ECU16 v Minister for Immigration

[2018] FCCA 3613

FEDERAL CIRCUIT COURT OF AUSTRALIA

ECU16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3613

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeals Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: ECU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 647 of 2016

Judgment of: Judge Vasta

Hearing date: 26 November 2018

Date of Last Submission: 26 November 2018

Delivered at: Perth

Delivered on: 26 November 2018

REPRESENTATION

The Applicant appearing on their own behalf

Solicitors for the First Respondent: SPARKE HELMORE

ORDERS

1. That the Application filed 23 December 2016 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 647 of 2016

ECU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 24 November 2017, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the applicant, ECU16, a protection visa.  He has come to this Court seeking a review of that decision. 

2. In short, his claims are that he is a Catholic who has lived in Vietnam. He says that he was born in 1986. On 1 July 2012 he claims that he was at the Qon Kwan Church participating at Mass. And when a group of police officers and gangsters raided the church, he said that after that he was taken away and detained. He was released, and then three days later he was taken away and not released until 4 July 2012, that is, after three nights.

3. He says two days later he was summonsed back to the Local Government Office.  He was questioned again.  He was bashed.  He was forced to sign a statement that he would never again get involved in Catholic ceremonies and activities.  He claims that his parents came to the office the following day and paid 5 million Vietnamese dong as a fine so that the Applicant could be released.  He said that from that time onwards he was a target to the authorities.  He had limitations in his work.

4. He was followed around and he was harassed.  And he decided that he couldn’t live safely any more, and so he decided to flee the country.  He fears that if he returns to Vietnam he will be arrested and imprisoned. 

5. He claims that he has a profile as a Catholic dissident with the government authorities which puts him at risk of harm of the authorities in Vietnam.

6. He said also that he was the subject of a data breach, and he said that he was interrogated by a Vietnamese customs officer when he was at an immigration detention centre on 21 August 2013.

7. He said that he would never be able to be protected by the Vietnamese authorities if he returned.  And if he did return because he left the country unlawfully he would be punished very harshly.  He said there was nowhere in the country where he would be able to be safe. 

8. The Tribunal assessed these claims.  What was of some concern to the Tribunal was that the parish at which the Applicant said that he practices his Catholic faith was at Phuc Dong in the Botda diocese.  The priest there was Father Lewin.

9. He said that he would clean up and organise the furniture in the church.  But for some reason he was asked, on 1 July 2012, to go to the church at Qon Kwan, and that is he why he went.  Qon Kwan is some 60 to 80 kilometres from the village.  He said that the priest there told him to go. 

10. The Tribunal asked him that if – even if all this had happened, why the Vietnamese would want to harm him now, given it was over four years since he was detained.  The Applicant replied that he thinks that he might be still charged.

11. It was then that the Tribunal put to him what he had said or not said in the entry interview when he first came to this country in 2013.  In that interview he made no reference at all to being a person who was at Qon Kwan, or who was bashed.  In fact, he said that he came to this country looking for work. 

12. His answer to that was that it was after the entry interview that people told him he should tell the department about being at Qon Kwan.  And before that, he thought that he didn’t know anything about the country, and didn’t want to say anything to Australia when he first arrived.

13. The Tribunal also put to him that he had understated his age and given an incorrect date of birth when he first arrived.  He said that on the boat on the way over to Australia he was told that the younger he was, the more likely he was going to be protected. 

14. The Tribunal asked him why was it after he was released from custody that he remained in his home village for so long if he had been targeted for harm.  He said that he did work for a year afterwards, but had informed the police and his local district that they would not stamp his card, and that he was prevented from getting certain types of work.

15. It was put to him that the data breach was of no consequence to him because it was not accessed by anyone in Vietnam. He could not offer any comment in response. The Tribunal referred the Applicant to the delegate’s finding in respect of the visit by the Vietnamese officials to the immigration detention centre. The Applicant said that those officials asked him for his name, his place of origin and his work. He said that he gave his name and address, but did not give those officials any other information. He said everyone at the detention centre was worried about the officials.

16. The Tribunal put country information to the Applicant which indicated that the Vietnamese nationals who depart Vietnam illegally may face a fine between two and five million Vietnamese dong.  But the country information doesn’t suggest persons returning to Vietnam, on that basis, would face serious harm.  The Applicant said he could actually pay that fine.  He then said that if he returns to Vietnam his future could not be guaranteed, and that he had heard that others who have returned to Vietnam have been detained, punched and kicked.

17. The Tribunal also asked the Applicant what injuries he sustained as a result of his detention in Qon Kwan, and he said he didn’t require or obtain medical treatment as a result of these bashings.  He was asked about whether there had been any inquiries made of his whereabouts by Vietnamese authorities.  He told the Tribunal that two years ago some authorities came to his home in Vietnam and asked where he had gone, and his parents told them that they did not know.  The Applicant told the Tribunal that he paid US $8,500.00 for the people smuggler trip, and he has repaid about $3,000.00 of this.

18. He was asked whether he feared being harmed as a result of not having repaid the full amount, and he said he did not fear reprisals.  The Tribunal referred the Applicant to country information which suggest that the Catholics in Vietnam were relatively free to follow their faith.  The Applicant said that he had no further evidence to give the Tribunal in support of his claims. 

19. And when he was asked whether he could relocate to another part of Vietnam he said that wherever he went it would still be under the grip of the communists.

20. The AAT, in assessing these claims, had quite a deal of difficulty with the Applicant’s credibility for those reasons that I have already spoken of; that is, that he had been prepared to misstate his age so that it would be more favourable when he first came here and the fact that he said nothing about Qon Kwan to anyone when he first came. 

21. Country information about the incident at Qon Kwan is not that many parishes attended on 1 July at all.  It was an attack that happened at that parish, and there did not seem to be any real reason why the Applicant says that he was there.

22. The Tribunal was not satisfied that he was actually there on that day, and the Tribunal then found that they were not satisfied that he had been subject of any bashings or detention by authorities afterwards.  Because of that, the Tribunal found that he had not suffered serious harm for reasons of his religion or for any other reason in Vietnam. 

23. The Tribunal looked at all of the country information and found that they were not satisfied that he would be in any way persecuted because of his Catholic religion, especially when one had a look at what it was that he was doing for the Catholic Church, which seemed to be nothing more than tidying up after Mass and arranging furniture.

24. The Tribunal looked at whether he would have had an imputed or actual political opinion.  They looked at the harm associated with the data breach.  They looked at the harm associated with the Vietnamese authorities coming to see him at the detention centre.  They looked at the harm that could occur from the illegal departure.  Separately, they looked at all of those matters and found that there was nothing that would amount to serious harm for the Applicant. 

25. The Tribunal then said, at paragraph 67, that they considered each of the claims individually. And, on each claim, the Tribunal found that he did not face a real chance of serious harm, now or in the reasonably foreseeable future if he returned to Vietnam. 

26. The Tribunal then considered all of his claims acting cumulatively, and having done so, still found that the Applicant did not face a serious chance of serious harm now, or in the reasonably foreseeable future if he returned to Vietnam.  Therefore, he did not satisfy the refugee criterion. 

27. Looking at the complimentary protection criterion, for much the same reason, the Tribunal found that he did not meet that criteria. 

28. The grounds of this application are simply this:

    1. I think the Decision maker did not consider all of the evidence or did not take into account relevant considerations.

29. When asked to expand upon that in these proceedings, the Applicant, who is representing himself, and appears with the aid of an interpreter, said that the Tribunal made a decision that “went against me, so I appealed”.  And he said that he asked rhetorically “what guarantee is there for my safety”.  It is clear that the Applicant is not claiming that there is any jurisdictional error at all.  He is attempting to have, or conduct, an impermissible merits review.

30. The fact is the AAT did consider all of the evidence and looked at all of the contingencies; even ones that had not been technically part of his claim.  It was a very thorough assessment by the AAT. The conclusion that they came to was one that was simply open on the evidence. 

31. Therefore, I find that there has been no jurisdictional error, and I dismiss the application with costs in the sum of $5,000.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  8 January 2019