DTC18 v Minister for Home Affairs
[2019] FCCA 1130
•12 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DTC18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1130 |
| Catchwords: MIGRATION – Application for safe haven enterprise visa – fears of harm because of Roman Catholic faith without foundation – inconsistencies in first applicant’s account – application without merit – application dismissed. |
| Legislation: Migration Act 1958 (Cth) ss.5H, 36, 46A, 473CB, 476 |
| Cases cited: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 |
| First Applicant: | DTC18 |
| Second Applicant: | DTD18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 734 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 12 April 2019 |
| Date of Last Submission: | 12 April 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 12 April 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr D.V. Nguyen |
| Solicitors for the Applicants: | Australasia Law |
Solicitors for the Respondents: | Mr. Gardner of Minter Ellison |
IT IS ORDERED THAT:
The application for review filed on 19 July 2018 and as amended on 26 March 2019, be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 734 of 2018
| DTC18 |
First Applicant
DTD18
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicants are father and son. They are citizens of Vietnam who arrived in Australia on 13 July 2013 as unauthorised maritime arrivals. On 15 August 2014, the first applicant provided a statutory declaration in which he claimed to have fear of persecution and oppression in Vietnam at the hands of the police because of his Catholic faith, his status as an asylum seeker, and also as a result of previous dealings with Vietnamese police.
On 11 August 2016, the Minister exercised his discretion pursuant to s. 46A (2) of the Migration Act 1958 (Cth) (‘the Act’) to allow the applicants to make a valid application for a specified visa. On 27 April 2017, the applicants applied for a safe haven enterprise visa (SHEV). Despite initially indicating on his protection visa application that he was making his own claims for protection, on 8 June 2017, the second applicant clarified that he did not raise any individual claims for protection. On 8 June 2017, the first applicant also provided a further statutory declaration together with documents in support of his application.
The first applicant provided more detail relating to his claims of persecution by the police and the Vietnamese Communist Party on account of his Catholic faith, and as a result of his status as a failed asylum seeker. On 28 March 2018, a delegate of the Minister refused to grant the applicants a SHEV. On 4 April 2018, the delegate’s decision was referred by the Minister to the Immigration Assessment Authority (‘the Authority’) for review. On 15 June 2018, the Authority affirmed the delegate’s decision. On 19 July 2018, the applicants sought judicial review of the decision of the Authority pursuant to the provisions of s. 476 of the Act.
The ground for review is as set out on page 3 of the amended application as follows:
1. The Authority failed to consider a relevant consideration, being the best interests of the second applicant which it should have done in accordance with the International Convention on the Rights of the Child.
The Authority recorded at [3] of its reasons that it had had regard to the material provided by the Secretary pursuant to the provisions of section 473CB of the Act.
The first applicant’s claims for protection were set out in [5] of the reasons of the Authority as follows:
·He is a Catholic citizen of Vietnam. He attended only primary school.
·His wife and children are also Catholic. He has three sons, one of whom (the second applicant) travelled to Australia with him.
·He was persecuted by Vietnamese police at the direction of the Vietnamese regime because of his Catholic faith. The Vietnamese government discriminated against him by not allowing him to go to church or to have public meetings. They separated him from other Catholic people. The police would frequently interrupt church services to prevent him and other members of the congregation practising their faith.
·In June 2012, he was arrested and falsely accused of involvement in gambling. He was taken to the police station where he was beaten. He was released at the end of the day. His family complained or tried to make a formal complaint about his treatment without success.
·On two occasions in April and May 2013, police prevented him from attending churches.
·In around June 2013, he encountered and confronted a police officer who had beaten him while he was held at the police station in June 2012. There was an altercation in which he hit the police officer and / or the police officer hit him and / or the police officer threatened to arrest him.
·He decided to leave Vietnam.
·He has heard that since his departure, the authorities have visited his wife, looking for him. They also questioned his grandmother approximately twice a month about his whereabouts.
·He fears he will be persecuted by Vietnamese authorities because of his Catholic faith and religious activities if he returns to Vietnam.
·Vietnamese authorities may also arrest and imprison him on his return to Vietnam because he sought asylum in Australia. They will see him as unpatriotic and will believe he has betrayed Vietnam.
·The Department briefly made his personal details available on line. The Vietnamese authorities now know he escaped from Vietnam and will interrogate him on his return.
·He left the country without papers. He is on the Vietnamese Government’s black list of people who have been arrested and he will be arrested at the airport and imprisoned on his return to Vietnam.
·His Catholic faith and the fact that he left Vietnam without alerting authorities will increase the severity of his detention on his return. Authorities will become aware of his past interactions with police and his past problems related to his Catholic faith. The authorities may arrest, beat, and torture him. They may kill him or harass his wife and children. He will be treated differently if imprisoned because of his Catholic faith.
·If he were to speak up about what happened to him, or what happens to Catholic people, in Vietnam, he will be seen as being opposed to the Vietnamese government.
·His whole family will be at risk if he returns. His wife will be arrested and beaten because she has been lying about his whereabouts.
·If they return, authorities will see that his son, the second applicant, has been in Australia and will think he is against the Vietnamese Government. They will not allow his son to study as punishment. They will also target his son because of his religion. They may beat or punish him because of his faith and the fact that he has received a Catholic education in Australia.
·His son will be looked down on by other people and considered a traitor because he left Vietnam and has been living in Australia. He will be prevented from attending school in Vietnam because he attended school in Australia. His son may suffer from a mental illness such as depression in future as a result of this treatment.
·There is nowhere he and his son could be safe in Vietnam because they would be persecuted for their faith wherever they went. He will be tracked down because his name is on the Vietnamese Government’s blacklist.
The Authority, when considering the first applicant’s claims for protection, gave detailed consideration to the evidence, but found very significant differences between the first applicant’s various accounts of events provided over the life of his application ([10] – [11] of Authority reasons).
At [13], [25], [27], [30], [35] and [38] of its reasons, the Authority questioned the reliability of the first applicant’s assertions because of inconsistencies. It did not find the first applicant’s explanations as to those inconsistencies convincing ([27] of Authority reasons).
The Authority at [27] there found that it did not accept that the first applicant had been detained and beaten by the police in June 2012 or at any other time. It did not accept that the first applicant was involved in any confrontations with police officers related to any June 2012 incident, or that the first applicant was of any interest to the Vietnamese police or any other Vietnamese authorities for any reason. At [38] of its reasons, the Authority, after having addressed the question of the applicant’s Catholic religion in [28] – [37] of its reasons, found that there were very significant differences between the applicant’s various statements regarding his experiences related to his faith in Vietnam and his reasons for leaving Vietnam.
The Authority relied upon country information ([37] of Authority reasons) which indicated that Roman Catholics constituted seven per cent of Vietnam’s total population, and that according to DFAT reports, Catholics in Vietnam were able to practice freely at registered churches. The Authority found that the first applicant did not experience any form of harm related to his Catholic faith from any Vietnamese authority or any other group or person within Vietnam. It did not accept the general proposition that the Vietnamese Government did not tolerate Catholicism, or that it tried to prevent Catholicism being practised throughout Vietnam.
At [39] of its reasons, the Authority did not accept that the applicant was, or was perceived to be, a religious activist in Vietnam, or that he or the second applicant were of any adverse interest to Vietnamese authorities for any reason related to their Catholic faith so as to result in them suffering harm if they were returned to Vietnam. As to the applicant’s claim that he would be put on a black list of people and arrested on his return to Vietnam because he had left the country “without papers”, the Authority found that there was no independent evidence before it suggesting that such would occur.
It found, however, that even if that was to occur, and a black list of such people was compiled, in the light of its findings that the applicant had never been arrested by Vietnamese police, and was not of any adverse interest to Vietnamese authorities at the time he left Vietnam, no harm would come to the first applicant thereby. It did not accept that the first applicant’s name would be included on any blacklist maintained by Vietnamese authorities, or that he would be arrested and imprisoned at the airport on arrival back into the country on such basis.
The Authority did not accept that Vietnamese authorities had visited any members of the applicant’s family looking for the first applicant or the second applicant, or that they had been seeking information about them. The Authority did not accept that the applicant would be arrested upon his return to Vietnam. It accepted that the first applicant may be required to pay a fine, or may be briefly detained and interviewed by Vietnamese authorities upon his return to Vietnam, and that such detention might be in harsh conditions, but it was not satisfied that that would amount to serious harm [54-56 inclusive of Authority reasons].
The Authority was not satisfied that the applicants would face a real chance of any harm then, or in the foreseeable future, on account of their Catholic faith, or their status as failed asylum seekers. It found that the applicants did not meet the definition of refugee as set out in section 5H(1) of the Act, or pursuant to the provisions of section 36(2)(a) of the Act. For the same reasons, the Authority found that the applicants did not satisfy the complementary protection criteria pursuant to the provisions of section 36(2)(aa) of the Act.
As to the question of the consideration by the Authority of what was in the best interests of the second applicant, having regard to the provisions of the International Convention on the Rights of the Child, the applicants relied upon Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 per Mason CJ and Deane J at [26-28] where it was said:
It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute (32). This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive (33). So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. In this case, it is common ground that the provisions of the Convention have not been incorporated in this way. It is not suggested that the declaration made pursuant to s 47(1) of the Human Rights and Equal Opportunity Commission Act has this effect.
But the fact that the Convention has not been incorporated into
Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party (34), at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law.
It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law (35). The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations (36).
Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law (37). But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law.
However, it is well established that the principle in Teoh arises only in a discretionary decision-making context. Making a decision to grant or refuse a protection visa is not the exercise of a discretionary power such that the principle in Teoh has no application. [1] Further, the Authority was not required to deal with claims that were not specifically articulated, or which did not clearly arise from the materials before it. [2]
[1] See SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 at [29] per Griffiths J
and SZBPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 568 at [17]-[18] per Hely J.
[2] See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004]
FCAFC 264 at [58]-[61] per Black CJ, French and Selway JJ.
The Authority did not otherwise fail to make an obvious inquiry about any critical fact. Such concepts were considered in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25]-[27] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ where it was said:
“[25]. Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
It cannot be said that no other rational or logical decision-maker could not have made the same decision as the Authority in this case. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] 204 CLR 611 at [130]:
“130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”
Neither could the decision be considered as legally unreasonable or one lacking an evident and intelligible justification as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to established jurisdictional error on the part of the authority.
The application is without merit and is dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Egan
Date: 10 May 2019
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