DPG18 v Minister for Home Affairs
[2019] FCCA 785
•3 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DPG18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 785 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal considered the applicant’s claims on the basis of the material that was before it – whether the Tribunal’s findings reasonably open on the material that was before it – whether there was any misinterpretation of evidence the applicant had given before the Tribunal – whether the applicant suffered from any medical condition that prevented him from participating meaningfully in the hearing before the Tribunal – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5(6), 65, 426(3), 476 |
| Cases cited: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 |
| Applicant: | DPG18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1921 of 2018 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 13 December 2018 |
| Date of Last Submission: | 13 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 3 April 2019 |
REPRESENTATION
| Applicant in person, by video conference link, assisted by an interpreter. |
| Solicitor for the First Respondent: | Mr A Moss of Clayton Utz |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1921 of 2018
| DPG18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Vietnam, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (subclass 866) visa (Protection visa) under s.65 of the Act.
Background to application
The applicant arrived in Australia on 3 November 1994 as the holder of a Student (subclass TU560) visa. On 25 June 1995 the applicant’s visa expired, and he became an unlawful non-citizen. The applicant was placed in immigration detention in August 2015.
On 18 January 2016 the applicant applied for a Protection visa. On 29 August 2016 a delegate of the Minister refused the application. On 13 January 2017 a differently constituted Tribunal (previous Tribunal) affirmed the delegate’s decision not to grant the applicant a Protection visa. That decision was set aside by this Court on 1 June 2017 on the ground that the previous Tribunal failed to comply with s.426(3) of the Act by failing to have regard to a request the applicant made that the Tribunal call witnesses the applicant had specified in the completed response to hearing form.[1]
[1] CB139
Claims for protection
The applicant presented his claims for protection on a number of occasions, these being in his form of application which he lodged on 18 January 2018, in an interview with the delegate in June 2016, at the hearings before the previous Tribunal and the Tribunal, and in submissions the applicant made to the Tribunal through his migration agent. In broad terms, the applicant claimed he fears persecution if he were to return to Vietnam because he had or would be imputed with an anti-Vietnamese government opinion because his family had supported the French government “in 1955”; because, while in Australia, the applicant participated in anti-Vietnamese government activities, and expressed anti-Vietnamese government opinions, because of his Catholic religion, because he is a failed asylum seeker, and because he holds no “ho khau”, being a household registration.
The applicants’ claims, as summarised by the Tribunal, are as follows:
a)In relation to his claims based on his family’s support for the French government, the applicant claimed he and his family have been harmed in the past by the Vietnamese government. The applicant claimed he and his siblings were denied a public education, requiring his parents to pay for a private one, there was a delay in the issue of a graduation certificate to the applicant, and the applicant’ family’s property was confiscated in 2006.[2]
b)In relation to his claims based on his political anti-Vietnamese government opinions and activities, the applicant claimed he is opposed to the Communist Vietnamese government, and he expressed that opposition and his views on related human rights issues after he arrived in Australia. He claimed he did so by participating in activities organised by the Vietnamese Community in Australia (VCA), such as protests and signing petitions, and by attending 30 April commemorations in Canberra. The applicant claimed his participating in these activities was one of the reasons his family’s property had been confiscated, and that authorities had approached the applicant’s family in Vietnam demanding that he return there.[3]
c)As for his claims based on his being a Catholic, the applicant claimed he would face discrimination because he is Catholic. The applicant claimed he regularly attended church, and that, when in Vietnam, he attended church, but stealthily.[4]
d)As for his claims based on his being a failed asylum seeker, the applicant claimed that some asylum seekers had been put in prison,[5] and that he would be harmed because of his long stay and long detention in Australia.[6]
e)As for his claims based on the absence of household registration, the applicant claimed he may not be able to obtain a household registration if he were to return to Vietnam.[7] He claimed that the registration of Vietnamese nationals who have been out of the country for more than 12 months is automatically cancelled, and for that reason they become temporary residents.[8]
[2] CB228, [25]
[3] CB231, [36]
[4] CB234, [50]
[5] CB236, [55]
[6] CB236, [56]
[7] CB237, [63]
[8] CB238, [64]
Tribunal’s reasons
The Tribunal did not find the applicant to be credible for three reasons.[9] First, there was a significant delay in the applicant applying for protection in circumstances where the applicant had become aware from a number of sources that he could apply for protection, but chose not to apply for protection.[10] Second, the applicant’s claims “developed over time”.[11] Third, the Tribunal found the applicant gave unsatisfactory testimony. The Tribunal found that on occasion the applicant intentionally gave long-winded, convoluted, and vague testimony, the aim of which was to avoid the applicant providing clear responses to questions asked of him.[12] Having recorded its adverse views about the applicant’s credibility, the Tribunal considered each of the applicant’s claims.
[9] CB227, [18]
[10] CB227-228, [10], [20]
[11] CB228, [21]
[12] CB228, [22]
The Tribunal did not accept the applicant’s family had been harmed in any of the ways the applicant claimed.[13] The Tribunal found the applicant’s claims “have been inconsistent and embellished over time”.[14]
[13] CB230, [29]
[14] CB229, [27]
The Tribunal accepted the applicant is opposed to the Communist government in Vietnam, and that the applicant attended two or three protests or rallies in Australia “several years ago”.[15] The Tribunal, however, found that these were the only events in which he participated, and that the applicant is not, nor has he ever been, a political activist, or a human rights activist, or that he had ever done community work in Australia.[16] The Tribunal made these findings because it found the applicant’s evidence about his activities in Australia to be unsatisfactory.[17] The Tribunal further found that the applicant had participated in the relevant activities for the purposes of making a protection visa application rather than as a genuine expression of his political opinion. The Tribunal, therefore, was not satisfied the applicant engaged in those activities otherwise than for the purpose of strengthening his claim to be a refugee and, for that reason, the Tribunal was bound by s.5J(6) of the Act to disregard that conduct when determining whether the applicant has a well-founded fear of persecution in Vietnam.[18]
[15] CB233, [45]
[16] CB233, [45]
[17] CB233, [45]
[18] CB233, [46]
The Tribunal accepted the applicant is a Catholic, and that he has practised his religion in Australia for reasons other than for the purpose of strengthening his claim to be a refugee.[19] The Tribunal found, however, that the applicant has been far from a regular churchgoer and, for that reason, he had exaggerated his church attendance in Australia.[20] The Tribunal further found that if he returns to Vietnam, the applicant can and will practise his religion in Vietnam by infrequently attending a registered Catholic church.[21] The Tribunal also found that the applicant will not on his return to Vietnam express any actual or perceived political opinions or engage in any activity in connection with his religion or church that would be regarded as anti-government.[22]
[19] CB235, [51]
[20] CB235, [52]
[21] CB235, [53]
[22] CB235, [53]
The Tribunal was not satisfied the applicant faced a real risk of harm as a failed asylum seeker or because of the time he had been absent from Vietnam. The evidence before the Tribunal indicated that asylum seekers are not prosecuted under Article 91 of the Vietnamese Penal Code (which criminalises persons who flee abroad or defect overseas for the purpose of opposing the people’s administration), but those who organise others to flee face prosecution under Article 275 of the Penal Code. The Tribunal was unaware of any cases where Article 91 of the Penal Code has been used against failed asylum seekers; [23] and the applicant did not claim, and the Tribunal was unaware of any evidence that suggested, that the applicant has organised others to flee Vietnam.[24] Further, although there was country information that showed that some returnees can be briefly detained and interviewed, long term detention, investigation, and arrest is conducted only in relation to those suspected of being involved in organised people smuggling operations.[25]
[23] CB237, [59]
[24] CB237, [60]
[25] CB237, [61]
The Tribunal found there is a real risk that, under the 2007 Law of Residence, the applicant, being a person of Vietnamese nationality, will be recognised as a person who had settled abroad and that his household registration will have been deleted; but the applicant can apply for household registration if he returns to Vietnam.[26] The Tribunal was not satisfied the applicant will be refused household registration.[27]
[26] CB239, [67]
[27] CB239, [68]
Judicial review hearing
The hearing before me occurred via video link. The applicant was not legally represented, but he was assisted by an interpreter. As is my usual practice, I explained to the applicant the purpose of the hearing, and the procedure that would be followed. I next identified the documents on which the applicant intended to rely. The applicant informed me that he wished to rely on the affidavit he filed with the application commencing this proceeding on 11 July 2018, a document the applicant filed on 12 September 2018 which contains at the top of the document the word “Applicant’s Submissions”, the matters stated in the “application in a case” the applicant filed on 22 November 2018, and an affidavit the applicant filed on 22 November 2018 to which there is annexed detailed submissions. The applicant also made some submissions.
In these circumstances, I propose to consider the applicant’s case as follows. I will first consider separately each of the grounds stated in the application. I will then consider the submissions made in the written materials the applicant filed.
Grounds of application
The application contains five grounds of review.
Ground 1
Ground 1 is as follows (errors in original):
According to the Australian Immigration Act 1958, the results of the evaluation are based on subjective views of the individual. [N]ot assess the actual situation and objective perspective.
The Minister, in his written submissions, interprets ground 1 to be a complaint that the Tribunal’s decision was an expression of its subjective views. The Minister referred to the following passage from the judgment of the Full Federal Court in NACE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs which addressed a similarly expressed submission:[28]
A theme which occurs both in the written submissions and the oral submissions is that the Tribunal should not have relied on its "subjective" views. In a sense, the Tribunal is required to rely on its subjective views: it is required to reach its own conclusions as to the facts. The appellant would suggest a dichotomy between “the true [objective] facts” and “the Tribunal's [subjective] view of the facts”. Without embarking on a philosophical discussion, we simply observe that any attempt to understand, describe and evaluate factual material will necessarily implicate the mind of the person making that attempt. The processes mentioned are assigned by the Migration Act 1958 (Cth) to the mind of a member of the Tribunal, and not to the mind of any other person.
[28] NACE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 47, at [7]
Thus, to the extent ground 1 claims the Tribunal made a jurisdictional error because it relied on its subjective views, that by itself discloses no jurisdictional error. That, however, is not the complaint ground 1 appears to make. The complaint ground 1 appears to make is that the Tribunal decided the applicant’s claims based on its own views without properly considering the evidence that was before it. I do not accept that claim. The Tribunal identified the applicant’s claims, as is apparent from its reasons, it asked the applicant questions about those claims, and it decided for the reasons it gave not to accept any of those claims. There is nothing to suggest the Tribunal did not attempt, or that it failed in any attempt, to understand the applicant’s claims and assess those claims by reference to what the applicant said and the other evidence that was before it.
Ground 1, therefore, does not succeed.
Ground 2
Ground 2 is as follows (errors in original):
Interpreter on February 16, 2018 has a problem: Interpreter false, inaccurate, not close attention, leading to misunderstandings delegate all problems (Switch languages inaccurate detail: for example, reversing the time, date or omitted many details not localized)[.] Using incorrect words, grammar is not smooth[.] This leads to the misunderstanding of the delegate to the issue being provided.
In the submissions the applicant filed on 12 September 2018 the applicant stated as follows (errors in original):
But on the second day of the month (16 February 2018) of the interview, seen by another interpreter. During the interview I really did not feel comfortable because, my language and the interpreter spoke. I say, she sometimes does not understand what I mean. When I move into English, I can see clearly, she has moved many incorrect words, flooded. Stop, always change from applying to translate. I find myself interpreter also not confident in translation. So, it has seriously affected my delegate’s assessment of the outcome (ignoring a lot of details provided, disturbing the order of things, or translating incorrectly into the problem. This raises the question of the representative of the team with the interviewee and the suspicion of the truthfulness of the problem. I see that the interpreter for my interview has a problem!
The difficulty with this submission is that it does not identify the matters the interpreter incorrectly interpreted or failed to interpret.
Before me the applicant submitted that, during the hearing before the Tribunal on 16 February 2018, he felt the interpreter was not fluent because she asked the Tribunal member to repeat matters in order to be able to translate. The applicant, however, was unable to provide details of what he says had been misinterpreted or of anything that had not been interpreted. That is so even though, as I understood him, the applicant said he had listened to the audio recording of the hearing. Further, the applicant informed me he did not say anything to the Tribunal about the interpreter. The applicant said he did not do so because it was Vietnamese New Year Day, and he could understand the interpreter wanting to rush to the festival. The applicant also said that he was sick on the day so he tried his best to concentrate on answering the questions. (I consider later the applicant’s claims about his medical condition when he appeared before the Tribunal.)
Given the absence of any evidence of particular interpretation errors, or evidence of errors of a kind that are capable of showing that a “miscarriage in the decision-making process had occurred”,[29] ground 2 fails.
[29] Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, at [18] (Spender, Lee and Tamberlin JJ).
Ground 3
Ground 3 is as follows (errors in original):
Evaluation results are very vague, loose not give clear evidence, not convincing negate or reject the problem incorrectly, without convincing, inadequate. Delegates evaluate the results are based on individual views, very subjective to resulting in unfair results:
(a)Very light evaluation, (almost no) violations of human rights of the Communist Party[.] Do not look at the reality of the infamous revenge, persecution, repression, intimidation, beatings individuals, opposition organizations, peaceful protesters and dissidents to return to VN.
(b)Recognition of the inherent problem, delegates assess all relevant issues are under the personal conception .quan his very subjective point, put to all result completely rejected.
(c)for decades, my family and myself do not have in common with the political stance of the communist regime[.] If I have to return to VN, surely I will be their abuse, revenge, imprisoned, tortured by the communists for people with different stance[.]
(d)The applicant provides important details, but is not mentioned (Not asked to)[.]
This ground appears to make a general complaint that the Tribunal’s findings are imprecise, not based on evidence, or are based on inadequate evidence, or are based on the subjective views of the Tribunal because. (I interpret the applicant’s inclusion of “delegate” to be intended by him to refer to the Tribunal.) To the extent the complaints are made generally – that is, without reference to particular findings the Tribunal made – the ground fails.
The ground also claims the applicant provided “important details”, but the Tribunal did not mention these details. The ground, however, does not identify the details the applicant says he provided to the Tribunal and which the Tribunal failed to consider. For that reason, this part of ground 3 also fails.
Ground 3 also claims the Tribunal failed to consider adequately the violations of human rights by the Vietnamese Communist party. The ground, however, does not identify the degree to which the Tribunal ought to have considered the violations of human rights by the Vietnamese Communist Party, or how that was relevant to the decision the Tribunal made. In any event, implicit in the Tribunal’s reasons is the assumption that if the applicant had met a particular type of profile – for example, a person who held a genuine anti-Vietnamese Communist Party opinion who actively expressed that opinion, or a person who organised others to flee Vietnam with a view to opposing the people’s administration – he would face a real risk of harm at the hands of the Vietnamese Communist Party. The Tribunal, however, was not satisfied the applicant had a profile that would expose him to such a risk. Having made that finding, it was not necessary for the Tribunal to consider any further country information about human rights abuses by the Vietnamese Communist Party. The Tribunal, therefore, made no jurisdictional error by not considering any further than it did country information concerning human rights abuses in Vietnam.
The ground also claims the applicant and his family “do not have in common with the political stance of the communist regime”. I take this to be a claim that the applicant and his family oppose the Vietnamese regime and, for that reason, the applicant will be harmed if he returns to Vietnam. That claim relates to the merits of the claim for protection the applicant made before the Tribunal and which the Tribunal did not accept. This Court does not have jurisdiction to determine the merits of the applicant’s claims for protection. Nor does the Court have jurisdiction to determine whether the Tribunal was incorrect in deciding the applicant would not face a real risk of harm if he were returned to Vietnam. The Court’s jurisdiction is limited to determining whether the Tribunal made some jurisdictional error. This part of ground 3, therefore, also fails
Ground 4
Ground 4 is as follows (errors in original):
Stand on stand alone, but all rely on the comments and judgments of the old hearing to do the results. This is not transparent, not objective and not fair.
This ground complains the Tribunal relied on comments and judgments of the previous Tribunal. Although it is apparent from the Tribunal’s reasons that it put to the applicant evidence he had given before the previous Tribunal,[30] and the Tribunal relied on those matters in its assessment of the applicant’s credibility, the Tribunal relied on its own assessment of the applicant’s credibility and claims. That the Tribunal assessed for itself the applicant’s credibility is supported by what the Tribunal said: “I have listened to and relied upon the Tribunal’s audio recordings of that hearing rather than the account given in the previous member’s decision record”.[31]
[30] See, for example, CB229, [27]-[29], CB231, [38], CB232, [39]
[31] CB226, fn.3
Ground 4, therefore, fails.
Ground 5
Ground 5 is as follows (errors in original):
Before and during 2 days of hearing, the applicant’s health is not good, Sometimes in a state of nervousness, tension. There are times when there is cramping in the abdomen. Visual acuity is reduced and auditory hearing is not clear for effective response the question is reduced. But, Delegate in the hearing has no interest in the health of the interviewee. (I have two witnesses for my case, but only one witness was interviewed. Other witnesses are very important to my case.)
This ground raises two matters. One relates to the applicant’s medical condition at the time of the hearing before the Tribunal. The second relates to one rather than two witnesses appearing at the hearing before the Tribunal. I will consider each matter separately.
Ground 5 – applicant’s medical condition at hearing
In its reasons for decision the Tribunal refers to a submission the applicant’s representative made after the hearing about the effects of detention on detainees, and a submission that the applicant was nervous during the hearing.[32] The Tribunal did not accept that the matters raised by the applicant’s representative explained the flaws the Tribunal found in the applicant’s evidence. The Tribunal said it did not appear to it the applicant was nervous or anxious, but that, on the contrary, the applicant testified “in what seemed a confident and composed manner”. Further, the Tribunal observed that no medical or other evidence had been presented to indicate the applicant’s ability to testify “was adversely affected by his state of mind or detention”.
[32] CB228, [23]. That is a reference to the submissions made by the applicant’s representative by letter dated 9 March 2018 (CB208). The representative said (at CB2010) the applicant “was extremely anxious and nervous regarding the hearing.”
In the submissions the applicant filed on 12 September 2018, the applicant stated as follows:
Currently I have been detained in the immigration detention center of the immigration department, over the past 3 years, my health condition has decreased sharply,
I have had many episodes, my problem is, my doctor has more liver disease and is receiving treatment. My memory is reduced, symptoms appear or forget a lot of depression. [F]requent sleeplessness or prolonged headaches. In general my health is not very good. With the appearance of being forgotten, sometimes there is a problem, I have to record to remind myself to do or think next.
So I think it can affect my health when I have to do or think about something for too long. My health will decrease, sometimes it will affect my hearing. My condition in the past also affected the quality and effectiveness of lengthy interviews (stress, sweating and abdominal pains). [T]hat lasted an average of about 4 hours.
There is no question that the Tribunal will make a jurisdictional error if an applicant participates at a hearing before it while labouring under a medical or mental condition that has the effect of denying the applicant a real and meaningful opportunity to give evidence and present arguments. The Tribunal will make a jurisdictional error in these circumstances even if the Tribunal is unaware, or could not reasonably have become aware, that the applicant was labouring under such medical or mental condition.[33]
[33] Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [37]
In the submissions the applicant filed on 12 September 2018 the applicant claims that in the past three years his health had “decreased compared to the time I have lived outside of the community”. The applicant refers to a number of medical conditions, and he claims he was tense during the hearing before the Tribunal. The applicant says, however, that he “deliberately did not provide medical documentation to prove my health”. The applicant does not identify the medical documentation he says was available to him at the time of the hearing that he deliberately refrained from providing to the Tribunal.
The applicant did not adduce at the hearing before me any evidence of his medical condition. Towards the end of the hearing before me, however, the applicant said he had sent by post a “DVD” containing all his medical records during his period of detention. I indicated to the applicant that, if the material reaches me, I would consider it. In the event, the applicant provided to the lawyers for the Minister documents relating to his medical condition. It is not clear whether the applicant provided the documents to the Minister’s lawyers in electronic form or by some other form, but the documents have been reduced to an electronic form that are accessible over the Internet. The Minister’s lawyers provided to my associate a link to the documents. My Associate accessed the documents through the link provided by the Minister’s lawyers, and downloaded them onto a hard drive that is accessible by me. I have accessed these records, and have marked as “MFI1 – medical records” the electronic form of the documents that my Associate downloaded.[34]
[34] After I had completed a draft of these reasons, my associate received from the post a copy of the written submissions the applicant had filed, together with two compact disks. At the time it arrived, one of the compact disks had broken into two. I have not attempted to read the unbroken disk but have assumed that the disks contained the same documents that my associated had accessed via the link the link that was provided by the Minister’s lawyer. I have arranged for these material to be marked “MFI2”
The medical records the applicant provided comprise over 300 pages. I have not attempted to read every document. I did, however, browse the documents to identify the document or documents that appeared to relate to the applicant’s health as at the date the applicant appeared before the Tribunal on 16 February 2018. The most relevant document appears to be one dated 20 June 2018 prepared by a clinical reporting nurse on behalf of International Health and Medical Services. The document is headed “IMHS Health Summary Report for Commonwealth Ombudsman”. The document is divided into six sections. The first, and longest is headed “Section A – Physical Health Issues – Chronic or major acute health issues” (IMHS Report). This section begins with a short summary of the health issues affecting the applicant before “this reporting period”, being the period commencing 5 December 2017. Two conditions are identified, and they are described as ongoing. The remaining part of this section records health issues that had arisen after 5 December 2017, noting also whether the issues are ongoing or resolved. There is an issue recorded for 22 January 2018, but no further issue is recorded until 17 May 2018. It is unnecessary for me to describe the health issues identified in the IMHS Report, other than for me to record that they do not suggest to my untrained eyes that the conditions could reasonably have affected the applicant’s ability to participate at the hearing before the Tribunal on 16 February 2018.
The next section of the IMHS Report is headed “Section B – Mental Health Issues – Chronic or major acute Mental Health problems”. No mental health issues are identified; and in the column headed: “How Managed”, it is recorded that the applicant “has not been diagnosed with any chronic or major acute mental health issues during the reporting period”. The IMHS Report then identifies external services providers, current medications (of which there are two), and a summary of ongoing management required. The report concludes with a section headed “Section F – Placement considerations i.e. are any of the client’s health conditions or issues likely to be adversely affected by their current placement?” under which there is recorded: “No. There is no documentation in [the applicant’s] medical record during this recording period to indicate that his health is being adversely affected by their current placement”.
I am not satisfied that during the hearing before the Tribunal the applicant was labouring under a medical or mental condition that had the effect of denying the applicant a real and meaningful opportunity to give evidence and present submissions during that hearing.[35] This part of ground 5, therefore, fails.
[35] I have separately marked as “MFI3 IHMS Report” a hard copy of the IMHS Report.
Ground 5 – one of two witnesses appearing
At the hearing before me the applicant said that he expected that two witnesses would be called, but only one of those witnesses was called.
As submitted by the Minister, the difficulty with this ground is that in the document headed “Response to hearing invitation – MR Division”, the applicant’s representative identified only one person would be called as a witness.[36] Further, in her covering letter to the Tribunal, the applicant’s representative confirmed that the applicant “requests evidence be adduced from” a Mr B, and the representative enclosed a copy of a statutory declaration made by Mr B. Further, as I suggested to the applicant, even though the hearing occurred by video link, he was aware by the time the hearing had concluded that only one witness had been called, yet he said nothing to the Tribunal about a second witness.
[36] CB193-194
This part of ground 5, therefore, also fails.
Submissions filed 12 September 2018
The submissions the applicant filed on 12 September 2018 deal with a number of matters.
First, the applicant refers to paragraph 20 of the Tribunal’s reasons where the Tribunal found it did not accept the reasons the applicant gave for not having applied for protection sooner than he did. The applicant repeats the reason he gave to the Tribunal for not having applied earlier, namely, that he has no knowledge of Australia’s immigration law. This submission does not disclose any jurisdictional error by the Tribunal, but is an attempt to invite the Court to consider for itself whether the explanation the applicant gave was adequate. That was a matter for the Tribunal to consider.
Second, the applicant refers to the Tribunal’s finding in paragraph 21 of its reasons that the applicant had expanded and embellished his claims so as to strengthen them. The applicant submits this is a very subjective point of view; before the hearing the applicant was asked to provide honest and clear answers; before entering the hearing the applicant made a religious ritual to confirm his honesty when presenting, answering and explaining questions; and the applicant was upset and very unhappy at the Tribunal’s evaluation of his evidence.
These submissions may be taken to claim that it was not reasonably open to the Tribunal to find that the applicant had expanded and embellished his claims so as to strengthen them. That claim must be assessed by reference to the Tribunal’s reasons. The Tribunal gave specific examples of evidence it found the applicant had embellished over time. First, before the Tribunal the applicant said his parents, grandfather, and grandmother worked for the French; they were classified as rich landowners who exploited the poor; his parents and members of his family had listened to a radio broadcast by the South Vietnamese government; and his parents and members of his family were members of a political party called the Democratic and Social Party. The applicant, however, had not previously claimed that his parents and members of his family were members of the Democratic and Social Party or of any other political party.[37] Second, the applicant informed the delegate that his parents’ farm had been confiscated whereas he told the previous Tribunal that the property of his parents that had been confiscated included ships, factories, land, and the family home.[38] Third, the applicant informed the Tribunal that there had in fact been two waves of confiscation, one in the mid-1950s during which one of the applicant’s uncles had been killed, and one in 2006. The applicant had not previously mentioned two waves of confiscation, or his uncle having been killed.[39] Fourth, the applicant gave different accounts of when and who informed him of the 2006 confiscation.[40] It is unnecessary to give further examples. From these alone it is apparent it was reasonably open to the Tribunal to find the applicant had expanded and embellished his claims so as to strengthen them. This part of the applicants’ submissions, therefore, discloses no jurisdictional error by the Tribunal.
[37] CB229, [27]
[38] CB229, [28]
[39] CB229, [28]
[40] CB230, [29]
Third, the applicant refers to the Tribunal’s finding at paragraph 22 of its reasons that the applicant gave what seemed to be intentionally long-winded, convoluted, or vague testimony. The applicant submits he tried to answer clearly, and the Tribunal’s finding is subjective. In the absence of a transcript of the hearing, it is not possible to assess whether it was reasonably open to the Tribunal to characterise the applicant’s testimony as it did. In any event, given the other findings the Tribunal made, it is difficult to see how this finding by itself could have been material to the Tribunal’s decision.
Fourth, the applicant refers to the Tribunal’s findings at paragraph 23 of its reasons that it did not appear that the applicant was nervous or anxious, but, on the contrary, the applicant testified “in what seemed a confident and composed manner”. The applicant submits the Tribunal’s observations were not realistic, and they were unfair and not objective.
I have set out above when considering ground 5 the substance of what the applicant’s representative had submitted to the Tribunal about the applicant’s medical condition at the time he appeared before the Tribunal. Given the applicant did not provide to the Tribunal any evidence about his medical condition, and given there is no evidence before me that could reasonably suggest that at the time of the hearing before the Tribunal the applicant suffered from any medical condition that prevented him from meaningfully participating in the hearing, I cannot be satisfied it was not reasonably open to the Tribunal to make the findings that it did about the applicant’s capacity to participate in the hearing.
Fifth, the applicant sets out material that repeats the substance of the claims for protection he made before the Tribunal.[41] That material by itself discloses no jurisdictional error by the Tribunal.
[41] Here, I am referring to that part of the submissions on page 2 beginning with “My family history, personal circumstances”, and ending with “for the people of Vietnam”.
Sixth, the applicant submits that he did not mention the confiscation of property in the mid 1950s because he focused on the most recent problems, because the agent did not ask about the incident in 1953-1956, and because the applicant “thought all the details were in my file”. That, too, does not disclose any jurisdictional error by the Tribunal, but is an attempt to invite the Court to make findings about why the applicant had not claimed earlier than he did that his family’s property had been confiscated in the mid 1950s.
Seventh, the applicant submits the Tribunal did not address a detail the applicant says he “provided several times”, namely “terrorism, beatings, arson, damage to my family’s property and pity on our bodies”; nor did the Tribunal address one of the details the applicant says he “provided many times”, these being that “in 1973-1974 during the Lunar Year . . . . reactionaries”. It is true the applicant’s representative provided submissions to the Tribunal that referred to country information about persecution in Vietnam.[42] As I have already noted, however, the Tribunal considered whether the applicant had a profile that would expose him to risk in Vietnam, but, for reasons that were open to it, it found the applicant did not have such a profile.
[42] CB213-215
Eighth, the applicant submits he did participate in the activities of the Vietnamese communities in Victoria, and opposed the suppression and fight for freedom, democracy and human rights in Vietnam. This only rehearses the claims the applicant made before the Tribunal which it did not accept. It does not disclose any jurisdictional error.
Ninth, the applicant gives an explanation about why before the previous Tribunal the applicant insisted that he attended the 30 April 2015 commemoration in Canberra on that day, rather than on the weekend closest to 30 April 2015. That does not disclose any jurisdictional error because it is an invitation for the Court to accept the applicant’s explanation.
Tenth, the applicant asserts that before the Tribunal he explained very clearly that he had not heard from his mother since 2004, and that it was only in 2008 that a neighbour informed the applicant of his mother’s death. The applicant submits that this must have been misinterpreted leading the Tribunal to find the applicant had been informed of the confiscation in 2008 in circumstances where the applicant had told the delegate that his parents had informed him of the confiscation in 2006, and before the previous Tribunal member the applicant said it was a neighbour who informed the applicant in 2006 of the confiscation.[43] The difficulty with this submission is that the applicant has not identified, let alone proven by evidence, the evidence he gave to the Tribunal in Vietnamese, and how what the applicant said was mistranslated.
[43] CB230, [29]
Eleventh, the applicant made statements about the applicant and his family being Catholics, and the difficulties he and his family faced because they were Catholics. These matters relate to the merits of the applicant’s claims for protection, and do not reveal any jurisdictional error.
Finally, the applicant makes statements about what he fears will happen to him if he returns to Vietnam. Again, these matters relate to the merits of the applicant’s claims for protection, and do not reveal any jurisdictional error.
Conclusion
There is nothing in the matters stated in the submissions filed on 12 September 2018 that discloses any jurisdictional error by the Tribunal.
The matters stated in application in a case
The matters stated in numbered paragraph 1 appear to be directed to the Tribunal’s reliance on s.5J(6) of the Act as reasons for ignoring what it accepted was the applicant’s participation in two or three rallies. The applicant appears to be submit it was not reasonably open to the Tribunal not to be satisfied that the applicant engaged in those events otherwise than for the purpose of strengthening his claim to be a refugee. The applicant submits that, having accepted he participated in two or three rallies, the Tribunal ought to have found that he did in fact oppose the Vietnamese communist government. This submission misunderstands the purpose and effect of s.5J(6) of the Act; it provides that conduct which is capable of supporting a claim for protection is to be ignored by the Tribunal if the Tribunal is not satisfied the conduct was not undertaken otherwise than for purpose of strengthening an applicant’s claims for protection. The question is whether it was reasonably open to the Tribunal not to be so satisfied; and I am satisfied it was reasonably open to the Tribunal, for the reasons it gave, not to accept that the applicant participated in the two or three rallies otherwise than for the purpose of improving his claims for protection.
The matters stated in numbered paragraph 2 of the application in a case appear to make three claims. One is that the Tribunal relied on the former Tribunal’s findings. For reasons I have already given, I do not accept that is the case. Second, the applicant seems to claim it was not open to the Tribunal to rely on evidence he had given before the previous Tribunal. I do not accept the claim, if the applicant intends to make it. It was reasonably open to the Tribunal, when assessing the credibility of the applicant’s claim, to inquire about statements the applicant had made about his claims on previous occasions; and, having found the applicant had previously made statements inconsistent with those he made to the Tribunal, it was reasonably open to the Tribunal to rely on those inconsistencies as a reason for not accepting the credibility of the applicant’s claims. Third, the applicant asserts that to the extent the Tribunal relied on matters that were before the previous Tribunal, these were inaccurate and complete. The applicant, however, does not say what was inaccurate or incomplete, or why he says such matters were inaccurate or incomplete.
The matter stated in numbered paragraph 3 is a request that the applicant’s case be moved to be “heard at the Court of Victoria”. This appears to be a reference to the matter being transferred to this Court’s Melbourne Registry. At the hearing before me, the applicant made it clear he was not applying for the matter to be transferred to the Court’s Melbourne Registry.
Finally, in paragraph 4 of the application in a case, the applicant refers to “a detailed statement explaining the problems in the results Reviewed” by the Tribunal. That appears to be intended to refer to the written submissions the applicant filed on 22 November 2018 because a copy of the grounds that are attached to the application in a case are also attached to the submissions filed on 22 November 2018.
Conclusion
There is nothing in the matters stated in the application in a case that discloses any jurisdictional error by the Tribunal.
Submissions filed on 22 November 2018
The opening part of the submissions down to the heading “The problem I did not apply to the Australian government for early protection” appear to be intended, in part, to expand on the matters` stated in the application in a case. They add nothing of substance to the matters I have already identified and, for that reason, disclose no jurisdictional error by the Tribunal. The balance of the submissions address the following matters.
First, under the heading “The problem I did not apply to the Australian government for early protection” the applicant repeats the reason he gave to the Tribunal why he did not apply for protection earlier than he did. For reasons I have already given, that does not disclose any jurisdictional error.
Second, under the heading “I have provided with delegates that”, the applicant asserts that when he “testified” on 29 November 2016 and 6 January 2017, the applicant’s representative did not mention the applicant “did not have the opportunity to re-supply”. The claim appears to be that the applicant’s representative failed to advise the applicant he could supply further information. Whether or not that is so, it discloses no jurisdictional error. It is not suggested the applicant’s representative engaged in any fraud; and in any event it does not identify what information the applicant would have supplied had he been informed he could supply further information. Also under the heading “I have provided with delegates that”, there are assertions about the applicant’s family’s treatment in Vietnam. These submissions go no further than asserting matters relevant to the applicant’s claims for protection.
Third, under the heading “I give the delegates that” the applicant asserts that when he was asked by the Tribunal member why he had not claimed earlier that his family’s property had been confiscated in the 1950s he said it was because he had not been asked. It is not apparent from the evidence before me that this is the explanation the applicant did give to the Tribunal.[44] And even if the applicant did give such explanation, I am not prepared to find on the material before me that the Tribunal did not consider it. Also under the same heading the applicant asserts matters that only relate to the merits of his claims for protection.
[44] CB231-232, [38]
Fourth, under the heading “Misrepresentation in providing details”, the applicant makes statements relating to what the applicant claims he told the Tribunal about the confiscation of his family’s property, asserting that there may have been an interpretation error. I have already observed there is no evidence on the basis of which I could find there was any interpretation error. Further, to the extent the applicant set out what he claims he said to the Tribunal, I do not accept those claims to the extent they are inconsistent with what the Tribunal recorded in its reasons the applicant said during the hearing before the Tribunal.
Fifth, under the heading “Misleading details about the April 30 event”, the applicant seeks to explain why he had incorrectly stated he attended the 30 April commemoration day in Canberra on 30 April 2015 (rather than on the weekend nearest to that date). The applicant appears to claim that this was due to health and morale not being good. The applicant also appears to claim the Tribunal ought to have listened to the audio recording. I have already concluded there is no evidence that suggests the applicant suffered from any medical condition that prevented him from participating meaningfully in the hearing; and the applicant has not explained why the Tribunal ought to have heard any audio recording.
Sixth, under the heading “I did not provide with the court: “20 years without contact with the family””, the applicant makes statements that appear to be directed to paragraph 48 of the Tribunal’s reasons. The Tribunal there refers to the applicant having stated to the delegate that his parents and his siblings had told the applicant that the authorities wanted him to return to Vietnam to be punished, yet the applicant having stated to the previous Tribunal that he had not spoken to his siblings in 20 years. The Tribunal also refers to its having put to the applicant this inconsistency in response to which the applicant said (as understood by the Tribunal) that he had not spoken to his siblings directly, but that it was his mother who had passed on to him information provided by his siblings. The applicant states the Tribunal, possibly through some misinterpretation error, misunderstood his evidence. I have already found there is no evidence on the basis on which I can find there was any interpretation error; and there is nothing in the Tribunal’s reasons to suggest it misunderstood the applicant’s evidence.
Seventh, under the heading “I am really afraid, if I have to return to Vietnam”, the applicant states why he is afraid of returning to Vietnam. That is an appeal to the merits of the applicant’s claims for protection.
Eighth, under the heading “In the conclusions of the Administrative Court of Appeal”, the applicant asserts matters that relate to the merits of his claims for protection, reasserts that he had given truthful information, and repeats the substance of matters that are asserted in the previous part of the submissions.
Conclusion
In my opinion, there is nothing in the submissions the applicant filed on 22 November 2018 that discloses any jurisdictional error by the Tribunal.
Conclusion and disposition
The applicant has not succeeded on any of the grounds or in any of the submissions he made. I propose, therefore, to order that the application be dismissed. I will consider the question of costs when I pronounce my order dismissing the application.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 3 April 2019
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