EER17 v Minister for Immigration

[2018] FCCA 3387

FEDERAL CIRCUIT COURT OF AUSTRALIA

EER17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3387

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Administrative Appeals Tribunal – whether Tribunal considered all claims by applicant.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.19D(4)

Migration Act 1958 (Cth), s.45AA.

Migration Regulations 1994, r.2.08F

Cases cited:

IYER v Minister for Immigration and Multicultural Affairs [2001] FCA 929
MZARG v Minister for Immigration and Border Protection [2018] FCA 624
MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1
SZNXA & Anor v Minister for Immigration And Citizenship & Anor [2010] HCASL 250

SZNXA v Minister for Immigration and Citizenship [2010] FCA 775

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

First Applicant: EER17

Second Applicant: EES17

Third Applicant: EEW17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 932 of 2017

Judgment of: Judge Jarrett

Hearing date: 25 May 2018

Date of Last Submission: 25 May 2018

Delivered at: Brisbane

Delivered on: 21 November 2018

REPRESENTATION

Counsel for the Applicant: Mr Boccabella

Solicitors for the applicants: H & N Lawyers

Counsel for the First Respondent: Ms Forder

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 18 September, 2017 dismissed;

2. The first and second applicants pay the first respondents costs of and incidental to the application fixed in the sum of $7,328. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 932 of 2017

EER17

First Applicant

EES17

Second Applicant

EEW17

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By their application filed on 18 September, 2017 the applicants seek judicial review of a decision of the second respondent made on 18 August, 2017 which affirmed a decision of a delegate of the first respondent not to grant them Temporary Protection (Class XD) visas.

2. The first respondent opposes both applications. The second respondent entered a submitting appearance.

3. On 23 October, 2017 orders were made permitting the applicants to file an amended application if they wished to do so and to serve written submissions by 25 January, 2018.  Despite the applicant being legally represented, nothing was filed and served by that date.  However, the applicants (by their solicitor) did file written submissions and an affidavit on 18 April, 2018. The first respondent filed written submissions on 18 May, 2018 in accordance with the Court’s directions.

Background Facts

1. The first applicant and the second applicant are both citizens of Vietnam. They are husband and wife. They arrived in Australia on 19 May, 2013.

2. The first and second applicants are the primary visas applicants. The third applicant is their infant son.

3. On 6 May, 2014 each applied for a Protection (Class XA) visa, each raising their own claims for protection.  In his application for the visa, the first applicant claimed that:

   a)he had been working in the Czech Republic on a temporary work visa. On returning to Vietnam after a stint working overseas, he made a request to the local authorities for a particular certificate. This certificate would allow his wife to accompany him to the Czech Republic. The request was rejected by the local authorities, as had occurred “every time [he] applied for it.” On this occasion he asked the local authority to confirm that his wife did not have a criminal record.  The existence of such a record might have explained their refusal.  The local authority allegedly replied that “they rejected [his] requests based on the reason” that his wife was Catholic and had participated in Catholic activities that protested the oppression of Catholic parishioners;

   b)on 25 March, 2013 the applicant “stood up” to the local authority, requesting justice for his wife.  He was accused of public trouble making and “forced… to sign a statement confessing to that.”  He also claimed that when he “refused to sign” the statement the authorities threatened him with “severe punishment”;

   c)on 27 March, 2013 the applicant was summoned to the office of the local authority and accused of making trouble “which [the applicant] did not agree with”;

   d)on 2 April, 2013 police came to the house of the applicant to take him to the police station.  The applicant alleged that he was charged with being obstructive to law enforcement;

   e)after the departure of the applicants from Vietnam, the applicants’ parents were harassed by the local authority.  The first and second applicants claimed to fear harm arising from their departure from Vietnam.  The second applicant also claimed to fear harm arising from her practicing as a Catholic.

4. The second applicant relied upon the same matters as the first, but also claimed that she feared harm were she not be granted a visa on account of her being a Catholic.

5. On 28 January, 2015 another application was lodged, this time on behalf of their son – the third applicant – who was born on 20 February, 2014.

6. The first respondent submitted that by the operation of s.45AA of the Migration Act 1958 (Cth) and r.2.08F of the Migration Regulations 1994 (Cth) the applications were taken to be, and to always have been, valid applications for a Temporary Protection (Class XD) visas. There is no dispute about this.

7. On 8 May, 2015 a delegate of the Minister refused to grant the applicants the Temporary Protection (Class XD) visas.

8. On 22 May, 2015 the applicants sought merits review of the delegate’s decision by a refugee review tribunal.   The function of those tribunals was subsequently usurped by the Migrant and Refugee Division of the Administrative Appeals Tribunal. 

9. On 27 October, 2016 the applicants provided submissions and relevant additional evidence to the refugee review tribunal. On 17 November, 2016 the applicants attended a hearing before the refugee review tribunal.

10. Sometime after 17 November, 2016 but before 7 August, 2017 the Tribunal was reconstituted. Subsequently the applicants attended hearings before the reconstituted Tribunal, first on 7 August, 2017 and then on 18 August, 2017.

11. On 18 August, 2017 the Tribunal affirmed the decision of the first respondent’s delegate under review.

Grounds for Review

1. On 18 September, 2017 the applicants filed an application for judicial review of the Tribunal’s decision in which seven grounds were raised.

2. The applicants filed written submissions on 18 April, 2018 in preparation for this hearing.  By those submissions they abandoned five of the seven grounds in their application.  Only two now remain.

3. Before those are considered it is necessary to address a preliminary argument made by the first respondent.  Counsel for the first respondent argues that the application should be dismissed for the two reasons.

4. First, the unparticularised nature of the grounds of review makes it impossible to properly understand and respond to the application: either to determine whether the Tribunal made a relevant error or to respond to the application.  Unparticularised grounds of review that are no more than assertions are insufficient to support an application for judicial review.  The application may be dismissed for that reason alone: SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21] special leave refused: SZNXA & Anor v Minister for Immigration And Citizenship & Anor [2010] HCASL 250; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35], MZARG v Minister for Immigration and Border Protection [2018] FCA 624 at [25].

5. Second, the applicants’ submissions raise new grounds for review about which the first respondent was not notified.  Counsel for the first respondent argues that coupled with the unparticularised grounds of the application, leave to raise the new grounds would be contrary to the interest of the administration of justice: MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [64]; IYER v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62].

6. I accept the first respondent’s argument that the broad and unparticularised nature of the two grounds of review pressed by the applicants makes it impossible to properly understand and respond to the application.  The applicant was given the opportunity to file an amended application by the registrar’s order made on 23 October, 2017.  Order three made on that day provided that:

   By 4.00pm on 25 January 2018 the applicant shall file and serve any amended application upon which the applicants intend to rely, giving complete particulars of each ground of review.

7. I would, and I do, dismiss the application for review on the basis that the unparticularised grounds of review are no more than assertions which are insufficient to support the application for judicial review. 

8. In any event, for the reasons that follow, the application should fail because the applicants’ arguments do not reveal any jurisdictional error on the part of the Tribunal. 

Ground 1

1. Ground 1 is in the following terms:

   1. The tribunal failed to properly interpret and apply 5H, 5J, 36(2) and 36(2A) of the Migration Act 1958.

2. Relevantly, the applicants submitted that there were two failures by the Tribunal that resulted in the Tribunal’s decision being infected with jurisdictional error.  They were:

   a)first, a failure to “appreciate the extent of involvement of ‘outreach’ by the second named applicant in her practice of her Catholic religion;” and

   b)second, a failure “to perceive the inter-relationship between the two situations of the first named applicant and the second named applicant.”

3. As to the first matter, the Tribunal’s findings were:

   108. The Tribunal accepts that the second-named applicant was a member of a church group at Church from when her husband went to the Czech Republic. The Tribunal accepts that the Group had meetings at the Church and she attended these meetings. The Tribunal accepts that the Group helped out at the Church, did charitable works in the community and prayed. The Tribunal does not accept that they undertook any political activities.

   ...

   110. The Tribunal accepts that neither the applicant nor the second-named applicant or any member of their family have been prevented from practising Catholicism in Vietnam. The Tribunal accepts that they have never been abused or arrested by the Vietnamese authorities for the reason of them being Catholics. Alternatively, the Tribunal does not accept that they were prevented from living freely because they are Catholic.

   111. The Tribunal accepts that the second-named applicant's church group may have sought to go on pilgrimages to help other communities. It accepts that on one occasion the group's bus was stopped 15kms from their church and was ordered to turn around. The Tribunal accepts that since that experience, the group has remained in its church and has prayed in the church as a group.  The Tribunal does not accept that the second-named defendant has been involved in any incident with the police or authorities or in any protest. The evidence of the second-named applicant's activities over the course of this process has been so contradictory as to cause the Tribunal not to believe any aspect of the involvement of the second-named applicant in any activities other than the peaceful practice of her religion in her church.

4. What the Tribunal’s reasons reveal is that rather than failing to “appreciate the extent of involvement of ‘outreach’ by the second named applicant in her practice of her Catholic religion” the Tribunal in fact made its findings based upon the determinations that it made concerning those matters.  The Tribunal’s reasons show that it considered the claims made by the second applicant about her church related activities in their various iterations and then made findings about the nature and extent of those activities.  On the basis of those findings the Tribunal then determined whether there was a real chance that the second applicant would be at risk of serious harm by reason of her religion if she returned to Vietnam now or in the reasonably foreseeable future.  In my view, the Tribunal’s reasoning about these matters is unimpeachable.

5. As to the second matter, having regard to the Tribunal’s reasons, there is no reasonable basis to think that the Tribunal did not “perceive the interrelationship between the two situations of the first named applicant and the second named applicant”. The Tribunal dealt with the second applicant’s evidence concerning the refusal of permits to her but rejected that evidence: [47], [49], [50] – [52], [142] – [146]. Those paragraphs, in my view, demonstrate that the Tribunal did appreciate that there was a connection between the first applicant’s claims and those of the second applicant.

6. This ground of review reveals no jurisdictional error. 

Ground 2

1. Ground 2 is in the following terms:

   2. The tribunal failed to properly conduct a review for the purpose of implementing Part 7 and/or ss 414(1) of the Migration Act 1958

2. This ground appears to be twofold.

3. The first aspect concerns the evidence of the second applicant given at the first hearing in November, 2016.  The applicants argue that the Tribunal failed to consider the second applicant’s evidence concerning her religious activities about which she gave evidence at that hearing.  Because it did not take that evidence into account, the applicants argue that the Tribunal failed to properly conduct a review of relevant decision.

4. As the first respondent points out, the applicants’ written and oral argument invited the Court to infer that:

   a)the Tribunal did not familiarise itself with the evidence given by the second applicant at the first hearing; and

   b)neither or both of the applicants did not realise that the Tribunal did not familiarise itself with that evidence and they may have felt that they did not need to repeat the evidence and were therefore disadvantaged.

5. However, in my view, there is no basis for drawing an inference that the Tribunal did not read or familiarise itself with the evidence given by the second applicant at the November, 2016 hearing.  Whilst it is correct to say that the Tribunal did not include a reference to the transcript of the earlier hearing or the audio of that or earlier hearing in the list of materials it described as “evidence” in [41] of its reasons, nothing turns upon that.  The list was not expressed to be exhaustive, but rather inclusive.  As the first respondent points out, the evidence given by the first and second applicants at the second and third hearings (before the reconstituted Tribunal) was not referred to in [41] of the Tribunal’s reasons, yet it is plain that they were taken into account.

6. Moreover, subsequent references to the hearing and the evidence given by the applicants at that hearing make it clear that the Tribunal was aware of the hearing and that the applicants had given evidence at that hearing.  The Tribunal expressly refers to the hearing that took place in November, 2016 at [43] of its reasons.  At [45] of its reasons it records that “The Tribunal noted that the agent was not present at the November, 2016 hearing either.”  Although the Tribunal member does not explain where that information came from, a reasonable inference is that it came from a perusal of the transcript of the hearing in which there is no record of a migration agent appearing.

7. On 23 October, 2017 a registrar made orders with a view to preparing this application for hearing.  One of the directions made (direction number four) provided the applicant with an opportunity to file and serve any affidavit containing any additional evidence upon which they wished to rely relevant to the grounds of review.  The only affidavit material filed is an affidavit by the applicant’s lawyer which annexes transcripts of the three hearings undertaken in respect of the applicants’ application for review of the delegate’s decision.

8. To the extent that the applicants’ case is that the Court ought to infer that the applicants did not realise that the Tribunal would not read or take into account their earlier evidence, I decline to draw that inference in circumstances where it was well within the applicants power to place before the Court evidence about their understanding of how the Tribunal, reconstituted, would go about its business.  Whilst sworn evidence from the applicants about that matter would not be determinative of the issue, it would be direct evidence about the second applicant’s state of mind which might go towards explaining the basis on which the second applicant gave her evidence at the second hearing.  There is no evidence, however, and the matter ought not be left to inference.  The inference is not clearly open. 

9. The first respondent argues that whether or not the Tribunal had reference to the transcript or audio of the November, 2016 hearing has no bearing on the outcome of the case because the reconstituted Tribunal was not obliged to pay regard to the earlier evidence. To support that submission the first respondent directed my attention to s.19D of the Administrative Appeals Tribunal Act 1975 (Cth) which, relevantly provides in s.19D(4) that (my emphasis):

   (4) The reconstituted Tribunal must continue the proceeding. For this purpose, it may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).

10. But, in my view, this argument misses the point made by the applicants.  The applicants’ point seems to be that whilst the Tribunal may not have been bound to have regard to the recording of the previous hearing or a transcript of it, if it intended not to refer to those matters it ought to have told the applicants of that so that they had the opportunity to present more fulsome evidence in the second and third hearings.

11. But, as I have a ready set above, I am not satisfied and I cannot find that the Tribunal did not have regard to the evidence given by the second applicant at the first hearing.  In the references to the earlier hearing in the Tribunal’s reasons, it is more probable than not that the Tribunal had regard to the evidence given in the earlier hearing.  I so find.

12. The second aspect of this ground cavils with the reasoning employed by the Tribunal to arrive at what is described as a “key conclusion” about the second applicant’s credit.  The challenged finding appears in [66] of the Tribunal’s reasons:

    66.    During the hearing, the Tribunal discussed with the second-named applicant her background, her family, her education, where she lived in Vietnam, her religion, and her interactions with the authorities. The Tribunal found aspects of her evidence to also be lacking in detail, implausible, contradictory and unconvincing. There were a number of inconsistencies in her evidence which raise issues in relation to the veracity of her claims. The Tribunal is of the view that she is not a reliable or credible witness either for the reasons that follow.

13. The applicants focus their submissions about this matter upon [67] – [81] of the Tribunal’s reasons.  However, the “key conclusion” drawn in paragraph [66] is clearly supported by more than the Tribunal’s reasoning in those paragraphs.  The reasoning in [52], [66], [81], [92]-[93], [101]-[102], [111], [142] and [146] all demonstrates that the Tribunal had concerns with, but considered very carefully, the credit worthiness of the second applicant’s claims.  The Tribunal’s reasons do not permit of a submission, in my view, that the Tribunal simply made a bland conclusion or blandly drew inferences against the second applicant’s credit.

1. I accept the first respondent’s submissions, and it is clearly the case having regard to the Tribunal’s reasons, that when the Tribunal’s decision is read as a whole the reasons for which the Tribunal had doubts about the second applicant’s credit are apparent.  The examples given by counsel for the first respondent in her written submissions illustrate the Tribunal’s approach:

   a)the second applicant appeared confused by the claim that she had attended protests and had said, when asked what they were protesting about, that they were not allowed to be in a group: [81];

   b)the second applicant’s evidence was not consistent with the country information such that the Tribunal had doubts that the Vietnamese police would have been interested in the activities undertaken by the second applicant’s church group, would have done anything to prevent the group from meeting in the circumstances, or that she was wanted by police: [76]-[80], [82]-[93];

   c)there was contradiction between the claims of the migration agent and the second applicant’s evidence, about which there was no explanation: [101]-[102];

   d)the Tribunal could not accept that the second applicant was involved in any incident with the police or authorities or any protest as her evidence over the course of the review had been “so contradictory as to cause the Tribunal not to believe any aspect of the involvement of the second-named applicant in any activities other than the peaceful practice of her religion in her church”: [52] and [111];

   e)the second applicant made the claim to the Tribunal that she had applied for a certificate about six times – with the first time being in 2012 or 2013 – but in the interview with the delegate she claimed she had first applied in 2011: [142];

   f)the Tribunal could not reconcile with the second applicant’s claims the concern that “if the applicant and second-named applicant were of interest to the police as they claim, then they would not have been able to freely depart a major airport at Hanoi without an alert being thrown up at Immigration”: [146].

2. I accept the first respondent’s submission that, reading as a whole the Tribunal’s reasons for decision, what the applicant is described as a “key conclusion” of the Tribunal at [66] is not simply some bland conclusion or blandly drawn inference unavailable to the Tribunal and lacking coherent reasoning.  Rather, the reasons provided by the RRT when read as a whole sufficiently expose its reasoning process.  No illogicality or irrationality in the process of the Tribunal’s reasoning towards its rejection of the second applicant’s credit on important issues to her claims is apparent in the Tribunal’s reasons. 

3. This ground of review exposes no jurisdictional error in the Tribunal’s decision.

Conclusion

1. In the absence of a jurisdictional error in the Tribunal’s reasons, its decision is a privative clause decision and cannot be challenged in this Court.  Accordingly the application for review must be dismissed with costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 21 November, 2018.

Date: 21 November 2018