DLY17 v Minister for Immigration

[2018] FCCA 1518

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLY17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1518

Catchwords:
MIGRATION – Protection visas – credibility – no jurisdictional error – applications dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

AUG17 v The Minister for Immigration [2017] FCCA 1874

First Applicant: DLY17

Second Applicant: DLX17

Third Applicant: DLZ17

Fourth Applicant: DMA17

Fifth Applicant: DMB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 739 of 2017

Judgment of: Judge Vasta

Hearing date: 5 June 2018

Date of Last Submission: 5 June 2018

Delivered at: Brisbane

Delivered on: 5 June 2018

REPRESENTATION

Counsel for the Applicant: Ms A. Julian-Armitage and Ms M. Forrest

Counsel for the Respondent: Mr B. McGlade

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the Amended Application filed 14 February 2018, including the application for the extension of time, be dismissed.

2. That the Applicants pay the costs of the First Respondent fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 739 of 2017

DLY17

First Applicant

DLX17

Second Applicant

DLZ17

Third Applicant

DMA17

Fourth Applicant

DMB17

Fifth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 26 June 2017 the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, DLY17, and the spouse, DLZ17, and the other dependents, DLX17, DMA17 and DMB17 protection visas.

2. The background to this matter is that the Applicant family, and whilst I refer to the Applicant, I do mean all five, notwithstanding that I will often talk singularly about the Applicant husband,  left Vietnam on 20 March 2013 and arrived in Australia as unlawful maritime arrivals on 17 April 2013.  The Applicant child, DMA17, was born in Australia on 6 October 2014. 

3. What the Applicants say is that the Applicant husband was born on 12 October 1976 in Nghệ An province.  His father was a fisherman.  The family had been of the Kinh ethnicity and Catholics. 

4. The Applicant married the wife on 6 February 2002 and the two sons were born on 26 October 2003 and 23 January 2005. 

5. There doesn’t seem to be any contest to the fact that the Applicant husband left Vietnam for Russia in October 2008.  He had a tourist visa for one month, but remained for work purposes.  He claimed to have lost his passport while in Russia.  In February 2009 he travelled to Poland and then subsequently to England.  He did this on false documents.

6. In 2010 he was convicted of a drug supply offence in England and subsequently deported to Vietnam in October 2010.  He left the area of his birth in October 2012 and resided at various addresses in the Xinjiang province, which is south-west of Ho Chi Minh City. 

7. The wife was born on 5 July 1980.  She also was of Kinh ethnicity and a Catholic.  She had worked with her mother until she departed Vietnam with the husband and the two children. 

8. The husband and wife were separately interviewed when they arrived in Australia.  The husband said that he was not a member of any social or religious groups and he left Vietnam because they didn’t have human rights and that he doesn’t have the freedom to worship. 

9. He talked of going to Con Cuong Church on 2 July 2012. The people in that parish have been persecuted by the authorities, so he had answered the call by the Archbishop to go there and to pray for peace.  He said that there had been a bus organised from his local parish and when they arrived in Con Cuong, a mob arrived. When they tried to get into church, the mob stopped them and attacked them.  He did not see if the priest was his because he was running away.  He went to a village and people helped him to get back to the bus and the bus took them to his own village. 

10. He said that a week later he received a letter from the local police to go and see them.  He was accused of plotting against the government.  He denied this.  He was allowed to go home.  He shortly afterwards received another letter.  Again he attended the police station and he was interviewed about his activities against the government, but he denied these activities. 

11. In October 2012, he received an order to attend the police station, but he decided not to go and he ran away.  He was afraid that he would be put in jail, so he went to the south of the country and he was not followed by police.  Whilst living in the south, he thought that there were no human rights in Vietnam so he would find another way to live.  He heard about being able to get onto a boat and go to Australia. 

12. The wife said that they left the country because Catholics were persecuted by the authorities in Vietnam.  She said that nothing adverse had ever happened to her as a result of being a member of a prayer group and that she had never been detained and the police or authorities didn’t impact on her day to day life.  But she recalled that her husband went to Con Cuong to pray and was beaten and came home.  The husband left the area and then called her four or five days before they left Vietnam, telling her to bring the children. She said that she did this, met the husband and they left.

13. Both the husband and wife lodged protection visa applications and the husband lodged a statutory declaration on 27 July 2016, about three years after his initial interview.  

14. In that statutory declaration he said that the government were oppressing people of Con Cuong and their religious practices;  they weren’t allowed to perform their rituals;  that the bishop had said that anyone who was committed to the church should go to the church and burn a candle to pray.

15. On 2 July 2012, he attended at church to do this and they put banners on the cars telling people to pray for Con Cuong; that it was a protest.  Then they went to the place where people had been beaten at Con Cuong so they could pray for the people who were beaten.  The police and gangsters came and beat them.  He was beaten a little bit, but he was afraid and he ran away.

16. Further, he said that a few days later a summons was served on him in his home.  It required him to attend the police station in connection with assaulting police who were doing their duty.  He attended as required. 

17. One or two weeks later he received a second summons to report to the police station.  On that occasion he was threatened because the police said that he didn’t let the police carry out their public duty. 

18. He was summonsed again one or two weeks later, but didn’t attend because he was afraid.  He left that area in October 2012 and went south to Saigon, because he was afraid he would be taken by the police and beaten.

19. The husband was then interviewed by the delegate at the protection visa interview, which was on 19 January 2017.  He had a representative present.  He expanded on the claims for protection, saying that:

    a)his family were Catholic;

    b)they had attended church all of their life; 

    c)the church that he was attending was about 200 metres from his last home; 

    d)he attended each morning and evening, mostly with his family and generally there were 200 to 300 people there for daily services, but about 1000 on Sundays;

    e)He said that he was a member of a men’s organisation within that church, but he didn’t have any duties associated with the church.

20. He said that Con Cuong was about 100 kilometres from his village and he hadn’t been there before.  He said that he went on the buses that were organised, but his wife and children didn’t go with him.  He said that when the bus arrived at the church there were 200 to 300 people there already.  There were police and underworld figures outside trying to stop them from getting in.  The priests were already in the middle of the service.  It was hard to judge the number of police and hooligans.  He then described that “hell broke loose” and the police started hitting people indiscriminately.  He was able to escape. 

21. He said one week later the police became aware that he had gone to Con Cuong and he received a summons.  He didn’t know that it was related to the Con Cuong visit when he first received the summons, so he attended.  He said that the police told him that he was involved in church activities.  He said that he explained that he had gone to Con Cuong to light candles and pray.  He was released. 

22. He said that a week later he was sent another summons and asked the same questions and that he was let go around noon. 

23. He said that he was then sent a third summons and he knew that if he attended on the third occasion he would be arrested.  After the third summons he left his house, but remained in the local area because he knew that he was planning to go south in October 2012. 

24. After he failed to attend the police station, as required, the police came to his family home, but his wife told them that he wasn’t in. When they came again she said that he is hiding because he is scared of being arrested by the police.  After he left the area he said that the police went to his father’s house to ask where he was and that the police have also asked again since the family have arrived in Australia. 

25. He also said this:

    a)that he was seen by the Vietnamese police group A18 whilst in detention in Australia;

    b)He said that if he goes back he will face imprisonment and torture until he dies; 

    c)that everyone in Vietnam will know that he and his family have come here; 

    d)they will imply that he came here and spoke ill of the government;  he would have denounced the Vietnamese authorities; and

    e)that if you’re away from your village for more than one year the authorities know;

    f)There were two boats from an area in Vietnam that were sent back by the Australian Government and the people who were on there were sent to jail; and

    g)If you go to jail you’re beaten until you’re killed and that his children would have no chance of an education. 

26. The delegate assessed all of these matters and came to the conclusion that the Applicants should not be given protection visas.

27. As this was a fast-track decision, the matter was immediately then referred to the IAA.  The IAA had all of the material given to it by the secretary.  The Applicant attempted to give the IAA some new information and the IAA did not accept it because of matters that I will come to later in these reasons. 

28. The IAA then made a number of factual findings.  The IAA ended up coming to a conclusion that, whilst they accepted that the Applicant was a member of the Catholic Church, that he did not attend any rally in Con Cuong on 2 July 2012.  The country information was that there was an incident of violence that occurred at the Con Cuong Church on Sunday, 1 July 2012, but there was no corroboration or support in any of the country information for any subsequent incident on 2 July 2012.

29. There was, in effect, a rallying of Catholics from surrounding areas that protested about what had happened on 1 July, but such a rally took place on 15 July. 

30. Because the Applicant was so adamant that what happened occurred on 2 July, the IAA came to the conclusion that the Applicant did not attend on 2 July and there was no protest.

31. As a result of that finding, it followed that the IAA did not accept that there were any summonses issued to the Applicant.  The IAA was satisfied that, simply because of his Catholicism, the Applicant was not person who had a well-founded fear of persecution and that there would not be a real risk that the Applicant would suffer significant harm if returned to Vietnam.

32. The Applicant has come to this Court seeking a review of that decision.  I have been very helpfully assisted by Ms Julian-Armitage, who has gone through the grounds upon which this application is based.  I won’t read the actual grounds into the record, but they will be incorporated into my reasons when they are revised. The grounds are as follows:

    “1. The delegate of the Minister for Home Affairs erred in law by making findings not based on factual evidence;

    Particulars

    The Delegate was unable to completely satisfied [sic] that the main applicant’s identity was as claimed without any evidence to the contrary;

    2. The Delegate erred by failing to properly take into consideration and apportion due weight to relevant material before the IAA and the Department of Home Affairs;

    Particulars

    The delegate did not accept that the applicant is a practising Catholic and that he attended his local church regularly and followed his beliefs in his home area;

    Furthermore, that the applicant participate in a protest regarding the rights of Christians in Con Cuong;

    That the applicant receive several summonses to attend his local police station following his attendance at the aforementioned church service;

    That country information from 2012, at the peak of the official State harassment against Catholics, a Church in Con Cuong District was attacked by police, army, militia and thugs who disturbed a Mass, physically attacked priests and destroyed a statue of the Virgin Mary;

    That information provided by DFAT regarding independent Catholic groups opposed to government policies have been subject to some harassment and that approximately 30 activists associated with Catholic Churches have been arrested since 2011, some of whom were charged with ‘crimes against the state’;

    Ignored the fact that there is ample country information attesting that the Vinh Diocese is said to be one of the dioceses most directly targeted by authorities;

    No weight given to the issue of the applicants’ having to attend the local police station in relation to summonses received in 2012 upon return to Vietnam;

    The delegate failed to turn his mind to country information in a 2014 report that suggests that people who merely participate in an unauthorised protest or religious gathering are subject to beatings and excessive use of force by police in attempts to disperse the crowd and undertake arrests;

    Disregard to the fact that the applicant was visited by Vietnamese government official whilst in detention in Australia 2013 and the likely consequences of this visit to the Applicant should he return to Vietnam.

    3. The delegate erred by affording undue weight to irrelevant material;

    Particulars

    That the applicant was not a high profile religious leader or involved in church activities at a high level;

    Country information provided by DFAT that in recent times, the Government has lifted some restrictions on charitable activities and approved a number of new church congregations in response to increased demand from the growing Catholic communities;

    Country information provided by DFAT who assessed that Catholics in Vietnam who worship quietly and in a manner conforming to Government policies face a low risk of official interference Country information;

    That despite receiving several summonses to attend his local police station, the applicant was not arrested or charged with any crime and was simply questioned about his involvement in the church protest.

    4. The IAA delegate erred in law by making findings not based on evidence before it

    Particulars

    That the applicant did not attend a protest at Con Cuong on 2 July 2012 and that the protest did not take place;

    Prior to his departure from Vietnam, the applicant was not of any interest to the police or authorities and was not summoned to the police station on three occasions;

    That the applicant was not being sought for any adverse purpose;

    5. The delegate failed to give due weight to relevant material;

    Particulars

    A statement from the applicant dated 10 June 2017 detailing claims of torture by the police;

    A letter from Father Nguyen Dinh Thuc dated 11 June 2017 relating to the 2 July 2012 protest;

    That the applicants are Catholics;

    That the authorities have asked the applicant husband’s father where he is;

    6. The delegate erred by taking into consideration and affording undue weight to irrelevant material;

    Particulars

    Contemporaneous media articles that indicate that mass protests were indeed organised by the Vinh diocese following the attack of 1 July, but these occurred on 15^th of July.

    7. The IAA failed to accord the applicant natural justice by not adequately testing the evidence regarding the date of the protest at Con Cuong in 2012;

    Particulars

    By accepting contemporaneous media articles that indicate that mass protests were indeed organised by the Vinh diocese following the attack of 2 July, but these occurred on the 15^th of July;

    The delegate did not adequately take into account that the applicant does not speak English as a first language with the consequent issues that my give rise to coupled with the traumatic circumstances he and his family arrived in Australia and were then interview [sic] by an English speaking official;

    8. The delegate erred in the application of the ‘significant harm test’ in respect of the harm the applicant would face on his return to Vietnam, for reason of his religion, as a failed asylum seeker;

    9. The delegate of the Minister for Immigration and Border Protection and the Immigration Assessment Authority erred in law in their application of, or failure to apply the real chance test in respect of the harm the applicant would face on his return to Vietnam, for reason of his religion, as a failed asylum seeker;

    10. The delegates in both decision erred in their assessment of the impact of the date breach and the harm the applicant claimed that he would suffer were he to be returned to Vietnam;”

33. Ground two was the first ground pressed.  What is claimed in this ground is that the IAA did not take into consideration a number of the factual matters.  When one goes through all of those factual matters that form part of the “particulars”, it is clear that those matters are actually mentioned throughout the court book.  They are mentioned in the delegate’s decision and they are mentioned in other areas where the IAA has said that it has looked at the matters and considered the material. 

34. This is especially so when one looks at the way in which the IAA have set out their reasons.  The IAA, at paragraph 3, said this:

    “I have had regard to the material referred by the secretary under section 473CB of the Migration Act and a submission on behalf of the applicant that was given by his representative on 14 June 2017.”

35. Without wanting to go through seriatim each of the matters that the Applicant has pointed to, a look at the decision of the IAA shows that it has taken into account all of the matters that are listed in the particulars. 

36. In the submissions of the Applicant, there were particular mentions made of a number of matters; in effect, saying that the IAA delegate did not accept certain things, yet this was “despite evidence” that included a number of facts.  The clear inference in those submissions was that, if the IAA had taken those matters into consideration, then they would not have come to the conclusion that they had come to. 

37. It is correct to say that, with regard to the evidence that the Applicant points to and they are in the bullet points under paragraph 19 in the submissions, there is no actual reference directly to them. 

38. However, it does seem that when one has a look at what the IAA has to do, which is to set out the evidence that supports the decision, it cannot be said that the IAA did not consider the evidence, especially when one looks at what was said in paragraph 3. 

39. What is of some significance is that the material that is pointed to as having not been referred to was put into context in the decision of the delegate.  I read then from pages 98 and 99 of the court book, the last paragraph on page 98:

    “The Vinh diocese is said to be one of the dioceses most directly targeted by authorities.  For example, in Nghe An province in 2012, four young Catholics were sentenced to prison on charges of propaganda against the state, and there were a number of reports of state sponsored attacks against Catholic members of the community in the same year. In 2013, 14 Catholics from Nghe An province were sentenced to prison terms for offences of ‘subversion’. However, information is that they belong to a pro-democracy group known as ‘Viet Tan’ which is considered a terrorist organisation by the State, and were actively disseminating news and criticism of the Government. 

    Indeed, while there are a few examples of ordinary parishioners being harmed, country information largely indicates that those primarily subject to arrest and detention have profiles as:  members or organisations such as Viet Tan; bloggers; publicly outspoken human or social rights defenders; or pastors and community leaders.”

1. The IAA, in their reasons, found that the Applicants did not fit into any of those categories and so, whilst it is that there may not have been mention of such material in the body of the reasons of the IAA, having regard to the matters that the IAA had taken into account, such is not surprising because it would have had very little relevance to what it is that the IAA had to determine.

2. It is trite to say that the IAA does not have to list every distinct matter or circumstance that they have considered.  From the reasons, such matters have been considered but were not the basis of the reasoning behind the ultimate conclusion. 

3. Realistically, the Applicant is complaining that the IAA did not conclude what the Applicant wanted the IAA to conclude.  The Applicant reasons that, because the conclusion was not to my liking, the IAA must not have considered the material. Such a submission is bereft of logic.  There is no merit in this ground.

4. Ground 4 was that the IAA delegate erred in making findings not based on evidence before it.  The particulars are that the IAA finding that the Applicant did not attend a protest at Con Cuong on 2 July 2012 and the protest did not take place.  And, secondly, prior to his departure from Vietnam the Applicant was not of any interest to the police or authorities and was not summonsed to the police station on three occasions and that the Applicant was not being sought for any adverse purpose. 

5. The submissions of the Applicant on this point were that the IAA erred in law as their determination about those matters were not based on any specific evidence to the contrary.  Unfortunately for the applicant, that is not the role of the IAA.  As was said by my brother, Judge Driver, in the matter of AUG17 v The Minister for Immigration [2017] FCCA 1874 at 70:

   “First, the making of a finding of fact for which there is no supporting evidence is an error of law. However, the mere existence of an error of law, in the context of a “no evidence” ground, does not of itself give rise to the existence of jurisdictional error.  Jurisdictional error will only arise where the relevant fact, for which there was no evidence to support, was a jurisdictional fact;

   Secondly, a “no evidence” ground only applies to findings of fact, not to expressed opinions or to findings of satisfaction or non-satisfaction.’

   At paragraph 76 his Honour says:

   “I also accept that a finding of fact is not necessary to support a conclusion of non satisfaction.”

   And at paragraph 78(b):

   “A no evidence ground has no application to conclusions of non-satisfaction or disbelief.”

6. When one then considers the areas that the Applicant complains of, the IAA said this at the end of paragraph 13:

   “I do not accept that the applicant attended a protest at Con Cuong on 2 July 2012.  I do not accept that such a protest occurred.” 

7. Both those conclusions are not statements of fact; they are statements of non-acceptance or disbelief.  There is no necessity for such statements to be based on evidence.  It is for evidence to satisfy the IAA that such a state occurs. 

8. But even if it were that there were a need for such evidence, the facts are that all of the country information points to the protest occurring on 1 July 2012.  1 July 2012 was a Sunday.  2 July 2012 was a Monday.  It would seem quite a strange thing for there to be another protest 24 hours after what had happened on 1 July and for that to be on a Monday. 

9. And there is no dispute that there was a rally of protest on 15 July. There is no country information that this rally occurred because of anything that occurred on 2 July, but rather 1 July.

10. The finding that there was a non-acceptance of what the Applicant had said happened on 2 July 2012 meant that there could not be an interest given by the police and a subsequent need to summons the Applicant. 

11. And therefore it follows that the conclusions that the Applicant was not of any interest to the police and he was not being sought for any adverse purpose must follow that first finding as a matter of logic. There is no need to have any evidence to support those conclusions because they are conclusions of “non-acceptance”. But if it were then there was such a need, there was certainly sufficient evidence to come to that conclusion.  So that disposes of that ground.

12. Ground 5 of the application is that the delegate failed to give proper, genuine and realistic consideration to relevant material.  This ground actually “morphed” into a ground alleging that the discretion under s.473DD to look at new material had miscarried.  The particulars given to this ground were that a statement from the Applicant dated 10 June detailing claims of torture and a letter from a Father Nguyen Dinh Thuc relating to the 2 July protest, were not considered by the IAA. 

13. It was also said that the delegate failed to give consideration to the fact that the Applicants were Catholics and the authorities asked the Applicant’s father where he is. 

14. There can be no merit at all in saying that the IAA did not look at whether the Applicants were Catholic as that was the major finding of the IAA. Any consideration to whether the authorities asked the Applicant husband’s father where the Applicant was, could only have occurred if the IAA were satisfied that the Applicant had attended a protest and was then summonsed by the authorities and wanted by the authorities. 

15. Having already rejected that scenario, there was no need for them to consider whether the authorities had asked the Applicant’s father where he was because they had not accepted that such a scenario actually existed.

16. But for the first two matters, the statement from the Applicant and the letter from Father Nguyen Dinh Thuc, the IAA dealt with those at paragraphs 4, 5 and 6 of the reasons. What was said at paragraph 5 was this:

    “…The letter from Father Nguyen Dinh Thuc and the applicant husband’s statement both post-date the delegate’s decision. Mr Fallen (agent for the Applicant) has not provided any information as to why the information provided in these documents could not have been provided earlier.  I note that the applicant husband’s PV application was lodged some 10 months ago and the applicant husband’s activities on 2 July 2012 and the consequences of this are the basis for his claims for protection.  The applicant husband was represented before the Department by The Humanitarian Group.”

17. The IAA then discussed the contents of those statements at paragraph 6.  The IAA came to a view that the statement from the priest was inconsistent with that of the Applicant in that the priest said that he saw the Applicant there at Con Cuong.  And yet the Applicant said he was prevented from entering the church due to the presence of police and their agents, so it is difficult to see how the priest could have seen him.  That statement had very little weight in any event. 

18. In relation to the husband’s own statement, his claims of torture by the police were entirely at odds with the evidence given at the arrival interview and the statutory declaration and the protection visa interview.  In the statement, he talked about being imprisoned, tortured, forced to drink his own urine and to eat rats to survive.  None of those claims had ever been made before and there was no explanation as to why they were being raised now.

19. There was no explanation as to why such material, which would have been known at the time of the interview with the delegate, was not before the delegate.  Therefore, having a look at all of those matters, the IAA came to this conclusion in the last line of paragraph 6:

    “I am not satisfied that exceptional circumstances warrant consideration of the new information.”

20. There really can be no criticism of such a finding.  That was a finding that was open to the IAA.  As I said during the course of the hearing, it’s not whether that finding should have been made; it’s whether it could have been made.  It is quite obvious that such a finding was open and therefore it was a matter that the IAA could look at. 

21. That means that, having made that decision, the statement by the husband and the letter from the priest was not before the IAA.  Neither was, as has been argued, a subsequent DFAT report.  Those matters not being before the IAA, it cannot be said that there is a jurisdictional error in that it failed to consider relevant material.  Therefore that ground fails.

22. Ground 6 is that the delegate erred by taking into consideration irrelevant material. And the particulars of such material were contemporaneous media articles that indicate that mass protests were indeed organised by the Vinh diocese following the attack of 1 July, but these occurred on 15 July.

23. As was discussed during the hearing, irrelevant material in this sense means that it was material that the IAA was prohibited from considering. There has been nothing shown to me as to why such material was prohibited.

24. Rather, the argument was that it should not have been given the weight it was.  The matter of weight is a matter for the IAA.  The fact is that the IAA was not prohibited from considering this country information.  And given that the country information related to the exact matter that upon which the claims for protection were based, it would actually have probably been irresponsible of the IAA if it had not considered that material. Therefore, I don’t find any merit in ground 6.

25. Ground 7 is a ground that stated that the IAA failed to accord the applicant natural justice by not adequately testing the evidence regarding the date of the protest at Con Cuong in 2012. 

26. There were a number of particulars as to that and in the written submissions a lot of reference to principles of natural justice.  The problem is that the concept of natural justice in relation to IAA matters are confined to those sections in the particular part of the Act that has been dedicated to natural justice.  There has been nothing shown to me as to how any of those sections have actually been not complied with.  It seems to me that there is no merit in this ground.

27. Ground 8 was that the delegate erred, and I take it to mean the IAA erred, in the application of the significant harm test in respect of the harm the Applicant would face upon his return to Vietnam for reason of his religion as a failed asylum seeker. 

28. The test for significant harm is found at s.36(2)(a). At paragraph 28 of the decision the proper test was laid out. At paragraph 30 the IAA said this:

    “As noted above, based on information from DFAT, I accept there is a real chance, and therefore a real risk, that the applicants may be briefly detained on arrival and fined for their unlawful departure from Vietnam in 2013 and the applicant husband and wife interviewed.  However, on the basis of that information, I am not satisfied being briefly detained, interviewed or fined constitutes significant harm.” 

29. Whilst the IAA did not go through the five aspects of significant harm, it is sufficient for the IAA to say that they have looked at the test; they’ve considered all the evidence; and that they have come to the conclusion that they are not satisfied that the Applicants would be subject to significant harm.  So I find there is no merit in that ground.

30. Ground 9 is that the IAA erred in law in application of, or failure to apply, the real chance test in respect of the harm the Applicant would face on his return to Vietnam for reason of his religion or as a failed asylum seeker.  The real chance test is found in the Act. 

31. In the reasons of the IAA, the IAA set out this test in paragraph 20.  At paragraph 25 the IAA said this:

    “…I do not accept there is a real chance that the applicants will suffer serious harm if briefly detained. I conclude that the imposition of a fine and a brief period of detention does not constitute serious harm.  Further to this, a fine and/or brief period of detention is the result of a non-discriminatory law of general application, and therefore does not comprise persecution.  I am not satisfied on the basis of the country information that the applicants face a real chance of harm on the basis they departed Vietnam illegally.” 

32. That statement is a proper application of the test and I therefore find that there is no merit in ground 9.

33. Ground 10 is that the IAA assessed the impact of the data breach and harm the Applicant claimed he would suffer were he to be returned to Vietnam.  The error in the ground is an error in the assessment.  However, in the written submissions, the Applicant referred to the fact that the Applicant needed to have a reasonable opportunity to be heard on the consequences of the data breach. 

34. It is clear that the Applicant had been heard on the data breach and had made submissions and such was determined by the delegate beforehand and the IAA had reference to what the delegate had said.  This is at page 100 of the court book.

35. In the decision that the IAA has made in their reasons the IAA have accepted that, and this is firstly at paragraph 18, the delegate found that in February 2014, a report released by the department on their website unintentionally enabled access to certain personal information about people who are in immigration detention as at 31 January 2014.  That data breach was removed from the website. 

36. The delegate stated that, as the Applicant husband was in detention on 31 January 2014, his personal information, name, date of birth, nationality, gender, detention details and details of any other family members in detention may have been accessed from the Department’s website during the period of the data breach.  The IAA said that:

    “I accept that the applicant husband’s details would have been available on the website and, if accessed, may reveal that he has sought asylum in Australia.  The applicant husband also claimed that he was interviewed by members of the Vietnamese police group, A18, whilst in detention in 2013.  He hasn’t provided any details as to what occurred in the interview.  The delegate has accepted that the interview occurred.  The IAA said, “I accept that it occurred and I accept that the Vietnamese authorities are aware that the applicant husband departed Vietnam illegally and sought asylum in Australia.”  This may in any event have been identifiable on his re-entry to Vietnam.”

37. Therefore, the IAA have looked at what is the worst possible consequence of the data breach and that is that the Applicant’s situation became known to the authorities in Vietnam.  The IAA has accepted that that had occurred.  But the IAA came to this conclusion at paragraph 24:

    “…I am not satisfied that the applicants will face a real chance of serious harm on the basis that they unsuccessfully sought asylum in Australia, that their details were briefly available as a result of the Department’s data breach or that the applicant husband spoke with members of the Vietnamese A18 group while in immigration detention in 2013.”

38. It seems to me that there has been an assessment of that aspect and the Applicant has said all that he could have said on this particular matter; that the IAA has taken into account the worst case scenario because of that data breach and still have come to the conclusion that it has.  Therefore, I don’t find that there is any merit in that ground.

39. Having a look at the IAA decision as a whole, I am of the view that there has been demonstrated no jurisdictional error. 

40. As was noted, this is an extension of time application.  The Applicant was one day out of time.  Given there hasn’t been any true explanation, other than the Applicant has been in detention, for the delay, the merits of the application assume great importance; if there had been some merit in the matter, I would have given an extension of time. 

41. But for the reasons I have now given, plus the fact that there has not been truly a satisfactory explanation as to why the application was one day out of time, I refuse to give the extension of time. 

42. I therefore dismiss the application with costs in the sum of $7,328.00

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  25 June 2018