DIG20 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2022] FedCFamC2G 1054
Federal Circuit and Family Court of Australia
(DIVISION 2)
DIG20 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 1054
File number(s): PEG 213 of 2020 Judgment of: CHIEF JUDGE ALSTERGREN Date of judgment: 19 December 2022 Catchwords: MIGRATION – Safe Haven Enterprise (subclass 790) visa – decision of the Immigration Assessment Authority – nine grounds of judicial review – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss. 425, 473DE, 473DB, 473DD, 476 Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 131 Date of hearing: 29 August 2022 Place: Perth The Applicant: Appeared in person Counsel for the First Respondent: Mr Paplia Solicitor for the First Respondent: Australian Government Solicitor The Second Respondent: Submitting an appearance save as to costs ORDERS
PEG 213 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DIG20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
CHIEF JUDGE ALSTERGREN
DATE OF ORDER:
19 DECEMBER 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
CHIEF JUDGE ALSTERGREN:
Introduction
On 16 July 2020, the applicant filed an application in this Court pursuant to s 476 of the Migration Act 1958 (Cth) (“Act”) seeking judicial review of a decision of the Immigration Assessment Authority (“Authority”) to refuse to grant him a Safe Haven Enterprise (subclass 790) visa (“visa”).
The judicial review application contained 9 grounds of review. The Court also had before it a Court Book filed on 26 August 2020 by the first respondent (“Minister”) which was marked as an Exhibit and written submissions filed by the Minister on 26 May 2021. Both parties appeared before the Court on 29 August 2022. The applicant was assisted by a Vietnamese interpreter.
For the reasons which follow, the application will be dismissed.
Background
The applicant is a citizen of Vietnam. He arrived in Australia as an unauthorised maritime arrival in April 2013.[1] In order for the applicant to be able to apply for any visa, the Minister was required to lift the s 46A bar. The Minister did so on 9 May 2016.[2]
[1] Court Book filed 26 August 2020 (‘CB’) 143
[2] CB 31-35
On 11 November 2016, the applicant applied for the visa.[3] The applicant attended an interview before a delegate of the Minister on 24 January 2017.[4] The applicant’s claims were summarised by the delegate as follows:[5]
[3] CB 36-88
[4] CB 102-103
[5] CB 144-145
•The applicant was born in Vein An village, Nam Can District (Ngoc Hien) in Ca Mau Province, Vietnam. His religion is Buddhism and his ethnicity is Kinh. The applicant and his wife visited Perth, Australia in 2009 on a three month tourist visa, staying with his uncle.
•The applicant has not suffered any physical harm in Vietnam however he does not like the regime of Government there. The applicant claims that he has been discriminated against by the Vietnamese authorities, primarily because he did not receive medical benefits for his son when he had a serious heart condition. His son had a heart condition as a result of the chemical ‘Agent Orange’ that was sprayed during the Vietnam War. The applicant claims that the Government didn’t allow his family to claim any medical benefits or treatment that other families have received in a similar situation. The applicant claims that his son had to have a heart operation and the expenses for this operation should have been covered by the Government however they refused to accept his application. The applicant had to borrow funds for the operation from his relatives who live overseas.
•The applicant believes that he and his family have been treated unfairly by the Vietnamese authorities because of his perceived disregard for the police and Government regime in Vietnam. The applicant’s family cannot afford to pay bribes to the police and government officials like others in his home area. The applicant has complained about the mistreatment of his family, which has contributed to the perception that he does not support the regime in Vietnam.
•He unsuccessfully applied for household registration three times and it was not until he paid a bribe of 500,000 dong that his application was processed.
•His wife’s family had land confiscated from them by the Vietnamese government because they believed her father supported soldiers who fought for the former Republic of Vietnam government. His father-in-law was placed in jail in approximately 1995 or 1996 for the aforementioned suspicion and has since passed away.
•The applicant’s paternal uncle was forced to join the Republic of Vietnam army in 1965 and died in combat during the Vietnam War. The police told the applicant that his family was against the government.
•The applicant’s siblings are living in Saigon. The applicant’s brothers are worried about the police watching them and it makes it difficult for them to live there and find work.
•Sometimes certain festivals prevent the applicant and his family from attending temples and praying on special dates in the Buddhist calendar in mid-January and mid-July. If the applicant and family tried to defend their right to attend these religious events the applicant is afraid the authorities may become violent. He is identified as a Buddhist because it is on the Household Register and the authorities keep watch on Buddhists to prevent them from attending these religious events.
•He is afraid that because he escaped from Vietnam he will be arrested by the police if he returns to Vietnam. In approximately July 2013, after he had departed Vietnam, plain clothes detectives came and interrogated his wife about his departure from Vietnam. These detectives visited his family home approximately 8 or 9 times and threatened to confiscate the family land once they learned he had departed to Australia. As a result of these threats the applicant’s family moved to another province. The applicant fears that if he returns to Vietnam the police will arrest him and put him in jail because he is against the government. He does not know why the authorities think he is against the government however he is convinced this is the case because they have refused his claims for benefits time and again.
On 31 January 2014 some of the applicant’s personal information was inadvertently published on the Department’s website for a short period of time (referred to as the ‘data breach’). This information included: the applicant’s recorded name; recorded date of birth; nationality; gender, the reason for and location of his detention; and whether he had any family members in detention The applicant has not referenced this incident within his written claims however I am of the opinion that this incident should be assessed as part of the applicant’s overall claims. In addition, although not specifically claimed by the applicant, I am conscious that if returned to Vietnam the applicant would be a ‘failed asylum seeker’ and therefore I have also addressed the applicant’s circumstances pertaining to this claim.
On 21 February 2017, the delegate refused to grant the applicant the visa.[6] The delegate was not satisfied that the applicant faced a real chance or a real risk of harm for any reason if returned to Vietnam.
[6] CB 140-158
By virtue of the fact that the applicant was a “fast track review applicant”, the delegate’s decision was referred to the Authority for review on 24 February 2017.[7]
[7] CB 159-171
On 15 May 2017, the Authority refused to grant the applicant the visa.[8] That decision was set aside by a judge of this Court on 5 May 2020.[9] It was conceded by the Minister that the Authority had failed to consider the applicant’s claim related to his practise of his religion in Vietnam.[10]
[8] CB 187-197
[9] CB 198-199
[10] CB 199
The applicant was advised by the Authority on 13 May 2020 that his case had been remitted. He was told to “act quickly” as a decision may be made at any time.[11]
[11] CB 200-206
On 11 June 2020, the Authority again affirmed the delegate’s decision not to grant the applicant the visa.[12]
[12] CB 210-230
Authority’s Decision
The decision under review is the Authority’s decision dated 11 June 2020.
The Authority confirmed that it had had regard to the materials provided by the Secretary and no further documents had been provided by the applicant.[13] The Authority explained that it had obtained an updated Department of Foreign Affairs & Trade Report dated 13 December 2019 as it was satisfied that there were “exceptional circumstances” to do so.[14]
[13] Immigration Assessment Authority (‘Authority’) decision dated 11 June 2020 (‘Authority decision’) at [2]-[3]
[14] Authority decision at [4]
The Authority then summarised the applicant’s claims at length.[15] The Authority was satisfied that the applicant was a citizen of Vietnam and accepted his identity was as claimed.[16]
[15] Authority decision at [5]-[6]
[16] Authority decision at [9]
The Authority explained that the applicant was interviewed on 20 April 2013 and 6 May 2013 following his arrival.[17] In the interview on 20 April 2013, the applicant stated that he was hoping to sponsor his wife and child and that he intended to work.[18] The applicant stated that he had no political, social and security profile.[19] At the interview on 6 May 2013, the applicant stated that soldiers dropped chemicals on the area where he lived and it made the soil and land difficult to farm. He had no money to move elsewhere.[20] The Authority discussed that in his visa application the applicant stated that at the interviews in April and May 2013 he was told to give a brief description of his claims and was not told what was relevant.[21]
[17] Authority decision at [10]
[18] Authority decision at [11]
[19] Authority decision at [12]
[20] Authority decision at [13]-[14]
[21] Authority decision at [15]
The Authority was conscious that reliance on the interviews in April and May 2013 should be approached with caution given they are undertaken shortly after an applicant’s arrival. Therefore, these interviews are weighed reasonably in relation to inconsistencies and omissions.[22] However, they did provide insight into an applicant’s credibility and the Authority explained:[23]
17. In this context, I note the written record of the entry interview appears to indicate that the ‘important information’ section was read to the applicant, as the applicant is recorded as indicating he understood what was said. I note that rundown of information includes a statement that the applicant was expected to give true and correct answers to the questions asked and cautioned that if the information he gave at any future interview was different, this could raise doubts about the reliability of anything he had said. The applicant was also cautioned about the protections in place in terms of his information. The applicant also indicated that he understood the Vietnamese interpreter.
[22] Authority decision at [16]
[23] Authority decision at [17]
The Authority accepted that the applicant was asked to provide brief answers in the April interview. However, he was nevertheless asked some questions about his claims and other profile.[24] The May interview added only that the impacts to the land were from Agent Orange and the applicant could not afford to move to another part of Vietnam.[25] The Authority concluded that while the April and May interviews did not contain the totality of the applicant’s claims to be owed protection, they were relevant to the Authority’s assessment in relation to the economic and environmental emphasis of his answers, particularly when considered in the context of his later claims.[26]
[24] Authority decision at [18]
[25] Authority decision at [19]
[26] Authority decision at [20]
The Authority explained that the applicant had given a broadly consistent account of his claim to be from a poor area that is regularly impacted by storms and which had been soiled by Agent Orange and this interferes with farming.[27] The applicant’s son also has a heart issue which the applicant has difficulty obtaining treatment for.
[27] Authority decision at [21]-[22]
The Authority accepted that the use of Agent Orange had adversely impacted the applicant’s farming and that the economic situation was not great. It was satisfied and accepted that the applicant’s family’s prawn farm and fishing livelihoods had been impacted, and that his own house was damaged/destroyed by a storm in or about 1997.[28] The Authority also accepted that the applicant’s son had a serious heart condition that required surgery (which he has now had) and that the son’s health may have been related to Agent Orange.[29]
[28] Authority decision at [23]
[29] Authority decision at [24]
While there had been some variance in the applicant’s claims, the Authority was satisfied and accepted the applicant’s claims about his economic and environmental situation. It was satisfied that these issues did not involve any discrimination, or persecution in any relevant sense – they were hardships faced. The applicant’s claims appeared to contend his inability to obtain support (benefits, priorities, etc.) from the Vietnamese Government and authorities had been intentional/discriminatory and/or that his family has been targeted because of their specific adverse profile.[30]
[30] Authority decision at [25]-[26]
The Authority noted that the applicant had claimed that he was from a political family and his uncle sacrificed his life in the Army[31]. The applicant received no support from the government after this. The applicant received no support from the government when his house collapsed and no support was offered in relation to the applicant’s son’s health issues and operations.[32]
[31] Authority decision at [27]
[32] Authority decision at [28]
The applicant claimed that he should have been entitled to medical benefits for his son. The applicant stated that the police and local government do not treat them properly and that other families in similar situations received support from the government, but his family did not receive anything. He claimed that he believes that his family was discriminated against because of his perceived disregard for the police and government regime in Vietnam.[33] The applicant claimed that the police told him that his family was against the government.[34] His father-in-law had had his land confiscated by the government as he had supported the Army and the father-in-law was also jailed for supporting war veterans.[35]
[33] Authority decision at [29]
[34] Authority decision at [30]
[35] Authority decision at [31]
The Authority identified that at the interview with the delegate the applicant repeated, consistent with previous evidence, his issues with obtaining benefits/priorities from the government and authorities. However, his account of why he was facing issues and his account of why he and his family were not treated fairly was unclear.[36] When asked why the applicant and his family faced such treatment, the applicant said he did not know and his family had not caused any problems (he had paid taxes and contributed to charitable activities).[37] He complained about not receiving benefits and received no reply. He stated that only those with money and a good relationship are treated well.[38] The applicant did not know if his uncle’s involvement had anything to do with the way the government treated him and the incident with his father-in-law occurred more than 20 years prior.[39]
[36] Authority decision at [32]
[37] Authority decision at [38]
[38] Authority decision at [33]
[39] Authority decision at [34]
The applicant’s brothers and sisters have no problems with the government. However, the applicant explained to the delegate, they did not have a shrine to his uncle in their home.[40] In his visa application, the applicant had stated that his brothers’ lives were difficult and they worried about being watched.[41] The applicant indicated to the delegate that the claims in the visa application were included “by mistake” and the Authority was not satisfied that the claims related to the applicant’s sibling or their profile was genuine.[42]
[40] Authority decision at [35]
[41] Authority decision at [36]
[42] Authority decision at [37]
In relation to the first incident where the applicant claimed his family were denied priorities or benefits (being his son’s heart condition and operation), the Authority noted that the applicant had been unable to explain why he was denied priority.[43] The applicant’s evidence was that he was told there were 400 cases ahead of his son and that, with the assistance of family, the applicant’s son then sought private health treatment.[44]
[43] Authority decision at [39]
[44] Authority decision at [40]
In relation to the second incident, the applicant claimed that when he applied for household registration, the government would not approve it the first three times he applied until he paid a bribe.[45] The applicant also made a general claim that he was denied exemptions from education fees.[46]
[45] Authority decision at [41]
[46] Authority decision at [42]
The Authority was not satisfied that the applicant and his family had an adverse profile or they were discriminatorily or intentionally denied government or official support for any of the reasons the applicant claimed.[47] The Authority reasoned:
44. I consider the applicant’s account of the situation with his son’s health condition is genuine. I accept that he was denied or ruled ineligible for priority treatment, and was on a long waitlist at a hospital for the operation. It is not clear to me why he was denied the priority the applicant considered he was eligible for, but the applicant has not satisfied me that it was discriminatory or intentional treatment. The applicant has not satisfied he has any profile that would explain the denial of treatment. Instead, I consider either his son was not assessed as eligible for priority or free treatment (for example, because his condition was assessed as not being linked to Agent Orange) or because his family did not pay bribes (or because other families did pay bribes). Moreover, while his son may not have received the priority or free treatment that he believed he was entitled to, I give weight to the fact that his son was on a waitlist for surgery. I imagine the delay in that regard was intolerable for the applicant, particularly if his son’s health was deteriorating as he contends, however this also indicates that his son was to receive the operation in due course. This was not a case where his son was being denied healthcare. I consider the situation they faced is consistent with advice before me about the limits of the health care system in Vietnam, and the challenges faced by those (including children) accessing health care in rural areas.
45. In terms of his the registration of his household register or passport, I have assessed his evidence but I am not satisfied this involved any discrimination or other intentional treatment by the authorities. It is apparent from his oral evidence that his inability to get his documents expedited related to his inability, reluctance or perhaps even misunderstanding regarding the payment of bribes when he first attended the office. I note that once he paid the bribe, as other applicants appeared to be doing, his document was processed. I note the advice before me highlights the endemic nature of corruption within Vietnam.
[47] Authority decision at [43]
In relation to the applicant’s father-in-law, there was no suggestion that the applicant was personally involved in any of the incidents claimed. The Authority was not satisfied the applicant or his family have any adverse profile through his father-in-law or his activities in the mid-1990s.[48] In relation to the applicant’s uncle, the Authority referred to country information and there being no clear links between his uncle’s profile and the issues the applicant faced in Vietnam. The Authority was similarly not satisfied that the applicant personally had any adverse profile through his uncle’s military involvement during the Vietnam War.[49]
[48] Authority decision at [46]
[49] Authority decision at [47]
The Authority explained that the applicant appeared to be claiming that as his uncle fought in the war, he should have been given priority and benefits but was not.[50] The Authority accepted that the applicant’s uncle was a veteran, that the applicant created a shrine for his uncle, and that the applicant believes he should be eligible for support because he has done so. However, the applicant did not provide sufficient evidence to satisfy the Authority that he was discriminatorily or intentionally denied benefits priorities.[51]
[50] Authority decision at [48]
[51] Authority decision at [49]
The Authority considered the applicant’s claim to have an adverse profile from his uncle and/or father-in-law was not credible. The Authority did not accept that the applicant claim from a political family or that he did not receive the entitlements he contends he and his family should have been entitled to, or that he or his family were otherwise denied benefits because of any profile from his uncle or father-in-law.[52] The applicant did not have a perceived disregard for the police or Vietnamese government. He may have been frustrated and feels he was treated unfairly, but the Authority was not satisfied the applicant is against the Vietnamese Government or authorities, or that he otherwise had an actual or imputed profile of a person who is anti-Government or anti-authority, or that he would have any such profile on return to Vietnam.[53]
[52] Authority decision at [50]
[53] Authority decision at [51]
The Authority continued:
52. I do not accept the applicant had or has any adverse profile. Instead, I find the applicant came from a poor rural area, in a country were [sic] corruption is widespread. Being of limited means himself, I accept the applicant was not always able to pay bribes to obtain or expedite the assistance that he and his family required from the authorities.
The Authority expressed sympathy towards the unfairness the applicant claims to have faced, but was not satisfied that this was a result of any profile. The Authority did not consider that the corruption or the difficult financial situation the applicant had faced amount to serious harm.[54]
[54] Authority decision at [53]
The Authority detailed the applicant’s circumstances (including noting he had not claimed that his children were denied an education),[55] and accepted that the applicant and his family faced some hardship and difficulty in Vietnam. However, the Authority was not satisfied this hardship was systematic or discriminatory, or involved any deliberate or intentional conduct, nor did it amount to serious harm. The Authority found the applicant’s statements in his arrival interview reflected the reality of his situation – that his life in Vietnam was difficult, the economic situation following the war was not good and that he was hoping to come to Australia for a better life.[56]
[55] Authority decision at [54]
[56] Authority decision at [55]
The Authority concluded:
56. On return to Vietnam, I am not satisfied there is any chance the applicant would face harm or discrimination for the reasons he claims. Given what I have accepted about the applicant’s situation in Vietnam, I accept that he may again face corruption in his day to day dealings with the Vietnamese authorities. However, I am not satisfied he would be prevented from owning a residence, running his family’s prawn farm or fishing boat, accessing identity documentation, accessing education for his children, health care or other essential services. While I accept it would be frustrating and difficult for the applicant to again experience such corruption, and that his entitlements and priorities may not be to the standards he believes he is entitled to, I find it would not result in any threat to his life or liberty, result in serious economic hardship, threaten his capacity to subsist or earn a livelihood or otherwise amount to serious harm as non-exhaustively defined in the Act. I find there is no real chance of the applicant facing serious harm, from corruption within the Vietnamese authorities or government, whether in general or on the basis of any actual or imputed profile, should he return to live and work in Vietnam, now or in the reasonably foreseeable future
The Authority then considered the applicant’s claims relevant to his Buddhist faith. The Authority noted that the applicant had stated in his visa application that there were barriers to the applicant being able to practise his faith in mid-January and mid-July.[57] No further details were provided by the applicant.
[57] Authority decision at [58]
The Authority noted that the applicant did not detail fears or claims related to his Buddhist faith until the visa application and that he was given the opportunity to expand on these claims at the interview with the delegate. He did not do so.[58] The Authority, having regard to the limited nature of the claim and evidence provided, was not satisfied that the applicant had genuine fears on the basis of his Buddhist faith, or that he or his family had faced threat, harm, discrimination or barriers, or ever been prevented from practising their Buddhist faith.[59] The Authority considered that the applicant’s claims in relation to his Buddhist faith did not credibly reflect the reality of his situation in Vietnam.[60]
[58] Authority decision at [59]
[59] Authority decision at [60]
[60] Authority decision at [61]
The Authority summarised country information concerning Buddhism in Vietnam.[61] It concluded:
63. While I accept the applicant is a Buddhist, I am not satisfied the applicant was involved with any Buddhist group that is politically active. Even within his claims that I have not accepted, he made no reference to being politically active as a Buddhist. I find he has no such association, and I find there is no chance of him facing harm in the way more politically active members of Buddhist and other religious groups do. At most, I consider he would have been from a registered Buddhist group that operates within state sanctioned boundaries. While I accept Buddhists from this group may face some barriers or restrictions in terms of their activities, I am not satisfied he would face a real chance of societal abuse or discrimination, be prevented from practising his faith, or other harm amounting to serious harm, if he were to return to practise as a Buddhist in Vietnam, now or in the reasonably foreseeable future. I am satisfied his fears in this regard are not well founded.
[61] Authority decision at [62]
The Authority accepted the applicant had previously lawfully travelled to Australia.[62] The applicant came to visit relatives and not to claim refugee status. It was not until a few years later that he decided to do so.[63] He did so in 2013 and departed Vietnam illegally by boat.[64]
[62] Authority decision at [64]
[63] Authority decision at [65]
[64] Authority decision at [66]
The Authority noted that the applicant was the subject of the 2014 Department Data Breach. The Authority was not satisfied that the Vietnamese authorities accessed or knew any details about his protection visa claims. However, the Authority accepted that the Vietnamese authorities may have determined the applicant sought asylum in Australia.[65]
[65] Authority decision at [67]
The Authority noted that the applicant had claimed that following his departure, the police had come to his house and interrogated his wife about his departure. When his wife told them he had fled to Australia they threatened to confiscate his land. The applicant was worried about what would happen to him on return.[66] At the interview with the delegate, he said he would be seen as a traitor if he returned to Vietnam.[67] The applicant also told the delegate that the authorities knew that he had departed to Australia and he said that the boat he arrived on was broadcast online.[68]
[66] Authority decision at [68]-[69]
[67] Authority decision at [70]
[68] Authority decision at [71]
The Authority considered that the applicant had not been consistent about the type of harm his wife and children faced from the authorities, first contending they were violently oppressed, and then later that his wife was questioned and the authorities threatened to confiscate their land.[69] The applicant was also not consistent about how the police had come to know he travelled to Australia.[70]
[69] Authority decision at [72]
[70] Authority decision at [73]
The Authority referred to country information on Vietnamese laws for those who flee abroad or defect overseas.[71] The Authority continued:
75. I note the applicant’s claims that the police visited his family predated the data breach. I am satisfied that could not have been a catalyst. I do not consider the applicant was consistent or credible in terms of how the authorities came to know he was in Australia. He was not consistent in this evidence and I am not satisfied his wife would have told the authorities, and I do not accept he would have been identified through a media report as he claims. I have found the applicant had no adverse profile in Vietnam and beyond his illegal departure. Given the DFAT advice above, and his status as a person who departed the country illegally and asylum seeker, I am not satisfied he was a person who would have been of any serious interest to the authorities, let alone to the degree he claims they visited and threatened his wife and family. It is possible that his wife could have been visited in connection with his absence and the updating of his household register,10 but if that was the case, I am not satisfied she would have been threatened in the way he contends. In view of all of these factors, I am not satisfied these claims are credible and do not accept that his wife or family were visited and questioned about his whereabouts, or that they were threatened with violence or land confiscation, that his wife has faced difficulties with the authorities, or that they left the area for those reasons.
76. I have accepted the Vietnamese authorities would determine he left the country illegally and sought asylum in Australia. On return to Vietnam, I accept the applicant may be briefly detained and questioned and fined for having departed illegally. There is no information before me that the applicant would be vulnerable in that context or that he would suffer harm as a result of being briefly detained and interviewed, or that he would be unable to pay any fine that may be issued to him. I have not accepted he has any adverse profile and reject entirely any claimed that he would be arrested, imprisoned and abused, have his land confiscated, or face any other harm or penalty beyond a brief detention and fine. I do not accept he would be seen as a traitor. There is no claim he was involved in people smuggling. I am satisfied his identity and lack of any adverse profile would be assessed and he would be released. I am not satisfied there is real chance or risk of the applicant (or his family) facing harm for these reasons, whether from the Vietnamese authorities or any other person or group, were he to return to Vietnam now or in the reasonably foreseeable future.
[71] Authority decision at [74]
The Authority was not satisfied that the applicant met the refugee criterion.[72]
[72] Authority decision at [77]
The Authority then considered the complementary protection criterion. The Authority was not satisfied that any brief period of detention, questioning or fine on arrival would constitute significant harm.[73] Further:
82. I have found that the applicant may again be exposed to corruption from the Vietnamese authorities on return to Vietnam due to pervasive corruption in the country. I have also accepted he may face some low level barriers or restrictions as a Buddhist. In the assessment above, I have found above that these matters are low level and would not constitute serious harm. I am satisfied he could return to his home area in Vietnam, operate his business and access documentation, health care, education and other essential services for his family. I am not satisfied he would be at any chance of harm. Having regard to the same considerations, while I accept any low level harm, barriers or restrictions, or corruption he may face would be difficult and frustrating for the applicant to again deal with, I do not accept any discrimination or corruption (e.g. bribery) he may face on return to Vietnam would constitute significant harm as defined.
[73] Authority decision at [81]
The Authority was not satisfied that the applicant met the complementary protection criterion.[74]
[74] Authority decision at [83]-[84]
The Authority affirmed the delegate’s decision.
Judicial Review Application
As the Court has noted above, the application for judicial review filed on 16 July 2020 contained nine grounds of review. The Court will refer to these in full below.
The role of this Court is to determine whether the Authority has fallen into jurisdictional error. This Court is not concerned with disagreements of factual findings or matters that go to the merits of the applicant’s claims to be a refugee. The Court’s role is to determine whether the Authority made a material error such that the decision must be deemed to be no decision at all.
Despite having the opportunity to do so, the applicant did not file any further material.
This matter initially came before the Court on 4 May 2022. Both parties appeared in person and the applicant was assisted by a Vietnamese interpreter. At that time the Court noted that the applicant was no longer legally represented and had not filed any written submissions. The applicant advised the Court that he intended to obtain legal representation.
Noting that the applicant’s previous representatives had prepared his application, the Court adjourned the matter to 27 June 2022 for a directions hearing and ordered that:
(1)Prior to 27 June 2022, the applicant is to do all things necessary to engage legal representation.
(2)If the applicant obtains legal representation, they must file a Notice of Address for Service by 27 June 2022 and appear on that date.
(3)If on 27 June 2022, the applicant has not engaged legal representation he is to have filed an affidavit by that date setting out the steps he has taken to obtain legal representation and why such representation could not occur.
(4)On 27 June 2022, consideration will be given by the Court as to the future hearing of this matter on a date to be fixed in August 2022 and the filing of material, including any submissions by the applicant prior to that date and the opportunity for the Minister to respond.
(5)The applicant pay the Minister’s costs in the amount of $1,000.
No Notice of Address for Service nor affidavit setting out the steps taken to obtain legal representation and why such representation could not occur was filed by the applicant.
When the matter subsequently came before the Court on 27 June 2022, the applicant advised they had not obtained legal representation. The directions hearing was conducted by video-conference. Both parties appeared and the applicant was assisted by a Vietnamese interpreter. The Court listed the matter for final hearing on 29 August 2022 and ordered that:
(1)28 days prior to the hearing, the applicant shall file and serve:
(a)any amended application upon which the applicant intends to rely;
(b)any affidavit containing any additional evidence upon which the applicant intends to rely; and
(c)written submissions.
(2)14 days prior to the hearing, the first respondent shall file and serve:
(a)any further written submissions and a list of authorities; and
(b)any additional evidence on which the first respondent intends to rely.
Despite this, no further material was filed.
The applicant had almost 4 months since the matter first came before the Court for final hearing to obtain legal representation. The applicant also had the opportunity to file any further material that he wished to, he did not do so.
At the hearing on 29 August 2022, the Court explained to the applicant what this Court can and cannot do and that the Court cannot consider the merits of his case. Against that background, the Court provided the applicant with an opportunity to explain how he believed the Authority had erred. The Court will address these submissions as well as the grounds raised in the applicant’s application below.
During the course of the applicant providing his oral submissions on 29 August 2022, the Court was notified that there appeared to be deficiencies in the quality of interpretation services being provided. The Court immediately took steps to arrange for a different interpreter to be present. The applicant confirmed that he understood the second interpreter and that the second interpreter understood him. The matters previously canvassed were re-agitated to ensure that the applicant understood what had occurred. No further issues or inadequacies were brought to the attention of the Court following the replacement of the first interpreter. The Court is satisfied that the applicant had a proper opportunity to present his arguments to the Court.
Consideration
Ground 1
Ground 1 of the applicant’s judicial review application provides:
1. The Second Respondent failed to afford the Applicant procedural fairness and failed to comply with s 425 of the Migration Act, and thereby committed an error of law.
Particulars
a. The Second Respondent failed to grant the Applicant an opportunity to explain or clarify the adverse profile that he faces in Vietnam.
b. The Second Respondent failed to clarify the process to the Applicant and failed to invite the Applicant to provide evidence of my family’s political ties.
Ground 1 is misconceived.
The applicant refers to s 425 of the Act. Section 425 of the Act has no application in a review undertaken by the Authority. Most relevantly, there is no equivalent of s 425 of the Act in part 7AA of the Act.
Accordingly, the failure to comply with an obligation that the Authority does not have cannot amount to jurisdictional error.
Furthermore, it is well known that the Authority is not required to give an applicant any further “opportunity” to clarify, explain or provide further evidence. The Authority’s review is to be conducted “on the papers”.[75] There is no obligation to invite an applicant to a hearing or to invite the applicant to provide anything at all.
[75] Migration Act 1958 (Cth) (‘the Act’) s. 473DB
The Court also notes that the applicant, on two occasions, was sent a copy of the Authority’s practice direction.[76] That direction advised the applicant that he could provide submissions and, if he wanted to do so, he could provide further evidence and information. It noted that any “new information” had to meet certain requirements[77], however it advised the applicant of the ability to explain or clarify and to provide new information.
[76] CB 159-171 and CB 200-206
[77] Set out in s. 473DD of the Act
Therefore, to the extent the applicant complains that the Authority did not clarify the process, the Court agrees with the Minister’s submissions that this is not established on the evidence.
Ground 1 is rejected.
Ground 2
Ground 2 provides:
2. The Second Respondent failed to afford the Applicant procedural fairness by considering new information in the 2019 DFAT report and not informing or granting the Applicant an opportunity to respond
For the Authority to consider new information that it obtains itself, it must be satisfied that there are exceptional circumstances to justify considering the new information.[78] The Authority considered this at [4] and was satisfied that there were exceptional circumstances because of the age of the previous DFAT report that was before the Authority (published in 2015).
[78] See s. 473DD(a) of the Act
Ground 2, like ground 1, is misconceived.
Ground 2 appears to be alleging a breach of s 473DE of the Act. That section provides:
(1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a) give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b) explain to the referred applicant why the new information is relevant to the review; and
(c) invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
However, ground 2 overlooks s 473DE(3)
(3) Subsection (1) does not apply to new information that:
(a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b) is non-disclosable information; or
(c) is prescribed by regulation for the purposes of this paragraph.
Country information is, relevantly, information that is not specifically about the applicant and is about a class of person which the applicant is a member. Accordingly, the applicant was not required to be invited to respond to the new information in the 2019 DFAT report or to be advised that the Authority was considering it.[79]
[79] CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [34]
Ground 2 fails.
Ground 3
Ground 3, in full, provides:
3. The Second Respondent failed to afford the Applicant procedural fairness and thereby committed an error of law.
Particulars
a. The Second Respondent failed to advise the Applicant that subsequent to the Order made by the Court that the matter will proceed to review and failed to grant the Applicant an opportunity to respond or advance a submission when the Second Respondent reviewed the Applicant’s application.
b. The Second Respondent failed to invite the Applicant with an opportunity to respond and unilaterally adjudicated the application.
While there is no provision in Division 3 of Part 7AA of the Act requiring the Authority to advise the applicant that it will proceed to review the matter following remittal by the Court, ground 3 fails on a factual level in any event.
On 13 May 2020, following the Court remittal, the Authority wrote to the applicant and specifically stated (emphasis in original):
On 5 May 2020 a court remitted your case back to us for reconsideration. We will now proceed to reconsider your case.
It is important that you:
•use your new reference number IAA20/08379 whenever you contact us;
•advise us in writing if you wish to appoint a person to receive correspondence on your behalf or act as your representative (to do this, visit and obtain form F2);
•tell us immediately if you change your contact details such as your email address, residential address, mailing address or telephone number; and
•act quickly in your dealings with us, as a decision may be made at any time.
In reconsidering your case, the IAA will proceed to make a decision on the basis of the information sent to us by the Department of Home Affairs (the Department), including any documents you provided to the Department in connection with your protection visa application, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached Practice Direction. You can also obtain a copy of this Practice Direction at do not need to provide further copies of any documents or information you have already given to the IAA. If there is any new information you want us to consider, which has not already been provided, please note there are specific requirements in the Practice Direction which should be complied with and we may not accept new information that does not comply.
The Practice Direction also specifies that you can provide written submissions on why you disagree with the Department’s decision and on any claim or matter you presented to the Department that was not considered. However these submissions should not exceed 5 pages in total length and comply with other requirements set out in the Practice Direction.
Please act quickly if there is anything further you wish to provide to us, as a decision may be made at any time.
Clearly, the letter:
(a)advised the applicant that the matter will proceed to review and the applicant should act quickly;
(b)provided the applicant with the opportunity to provide a submission and any further information. The letter clearly indicated to the applicant that he could do so and referred to the practice direction in this regard for further information; and
(c)invited the applicant to provide further submissions and new information subject to him complying with the practice direction and acting quickly.
Accordingly, ground 3 fails.
Ground 4
Ground 4 provides:
In the absence of procedural fairness, the Second Respondent was incapable of adequately considering the risks of serious harm that the Applicant, as an asylum seeker of a particular political profile, faces
The applicant has not identified in what way the Authority has denied him procedural fairness.
The Authority acted in accordance with the obligations that arise under Division 3 of Part 7AA. The applicant has not identified any denial of procedural fairness (noting that the Court has dismissed the allegations in the grounds above).
The applicant had the ability to comment or respond to the delegate’s decision if he wished to do so. He had the opportunity to provide new information if he wished for it to be considered. By virtue of the nature of the review, the Authority was not required to invite the applicant to a hearing or interview to discuss his claims. There was nothing in the facts of this case which considered that the Authority needed to do so in any event.
The applicant, consistent with previous grounds, appears to be under a misapprehension of the nature of the Authority’s review.
Ground 4 is dismissed.
Ground 5
Ground 5 provides:
5. The Second Respondent failed to recognise the central issue at hand and adequately assess whether the Applicant is at risk serious or significant harm by failing to consider the Applicant’s claims cumulatively as a whole.
While the Authority did not use the word “cumulatively” in the course of its reasons, the Court is satisfied that it did consider the applicant’s claims individually and cumulatively as a whole.
Where the Authority made a finding that was required to be taken into account in the assessment of the claims, the Authority took that matter into account. For example, the Authority accepted that the applicant would be briefly detained when he returned to Vietnam. When assessing the risk or chance of harm, the Authority expressly took into account the findings it had made as to the applicant’s claimed profile (i.e., that he had no adverse profile). When assessing the applicant’s claim about corruption, the Authority considered the applicant’s circumstances in Vietnam (including his limited means) and found he would still have the capacity to subsist.
The parts of the applicant’s claims that were accepted were all considered and were, when considered as a whole, not sufficient to satisfy the Authority that the applicant faced a chance of harm.
Ground 5 is dismissed.
Ground 6
Ground 6, in full, provides:
6. The Second Respondent erred at law by making findings of fact in circumstances where there was no evidence to support that finding, further or alternatively, that finding depended on inferences was irrational or illogical.
Particulars
a. The Second Respondent failed to exercise its discretion by erroneously rejecting evidence.
b. The Second Respondent made an adverse credibility finding against the Applicant based principally on inconsistency and the self-evident errors that the Applicant made as an unrepresented and untrained person.
c. The Second Respondent arbitrarily rejected the evidence that the Applicant has an adverse political profile based principally on inconsistency and the self-evident errors that the Applicant made as an unrepresented and untrained person.
d. It is further legally unreasonable to reject the evidence that the Applicant is antigovernment. The Second Respondent's formulation is based principally on inconsistency and the self-evident errors that the Applicant made as an unrepresented and untrained person.
The applicant appears to be taking issue with the Authority’s assessment of his claims relating to an adverse profile.
Here, two instances where the applicant claimed that he was denied priority and entitlements he believed he was owed were addressed by the Authority (at [44]-[45]). The Authority noted that the applicant had not identified any profile to explain why these incidents occurred (i.e., his son was not given priority medical treatment and he was unable to get passport documents expedited). The Authority also considered that there were explanations about why the applicant was treated the way he was which did not relate to any profile (for example, his son’s illness did not relate to Agent Orange, the applicant did not pay a bribe and other individuals did). The Authority expressly noted that it was not the case (nor was it the applicant’s evidence) that he was denied access to health care or, in other respect education, for his child. It was, rather, a reflection of the circumstances (the health care system and the corruption).
Accordingly, there was evidence, and it was entirely open for the Authority to conclude, that the matters that the applicant claimed demonstrated he had been treated discriminatorily were not, in fact, discriminatory or targeted. The inference was open to draw on the information before the Authority, particularly noting that the Authority gave specific examples of why the applicant may have been treated the way he was. In the absence of positive evidence by the applicant that the treatment occurred for a particular reason (noting again that the applicant’s evidence was that he had done nothing wrong or against the government), it is entirely reasonable for the Authority to conclude as it did.
Further, the basis upon which the Authority found that the applicant did not have an adverse profile and was not anti-government was based upon:
(a)the only connection that could be drawn between the applicant and his father-in-law was that the applicant had married his wife and was working on a farm. There was nothing to suggest a direct link to the applicant during the hardship that the father-in-law faced and the activities occurred mid-1990’s (at [46]);
(b)country information suggested that there was an easing of the situation for persons with a profile of having fought with the South Vietnamese and, in any event, the applicant’s evidence did not demonstrate any clear link between the applicant and his uncle for events that occurred almost 40 years prior (at [47]);
(c)the only complaint that the applicant ever made against the Vietnamese government was when his son was not given priority for a medical procedure (at [51]); and
(d)the applicant had likewise emphasised that he was a taxpayer and had contributed to charitable activities and other public things in his area (at [51]).
Clearly, the Authority did not rely on inconsistencies in the applicant’s evidence about a claimed profile. What the Authority relied upon was the applicant’s own evidence about his circumstances and history, and an absence of evidence of any connection or link to the treatment of the applicant to any of the claims raised.
It was entirely logical, rational and reasonable for the Authority to conclude that the applicant did not have an adverse profile and was not anti-government. The assessment of the evidence was such that the Authority could not be satisfied that he did. The Court considers that conclusion was entirely open in light of the matters identified above.
The Court notes that the applicant makes reference to the fact that the Authority’s assessment was “based principally on inconsistency and the self-evident errors that the Applicant made as an unrepresented and untrained person”. This is not true. The Authority’s reasoning was based on a rational and reasonable assessment of the evidence before it. Whether or not the applicant was legally represented or legally trained, it is not the case that the applicant was prevented from providing evidence.
The Authority did not make findings that were illogical or irrational in the sense described in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130]-[135].
Ground 6 is dismissed.
Ground 7
Ground 7, in full, provides:
7. It was not open to the Second Respondent to engage in the process of reasoning in which it did engage or to make the findings it did make on the material before it because:
Particulars
a. In determining that returned asylum seekers do not face a real chance of serious harm in Vietnam, the Second Respondent referred to and relied on evidence that the Applicant had no prospect and opportunity to respond to.
b. The Second Respondent erroneously and without evidence rejected two critical issues:
1) The fact that since the Applicant Vietnam, his family have been harassed and interrogated by the police and authorities; and 2) As a result of the harassment and persecution, the family has been forced to relocate and escape persecution.
The evidence that the Authority relied upon was the applicant’s own evidence and country information.
The Authority is not required to put the applicant’s own evidence back to him. The Authority was not required to seek the applicant’s comment.
To the extent that the “evidence” is the DFAT 2019 report, for the reasons given in ground 2 this does not identify jurisdictional error.
Finally, if the “evidence” is the other sources of country information, that country information was cited by the delegate. The applicant could have commented on it if he chose to do so.
Particular (a) is dismissed.
Particular (b) appears to be referring to the applicant’s claims about what has occurred since his departure.
The Authority rejected the applicant’s claim that his family had been harassed and interrogated by the police at [75]:
75. I note the applicant’s claims that the police visited his family predated the data breach. I am satisfied that could not have been a catalyst. I do not consider the applicant was consistent or credible in terms of how the authorities came to know he was in Australia. He was not consistent in this evidence and I am not satisfied his wife would have told the authorities, and I do not accept he would have been identified through a media report as he claims. I have found the applicant had no adverse profile in Vietnam and beyond his illegal departure. Given the DFAT advice above, and his status as a person who departed the country illegally and asylum seeker, I am not satisfied he was a person who would have been of any serious interest to the authorities, let alone to the degree he claims they visited and threatened his wife and family. It is possible that his wife could have been visited in connection with his absence and the updating of his household register, but if that was the case, I am not satisfied she would have been threatened in the way he contends. In view of all of these factors, I am not satisfied these claims are credible and do not accept that his wife or family were visited and questioned about his whereabouts, or that they were threatened with violence or land confiscation, that his wife has faced difficulties with the authorities, or that they left the area for those reasons.
The Authority, as can be seen above, did had a sufficient basis to reject the applicant’s claims. That basis was the inconsistencies in the applicant’s evidence (which were set out at [68]-[73]) and the lack of profile that the applicant had which would attract attention of the sort that he claimed to have occurred. This was a rational and reasonable basis upon which the Authority could conclude that the applicant’s claim was not credible and it did not accept that his family was threatened. The “evidence” which supported the findings was the applicant’s own evidence and the issues which arose from that evidence.
The applicant also argues that the applicant’s family had been forced to relocate to escape persecution. The applicant’s evidence was as follows:
69…He claimed his family had to move to Bac Lieu province and his children had to change schools later in 2013. He said he was worried if he returns the police would arrest him and put him in jail because he is against the government. He also confirmed his wife was living in [village omitted] in the Ngoc Hien District (his home area). He claimed his children were living in Cà Mau City with relatives as they were studying.
…
70 … harassed his wife and she moved to Bac Lieu to stay.
On the applicant’s own evidence his wife had returned to the province and his children were not residing in the area as they were studying. The Court accepts that the Authority made no express finding rejecting the claim that the applicant’s wife had moved to Bac Lieu to stay. However, it was unnecessary to do so. The Authority rejected that the applicant’s family had been harassed. Accordingly, the factual basis on which the claim rested (i.e., the family moved to escape harassment) had been rejected: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630. The finding that the applicant’s family had not been harassed subsumed the need to make a finding on whether they had fled their home area because of any persecution.
Ground 7 is dismissed.
Ground 8
Ground 8 provides as follows:
8. The Second Respondent made a jurisdictional error by failing to consider an integer of a claim namely the claims of harm made in respect of the practice of faith. The Second Respondent thus failed to engage in an active intellectual process and to reason through the inevitable consequence of the findings which is a jurisdictional error. The Second Respondent's reasoning exposed the lack of an active intellectual engagement with each of the legal and the practical consequences and facts. The erroneous findings further includes aspects such as:
Particulars
a. That serious harm is unlikely to occur to the Applicant on return to Vietnam.
b. That neither the Applicant or is family do have an adverse profile.
Ground 8 rises no higher than impermissible merits review.
First, in relation to the applicant’s claim that the Authority failed to consider his claim in respect of the practice of his Buddhist faith, this is entirely incorrect. The Authority’s consideration of the applicant’s claim on the basis of fearing harm because of his Buddhist faith is set out at [57]-[63]. In particular, the Authority accepted that the applicant was a Buddhist, found that the lack of evidence the applicant had provided in support of this claim demonstrated a lack of genuine fear of harm or previous harm and noted country information on how Buddhists were treated in Vietnam.
The Authority actively and intellectually engaged with the claim to the extent it could on the limited evidence the applicant had provided.
In relation to the particulars, particular (a) is not more than a disagreement with a finding. The Court has addressed particular (b) in relation to ground 6 above. It is apparent from the comprehensive analysis of the applicant’s evidence (at [27]-[56]) that the Authority did properly consider the applicant’s claim. It made findings of fact and drew inferences where necessary to do so.
Ground 8 is dismissed.
Ground 9
Ground 9 provides:
9. The Second Respondent made various finding not based on fact. The Second Respondent failed to engage in an active intellectual process and to reason through the inevitable consequence of the findings which we submit is a jurisdictional error. That reasoning exposed the lack of any active intellectual engagement with each of the legal and the practical consequences and facts. The erroneous finding includes aspects such as:
Particulars
a. That serious harm could not occur to the Applicant on return to Vietnam
b.Disregard for the Applicant's political ties and history.
c. Finding that neither me or my family do have an adverse profile.
That reasoning exposed the lack of any active intellectual engagement with each of the legal and the practical consequences of the refusal to grant the protection visa when Second Respondent expressed his animadversions.
Ground 9 is simply disagreement with the Authority’s conclusion.
The Authority found that the applicant did not face a real chance of serious harm if he returned to Vietnam. It did not disregard the applicant’s political ties and history. Rather, it made logical and rational findings that the applicant did not have political ties, and that his circumstances and history, while demonstrating a difficult life, did not give rise to a real chance or a real risk of serious or significant harm.
Ground 9 is, accordingly, dismissed.
Submissions at hearing
The applicant raised a number of concerns during the course of his oral submissions.
Firstly, the applicant raised an issue in relation to a telephone hearing which the applicant said was not clear and he could not understand. It appears that the telephone hearing that the applicant was referring to was the listing before this Court on 27 June 2022 which is referred to at paragraph 50 above. In so far as the applicant is relying on this as a basis to assert jurisdictional error on the part of the Authority, this cannot stand as the hearing was before this Court and after the Authority’s review had concluded. The Court confirms that the directions hearing on 27 June 2022 was conducted via video conference which the applicant dialled into by telephone. A Vietnamese interpreter was present and the applicant did not raise any issues during that hearing. As noted above, the Court made orders giving both parties the opportunity to file any further material they sought to rely on at the final hearing and a copy of those orders were made available to the applicant shortly after.
As noted above, this matter came before the Court on two occasions before the final hearing on 29 August 2022. The Court is satisfied that the applicant had ample opportunity to provide any further material to the Court and to seek legal representation.
The second matter the applicant raised during oral submissions was that he had been involved in a data breach arising from what the Court understands to be the breach of Departmental systems in 2014. That data breach involved certain identifying information being made available and accessible for a certain period of time. Relevantly it did not include an individual’s claims for protection.
The Court notes that this data breach was expressly considered by the Authority at [67] of its decision. Relevantly, that paragraph of the Authority’s decision provided:
The evidence before me indicates that the applicant was affected by a breach of Departmental systems in 2014. I accept the delegate’s assessment that this was confined to his biographical details and did not include any details about his protection visa claims. Based on the advice before me, I am not satisfied the Vietnamese authorities have accessed or know any details about his protection visa claims, but I accept given the amount of time he has been in Australia, and the fact that he left Vietnam without using his passport, that the Vietnamese authorities may have determined the applicant sought asylum in Australia.
To the extent that the applicant’s concerns were that on return he would be identified as having applied for refugee status, the Authority accepted this was the case. The Authority then went on to consider if the applicant faced harm for this reason, and based on the applicant’s evidence and the country information, it found he would not (at [64] to [76] of the Authority’s decision).
It is apparent from the Authority’s decision that it took into account the data breach that the applicant is concerned about and concluded that there would be no real risk or chance of harm from such incident.
That conclusion was open to the Authority and the reasons it gave were logical, rational and reasonable. The Court is not satisfied that jurisdictional error has been made out.
Finally, the applicant also raised during the hearing that he was of good character and since coming to Australia had maintained employment and had been an active contributor to the Australian community. The Court does not doubt this, however, it is not relevant to the Court’s task on judicial review.
The applicant’s oral submissions otherwise failed to identify any jurisdictional error.
Conclusion
None of the nine grounds of review or the matters raised by the applicant in his oral submissions identify any jurisdictional error.
Accordingly, the application is dismissed.
I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of Chief Judge Alstergren. Associate:
Dated: 19 December 2022
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