DTQ17 v Minister for Immigration

[2018] FCCA 1167

FEDERAL CIRCUIT COURT OF AUSTRALIA

DTQ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1167

Catchwords:
MIGRATION – Refusal of protection visa – credibility findings – where the applicant withheld information from authorities at entry interview – where the applicant claims the Tribunal failed to consider Refugees Convention and that he was a member of a particular social group and held a political opinion or an imputed political opinion of a person hostile to the government – extension of time – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Minister for Immigration and Citizenship vSZMDS (2010) 240 CLR 611

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
AQV16 v Minister for Immigration [2017] FCCA 904
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1

Applicant: DTQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 26 of 2017

Judgment of: Judge Young

Hearing date: 27 April 2018

Date of Last Submission: 27 April 2018

Delivered at: Darwin

Delivered on: 1 May 2018

REPRESENTATION

Counsel for the Applicant: Mr Nottle

Counsel for the Respondent: Ms Griffin

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed 22 August 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 26 of 2017

DTQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex – Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the AAT, made on 15 June 2017, affirming a decision of a delegate of the Minister to refuse a protection visa.  The applicant also sought an extension of time within which to bring his application which was made 31 days late.  The applicant’s counsel made an oral application to amend the grounds of review at the commencement of the hearing.  The grounds, as amended, were:

   1)The Tribunal’s assessment of the applicant’s credibility was unreasonable.

   2)The Tribunal failed to properly address all five convention grounds set out in the Refugees Convention.

3. By way of background, the applicant arrived in Australia on 19 May 2013 by boat.  He is a citizen of Vietnam.  The applicant was interviewed on 31 May 2013 and again on 5 June 2013.  It is unclear how long those interviews took due to some inconsistent times in the document but from my perusal of the documents in the court book it appears that the first interview, at least, took from about 4.33 pm to 5.38 pm and the duration of the second interview is unclear.  Each interview was conducted with a Vietnamese interpreter.

4. Certain information was given to the applicant during those interviews.  The information said that the applicant was expected to answer questions truthfully and that if he said different things in a later interview it could raise doubts about the reliability of what he said.  It said that his privacy would be protected and information would not be given to his home country unless it was determined he had no lawful basis to be in the country in which case information might be provided where disclosure was necessary for the person’s removal from Australia.  The applicant acknowledged that this information had been interpreted to him and that he had understood it.

5. In the applicant’s entry interview or interviews – I am uncertain whether the singular or the plural is correct there because certainly interviews took place on two separate occasions but there appears to be some reference in the documents to suggest that it was considered to be one entry interview held in two parts over two days. In any event, in his interview the applicant said that the reason he left Vietnam was because of the expropriation of “our” land for a tourist development. He said the compensation was inadequate. He said the police oppressed the people and took the land. He said that the police destroyed the house of one of the owners. This happened in 2008. He said that it continued until 2012. He said the people whose land had been taken by the government made complaints to the media and many people went to the capital, Hanoi, to lodge a complaint but these actions were useless.

6. He was asked if something happened to make him leave in 2013 and he said the government threatened everyone that “if anyone didn’t obey, they might be arrested or tortured.”  Asked what he thought would happen, he said the police will assault and “beat us up”.  The applicant was also asked in his entry interview about his previous address history.  He said that from 1972 – that is, the year of his birth – to 9 May 2013 he lived at an address recorded as Hamlet 9, Tan Vinh Town, Can Loc District, Ha Tinh Province.  He said he was employed in an abattoir.

7. In the applicant’s statement in support of his protection visa application he referred to the government’s attempts to acquire his land without, or with minimal, compensation.  However, he also said that on 20 February 2012 the government sent police and thugs to forcibly take his land.  He said that he and other villagers resisted but they were outnumbered.  He said he was forced to flee and went into hiding in a neighbouring province, Nghe An.  He said that he was summoned to attend the police station in March 2012 for his failure to obey the police.  He said he ran away and did not attend.  He said later, in October 2012, the families affected by the land acquisition were summoned by the police but he did not go because he feared arrest.  He said that while in Australia he learned that one of his neighbours whose land was forcibly taken was beaten up by the authorities and died of his injuries.  The applicant said he was perceived as anti-regime and feared persecution by the Vietnamese government.

8. The Tribunal noted that at the applicant’s entry interview he did not mention some significant aspects of his later claim. He did not mention the violent confrontation, the police and thugs, fleeing to the neighbouring province or the arrest warrant or summons from the police. The Tribunal raised these matters with the applicant during the hearing. The applicant asserted that he had told the interviewing officer that he fled to Nghe An. The Tribunal listened to the tape of the applicant’s entry interview and, at paragraph 29 of the Tribunal decision, recorded that it did not accept the applicant’s claim about that matter.

9. The applicant also told the Tribunal that he did not tell the whole truth when he entered Australia because he feared he would be returned to Vietnam and that he may not have understood some of the questions asked in the entry interview.  The Tribunal rejected the latter claim on the basis, as I mentioned, that it had listened to the tape and the questions relating to his address and employment history were clear, as were his answers, in the view of the Tribunal.  The Tribunal raised these matters again, after the hearing, and sought a further submission from the applicant. 

10. In that submission the applicant’s agent said the information given at the hearing was true. That is, the hearing before the Tribunal. The submission said also that the applicant did not disclose the full extent of his issues with the Vietnamese authorities at the entry interview because he believed it was a preliminary interview and he would be provided with a further opportunity to provide his claims in more detail at a later stage.

11. At paragraph 43 of its reasons the Tribunal refers to the “changing nature” of the applicant’s explanation for his failure to raise the issues at the entry interview and later put forward in his protection visa application. This led the Tribunal to find the applicant was not credible. There is little doubt that the applicant raised different claims in his protection visa application to those raised in the entry interview. Some matters, such as his address and residence, were inconsistent between the two. In the entry interview, he referred to his residence at Hamlet 9, in Ha Tinh Province. His protection visa claim referred to living in the neighbouring province of Nghe An from 2012. These matters required explanation.

12. The applicant argued that the two explanations offered, that is, worry that he would be returned to Vietnam and a belief in a later opportunity to put forward his claims, were not inconsistent and it was unreasonable and not a proper basis for an adverse credibility finding for the Tribunal to find they were. 

13. There are two observations to be made about that submission.  First, it does not address the “changing nature” criticism made by the Tribunal.  At the Tribunal hearing the applicant said his fear of returning to Vietnam was the reason for not telling the whole truth.  In his post-hearing submission he provided an additional reason:  belief that the entry interview was merely a preliminary interview. Secondly, the two explanations, while perhaps not logically inconsistent, sit uncomfortably together, in my view.  If there was a reluctance to tell the truth because of the fear of return to Vietnam, how is that consistent with a later willingness to tell the truth?  That is not explained.  It is correct that a credibility finding may be affected by unreasonableness, and both parties referred to SZMDS (2010) 240 CLR 611, a decision of the High Court, and a decision of the Full Court of the Federal Court in CQG15 v Minister [2016] FCAFC 146.

14. The effect of those decisions is that the test for administrative irrationality or unreasonableness in administrative decision making is that there were not different but reasonable views open but only one conclusion and that was not the conclusion reached by the decision maker. As counsel for the applicant pointed out, the test is referred to in an earlier decision of mine in AQV16 v Minister [2017] FCCA 904, where I said:

    “Whether a conclusion that the applicant was untruthful was the only conclusion available on all the material might be doubted.  It appears to me that it might rationally be open to reach another conclusion consistently with what the High Court said in Minister v SZMDS.  But, if the test is whether or not the conclusion of the Tribunal was open to it, that is, was there a logical and probative basis for its conclusion, I am satisfied that the conclusion was open to it, and that the conclusion or the decision was not, therefore, irrational or illogical.”

15. I am satisfied that ground 1 is not made out.

Ground 2

1. The applicant’s counsel said that the Tribunal failed to consider other Convention grounds “clearly raised” by the applicant, relying on the decision of the Full Court of the Federal Court in NABE v Minister (No 2) (2004) 144 FCR 1 at paragraph [61]. Counsel for the applicant said the grounds “clearly raised” were:

   1)The applicant was a member of a particular social group, being villagers who protested against the expropriation of their land.

   2)The applicant held a political opinion or an imputed political opinion of a person hostile to the government as a result of expropriation of his land.

2. Counsel for the applicant pointed out that the delegate dealt with both points.  In relation to the first, the delegate was not satisfied that the applicant was a member of a particular social group and, in relation to the second, the delegate did not accept these claims on the basis of its doubts about the applicant’s credibility.  It was not in contest that the Tribunal failed to identify or address these grounds although counsel for the Minister did point out that the only mention in the applicant’s materials of a particular social group, identified in the applicant’s submissions, was as a returned or potentially returned asylum seeker.

3. Counsel for the Minister submitted that the Tribunal was not required to expressly deal with these claims as the rejection of the claims was subsumed in its wider finding rejecting the applicant’s claims in relation to each of these matters because the Tribunal did not accept that the applicant’s factual claims were true.  See paragraph 45 of the Tribunal’s reasons.  I accept that submission. 

4. It is clear that the Tribunal did not accept the applicant’s claims, beyond those raised in the entry interview, and did not accept that he was pressured over his land, that police and thugs forcibly seized the land, that there was a violent confrontation, that he fled to a neighbouring province or that he or his neighbours were summonsed by the police. The Tribunal did not accept the applicant’s claim that he learned after his arrival in Australia that a neighbour had been beaten to death by police. I accept that the rejection of these claims made it unnecessary to consider any claims founded upon membership of a particular social group, or a political or imputed political opinion.  Ground 2 is not made out.

5. The applicant sought an extension of time. The application was made, as I have mentioned, 31 days out of time. The applicant had difficulty obtaining legal advice and that was of a limited nature. Mr Nottle appeared, as I understand it, on a pro-bono basis for which the court expresses its appreciation. The Minister has not pointed to any prejudice. I’m satisfied that it is necessary in the interests of the administration of justice that time be extended but otherwise the application is dismissed.

6. Costs are, of course, discretionary, but the discretion must be exercised according to principle.  The respondent has been entirely successful and is entitled to his costs.  The impecuniosity of an unsuccessful party is not a proper basis for refraining from making the costs order so I will make an order in the amount of $7,328.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  9 May 2018