisdictional error in that it failed to consider the applicant’s ethnicity – Kinh – either separately or cumulatively and thereby failed to review the fast track decision and materials as it was obliged to do by s473CC and s473DB(1) of the Migration Act 1958 (Cth).
The possibility that the Applicant’s ethnicity may have been a source of harm was never raised at any time by the Applicant or in any other country information. It is not for the IAA to simply go about trying to create arguments as to whether there may be some problem if the supposed problem is not raised by the Applicant. But in this case, it is especially so, given that the vast majority of persons in Vietnam have the Kinh ethnicity. It seems to me that there is really no merit, at all, in this ground.
Ground three:
“3. Material that was the subject of the non-disclosure certificate at CB193 was prejudicial and irrelevant, and the decision is affected by apprehended bias.”
That ground relates to material that the department had in its possession and therefore was given to the IAA. At CB 193, there is a list of documents. When one looks at those documents, those documents do have another person’s summary of what was said on different occasions by the Applicant and whether the Applicant was consistent or inconsistent.
When one looks at that material, it does not seem to be anything other than an officer’s opinion that is really quite black and white as to whether material is different on one occasion as opposed to another occasion. There has been no demonstration as to how such material could have either influenced the decision maker, or the IAA, or how anyone could feel that such decision could have influenced or be seen to indicate that the IAA did not bring an open mind to bear on the question.
I have, during the course of argument, raised the question of whether apprehended bias is actually applicable in a decision such as this, where it is a closed hearing and there cannot be any fair-minded observers looking at the matter. But that is a debate for another time.
Having a look at the material itself that is complained about, it seems to me that there are absolutely no grounds to think that such material played any role or any part in the decision of the IAA. Therefore, this ground fails.
The last ground is ground four:
“4. The IAA’s decision is affected by jurisdictional error in that the IAA sent its ‘acknowledgement or referral’ to a residential address, rather than to the Playfair Lawyers. In doing so, the IAA acted unreasonably; and inconsistently with ss473CB(d)(i) and (ii) of the Act in that it did not notify the applicant to the last address for services or business/residential address provided by the applicant for the purpose of receiving documents.”
This was really quite a strange and peculiar ground. In effect, what was complained of was this: that during the part of the application that led to the delegate interviewing the Applicant and then making a decision on the provision of visas, the Applicant was allowed to be represented by Playfair Lawyers. It is clear, when one looks at all of the documentation, that the assignment of Playfair Lawyers was an assignment solely for the purposes of the application to the department.
Once the delegate had made the decision that is the end of the representation by Playfair Lawyers, unless there is a subsequent appointment. The documentation that explains the process explains that the matters from thereon in will be sent to the person’s residential address. This is what was done.
The argument is that Playfair Lawyers was the last address for service provided by the Applicant, and therefore the IAA notice should have been sent there. The fact is that it was sent to the Applicants’ address, and the Applicants received the notification. It is puzzling as to how the IAA has acted unreasonably considering it has complied with its own legislation and has acted consistently with all of the information packs that it has put out.
I cannot see how that is acting unreasonably. Even if by some chance, it were unreasonable, I cannot see how such “unreasonable action” has resulted in a jurisdictional error. Therefore, I find that this ground also fails.
Mr Burrow, today who has appeared, has conducted the matter in accordance with his duty to the Court, and has said all that can be said in support of the application. However I am satisfied that there has been no jurisdictional error shown in this matter. The application would be dismissed if it were a matter that I was dealing with on the merits.
Given what I have said about the merits, it then seems to me that, in combination with my view about the merits, the lack of excuse in this matter as to why it is four and a half months out of time, and notwithstanding that there may not be significant prejudice to the respondent, I should refuse the application to allow the filing of this application out of time. I do so.

The Applicant should have the costs of this application, and I so order.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:5 April 2018