Doy17 v Minister for Immigration - [2018] FCCA 621

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOY17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 621

Catchwords:
MIGRATION – Application for judicial review of student visa – no matters of principle.

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
Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6
Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726
Roach v Minister for Immigration and Border Protection [2016] FCA 750
Stretton v Minister for Immigration and Border Protection (No.2) [2015] FCA 559
Eden v Minister for Immigration and Border Protection [2015] FCA 780
Minister for Immigration and Border Protectionv Stretton [2016] FCAFC 11
Minister for Immigration and Border Protectionv Eden [2016] FCAFC 28

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 621
Decision Date: 14 March 2018

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Minister for Immigration. The applicant sought to challenge the refusal of his protection visa.

The primary legal issue before the court was whether the Refugee Review Tribunal had erred in its assessment of the applicant's claims of fearing harm on the basis of his political opinion upon return to Vietnam. Specifically, the court had to determine if the Tribunal's findings that the applicant's involvement in community and business activities in Australia did not equate to anti-Vietnamese government political activities, and that his past involvement with the South Vietnamese government or military did not place him at risk, were reasonable.

The Tribunal had considered the applicant's documentary and oral evidence, including photographs and applications related to community events and business associations. It found that this evidence demonstrated minor involvement in community and business activities rather than the expression of anti-government opinion. The Tribunal noted that country information did not indicate that individuals were currently targeted for past involvement with the South Vietnamese government or military, and that the applicant had not been harmed or targeted during previous visits to Vietnam. Furthermore, the Tribunal found the applicant's evidence regarding alleged political activities in Vietnam to be vague and unsubstantiated, and concluded that he was not, and would not be, of adverse interest to Vietnamese authorities. The Tribunal also considered a telephone conversation with a Vietnamese investor, but found that economic reforms in Vietnam and the lack of reports of targeting for such conduct meant it would not lead to the applicant being imputed with anti-government political opinion.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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