EMW17 v Minister for Immigration

[2018] FCCA 2149

FEDERAL CIRCUIT COURT OF AUSTRALIA

EMW17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2149

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

Legislation:

Migration Act 1958 (Cth), ss.5J, 36(2)(aa)

Applicant: EMW17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1002 of 2017

Judgment of: Judge Vasta

Hearing date: 30 July 2018

Date of Last Submission: 30 July 2018

Delivered at: Brisbane

Delivered on: 30 July 2018

REPRESENTATION

Solicitors for the Applicant: Essen Lawyers

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Application filed on 6 October 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 1002 of 2017

EMW17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. The Applicant EMW17 came to Australia as a student at the end of 2009.  His visa ran out in 2014.  He was in this country illegally for over 12 months. 

2. On 23 March 2015, he applied for a protection visa.  He accompanied that application with a statutory declaration dated 19 March 2015.  In that statutory declaration, he explained that he came to Australia as a student; that his father had passed away and that he had been living with his mother and stepsister in Ho Chi Minh City and that his mother had arranged for him to come to Australia as a student, as she feared for his safety in Vietnam. 

3. He spoke then of outrage that he felt over the non-recognition of individual rights to possess land by the Communist government in Vietnam and that there was insufficient compensation given to persons when the government did compulsorily reacquire the land.  He said that as a very young person, he became quite concerned with these matters, and once he completed high school, he had more time to commit.  He had joined an organisation called the Association for Victims of Land Confiscation, Hoi Dan Oan Vietnam. 

4. He said that the nationwide farmers' movement in Vietnam organised a giant protest in Ho Chi Minh City.  He said that he participated in the process with his fellow members of the association.  He said one day after the protest, the police came to his house and he was interrogated and his mother was warned that the Applicant should not attend these kind of activities. 

5. He said that he joined another protest in March 2008 with his uncles at Chi Kaeng Village.  He said that everything changed after that date.  He felt that he was monitored.  Around late July 2008, the authorities again visited his home and interrogated him on his activities. 

6. He was taken to the police station in the first week of August.  He said the police tried to intimidate him and showed him handcuffs, and they forced him to make a confession as to his activities in the association, and that if he did not sign, they would not allow him to eat or go home.  They accused him of being a traitor, and his mother was warned not to send him to protests ever again or she should expect to see him in prison. 

7. He said in late 2008, his house was attacked by thugs and his mother complained to the police.  The police did not take any action, and he knew that it was a further warning for his participation in protests, and he avoided any activities upon his mother's advice. 

8. His mother saved sufficient money to send him to Australia.  He arrived in late 2009 and he continued studying.  He has done most of the subjects for a Bachelor of Business at QUT.  He thought that his Australian qualifications would enable him to find employment to stay in Australia permanently, but he realised he cannot return to Vietnam and he needs protection from Australia. 

9. He said that during his time in Australia, he joined anti-Communist activities and protests in Brisbane and he will face consequences if he returns to Vietnam. 

10. He said that his mother has continued writing letters and contacting him over the phone whilst he has been in Australia and that the police have come to the family home twice to ask about his whereabouts and that he has been blacklisted as an activist.  He said that he fears that the police will put him in jail or put him in long-term imprisonment if he returns, and that his mother is worried about the consequences he might face upon return.

11. He was interviewed by the Department on 3 June 2015.  He reiterated and expanded on his written claims, and on 15 July 2015, the delegate made the decision that the Applicant was not a person in respect of whom Australia had protection obligations and his application was refused.

12. He then took up his case with the Administrative Appeals Tribunal (“the AAT/Tribunal”).  He signed a statutory declaration and a submission on 31 October 2015. 

13. In that statutory declaration, he expanded upon what he had said before as to his membership with Hoi Dan Oan and what he was doing with that organisation, and also what he had done in Australia, saying that he joined a group of Vietnamese students at the university to discuss politics. He said in May 2014, he took part in anti-Communist protests in King George Square in Brisbane, and during that process he held a banner.  He said that he also joined online protests by signing online petitions.  He signed two of them, one to protest against China because they were occupying the Vietnam Sea, and the second one to stop oil theft in Vietnam's ocean waters. 

14. He said that his mother has informed him that the police visited his home after that.  He made submissions in that statutory declaration as to what had occurred during his protection visa interview and talked about the fact that the delegate had raised credibility issues about his knowledge of the Hoi Dan Oan Association, and that the delegate had raised issues about his credibility.  He then gave a detailed response to those issues that the delegate raised.

15. He appeared before the AAT and did not provide any further documents but was interviewed. The AAT seems to have been very thorough in the interview with the Applicant and came to the conclusion that they did not accept that he had ever been involved with this particular group, and therefore there was nothing that would show that he had a well-founded fear of persecution. The AAT found that he did not fit the definition under s.5J of the Migration Act 1958 (Cth) (“the Act”) and that he had absolutely no political profile. The Tribunal did not look at whether there was any harm that was probable if he were returned to Vietnam.

16. The Tribunal, in going through the claims of the Applicant in a thorough way, spoke of many aspects of the evidence of the Applicant.  The agency or association that the Applicant claimed to be associated with was a landowners’ association, and the Applicant lived in the city. 

17. The AAT was somewhat puzzled as to why this would have caused this sense of outrage in the Applicant.  The Applicant spoke of the tales that his mother had told him and the fact that his uncle had come from a village.  When the Tribunal pointed out if the uncle was in the village then how could he have indoctrinated the Applicant into this association by going to meetings and so on. 

18. The Applicant then talked about his uncle actually visiting from the village and bringing other people from the village to meet the Applicant.  On the Applicant’s story, he would have been aged around 15 or 16 at this time and the Tribunal had some concerns as to the Applicant being as involved as he said he was at that young age. 

19. The Tribunal also had some problems with the Applicant’s description that he did not understand his membership, to start with, as being some form of anti-government process.  That explanation does not sit well with everything that he had put in the two statutory declarations as to why it was that he was joining such a group.

20. The Tribunal had some concerns as to why such a profile would mean that the Applicant was under some form of blacklist as an activist.  This concern was amplified when one considered that the Applicant was able to obtain a passport and leave Vietnam quite freely, and in 2014 was able, whilst in Australia, to get a new passport from the Vietnamese Consulate. 

21. Such activity or such a chronology of facts does not sit well with an allegation that the government had branded him as an activist.  It also does not sit well with any worries or fears that the Applicant says that he has, that if he goes back to Vietnam the authorities might "get him".

22. In the end, the Tribunal was not satisfied that the Applicant was a member of the Association for Victims of Land Confiscation.  At paragraphs 66 to 68, the Tribunal said this:

    66. The Tribunal is of the view that there is a significant difference between the articulation of the applicant's formation of his political views and therefore his joining of the Association for Victims of Land Confiscation and his associated activities in his written statements compared to his ability to talk about those views with any substance to the Tribunal.  The tribunal notes that the applicant's statutory declaration dated 31 October 2016 responding to the delegate's concerns regarding his inability to convincingly talk about the Association for Victims of Land Confiscation and his involvement was explained, amongst other things, by the applicant being nervous and having a fear of authority.

    67. The Tribunal also notes that the applicant’s explanation for the concerns raised by the Tribunal regarding the inconsistency in the applicant's evidence about the activities he was involved with for the Association for Victims of Land Confiscation also included that he was nervous.  While the Tribunal understands the applicant may have been nervous on both occasions, the Tribunal is of the view that the applicant’s inability to speak convincingly or consistently about the political views he claims to hold or his membership and involvement with the Association for Victims of Land Confiscation is because he is not speaking from personal experience.

    68. For the sake of completeness, the Tribunal also notes that the applicant claimed that his house was attacked by thugs in late 2008, and when his mother complained to the police, nothing was done because this was a way of warning people not to act against the government.  When the Tribunal discussed this claim with the applicant, he was very general in his response and told the Tribunal that “his house was attacked and when he came back, everything was messy and he thought they might find evidence”.  It is apparent to the Tribunal that the applicant connects this claim to his claim of participation in anti-government activity in Vietnam.  Given the Tribunal does not accept that the applicant was involved in any anti-government activities in Vietnam, and given the vagueness and lack of detail provided by the applicant in relation to this claim, it follows the tribunal does not accept that the applicant’s house was attacked due to his anti-government activity (or for any other reason), or that the police refused to act on a complaint by his mother about an attack on their house due to the applicant's anti-government activity.

23. The Tribunal went on to talk about the evidence that the Applicant gave during the Tribunal hearing.  At paragraph 69, the Tribunal said:

    69. The Tribunal notes that at various times throughout the Tribunal hearing, the applicant suggested he was unaware that his membership of and participation in the activities of the Association for Victims of Land Confiscation was "anti-government".  However, in the Tribunal's view, such statements contradict the claims the applicant makes in his statutory declaration dated 19 March 2015 that he "began to dislike the communist regime, its harsh punishment of citizens, prohibitions and violations of human rights" and that his mother had told him stories of his uncles and the fellow villagers that have lost their land rights, their protests and the punishments that they received. The applicant states that these are the reasons behind him and his friends wanting “regime change”.

24. The Tribunal said that they found that the applicant's variation in his apparent understanding of his action further confused and undermined his evidence.  The tribunal said this at paragraph 70:

    …Particularly when, upon being ‘interrogated’ by the police about his joining and participation in the activities of the Association for Victims of Land Confiscation, he said he “asked the authorities why residents did not receive fair compensation”.  This statement by the applicant does not suggest someone who was naïve and unaware but rather, someone seeking to antagonise the police.

25. The Tribunal also noted that they could not find any independent evidence of the protests that the Applicant claims to have participated in Brisbane in May 2014 or any evidence of the claimed online petitions.  In addition, the Tribunal noted that the Applicant did not advise the Department during his interview of either of these matters.

26. The Tribunal also noted that the sort of protest that was happening, if it was happening, was a protest that would have been pro-Vietnam because it was in effect, to use the vernacular, sticking up for Vietnam and its ownership of its territorial waters and what it saw was China's incursion into that area.  The Applicant said that it was anti-government simply because the Vietnamese government was doing nothing about this, and so any protest that was asking China to get out was in effect a criticism of the government and therefore he would still be seen as anti-government. 

27. It is clear from the way in which the Tribunal dealt with this matter that they did not accept such a claim, but in any event, there was nothing that the Tribunal could find that independently showed that such a protest had actually occurred or that such online petitions had actually been signed by the Applicant.

28. The Tribunal also looked at the delay in applying for protection.  The Tribunal found it was puzzling that the mother was the person who wanted the Applicant to get out of Vietnam for his safety, and yet that reason was never conveyed by the mother to her sister; that is, the aunt of the Applicant with whom he came to stay as soon as he came to Australia. 

29. The Tribunal also looked at the fact that the Applicant did have contact with a migration agent because he had looked at options for staying in Australia permanently and well before the expiry of the student visa, yet had not mentioned to the agent any need for his protection. 

30. In the end, at paragraph 79, the Tribunal did not accept the Applicant’s explanation he was unaware or unable to access information regarding protection visas.

31. At paragraph 81, the Tribunal said this:

    81. When those factors were considered together, the Tribunal finds that the applicant's claims in relation to his anti-government activity to be completely lacking in credibility.  Accordingly, the Tribunal finds that the applicant was not involved in any anti-government activity in Vietnam or Australia.

    82. It follows that the Tribunal does not accept the applicant was arrested, interrogated, threatened or in any way harmed by police due to any anti-government activities in Vietnam; that the applicant is of interest to the authorities as a result of any anti-government activity; or that he will express an anti-government opinion or participate in anti-government activities if he returns to Vietnam.

32. The Tribunal then concluded that it was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations and that the tribunal was also not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. It therefore affirmed the decision not to grant the Applicant a protection visa.

33. This decision by the AAT was delivered on 13 September 2017.  On 6 October 2017, the Applicant filed his application in this Court.  There were two grounds of the application.  The first ground was:

    1.The Tribunal made an error of law by failing to afford the applicant procedural fairness and thereby failing to comply with its obligations under s425 of the Migration Act 1958 (Cth).

    (i) the tribunal failed to indicate to the applicant that his credibility regarding membership of the Association for Victims of Land Confiscation and his participation in the protests were in issue, so failed to notify the applicant that these matters were issues arising in relation to the decision under review. 

34. I do not see any merit in that ground whatsoever.  The Applicant knew that his credibility was on the line with regard to the membership of that association.  That was evident by the manner in which he compiled his statutory declaration that was dated 31 October 2016.  He spent a whole section in that statutory declaration talking about why it was that his credibility in relation to this aspect of his membership should not have been maligned.

35. It is not really for the Tribunal to inform or put to the Applicant its doubts where those findings amounted to the subjective appraisal of the Tribunal. There is nothing in the statement of procedural fairness within the Act that would mandate that, in effect, the Tribunal must deliver its findings, give a copy to the Applicant and ask the Applicant to then comment upon those findings.

36. In my view, the Tribunal has actually complied with what it is that it has needed to do, and I find no merit in that particular.

37. Particular (ii):

    (ii) the tribunal had difficulties of understanding the applicant's evidence.  At paragraph [25] it said “the tribunal noted that it was having difficulty understanding the applicant's evidence” given that he had told the Tribunal that his mother helped him escape Vietnam.  However, it did not sought [sic] clarifications from the applicant about the misunderstandings. Instead, it said the applicant’s answers to the tribunals questions were superficial, unconvincing at times evasive.

    One has to go back to the tribunal's decision at paragraph 25 to put what it said in context.  Paragraph 25:

    25. The Tribunal noted that it was having difficulty understanding the applicant’s evidence given that he told the Tribunal that his mother helped him escape Vietnam; he left in fear of his life; he was sent to his aunt in Australia who could help him but his aunt was not told why her nephew was coming to stay with her;  his visa expired in March 2014 but the applicant only became aware of protection visas in 2015.  The Tribunal asked the applicant if he could explain, in particular, why he and his mother would not tell his aunt about the problem given she would be able to assist him in Australia to get advice on his options for staying in Australia permanently.  The applicant said that at first, he did not tell his aunt about all the complications in Vietnam and he kept it secret.  The Tribunal asked the applicant why he would do that.  The applicant said that he thought that if he completed his study then he can apply for a permanent visa and he did not need a protection visa.

38. In my view, there is nothing in that first sentence of that paragraph that would cause any concern.  Whilst it may be that the Tribunal expressed their feelings by saying that it was “having difficulty understanding the Applicant’s evidence”, it really was saying that the evidence had internal contradictions and it could not stand on its own.  That is simply because of the matters that the Tribunal then spoke of.  The difficulty understanding the Applicant’s evidence was not a difficulty in comprehending but a difficulty in accepting the Applicant’s evidence. 

1. So whilst it may have been expressed in a way that if one looked at it literally it may give the impression that it was a difficulty in comprehension, if one looks at that paragraph properly, it is in fact a difficulty in acceptance.  Therefore, I do not find that there is any merit in that particular of the ground.

2. Particular(iii):

   (iii) the applicant’s evidence was consistent throughout the hearing and the tribunal decision reveal no inconsistencies of his oral evidence.

3. In giving my recitation and summary of the reasons of the Tribunal, it is quite obvious that the Tribunal found that the Applicant’s evidence was inconsistent.  A bald assertion that the evidence was consistent is simply an impermissible attempt at a merits review.  The Tribunal has come to the conclusion that the evidence was inconsistent upon what the Tribunal has detailed in their reasons.  That conclusion was certainly open to the Tribunal, and because it was open, there is no error that the Tribunal has made.

4. Ground 2:

   2. The Tribunal has failed to consider the relevant country information in relation to the alleged protests in Vietnam or Australia and in relation to the persecution of protesters in Vietnam in considering whether applicant's claim under complementary protection criteria [sic].

   Particulars. 

   (i) at [45] it said, “the tribunal noted it could not find any information about the protest the applicant described in Brisbane” Despite that protest was highly publicised all over the world.

5. The problem is there was no relevant country information before the Tribunal.  The ground states that the Tribunal has failed to consider the relevant country information, yet the argument does not tell me what the relevant country information was.  There was no attempt by the Applicant during the hearing to ask for any form of adjournment.  At the conclusion of the hearing, there was no post-interview submission that would have contained such material.  It is not for the Tribunal to, as it were, go around and try and find material that could make out a case.  It is for the Applicant to show to the Tribunal that a certain state of affairs exists. 

6. The Tribunal does not have any duty to make further inquiries.  It has no duty to investigate.  It has no duty to consider utilising any sort of library or information that the Department might have to investigate these claims.  The inquiry that the Applicant alleges the Tribunal failed to make was not an obvious inquiry.  It certainly didn’t concern a critical fact, the existence of which was easily ascertained, and it was not actually a sufficient link to the outcome to constitute a failure in its statutory duty to review. 

7. The AAT looked at the evidence that was before it.  Whatever the Tribunal decided to do was a matter for the Tribunal, but it clearly said that it could not find any corroborative evidence of such a protest occurring in Brisbane.  To my mind, there is no jurisdictional error that has been illustrated in regard to that matter.

8. Having a look at all of the material before me, I am not satisfied that there has been any jurisdictional error whatsoever. 

9. I therefore dismiss the application and order that the Applicant pay the Minister's costs fixed in the sum of $5000.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 23 October 2018