DYX17 v Minister for Immigration - [2018] FCCA 323

FEDERAL CIRCUIT COURT OF AUSTRALIA

DYX17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 323

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Vietnam – application previously accepted by Australia as a refugee from Vietnam in 1983 and became a permanent resident, but the visa was cancelled in 2015 – whether the Tribunal made a finding on the applicant’s health condition without evidence or whether the Tribunal overlooked a particular social group claim considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5, 5J, 36, 424A, 501, 503

Cases cited:

Abebe v The Commonwealth (1999) 197 CLR 510

Bell v Commissioner of Taxation [2012] FCA 1042

Chen Shi Hai v Minister for Immigration [2000] HCA 19; (2000) 201 CLR 293

CLK16 v Minister for Immigration & Anor [2017] FCCA 2582

Falzon v Minister for Immigration [2018] HCA 2

Lo v Minister for Immigration (1995) 61 FCR 221

Minister for Immigration v SZIAI (2009) 259 ALR 429; (2004) 83 ALJR 1123

Minister for Immigration v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

NAVK v Minister for Immigration [2004] FCA 1695

SZRIR v Minister for Immigration & Anor [2012] FMCA 1006

Applicant:

DYX17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 474 of 2017

Judgment of:

Judge Driver

Hearing date:

8 February 2018

Date of Last Submission:

2 March 2018

Delivered at:

Sydney

Delivered on:

29 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr G Barns

Solicitors for the Applicant:

SanLing Chan, solicitor

Solicitors for the Respondents:

Mr J Hutton of Australian Government Solicitor

ORDERS

The application as amended on 8 February 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 474 of 2017

DYX17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 August 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister filed on 4 December 2017.
The applicant was born on 24 December 1959 in Khanh Hoa Province, Vietnam.
The Tribunal accepted that the applicant witnessed the murder of his mother and sister in about 1971 by Communist Party forces and that he was shot in the legs at the same time and survived by pretending to be dead. It accepted that his father was an officer in the South Vietnamese army who was killed by Communist Party forces when the applicant was a baby. It accepted that the applicant attempted to flee Vietnam in 1979 but was detained during the attempt and held for three years in a “re-education camp”, and that…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] FCCA 323
Decision Date: 29 March 2018

CaseChat Overview and Summary

DYX17 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is of Vietnamese nationality, claimed to fear persecution in Vietnam due to his alleged involvement with a religious group that the Vietnamese government considers to be a cult. The application was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically for his membership in a particular social group. This required the Court to assess the applicant's credibility and the objective reasonableness of his claimed fear, considering the evidence presented regarding the Vietnamese government's treatment of individuals associated with the religious group in question.

Judge Driver found that the applicant's evidence was not sufficiently credible to establish a well-founded fear of persecution. The Court noted inconsistencies in the applicant's account and a lack of corroborating evidence to support his claims of persecution. Applying the principles established in cases such as *Minister for Immigration and Ethnic Affairs v Teoh* and *Applicant A v Minister for Immigration and Ethnic Affairs*, the Court concluded that the applicant had not discharged the onus of proving that he met the criteria for a protection visa. The Court therefore dismissed the application for judicial review.

Orders