DWQ16 v Minister for Immigration

[2018] FCCA 602

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWQ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 602

Catchwords:
MIGRATION – Application for Protection (class XD) visa – whether the Administrative Appeals Tribunal failed comply with s 424Ao the Migration Act 1958 (Cth) – meaning of information- information referred to in a Delegate’s decision is information given by the applicant for the purpose of the where the applicant provides a copy of that Delegates decision to the Tribunal.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424A(3)(b) & 424A(3)(ba)

Federal Circuit Court Rules 2001 (Cth) r.44.2

Cases cited:

AYZ15 v Minister for Immigration & Border Protection [2017] FCA 77

Minister for Immigration & Citizenship v Brar (2012) 201 FCR 240

Minister for Immigration & Citizenshipv Chamnam You [2008] FCA 241

SZBYR v Minister Immigration & Citizenship (2007) 81 ALJR 1190

Applicant: DWQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2735 of 2016

Judgment of: Judge McNab

Hearing date: 16 February 2018

Date of Last Submission: 16 February 2018

Delivered at: Melbourne

Delivered on: 15 March 2018

REPRESENTATION

Counsel for the Applicant: Ms Costello

Solicitors for the Applicant: Luat Lawyers

Counsel for the Respondents: Mr McDermott

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The amended application filed on 4 December 2017 be dismissed.

2. The applicant pay the respondent’s costs including the costs the subject of order 6 of the order of 16 November 2017 fixed in the sum of $7328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2735 of 2016

DWQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 16 November 2017 the Court ordered inter alia that a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 be dispensed with and granted leave to the applicant to file an amended application.

2. The amended application filed on 4 December 2017 contains one ground which provides:

   1.The Tribunal breached s424A of the Migration Act 1958 (Cth) by failing to give “information” within the meaning of s.424A to the applicant in the prescribed way.

   Particulars

   (a)The first piece of information – that the applicant indicated he had gone back to his home area after he attacked the policeman – was:

   i.      at relevant times, including during the Tribunal’s hearing, information that would be a reason or part of the reason for affirming the decision under review;

   ii.     information that was provided orally by the application to the department during his protection visa interview and accordingly, the information was not excluded by s.424A(3): see s.424A(3)(ba).

   (b)The second piece of information – that the police did not question his mother or siblings in the aftermath of the police incident – was:

   i.at relevant times, including during the Tribunal’s hearing, information that would be a reason or part of the reason for affirming the decision under review; and

   ii.information that was provided orally by the application to the department during his protection visa interview and accordingly, the information was not excluded by s424A(3): see s.424A(3)(ba).

Background

1. The factual background is set out in paragraphs [2]–[5] of the submissions filed by the first respondent dated 1 November 2017.

   
   

   They are reproduced below (court book references omitted):

   The applicant is a male citizen of Vietnam who arrived in Australia as an unauthorised maritime arrival on 19 May 2013. He participated in an entry interview on 5 June 2013 and lodged a Protection visa application on 10 June 2014. The applicant appointed a migration agent to represent him and outlined his written claims for protection in a statement provided with his PVA.

   The applicant claimed to fear harm from the Vietnamese authorities on the basis of an incident which occurred with a police officer on 7 July 2012. The applicant claimed he was travelling with a group to participate in a protest after the church of Con Cuong was attacked by the military. They were stopped by four policemen who took his driver’s license and made the applicant sit on the ground in a group. Four people were taken to the police station and the police called for more vehicles to come and take them away. The applicant explained to the police where they were going. When the police started abusing and beating them with batons, the applicant picked up a rock on the ground and hit a policeman on the head to defend himself. The policeman started bleeding in his head and fell unconscious. The applicant and another “brother” then ran away and went into hiding.

   The applicant claimed the policeman regularly came to his house looking for him and threatened his wife. He feared that if he stayed in Vietnam he would be arrested, so he made arrangements to depart Vietnam. Since leaving Vietnam, the applicant claimed his wife had told him that people were still searching for him and the four people taken away by the police were charged with fighting against public servants and disturbing the peace of the society.

   The applicant also claimed to fear harm as a Catholic, a failed asylum seeker, a person named in the data breach and because Vietnamese officials had visited the immigration detention centre at Yongah Hill.

2. On 14 October 2014 the applicant attended an interview with a delegate of the first respondent. On 29 October 2014 the applicant’s representative provided post-interview submissions providing further details of the applicant’s claims to fear harm in Vietnam. By a decision dated 16 January 2014, the delegate found that the applicant’s claims relating to his involvement in the incident with the police on 7 July 2012 lacked credibility. The delegate stated:

   I do not accept that the applicant was stopped by the police while going to join a protest at the Cuong Church on 7 July 2012 or any matter relating to this event including his involvement in an assault on a police officer, going into hiding, and the Vietnamese authorities pursuit of him.

3. The delegate also found that the applicant would not face harm because of his Catholic religion, as a failed asylum seeker or due to the data breach.

4. The amended application claims that the Tribunal in refusing to grant the applicant a Protection (class XD) visa on 22 November 2016, failed to give “information” within the meaning of s.424A to the applicant in the prescribed way. It is said that there are two pieces of information that the Tribunal did not give to the applicant in the prescribed way, these being:

   a)information that the applicant indicated he had gone back to his home area after he attacked the policeman. It was said that information was information that would be a reasonable part of the reason for affirming the decision under review and it was information that was provided orally by the applicant to the Department during his Protection visa interview and accordingly the information was not excluded by s.424A (3);

   b)

   information that the police did not question the applicant’s mother or siblings in the aftermath of the police incident. It was said that this information was also information that was provided orally by the applicant to the Department during his protection visa interview and was used by the Tribunal in its decision.

   
   

   The applicant contended that in written submissions that the inclusion of the a description of the second piece of information in the delegate’s decision did not mean that the Applicant gave the information to the Tribunal for the purposes of review and therefore this information was not subject to the carve out under s.424A(3)(ba).

5. It was put that both pieces of information were used by the Tribunal in affirming the decision under review and were reasons for a decision adverse to the applicant.

6. The first respondent referred to the carve out provisions under s.424A(3) of the Act which provide that the obligation under s.424A(1) has no application to information that:

   a)the review applicant gave for the purpose of the application for review;[1] or

   b)the review applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the review applicant to the Minister’s Department.[2]

   [1] s.424A(3)(b) of the Act

   [2] s.424A(3)(ba)

7. Counsel for the first respondent also referred to authorities that provided that “information” that is contained in the Delegates decision, a copy which is subsequently provided to the Tribunal by a review applicant, will directly engage the carve out in s.424A(3)(b) of the Act, such that s.424A(1) of the Act then has no application.[3]

   [3] Minister for Immigration & Citizenshipv Chamnam You [2008] FCA 241 at [26] (per Sundberg J); Minister for Immigration & Citizenship v Brar (2012) 201 FCR 240, 259 [74] (per the Court); AYZ15 v Minister for Immigration & Border Protection [2017] FCA 77 at [40] – [42]

8. The first respondent contended that the first information was not “information” for the purposes of s.424A(1) of the Act, because, in its terms, it was not of dispositive relevance to the applicant’s protection claims and did not constitute a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owes protection obligations under the Act. It was said that by itself the information did not damage the applicant’s case and it was only when considered against the applicant’s answers given before the Tribunal that the inconsistency arose. Reference was made to authority for the proposition that in order for the obligation under s.424A(1) of the Act to be potentially enlivened, it is necessary to identify in advance – and independently of the Tribunal’s reasoning – whether the “information” would be the reason, or part of the reason, for affirming the decision under review.[4]

   [4] SZBYR v Minister Immigration & Citizenship (2007) 81 ALJR 1190, 1195 [13]

9. In the alternative the respondent submits that the first information was subject to two carve outs in s.424A(3) of the Act as it was apparent that the applicant gave the information during the process that led to the decision that was under review through the lodgement of his statement in support of his Protection visa application, and the information contained in the applicant’s statement was information that the review applicant gave during the process that led to the decision that was under review.[5]

   [5] s.424A(3)(b)(a)

10. Further, it was submitted that the information contained the applicant’s statement was replicated in identical terms in the Delegate’s decision. Therefore the information was information that the review applicant gave for the purposes of the application for review.[6] The Minister contended that the carve out in s.424A(3)(b) of the Act was engaged because the applicant gave this information to the Tribunal by providing a copy of the Delegate’s decision as part of the application for review, and then having regard to the authorities identified above, this was information that the review applicant gave for the purpose of the application for review.

    [6] s.424A(3)(b)

Consideration

1. Section 424A(1) and (3) relevantly provide:

   (1)    Subject to subsections (2A) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)invite the applicant to comment on or respond to it.

   (2)    The information and invitation must be given to the applicant:

   (3)    This section does not apply to information:

   (b)that the applicant gave for the purpose of the application for review; or

   (ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department;

2. Counsel for the applicant frankly raised at the commencement of her oral submissions before the Court that she had not been aware of the authorities referred to at paragraph [7] above, when the amended application and written submissions were filed on behalf of the applicant in support of the amended application. It was conceded by counsel that that the inclusion of a description of the second piece of information in the Delegate’s decision which the applicant provided to the Tribunal meant the applicant gave the information for the purposes of the review. This was a concession that was properly made at an early stage of the hearing.

3. In respect of the first piece of information I accept that the Applicant gave this information during the process that led to the decision that is under review by lodging his statement in support of his protection visa application. The Tribunal made reference to that statement at [60], [62], [64] and was referred to in the transcript of the hearing before the Tribunal on 15 September 2016.[7] The information contained in the applicant’s statements was set out in identical terms in the Delegate’s decision which was also provided to the Tribunal by the application during the process that led to the decision under review. Consequently the carve outs in ss.424A(3)(b) and 424A(ba) apply to the first information.

   [7] at p27, lines 3-5

4. Similarly the second information, was given to the Tribunal by the Applicant as part of the review process when the applicant provided a copy of the Delegate’s decision and for the same reasons as set out in [12] above, the carve out under s.424A(3)(b) is engaged. Therefore s.424A(1) does not apply to either piece of information and there has been no jurisdictional error of the kind raised by the amended application.

5. In view of the authorities referred to by the Minister, the applicant’s ground for review must fail. Accordingly, the Court orders that the amended application filed on 4 December 2017 be dismissed, with the applicant to pay the respondent’s costs including the costs the subject of order 6 of the order 16 November 2017.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 15 March 2018