DZADN v Minister for Immigration - [2012] FMCA 1009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZADN v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1009

MIGRATION – Review of decision of Independent Merits Reviewer – whether jurisdictional error.

Migration Act 1958 (Cth), s.5
1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol Relating to the Status of Refugees

Applicant:

DZADN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 31 of 2012

Judgment of:

Raphael FM

Hearing date:

19 October 2012

Date of Last Submission:

19 October 2012

Delivered at:

Darwin

Delivered on:

19 October 2012

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr T Liveris

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNG 31 of 2012

DZADN

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Vietnam who arrived at Christmas Island on 22 June 2010 as an offshore entry person as defined by s.5 of the Migration Act 1958 (Cth)[1]. On 28 January 2011 he made a request for a refugee status assessment and, when that assessment was negative, he applied for an independent merits review. The applicant was interviewed by the Reviewer in the presence of his agent and on 30 June 2011 the Reviewer reported to the Minister that he recommended that the claimant not be recognised as a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol Relating to the Status of Refugees.
[1] “Act”
The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations was the convention one of religion. The applicant claimed that he was a Roman Catholic who had become involved in a protest in 2008 in Hanoi over plans by the government to confiscate the Thai Ha Church in Hanoi. The applicant claimed that he was one of 6,000 protestors who stood against the acquisition of the church lands and during the course of the demonstration the police used pepper spray and began beating the crowd with batons. He was beaten and arrested and kept in prison for four months. Eventually, he was released after representations made by the church. The applicant told that in mid 2009 he decided to leave his village to get away from the police who were continually harassing him. He went to Saigon for a while and then to Hanoi and during that time he believed that the government had organised gangster type people to threaten and beat him up. The applicant told that his parents decided that the only way he could be safe was to leave the country which is why they made arrangements for him to travel by boat to Australia.
This claim made by the applicant is contained in a written document commencing at [CB 120] in its translated form. There is also a statutory declaration in similar terms found at [CB 34]. But this was not the first story that the applicant had told. At his entry interview he informed the interviewer that the reason he had come to Australia is that his family was in debt and he wanted to help his parents. He had heard that he could get a job in Australia. He said:
“Previously, I heard that once I got to Australia if I got refugee status after a while I could go out and take up jobs.”
The Reviewer asked the applicant whether there was anything else that the applicant would like to tell him that he had not been asked about. The applicant then said:
“My parents wanted [me to go to] Taiwan, but we heard these days jobs are not easy to find in Taiwan, so I was not allowed to go to Taiwan. After that Taiwan thing, I stayed home and asked my parents if there was anything else I can go. When this Australia thing came up, they said that travelling by boat was quick and cheap so they let me go.”
During the course of the interview with the Reviewer he was asked why he had changed his story so dramatically. He indicated to the Reviewer that he feared the Australian authorities because of his fear of the Vietnamese authorities and, therefore, had not told the full story at the entry interview.
[34]I indicated in later interviews he claimed he feared the Australian authorities because of his fear of Vietnamese authorities. However, I had a concern with this explanation as he had spoken positively about Australia at the first interview and showed that he thought if he could get refugee status he could learn English and get a job. I pointed out his answers showed he knew the basic process for staying in Australia, which also suggested he did not fear the Australian authorities. [CB 136]
The Reviewer questioned the applicant about his Catholicism and came to the conclusion that, in all probability, that was the applicant’s religion.
“[67]However, the claimant’s story about his attendance at the Thai Ha Church prayer vigil and demonstration in August 2008, his detention without charge for four months, and the subsequent events that he claimed flowed from these occurrences cause me serious concern. This is because he did not mention them at all in his interview on 26 June 2010.”[CB 147]
The Reviewer in his Findings and Reasons particularly between [67 - 73] gave comprehensive reasons why he could not accept the applicant’s claims of persecution arising out of his presence at the Thai Ha Church prayer vigil.
“[74]In sum, he was open about his Catholicism. However, he made no claims at all about a violent confrontation at the Thai Ha Church, a beating, imprisonment for four months, or being detained, questioned and beaten regularly by police and thugs. He expressed no fears at all about returning to Vietnam for reasons of his religion or otherwise. I reject the explanations put forward to explain this. The later claims are not just a matter of not being asked a certain question, or vagueness or inconsistencies in telling peripheral details or of providing additional details and explanation. I conclude the claimant has fabricated these later claims in order to seek Australia’s protection and I reject them.” [CB 148]
Notwithstanding the Reviewer’s conclusions about the applicant’s credibility, he went on to consider whether or not the applicant might be a person to whom Australia owed protection obligations arising out of his accepted Catholic religion and the fact that he had come to this country claiming to be a refugee. The Reviewer, utilising country information which had previously been discussed with the applicant, concluded that he had been free to attend church and exercise his religion. He had made no claims that he was prevented from attending church and he did not accept that his minority religion meant that in Vietnam in the reasonably foreseeable future he would face a real chance of serious harm.
The Reviewer considered the applicant’s impoverished circumstances in Vietnam but concluded that they did not amount to persecution for a Convention reason and accepted that it was possible that the story he told about his parents’ business being obstructed whilst he was a child may have been true, but did not find that the family was unable to earn a livelihood as a result and the reviewer found that merely seeking asylum would not cause him to face harm on his return to Vietnam. To the extent that the applicant might be detained or questioned upon return the Reviewer concluded that this was the enforcement of a law of general application dealing with the applicant departing from Vietnam illegally.
On 28 May 2012 the applicant filed an application of review of that decision with this court. His grounds of application were simply:
“Not satisfied with the outcome of IMR.”
Those grounds have not been amended and they do not reveal any matter which would point to the Reviewer reaching his conclusion unlawfully, nor does it suggest that the applicant was not granted procedural fairness by the Reviewer. The applicant appeared before me today in person assisted by an interpreter. The information which he gave me, consisting as it did of a series of rhetorical questions, went solely to the merits of the Reviewer’s decision. The applicant was distressed that the Reviewer did not believe him and could not understand why others who may have come on the same boat as him had been accepted for resettlement in this country, whereas he had not. One can understand an applicant’s confusion when this sort of thing happens but that does not make this reviewer’s decision unlawful. To my mind, having considered the Court Book in detail and, in particular, the reviewer’s decision, there are no obvious errors in the processes applied. Each of the claims made by the applicant was considered and the reviewer also considered claims not specifically advanced but which were reasonably open on the evidence. The reviewer considered the cumulative effect of the claims made. There was no denial of procedural fairness. The matters of concern were all discussed with the applicant and his responses noted. In these circumstances I am unable to find that the Reviewer fell into error and, therefore, the application must be dismissed. I order that the Applicant pay the First Respondent’s costs which I assess in the sum of $6,471.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 5 November 2012