Doy17 v Minister for Immigration
[2018] FCCA 621
•14 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOY17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 621 |
| Catchwords: MIGRATION – Application for judicial review of protection visa – no matters of principle. MIGRATION – Appeal from bridging visa decision – no matters of principle. |
| Legislation: Migration Act 1958 (Cth), ss.116(1)(e), 189, 357A, 359AA, 501. Administrative Appeals Tribunal Act 1975, s.44 |
| Cases cited: Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 Gong v Minister for Immigration & Anor [2016] FCCA 561 |
| Applicant: | DOY17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1729 of 2017 and [FILE NUMBERS OMITTED] |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 30 October 2017 |
| Date of Last Submission: | 15 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 14 March 2018 |
REPRESENTATION
| The Applicant appeared in Person |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The applicant be granted an extension of time to file the application for judicial review of the decision of the Administrative Appeals Tribunal in proceedings MLG1729/2017 to 8 August 2016.
The application for judicial review filed 8 August 2016 be dismissed.
The application for judicial review filed 27 June 2016 be dismissed.
The application for judicial review filed 23 January 2017 in the Federal Court of Australia and transferred to this Court by Order dated
4 October 2017 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1729 of 2017 and [FILE NUMBERS OMITTED]
| DOY17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant is a citizen of Vietnam. The applicant came to Australia on 23 October 2013 holding a Student (Temporary) (Subclass 574) visa. The applicant was granted this visa as a dependent of his wife, who was enrolled in a doctoral course at RMIT University.
In March 2015, the applicant was charged with one count of ‘Stalking’ and four counts of ‘Indecent Act with a Child under Sixteen’. The Department was notified of these charges by Victoria Police. It was alleged that the applicant had committed these offences against a 12 year old school girl. The applicant pleaded guilty to two counts of ‘Indecent Act with Child under Sixteen’.
As a result of these events the applicant’s student visa was cancelled and he was denied a bridging visa. The applicant later sought a protection visa which was also refused.
The applicant was taken into immigration detention on 16 March 2016, where he has remained pending the outcomes in his three visa applications, which are now all the subject of judicial proceedings instigated by the applicant.
Arrangements were made for all three proceedings to be listed and heard together. The applicant was brought to court from the detention centre so that he could appear in person to put his cases. The applicant’s written material is long and rambling, at times merging submissions with long extracts from judgments in other cases. It is difficult to discern the arguments from the written material. The oral submissions were equally difficult to follow.
I have attempted to keep these reasons brief so as not to add to the excessive amount of material already on the court files.
Student Visa judicial review application
On 17 June 2015, the Department issued a Notice of Intention to Consider Cancellation (“NOICC”) to the applicant on the basis that the delegate of the first respondent considered the applicant’s presence in Australia was or may be a risk to the safety of the Australian community as he was charged with an indecent act with a child under 16.
On 19 June 2015, the applicant’s solicitors responded to the NOICC. On 8 July 2015, a delegate of the first respondent cancelled the applicant’s visa under s.116(1)(e) of the Migration Act 1958 on the basis that he was or might be a risk to the safety of children in Australia.
On 9 July 2015, the applicant applied to the Tribunal for review of the delegate’s decision to cancel his visa.
On 21 October 2015, the applicant pleaded guilty to two counts of ‘Indecent Act with Child under Sixteen’ in the Magistrates’ Court of Victoria. The applicant was fined $3,000 (see Court Book p.263).
The applicant provided lengthy written submissions and numerous documents to the Tribunal on 3 April 2016 (Court Book pp.170-183) and 20 April 2016 (Court Book pp.205-238). The applicant provided further written submissions and documents to the Tribunal on 12 May 2016 (Court Book pp.250-294), 14 May 2016 (Court Book pp.302-313), and 16 May 2016 (Court Book pp.314-345). The applicant’s migration agent also provided written submissions on behalf of the applicant to the Tribunal on 15 May 2016 (Court Book pp.295-301).
On 17 May 2016, the applicant appeared before the Tribunal to give oral evidence and present arguments, with the assistance of his migration agent and a Vietnamese interpreter. The applicant’s wife also gave oral evidence on behalf of the applicant.
The applicant provided further written submissions and documents to the Tribunal on 20 May 2016 (Court Book pp.346-353), 23 May 2016 (Court Book pp.354-355), and 24 May 2016 (Court Book pp.356-382) and 16 June 2016 (Court Book pp.393-396). The written submissions and documents provided to the Tribunal by the applicant are largely repetitive.
On 5 June 2016, the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa.
Tribunal’s Findings
The issue before the Tribunal was whether the ground for cancellation of the applicant’s visa in s.116(1)(e) of the Act was made out, and if so, whether the visa should be cancelled. Section 116(1)(e) of the Act states that the Minister may cancel a visa if he or she is satisfied that:
(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i) the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii) the health or safety of an individual or individuals
In its decision, the Tribunal noted that at the time the delegate cancelled the visa, the applicant had not yet been convicted of any offences. The Tribunal clearly understood that a charge did not mean a person was guilty, and assessed the circumstances accordingly, saying:
8. At the time the delegate made the decision to cancel [the applicant’s] visa, he had been charged with one count of stalking and four counts of an indecent act with a child under sixteen. He had not been convicted of any offences, but has subsequently been found guilty of two counts of an indecent act with a child under sixteen by the Magistrates Court in Melbourne. The delegate found [the applicant] may be a risk to a segment of the community, being young people aged under 16 years of age.
…
11. At the time the delegate made a decision to cancel the visa, [the applicant] was the subject of charges, being one count of stalking and four counts of an indecent act with a person under the age of sixteen. The charges mean that at the time there was a possibility that these events occurred. I find the existence of these charges at the time the delegate made the decision shows that at the time the visa was cancelled there was a possibility that [the applicant] may be a risk to people in the community who are under sixteen years of age.
In relation to his subsequent convictions for two counts of ‘Indecent Act with Child under 16’, the applicant gave the following evidence:
16. [The applicant] gave evidence that at the time of the offence he saw a girl with red eyes and he thought she needed some drugs. He says she kissed a lot of people at the bus stop and that he was only one of the people she kissed and that the CCTV footage would prove this. He said that she approached him first and smiled and said she was over 18 years old and a student. He said her family name is not Australian and she is from New Zealand and that in New Zealand people get married when they are 12 or 13 years old. He said on her Facebook page there are sexual images and that she has checked into the Crown Hotel. He said to have the money for that she must be involved in a crime organisation.
The Tribunal went on to note various inconsistencies in the applicant’s evidence, as follows:
17. … [the applicant] says the complainant voluntarily kissed him. This is not consistent with his earlier submissions that they had only been talking. He states she was smiling when the police took her photo at interview at the police station, and that if she was forced to kiss him she would not be smiling. He says he did not do the wrong thing because he believed she was 18. He denied that he did acts that he was subsequently found guilty of by the Magistrates Court. In one statement to the tribunal he stated he was just talking to her. In a later statement he said that she told him she was over 18 and that he kissed her and touched her breasts. He states this is a minor offence and a minor mistake, as shown by the penalty which is a fine of $3,000. He says in the future he will never touch a child under 16 or make any mistakes.
The Tribunal noted that it is not for the Tribunal to make any findings regarding the charges or convictions of the applicant, rather the Tribunal must consider whether the applicant is or may be, or would be or might be, a risk to a segment of the Australian community. The Tribunal went on to find that:
19. The threshold of the test is whether [the applicant] possibly poses a risk a young people under 16 years of age. He has provided evidence of charges laid against him and his subsequent conviction of two charges. He said he considers the complainant a bad girl and he attempts to excuse his conduct as being minor. He said he does not think he has done anything wrong. [the applicant’s] stated occupation is a teacher, and he had tutored a student who is at high school. He also provides voluntary tutoring services. On the basis of the information before me I am satisfied that [the applicant] might be a risk to the health and safety of minors in Australia. I also have concerns about whether he may be a risk to the health and safety of the specific complainant in this matter. As a result, I am satisfied the ground for cancellation in 116(1)(e) has been made out.
Having found that a ground for cancellation existed, the Tribunal proceeded to consider whether the visa should be cancelled in the exercise of its discretion.
The Tribunal considered the impact of cancellation on his wife, mother and his volunteer activities, and found that:
33. I do not consider the difficulty it may cause his wife, his desire to help his mother financially or his volunteer work outweighs the possible risk to the Australian community.
The Tribunal considered the applicant’s compliance with visa conditions and conduct toward Department officials, and found that:
40. I find that [the applicant’s] attempt to leave when immigration officers were talking to him shows a lack of cooperation with immigration. I further find he was unlawful for approximately eight months and was working illegally in Australia. It is his responsibility to be aware of the conditions of his visa and to ensure he held a visa.
The Tribunal considered whether Australia’s international obligations would be breached if the visa was cancelled, and found that the applicant did not face a risk of harm if he returned to Vietnam.
The Tribunal also noted that the cancellation of the applicant’s visa would not automatically result in the cancellation of his wife’s or daughter’s visa.
Having considered the circumstances as a whole and individually, the Tribunal ultimately concluded that the visa should be cancelled and affirmed the decision of the delegate.
Grounds of Judicial Review
The applicant’s grounds of judicial review are written in his application for judicial review, listed using roman numerals, as follows:
I. I asked a lot of lawyers and experts that have said this decision is not correct because it on 5 June which is obviously a holiday and it is impossible for the court to be sitting, so can not be correct. Meeting and signed a decision on holiday is unlawful, and there are many errors that are not accepted.
II. I want to thank the judge for concerning and listening to my wife and lawyers. I write this letter regarding significant information when I finished the court the jude told me there is only 7 days to scan but because I live in detention it’s hard for me to do so. As a consequence the juge mention I am allowed to ask for extension time. I wrote a request for an extention of time to compleate my scanning, yet I got no responce and the seven days ended already. I never did get an extention of time and the decision was made.
III. Final submission to Federal Court of Australia.
[Applicant sets out the written submissions made to the Tribunal on 12 May 2016 and the written submissions made to the Tribunal on 14 May 2016]
IV. I have convicted with fine with no conviction recorded, not jailed for Charges; but my Visa was Cancelled.
V. A delegate of the Minister for Immigration cancelled [the applicant’s] visa on the basis that he may be a risk to the safety of the children in Australia Which is not the case, since [the applicant] Only got a fine with no imprisonment term. That wouldn’t have been the case if the judge thought he was a risk.
VI. The Grounds for the cancellation of his visa does not exist.
VII. If he wasn’t convicted of any offences but was subsequently found guilty fo 2 counts of indecent act with a minor, that reflects the fact that he is of no risk what so ever and that this was merely a misunderstanding or misjudgement made by [the applicant] and not an intentional act.
VIII. It is not fair to assume the worst in people based on speculation or a possibility that an event may or may not have occurred, because if that’s the case then every individual out there may be a risk to society.
IX. If it was justified at the time of cancellation due to the lay of charges then it is not justified after he was acquitted of most charges and faced a fine.
X. An isolated incident in the past that may or may not be true does not necessarily mean he’s a risk when surrounded by minors.
XI. Being convicted of 2 charges dose note mean he has definitely committed those offences and can be reflected by the fact that he only got fined. The character of the girl in particular also reflects whether she is a trust worthy person or not and may have given false evidence.
XII. The fact that his wife is finding trouble being alone in Australia is a moral obligation from the government to keep them together, after all she is just a woman alone in a foreign country and would need the support of her husband.
The applicant filed a lengthy affidavit in support of his application, which annexes numerous documents (Court Book pp.20-123).
The applicant has also filed lengthy written submissions on 2 February 2017, 28 April 2017 and 18 October 2017.
Ground I
The applicant claims that the Tribunal’s decision was unlawful because it was made on 5 June 2016, which was a Sunday and the Tribunal cannot sit on a Sunday. This was a ground that he re-iterated in his oral submissions.
The applicant appeared before the Tribunal at the hearing on 17 May 2016. The date written on the decision record, being 5 June 2016, is not the date on which the Tribunal sat, rather it is the date on which the Tribunal made its decision.
There is no legal prohibition against the Tribunal making its decision on a Sunday and therefore the applicant has not established an error of law on the part of the Tribunal in relation to this ground.
Ground II
It appears that this ground refers to timeframes for lodging submissions with the court, which have not been enforced in a way that restricts the applicant as he is unrepresented.
Ground III
Ground 3 sets out the written submissions that the applicant made to the Tribunal on 12 May 2016 and 14 May 2016. These submissions address the merits of the applicant’s claim that his visa should not be cancelled and do not establish an error of law on the part of the Tribunal.
Ground IV
Ground 4 states that the applicant was fined without conviction and was not jailed. I have considered whether this ground attempts to argue that the Tribunal failed to have regard to the precise details of the allegations.
The Statement of Fines and Penalties was attached to the applicant’s submissions provided to the Tribunal on 20 April 2016 (see Court Book p.185). It is clear that the Tribunal was aware of and considered the charges and subsequent convictions of the applicant and proceeded on that basis. The Tribunal stated:
17. It is not for this tribunal to make any findings regarding the charges or convictions of [the applicant]. However [the applicant’s] explanation of the offences and his understanding of these offences may be relevant to whether he might pose a risk to a segment of the Australian community. [The applicant] says the complainant voluntarily kissed him. This is not consistent with his earlier submissions that they had only been talking. He states that she was smiling when the police took her photo at interview at the police station, and that if she was forced to kiss him she would not be smiling. He says he did not do the wrong thing because he believed she was 18. He denied that he did acts that he was subsequently found guilty of by the Magistrates Court. In one statement to the tribunal he stated he was just talking to her. In a later statement he said that she told him she was over 18 and that he kissed her and touched her breasts. He states this is a minor offence and a minor mistake, as shown by the penalty which is a fine of $3,000. He says in the future he will never touch a child under 16 or make any mistakes.
18. On being asked if he had anything further to say about whether his presence in Australia may be a risk to young people he said that the girl dobbed him in to run away from her crime. He also went on to say that he was not able to defend himself in the Magistrates Court. I note [the applicant] was represented at the hearing before the Magistrates Court, but stated in material provide after the hearing that accepted two offences as he could not afford to defend the charges.
These passages show that the Tribunal was well aware of the applicant’s submissions with respect to the allegations. It is also clear that the Tribunal remained focussed upon the core task of determining risk in the individual circumstances of this case. No error appears in this respect.
Ground V
Ground 5 states that the applicant is not a risk to the safety of children in Australia because he was not sentenced to imprisonment. As discussed above, it is evident that the Tribunal was aware of and considered the particular circumstances of the applicant’s charges and convictions.
In its decision, the Tribunal relevantly noted that it is not for the Tribunal to make any findings regarding the charges or convictions of the applicant, rather the test is to determine whether the applicant possibly poses a risk to the safety of children in Australia.
It was open to the Tribunal to consider the evidence and make a finding that the applicant may be a risk to the safety of children in Australia.
Ground VI
Ground 6 states that the grounds for cancellation do not exist.
Under s.116(1)(e), a visa may be cancelled if the presence of the visa holder in Australia is or may be, or would be or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community, or the health or safety of an individual or individuals.
Having regard to the charges and convictions of the applicant, as well as evidence that he was a teacher, the Tribunal concluded that he might be a risk to the health and safety of minors in Australia. That finding was obviously open on the evidence – indeed, it would have been surprising if the Tribunal had not made such a finding in the circumstances of this case. It was therefore open for the Tribunal to conclude that the ground for cancellation in s.116(1)(e) had been made out.
Grounds VII to XI
It is convenient to deal with these grounds together as all of them challenge the merits of the Tribunal’s decision.
Ground 7 states that the extent of the applicant’s convictions demonstrates that the incident was ‘merely a misunderstanding or misjudgement made by [the applicant] and not an intentional act’.
Ground 8 states that it is not fair to assume ‘the worst in people based on speculation or a possibility that an event may or may not have occurred.’
Ground 9 states that cancellation of the visa was not justified as he was ‘acquitted of most charges and faced a fine.’
Ground 10 states that an ‘isolated incident in the past that may or may not be true does not necessarily mean [the applicant is] a risk when surrounded by minors.’
Ground 11 states that ‘being convicted of two charges does not mean that he has definitely committed those offences’.
The applicant is effectively seeking merits review of the Tribunal’s decision in these grounds, which is impermissible. It is unsurprising that the Tribunal did not accept that the indecent assaults on a child under 16 were not a ‘misunderstanding or misjudgement’ given that the child concerned was only 12 years of age. The applicant pleaded guilty to the two charges of an indecent act with a minor. It was open to the Tribunal to have regard to the applicant’s convictions in determining whether the applicant may be a risk to the safety of children in Australia.
Ground XII
This ground is in relation to the impact that cancellation of the visa would have on the applicant’s wife.
The Tribunal considered this in [26] to [33] of its decision and ultimately found that any difficulty that cancellation may cause his wife does not outweigh the possible risk that the applicant poses to the Australian community.
The applicant is effectively seeking merits review of the Tribunal, which is impermissible. The applicant has not established an error of law on the part of the Tribunal in relation to this ground.
Possible other grounds - Section 375A Certificate
Whilst not raised by the applicant, another possible ground relates to a s.375A certificate that was issued in this case.
On 15 July 2015, a certificate was issued to the Tribunal by a delegate of the first respondent under s.375A of the Act, which disclosed internal communications of the Department about the criminal charges laid against the applicant. The Minister submits that such internal communications did not go beyond the charges into the circumstances underlying the charges.
The s.375A certificate required the Tribunal to ‘do all things necessary to ensure that the document or information [referred to in the certificate] is not disclosed to any person other than a member of the [Tribunal].’
In Minister for Immigration and Border Protection v Singh [2016] FCAFC 183, the Full Court of the Federal Court at [1] held that an applicant was denied procedural fairness when ‘[n]either the existence of this certificate, nor the legal limitations to which it gave rise, were disclosed to him’ by the Tribunal.
The Minister argues that this case is distinguishable from Singh on the ground that the documents which were the subject of the certificate were immaterial to the Tribunal’s assessment of the applicant’s case. This is because the Tribunal had the more recent evidence of the offences to which the applicant pleaded guilty and the extensive material of the applicant on this issue.
The applicant was aware of the charges against him and made extensive submissions in relation to the charges. The applicant has not suffered any practical injustice as a result of non-disclosure of the certificate and the limited documents it covered. In substance the evidence covered by the certificate was overtaken by later events and evidence.
Argument based upon Gong’s Case
The applicant specifically relied upon the decision of Smith J in Gong v Minister for Immigration & Anor [2016] FCCA 561. The applicant in that case was successful in obtaining relief against the Tribunal with respect to cancelation of a student visa as a result of reliance by the Tribunal on the belief of the police rather than the Tribunal forming its own views: see para [62]. The circumstances of this case are quite different, in that the Tribunal had extensive evidence before it and considered the extent of the risk for itself, rather than relying upon beliefs held by the police. I do not accept that this judgment provides any assistance to the applicant in the present case.
Conclusion
As the applicant has not made out a ground this application must be dismissed.
Bridging Visa appeal
As the applicant did not apply for a Bridging Visa following the cancellation of his Subclass 574 visa on 8 July 2015, the applicant became an unlawful non-citizen.
On 16 March 2016, the applicant was interviewed by the Department as he had not held a valid visa since 8 July 2015. The applicant attempted to escape from the Department officers, however he was caught and taken into immigration detention pursuant to s.189 of the Migration Act, and he has since remained in detention. The applicant disputes that he attempted to escape from the officers.
On 18 March 2016, the applicant applied for a Bridging E (Class WE) General (Subclass 050) visa, which was refused by a delegate of the first respondent on 22 March 2016. The applicant’s migration agent sought review of that decision, which was then affirmed by the Tribunal on 1 April 2016.
On 8 July 2016, the applicant applied for a second Bridging E (Class WE) General (Subclass 050) visa, which was refused by a delegate of the first respondent on 12 July 2016 on the basis that the delegate was not satisfied that the applicant would abide by the conditions applicable to the Bridging visa. The applicant applied to the Tribunal for review of the delegate’s decision.
On 19 July 2016, the applicant appeared before the Tribunal by video-link to give evidence and present arguments. The applicant’s wife also gave evidence. The Tribunal concluded that the applicant would abide by the conditions applicable to the Bridging visa and remitted the matter back to the Minister to consider the remaining criteria.
On 12 August 2016, the Department issued a notice of intention to consider refusal of the applicant’s Bridging visa pursuant s.501(1) of the Act. In particular, the Department informed the applicant that given his criminal history, he may not pass the character test by virtue of s.501(6)(e) of the Act.
Section 501 of the Act relevantly provides:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6)
…
(6) For the purposes of this section, a person does not pass the character test if:
(e) A court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
(ii) found the person guilty of such an offence, or found a charge against the person approved for such an offence, even if the person was discharged without a conviction; …
On 8 September 2016, Victoria Legal Aid provided a response to the Department on behalf of the applicant, enclosing a number of documents including a statement made by the applicant himself. On 27 September 2016, a delegate of the first respondent refused to grant the applicant’s Bridging visa application, pursuant s.501(1) of the Act.
The applicant lodged an application for review of the delegate’s decision to refuse his Bridging visa with the General Division of the AAT (“the Tribunal”) and appeared before the Tribunal on 7 December 2016 to give evidence and present arguments, represented by Carina Ford Immigration Lawyers.
On 20 December 2016, the Tribunal affirmed the decision of the delegate to refuse to grant the applicant a Bridging visa, pursuant to s.501(1) of the Act. On 23 January 2017, the applicant applied for judicial review of the Tribunal’s decision, which is the subject of the current proceeding.
Tribunal’s Findings
The Tribunal found that the applicant did not pass the character test as set out in s.501(6)(e) on the basis that he pleaded guilty to 2 charges of ‘Indecent Act with Child under 16’ and was convicted of those offences by the Melbourne Magistrates’ Court.
In considering the nature of the applicant’s offending, the Tribunal had regard to the evidence provided by the applicant (summarised at [35] of the Tribunal’s decision), the evidence given by the applicant’s wife, and the CCTV footage of the incident (summarised at [36] – [43] of the Tribunal’s decision) and other documents (summarised at [44] – [45] of the Tribunal’s decision) produced on summons by the Victoria Police.
Having found that the applicant failed to pass the character test as set out in s.501(6)(e), the Tribunal was then required to consider the Ministerial Direction No. 65 and to apply the relevant considerations in determining what should be the preferable decision in the case.
Protection of the Australian Community
The Tribunal had regard to the nature and seriousness of the conduct of the applicant and raised significant concerns about the applicant’s account of the events which led to the convictions of ‘Indecent Act with Child under 16’, stating:
56. I have serious concerns about the way in which [the applicant] described this event. He continually referred to his actions as “hugging and kissing”. Plainly, from the description I have given which was taken from the CCTV footage, the incident involved significantly more than mere hugging and kissing. There was plainly sexual conduct initiated by [the applicant]. Furthermore, despite what [the applicant] said about the victim’s response, throughout the incident, there was no sign whatsoever of the victim either initiating or responding to his advances.
57. Although [the applicant] said that the victim smiled at him and, because he wanted to improve his English skills, he talked to her, the CCTV shows something quite different. Arguably, it shows clear predatory conduct on behalf of [the applicant] in establishing contact with the victim. On discovering her walking into the bus shelter by herself, and checking to see that there were very few people within the near vicinity of the bus shelter, it was he who initiated the first contact with the victim.
58. There is also another serious anomaly in [the applicant’s] statement regarding the event. [The applicant] said that while he and the victim were waiting (for what is not explained), the victim met four people and hugged and kissed all of them. Her meeting with young people, who were obviously acquainted with her, occurred a considerable time before [the applicant] made contact with the victim. The CCTV footage which I had in evidence does not disclose [the applicant] appearing in the area where all of these events took place until after the group of persons known to the victim had left. Therefore, the only conclusion I can draw is that [the applicant] has observed the CCTV footage before making his statement. Otherwise, there is no logical way in which he could have observed the victim’s behaviour before he appears to arrive at the scene of where the incident took place. In any event, his explanation that kissing and hugging was a perfectly normal way that persons express themselves with friends, takes the contact with other people completely out of context. He was 33 years of age, she was 12 years of age and they were complete strangers.
59. [The applicant] gave no explanation for why he said he asked the girl how old she was. He also described her as having a lot of make up on. Her diminutive size and the face she was wearing a dress which appeared to be part of the school uniform should have given him a very clear indication that she was a young schoolgirl and not an adult.
60. [The applicant] also said that he only hugged the victim because she hugged him first, she was a friend and she even gave him her (telephone) number. The CCTV footage does not disclose any evidence of the victim actively participating in the contact with [the applicant]. He had never met her before so his description of her as a friend is plainly fictitious. He then described the event as a talk and a kiss goodbye. Once again, that description is plainly false. In his written statement, [the applicant] also said that if he had known the victim’s age, he would never have done what he did. The obvious problem with that statement is that his conduct, even with a person over the age of 18, could have constituted a criminal act. There was no evidence of the victim consenting to the contact. [The applicant] also described touching the victim on the outside of her shirt. That is not what the CCTV footage discloses.
The Tribunal considered potential risks to the Australian community and raised significant concern in regards to the applicant’s dishonest character, lack of remorse and inability to accept responsibility for his actions (see [62] – [64]) including:
62. [The applicant] appears almost incapable of telling the truth. His account of the incident on the night … is plainly a dishonest account of what in fact occurred. The CCTV footage bears testimony to that. In fact the footage reveals that [the applicant] deliberately targeted the victim before making contact. … The contact with the victim was plainly not consensual nor did she initiate the contact. …
63. Even more disturbing were [the applicant’s] numerous statements which sought to lay blame squarely on the victim… .
Ultimately, the Tribunal found that
65. In my opinion, the offending by [the applicant] is very serious in nature, particularly as the victim was a 12 year old girl. I cannot say that there is no real risk that [the applicant] will not, if allowed to remain in Australia, offend again. In fact, I find that the risk of [the applicant] reoffending is reasonably high, particularly given the way in which he has attempted to justify his conduct in this case. To him, the entire event was simply about kissing and hugging and not knowing that the person was under 18 years of age. Plainly, the conduct to which he pleaded guilty was a serious sexual offence. His attempts to blame the victim as being a bad person and involved with drugs were unfounded and simply attempts to minimise the seriousness of his offending. There was no evidence that [the applicant] was at all remorseful. I find that the risk of [the applicant] reoffending, particularly against a minor, remains real and is not insignificant.
The Tribunal also considered that the applicant remained in Australia as an unlawful non-citizen for a period of 8 months before he was located by the Department in March 2016, at which time he attempted to run away from the compliance officers. The Tribunal found:
71. I find it highly unlikely that [the applicant] was not aware of his obligations to report to the Department after his student visa has been cancelled. Not only did he have legal representation, [the applicant] is married to a PhD student. Although his English is somewhat limited, no explanation was given why he could not have asked his wife about the need to obtain a Bridging visa. His wife’s English is very good. Furthermore, I do not accept his explanation that he wished to go and see his lawyer when confronted by the immigration compliance officers. There can be little doubt that if he asked to contact his lawyer by telephone when speaking with the compliance officers, there would have been no problem with such a request being granted.
Expectations of the Australian Community
In considering the expectations of the Australian community, the Tribunal noted that sexual offences against minors are viewed as being particularly serious by the Australian community and found that:
86. I have also found that the expectations of the Australian community would be that a Bridging Visa should not be given to [the applicant]. He simply cannot be trusted to be a law-abiding person in the future. Blaming a 12-year-old girl for his predatory sexual contact with her is plainly intolerable.
Other Considerations
The Tribunal finally considered the impact on the applicant’s family members should his visa be cancelled and found that:
87. As for the other considerations in the Ministerial Direction, I accept that the impact on [the applicant’s] wife and daughter tend to weigh in favour of the Bridging Visa being granted. It is, I believe, correct to say that they are also victims of [the applicant’s] offending. However, in the event that [the applicant] is refused a Bridging Visa, his wife will be able to complete her PhD research. On the evidence it appears to be true that she may have some difficulties without assistance, however she may need to examine other possible options. While it is unfortunate that [the applicant’s] daughter may also be affected by his conduct, he has no one to blame but himself. In any event, it is not entirely certain that his daughter will not be able to come to Australia to study if [the applicant’s] wife is well enough or able to get other assistance.
Ultimately the Tribunal found that the weight of evidence was against the applicant being granted a Bridging visa, and affirmed the decision of the delegate.
I note that this is an appeal from a decision of the Administrative Appeals Tribunal that lies pursuant to the Administrative Appeals Tribunal Act 1975, and is not a judicial review application. Appeals lie on a question of law: see s.44(1). In some cases there may be an error of law in the way in which the Tribunal has approached the fact finding, for example, as identified in Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6 and Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726. Whilst there are limited powers to make a finding of fact in appeal proceedings under s.44(7) nothing raised in this matter gives rise to the need for further findings of fact beyond those made by the Tribunal. In this case there appears to be sufficient evidentiary foundations for the findings of the Tribunal, none of which could be categorised as not being reasonably open on the evidence.
Grounds of Appeal
The applicant filed his appeal from the AAT in the Federal Court of Australia. It was later remitted to this Court to enable all of the applicant’s proceedings to be heard together. Unfortunately, the Notice of Appeal is a prolix document of 36 pages from which it is very difficult to identify the grounds of appeal. The rambling text is divided with roman numeral, which divisions I have adopted in attempting to address the grounds.
Ground I
This ground claims that the ‘decision maker is wrong’. The narrative following the ground raises a complaint concerning Direction 65 (which was also raised by the applicant in oral submissions), although never identifying a particular factor or specific item of evidence that was not considered by the Tribunal.
The ground raises a number of complaints about the date or time the decision was issued etc., none of which appear to have any merit. It also appears to raise a complaint that the Tribunal failed to consider his claims that he was forced to plead guilty. The Tribunal clearly formed its own view based upon the evidence after looking at the CCTV footage.
Ground II
This ground raises complaints as to the merits of the Tribunal’s decision with respect to the level of risk that the applicant poses to the community. Merits review is not open on an appeal of this type, and in any event the material before the Tribunal was such that the findings of the Tribunal were clearly open to it.
The ground (at item 8) also alleges that the applicant’s wife is in need of support in Australia. The Tribunal had regard to the these claims in the decision.
Ground III
I have been unable to discern a ground of appeal within the text under this heading which appears to be a long complaint as to the conduct of various departmental and detention centre staff.
Ground IV
This ground appears to be based upon the statement that ‘Government lawyers and judges are unaware VACCU is something, the judge also asked the lawyers how VACCU world.’ The reference to the judge appears to be to the Tribunal member, VACCU the Visa Applicant Character Consideration Unit within the department, and presumably ‘world’ is meant to be ‘worked’. However, there remains little that could indicate a ground of appeal.
Ground V
This ground is headed ‘why help me appeal’. This ground draws on the outcome of the guilty plea being a fine without convictions recorded. This ground also goes to the consideration of the Tribunal on the merits of the case when considering the circumstances to determine the risk to the community. Again, this appears to seek merits review.
Ground VI
This ground relies upon the success of the applicant in reviewing the earlier delegate’s decision that he would be unlikely to abide by the visa conditions. The applicant places great weight on the finding of the Tribunal on 19 July 2016, when the matter was remitted back to the delegate. Beyond a stream of consciousness narrative on the merits (which runs for 54 paragraphs) it is difficult to discern ground for appeal beyond a claim on the merits.
Ground VII
This ground is headed ‘Why judges should give me victory”. This ground appears to be a complaint against the officers of the department. This is not the forum for complaints about the conduct of the department.
Ground VIII
This ground is headed ‘Final submission to Federal Court of Australia’, and encapsulates the theme that can be discerned from the previous grounds, setting out:
The reason why i should be re-granted visa I tried my best to prove my innocence, but in fact after being treated unfairly, my belief in the relevant authorities has nearly gone . I just hope there is justice in the Federal Court.
I tried to send petitions of my grievances to the relevant authorities and also received the feedback from the authorities which included:
The Vietnamese Embassy sent the letters to the relevant organisation to ask for help
The Immigration officer who cancelled my visa directly expressed his concern by sending letters to the organisations to ask for help. Previously, I has not sent him the petition otherwise he Would not cancel my visa.
In substance this ground seeks merits review.
Balance of Notice of Appeal
From p.19 of the Notice of Appeal to the end there is a further lengthy narrative setting out his version of the events with the 12 year old girl, the circumstances in which he ran away from immigration officers, why he worked illegally in Australia, submissions as to future compliance with visa conditions and reasons why the applicant says a bridging visa should be granted to him.
Counsel for the Minister identified 5 potential grounds from the applicant’s submissions and cases he either referenced (or, in the case of Roach v Minister for Immigration and Border Protection [2016] FCA 750 appears to have subsumed within his submissions) as follows:
21.1. The Tribunal erred by failing to give primary consideration to the best interests of the applicant's "two minor dependant daughters"
21.2. The Tribunal erred by failing to consider the risk of harm to the Australian community posed by the applicant's presence in Australia
21.3. The Tribunal formed its view that the applicant did not pass the character test on an erroneous basis, "irrespective of whether he had any sympathy with, or support for, or involvement in, the criminal conduct of which the group was suspected to be involved", and proceeded on the erroneous footing that it was open as a matter of substance for the applicant to satisfy the Tribunal that he passed the character test
21.4. The Tribunal erred in forming a state of satisfaction as to the national interest
21.5. The Tribunal had regard to an impermissible consideration or otherwise acted unlawfully by having regard to information protected from disclosure under s 503A of the Act, and failed to have regard to the legal consequences of refusing the visa in the exercise of power conferred by s 501(3) of the Act.
With respect to the first ground, the applicant has only one daughter, who resided in Vietnam, thus it was agreed by the parties that this was not a primary consideration before the Tribunal: see [53]. Importantly, the impact upon the daughter was considered as part of the other considerations resulting in the Tribunal finding that it weighed in favour of the grant of the visa: see [79] to [87].
The Tribunal carefully considered the risks to the community, looking at the detail of the events, and importantly, reviewing the CCTV recording of the offences: see [62] to [75].
The Tribunal did not consider the national interest, nor was it required to consider this as a factor in this decision.
There was no information protected by s.503A in this case. Thus, this ground must also fail.
Matters raised orally
The applicant raised the possibility of missing letters at some point in the process during his oral submissions. The applicant did not identify any relevant missing material.
The applicant also complained that the Tribunal failed to consider his character, although plainly the Tribunal did have regard to his circumstances and the offence.
The applicant repeated claims that he did not offend, and that there was some involvement of a criminal gang, matters the Tribunal considered and rejected on the merits.
Arguments based upon Stretton’s Case and Eden’s Case
The applicant placed considerable reliance upon the decisions in Stretton v Minister for Immigration and Border Protection (No.2) [2015] FCA 559 and Eden v Minister for Immigration and Border Protection [2015] FCA 780.
In Stretton’s case the applicant came to Australia in 1961 when he was 6 years old. In 2014 he was convicted of sexual offences against his granddaughter. He Tribunal cancelled his visa and the trial judge overturned the Tribunal decision as being unreasonable after a careful review of the facts and circumstances. The fact that Stretton had lived practically all of his life in Australia and that his family were here were weighty factors in the case, as was the fact that Stretton had shown considerable remorse. On a fair reading of the judgment the facts were so significantly different to the applicant’s case that it is difficult to see how he could suggest that it is of assistance to the decision that must be made in this case. In any event, the Full Court overturned the trial judge in Minister for Immigration and Border Protectionv Stretton [2016] FCAFC 11 and I am bound by the Full Court decision.
In Eden’s Case the applicant had committed a sexual offence against a young woman passenger in his taxi. As with Stretton’s case there was considerable difference in the acceptance of responsibility and remorse on the part of the applicant. Whilst the trial judge allowed the application, as with Stretton’s Case the Full Court overturned the trial judge’s decision: see Minister for Immigration and Border Protectionv Eden [2016] FCAFC 28.
I am not persuaded that these authorities assist the applicant in this case.
Conclusions
I find no basis for disturbing the Tribunal’s decision in this case.
Protection Visa judicial review application
The applicant has also lodged an application for judicial review of a decision made by the Tribunal on 27 June 2017 which affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant requires an extension of time to bring this application.
The applicant applied for the protection visa on 2 December 2016. The applicant detailed his claims for protection in this visa application (Supp Court Book pp.33-35), attaching a large number of documents in support of his claims (Supp Court Book pp.43-320).
On 15 March 2017, a delegate of the first respondent refused to grant the applicant a protection visa.
On 22 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision and provided the Tribunal with written submissions (Court Book pp.63-68).
On 12 May 2017, the applicant appeared before the Tribunal to give evidence and present arguments, with the assistance of a Vietnamese interpreter. The applicant provided a large number of submissions and documents to the Tribunal by facsimile and email (Court Book pp.69-654) and at the Tribunal hearing (Court Book pp.658-818).
On 27 June 2017, the Tribunal affirmed the decision of the delegate. On 8 August 2017, the applicant applied for judicial review of the Tribunal’s decision.
Tribunal’s Findings
The applicant’s claims for protection are summarised by the Tribunal in its decision as follows:
9. The applicant’s claims can be summarised as follows. He was born in Vietnam in 1981. As set out in the delegate’s decision (a copy of which was submitted to the Tribunal) he first arrived in Australia on 23 October 2013 on a student visa. He departed Australia on 26 May 2014 and returned on 18 June 2014. He again departed Australia on 16 September 20-14 before returning on 20 September 2014.
10. The applicant is a Buddhist who follows Master Supreme Thich Thanh Hal and worships Avalokitesvara Bodhisattva which means going against the regime because it encourages people to become vegetarian and keep five precepts. In Vietnam they did not have enough food to eat so encouraging people to become vegetarian means going against the regime. At the interview with the delegate, the applicant claimed that he believed in Jesus and attended a Catholic Church in Kew.
11. The applicant is the son of a Communist Party member who quit the part to do business to stop the family from starving. The applicant rented many properties. If he did not pay the government he would be put in prison. He had properties from the government but some people who went to prison stole them. He paid the government in order to get them back but he police could not help him. Neither the people who stole the properties or him could pay the government property fees. The applicant fears that the persons who stole his properties will harm him and his family.
In relation to the applicant’s claims to fear harm on the basis of his religious beliefs, the Tribunal found:
14. In his protection visa application, the applicant stated that he was a Buddhist and at his interview with the Department he stated he went to a Catholic church in Kew. At the hearing, he also claimed that he was a follower of Master Ching Hai and he was a vegetarian and worked at a Loving Hut restaurant in Melbourne. The applicant said he feared being arrested in Vietnam because of these religious beliefs. I accept that the applicant is a Buddhist, Catholic and a follower of Master Ching Hai and that he has worked at [a vegetarian] restaurant in Melbourne. The applicant submitted letters of supports indicating that he had worked at the restaurant. However, I consider the chance or risk that he will be seriously harmed or significantly harmed upon his return to Vietnam due to any of this is remote.
Having considered the applicant’s individual circumstances and the country information as a whole, including the ‘masses of country information reports submitted by the applicant about the government treatment of religion and religious dissidents in Vietnam’, the Tribunal found that the applicant did not face a real chance of persecution by reason of his religious beliefs, and that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Vietnam there is a real risk he will suffer significant harm by reason of his religious beliefs.
In relation to the applicant’s claims regarding the land he owns, the Tribunal stated:
20. I accept that the applicant’s father obtained land and that the applicant did as well. The applicant has submitted supporting documentary evidence of his involvement in a company and land ownership (or rental) with a commune. I accept that squatters have taken over this land and have prevented the applicant from removing them. I accept that the authorities have not assisted him and have issued him with a land tax notices. However, I do not consider this past treatment (or any future treatment) amounts to either serious harm or significant harm. The applicant’s evidence to the Tribunal was that he was not physically harmed by these squatters when he went to these properties though they chased him. I consider it reasonable that the applicant modify his conduct by not returning to the land and confronting the squatters and that this would not be inconsistent with s.5J(3) of the Act. The applicant expressed a fear of being jailed because he could not pay his taxes; however his evidence was that he had not been charged with any offences and I note that the authorities could take back the land (but haven’t done so) to reclaim back taxes and I consider in all the circumstances that the chance or risk that he will be charged with tax offences and failed or seriously harmed or significantly harmed as a result is remote.
Having regard to the applicant’s individual circumstances, the Tribunal found that the applicant did not face a real chance of persecution by the squatters or the state in the reasonably foreseeable future by reason of his land interests, and that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Vietnam there is a real risk that he will suffer significant harm by reason of his land interests.
In relation to the applicant’s claim to fear harm on the basis of his grandfather and father’s involvement in the Communist Party, the Tribunal found that:
23. The applicant told the Tribunal that his grandfather’s land was taken from him by the Communists and that his grandfather was jailed and his grandmother, aunts and uncles had to flee. However, he also told the Tribunal that this treatment of his grandfather occurred back in the 1940s. I consider that these events are so long ago and they are in no way indicative of a real chance or real risk of serious harm or significant harm to the applicant now or in the reasonably foreseeable future. I note the applicant was able to obtain a PhD and work as a university lecturer which also indicates that he was not and would not be of adverse interest upon his return because of his family background.
24. The applicant claimed that his father had been a member of the Communist Party but resigned for economic reasons. In his earlier claims, he stated that his father had been secretly poisoned; however at the hearing when I asked him how his father had died he said his father was angry and he died of a disease caused by an argument with the government. The applicant did not state his father had been poisoned. When I put to him this inconsistency, he claimed that his father had been poisoned. However, I do not accept that he could not consistently recall the cause of his father’s death and whilst I accept that his father died in 2014, I consider the claim that he was slowly poisoned to be far-fetched and implausible and I do not accept that his father was poisoned or the victim of foul play by any actor. Whilst I accept that his father had disputes with government officials and the police and had to pay them bribes and that his business operations stopped, I note the father died in 2014 and I do not accept that the applicant facing serious harm or significant harm upon his return as a result to be anything more than remote. At the hearing, the applicant claimed that his father told him about matters related to national security. When I asked him to expand he said his father told him where they kept the weapons. Noting that the applicant has not claimed he has been harmed or targeted in the past on this basis, I consider the applicant’s claims in this respect to be far-fetched, implausible and vague and do not accept them.
Having regard to the applicant’s individual circumstances and the independent country information, the Tribunal found that the applicant did not face a real chance of persecution in the reasonably foreseeable future by reason of his membership of a particular social group (being his family membership) or by reason of imputed political opinion arising from his family membership, and that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Vietnam there is a real risk he will suffer significant harm by reason of his family membership.
In relation to the applicant’s claims to fear harm on the basis of his political opinion, the Tribunal stated:
27. The applicant has claimed that he is an opponent of the Vietnamese government. In support of that claim and that he will be harmed upon his return, he has presented photographic evidence of himself with some elderly Vietnamese men in Melbourne who he says are South Vietnamese veterans and a photo of himself with others at the Victoria Street Business Association event. He has also submitted a copy of an application, he made for the Luna Street Festival Group to Yarra Trams for approval to work adjacent to tramway electrical apparatus. He said he attended events 2-3 times every year for four years and that he was an assistant to the Chairman of the Association of Former Vietnamese Soldiers which he said was within the Business Association. I have considered all of the applicant’s documentary and oral evidence, however I do not accept that he has been involved in anti-Vietnamese government political activities in Australia. The evidence he has submitted relates far more to minor involvement in Vietnamese community and business activities rather than the expression of anti-government opinion. Whilst I accept that there are former South Vietnamese veterans who attend these events and meetings, I do not accept that this or any assistance he has given to them has created any anti-government profile for him in Vietnam. In making this finding, I note that the war in Vietnam ended over 40 years ago and available country information does not indicate that persons in Vietnam are now targeted or harmed for their past involvement with the South Vietnamese government or military [FN: For example, Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 21 June 2017 and United Kingdom Home Office, Vietnam Country Report, October 2013 do not refer to this]. I do not accept that upon return to Vietnam the applicant will or will wish to take part in any anti-government political activities and I do not accept that he is or will be of any adverse interest to the Vietnamese authorities upon his return. In making this finding, I accept that the applicant has had a telephone conversation with a Vietnamese investor encouraging him to invest in Australia; however noting the rise of economic reforms (or Doi Moi) [FN: Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 21 June 2017] and the lack of reports of targeting of persons involved in such conduct I do not accept that this will lead to him being imputed with any anti-government political opinion.
28. The applicant has submitted photos of himself with a Vietnamese general and with Communist Party officials in Vietnam and claimed that he had protested against the Chinese government and confronted corruption. Whilst I accept that he had photos taken with these individuals, his evidence as to his participation in political activities in Vietnam was extremely vague, undetailed, confusing and fanciful and I do not accept that he was involved in any political activities against the Chinese or Vietnamese governments. I note that he was never harmed or targeted when he was in Vietnam and returned there on a couple of occasions without problems. Whilst he claimed that he lost his job as a lecturer, I note that he did not return to his position and that therefore it was not unusual that this would occur. (emphasis added)
Having regard to the applicant’s individual circumstances and the country information as a whole, the Tribunal found that the applicant did not face a real chance of persecution by reason of his actual or imputed political opinion, and that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Vietnam there is a real risk that he will suffer significant harm by reason of his actual or imputed political opinion.
In relation to the applicant’s claim to fear harm on the basis of his Australian criminal record, the Tribunal stated:
31. The applicant has been convicted in Australia for offences of indecent assault against a minor. DFAT stated in 2004 that it would be highly unlikely that a Vietnamese citizen who has served a jail sentence in Australia for a drug-related offence would be retried or subjected to other punitive action upon their return [FN: Department of Foreign Affairs and Trade 2004, DFAT Report 344; RRT Information Request VNM17108, 23 November]. Whilst I have taken into account that the applicant has not been convicted of a drug-related offence, I consider this information supports that the applicant would not face harm as a result of his different type of criminal conviction. In a 2007 report, DFAT responded to an information request from the Refugee Review Tribunal regarding whether there had been any recent reports of people with Australian criminal records being “harmed, arrested or imprisoned on their return to Vietnam” by advising, “Not to our knowledge” [FN: Department of Foreign Affairs and Trade 2007, DFAT Report 706: RRT Information Request VNM32395, 8 October]. The Tribunal has not identified any later reports of Vietnamese with Australian criminal records being harmed upon their return.
Having regard to the applicant’s individual circumstances and the country information as a whole, the Tribunal found that the applicant did not face a real chance of persecution on account of an actual or imputed political opinion and there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk he will suffer significant harm on this basis.
In relation to the applicant’s claim to fear harm as a failed asylum seeker returning from Australia to Vietnam, the Tribunal stated:
34. DFAT have commented that “Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration” is an offence under Article 91 of the Penal Code 1999 but they are unaware of any cases where this provision has been used against failed asylum seekers. DFAT state that they have no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the government [FN: Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 21 June 2017]. Whilst I accept that he has had photos taken with a general and Community Party officials, I do not accept, on the available evidence that this would lead to him being targeted because of any embarrassment to them due to him being a failed asylum seeker or due to his criminal conviction in Australia.
Having regard to the applicant’s individual circumstances and the country information as a whole, the Tribunal found that upon returning to Vietnam as a failed asylum seeker, the applicant did not face a real chance of persecution by reason of actual or imputed political opinion, or by reason of his membership of a particular social group of failed asylum seekers or failed asylum seekers returning from a Western country.
Ultimately, the Tribunal concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirmed the decision of the delegate not to grant the applicant a protection visa.
Application for an Extension of Time
The application for judicial review was filed on 8 August 2017, which is 42 days after the date of the Tribunal’s decision, and therefore the applicant requires an extension of time to make the application for judicial review.
The applicant’s grounds of application for an extension of time as stated in his written application are as follows:
1. Since I’ve been sent to Christmas Island and have been faced with Delays in preparing my Appeal Application, I’m requesting an Extention of time if needed.
The Minister does not oppose an extension of time. In the circumstances I grant the extension.
Grounds for Judicial Review
The application for judicial review contains lengthy written grounds. Under the heading “Why decision wrong” in his application, the applicant lists the following:
1. DIBP Did not allow me time to take evident
2. DIBP Did not look at my case and evident because DIBP could not open my evident file, they made mistake
3. AAT Do not help with full interpreter
4. Someone in the system changed my decision
5. I have a letter from the court stating that in regards to the decisions of DIBP, they made mistakes, which the court will review (Attachment)
6. I have a letter from the police that stated that the person who complained about me has escaped and they are unable to locate that person. This shows that the person has not good character (Attachment Ia and attachment
7. The person who mistakenly cancelled my visa has Witten a letter in support form application. It has been sent to the Vietnamese Embassy and various department within DIBP.
8. Some of the barristers who I have asked have stated that DIBP has made some mistakes in procedures etc, regarding my case, so my case need to be re-looked at.
9. The court has given me 2 days to respond to them. Unfortunately, I was stuck on detention. With the limited resources there (scanning and fax machine not working, and getting access to them etc), and the distance to the city (Australia), I was not able to respond within 2 days.
10. The court was not aware of this so mistakenly rejected my case because they did not hear from me.
11. I put in an application to have the 7 day extended, but the court did not get it in time.
12. I believe the court want me to win. When the court hearing at AAT was finished, the member there admitted that lawyer for DIBP made a mistake which resulted in my application being rejected(attachment)
13. The member stated if I was to explain further regarding DIBP’s mistake they could make a decision right then or they gave me the option to respond to them in 2 days. I was cautious so I chose option 2.
14. I apologies in advance for any mistakes I might have made in my communication with you. My only excuse is I have been in detention too long therefore there is a lot of stress, which might have impacted in my communication with you not being too clear.
15. DIBP’s lawyers has stretch this on for a very long time (nearly 2 years for me now), hoping I will discourage and give up. I need you as my lawyer to fight.
In commencing his oral submissions on the protection visa application the applicant said:
Your Honour, can I say one thing, please. In relation to the protection visa it’s just because I had no other options. I had to do it. And when I was doing things to prevent and stop clients it was the same girl who trapped me and then her boyfriends, all her boyfriends, who trapped me and wanted to be my friends and then all her boyfriends assaulted me and this lady called Win she’s a doctor, PhD in Australia, and she advised me to make friends and that’s what I did.
The tenor of this opening submission tells against the protection application being based upon genuine grounds. However, I proceed on the basis that this is simply an indication that the applicant had hoped to obtain a visa on another basis rather than having to obtain a protection visa rather than an admission that leads to a conclusion that the protection visa application is a ruse.
The first two grounds make complaint about the process before the delegate. It is the decision of the Tribunal and not the delegate that is the subject to these proceedings, and therefore these grounds cannot succeed.
The third ground complains about the quality of the interpreting before the Tribunal. There is no evidence as to any errors in this regard, nor any particulars given by way of examples that may have founded an order requiring the minister to produce a transcript of the hearing. This ground is without foundation.
The fourth ground is without foundation – there is no evidence that a decision has been tampered with.
The fifth ground appears to be a misunderstanding of a notification about rights of review.
The sixth ground appears to relate to the police evidence relevant to the Student visa cancelation and Bridging visa cases rather than the protection visa case as this was not relevant to the protection visa issues.
The seventh ground makes claims that the Vietnamese embassy was made aware of his application. The decision in this case does not proceed on the basis that the government of Vietnam would be unaware of his asylum application. The reasoning of the Tribunal at [31] to [32] proceeds on the basis of considering the risks to the applicant if it is known to authorities that he has a criminal record. Similarly para [34] considers the risk on the assumption that the circumstances are known to Vietnamese authorities. I find that this ground is not made out.
The eighth and tenth, through to fifteenth grounds appear to set out hearsay claims of particular errors or procedural matters that are not relevant to this case given that the extension of time to apply to the court has been granted.
The ninth ground makes complaint of not having time to provide materials. It appears that this relates to a response to information put under s.359AA, which response was considered by the Tribunal: see [36] to [39].
The applicant presented considerable material to the Tribunal and had an opportunity to appear before the Tribunal. The applicant’s case in this court is contained in much prolix material that does not appear to go further than spurious claims and merits review. I therefore dismiss the applicant’s application.
Conclusion
As the applicant has failed to establish any ground with respect to any of the applications before the court it is appropriate to make orders dismissing each of the applications.
As one of the applications concerns a protection visa the applicant’s name has been anonymised in this judgment. To ensure that the applicant’s name cannot be identified from the electronic search features of the court portal I will direct that the file numbers for the student visa and bridging visa cases be removed from the version of the judgment publically released.
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 14 March 2018
0
7
3