FCN18 v Minister for Immigration

[2020] FCCA 1787

FEDERAL CIRCUIT COURT OF AUSTRALIA

FCN18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1787

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Protection visa decisions – Fast track review process – Reviewable decisions  

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 36(2)(a), 473CB, 473DB, Part 7AA.

Applicant: FCN18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 507 of 2018

Judgment of: Judge Jarrett

Hearing date: 16 April 2020

Date of Last Submission: 16 April 2020

Delivered at: Brisbane

Delivered on: 2 July 2020

REPRESENTATION

The Applicant in person via telephone link

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application filed on 1 October 2018 is dismissed.

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 507 of 2018

FCN18

Applicant

And

MINISTER FOR IMMGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the second respondent made on 3 September, 2018 which affirmed a decision of a delegate of the first respondent to refuse the grant of a Safe Haven Enterprise (Subclass 790) visa.

2. The first respondent opposes the application.  The second respondent enters a submitting appearance.  I have written submission from the first respondent, but none from the applicant despite directions having been made requiring the applicant to file written submissions.  The directions order also gave the applicant the opportunity to file an amended application for review but he has not taken up that opportunity.

Background

1. The applicant is a citizen of Vietnam.  He arrived at Christmas Island on 27 March, 2013.  For the purposes of the Migration Act 1958 (Cth) he is an unlawful maritime arrival.

2. In his entry interview, the applicant is recorded as saying that the reason he left Vietnam was that there was “conflict between religion” and he had “so many siblings in the family and our family are in debt”.  He also said that his mother was sick and that his family did not have enough money for her treatment.  He also said that “In Vietnam they don’t respect our belief in God and religion. They destroyed the status of the Jesus Christ and mother Mary”.  He said that happened not in the province where he lived, but in a province about 120kms away where his uncle lived.

3. On 3 June, 2016 the applicant was invited to apply for a Temporary Protection (Subclass 785) visa or a Safe Haven Enterprise (Subclass 790) visa.  On 16 May, 2017 he applied for such a visa.

4. The applicant’s protection claims are contained in his visa application.  He claimed that he would be arrested by the police and detained indefinitely if he was to return.  He thought that would happen because:

   a)he stood up to undercover police who were throwing eggs at the priests and “making unprovoked attacks” at mass.  He says that he was beaten and then monitored following the incident;

   b)on 18 February 2013, he sang a banned song at a wedding and was taken into custody by undercover police and released upon his family paying a bribe. He was subsequently issued with a police summons with which he did not comply; and

   c)he “escaped” the country illegally and would be imprisoned as a result.

5. On 29 March, 2018 the applicant attended an interview with a delegate of the first respondent for the purposes of his visa application.  On 4 May, 2018 the first respondent’s delegate refused to grant the visa.

6. On 4 May, 2018 the matter was referred to the second respondent in accordance with Part 7AA of the Migration Act.

7. On 23 May, 2018 and 1 July, 2018 the applicant provided photographs to the second respondent and requested an interview.  However, the second respondent refused the request for the interview and on 3 September, 2018 the delegate’s decision to refuse to grant the applicant the visa was affirmed.

8. The second respondent’s reasons show that it had regard to the material given by the Secretary of the first respondent’s department under s.473CB of the Act.

9. The second respondent summarised the effect of s.473DB of the Act and the provisions that permitted it to have regard to information that was not before the delegate when the decision under review was made. It did so accurately. The second respondent then recorded that the applicant had sent to it six photographs. The reasons describe the photographs. The second respondent accepted that the applicant appears in each of the six photographs but noted that he had provided no details about when the photographs were taken – before or after the delegate’s decision – or any other details about the photographs. The second respondent was not satisfied that there were exceptional circumstances to justify consideration of the photographs and did not have regard to them.

10. The second respondent also recorded that the applicant stated on 23 May, 2018 and again on 2 July, 2018 that he wanted to be interviewed by the second respondent.  The second respondent noted that the second respondent’s review was a limited form of review and there was no statutory entitlement to a hearing.  The second respondent recorded that it had listened to the applicant’s visa interview and was satisfied that the applicant was given ample opportunities and time to present his case both orally and in writing prior to the delegate’s decision.  The second respondent decided not to invite the applicant to a hearing to give oral evidence.

11. The second respondent recorded that it accepted that the applicant was a national of Vietnam, had relatives living in Vietnam, had been and continues to be a practising Catholic and that he organised an interview with the “A18 delegation” when he was in Australia in detention, but that he did not attend the interview.  The second respondent also accepted that the applicant left Vietnam legally and that his details were released in the 2014 “data breach”.

12. The second respondent considered the applicant’s claims about the destruction of certain statues in the named area where his Uncle lived.  It considered his claims about being present at an incident when undercover police threw eggs at priests.  However, because of inconsistencies between his claims made in his initial interview and those made in writing in his visa application, the second respondent was not satisfied that the applicant had attended the particular church where the reported incidents had happened; or that the applicant was involved in incidents between Catholics and the Vietnamese authorities or that he had ever been harassed or persecuted while attending church.   

13. The second respondent was also not satisfied that the applicant attended a wedding, sung a banned song, was arrested, detained and beaten by the Vietnamese police, paid a bribe to be released or had fled his village as he had claimed.  The second respondent found the applicant’s claims to be implausible.  Of these claims, it said:

    21. I find it implausible that the person or persons providing the live music at the wedding would know or have access to the music of a banned song to accompany the applicant when he purportedly sung it. Even if the person or persons providing the live music did know or have access to the sheet music I find it implausible that they would willingly accompany the applicant if the song had been banned. I find it implausible that if the Vietnamese police in the applicant’s village were looking for the applicant, and the applicant fled his village in fear, that he would return to his village and go to the local market for a bowl of noodles. Given the implausibility of the applicant’s evidence and the fact that he did not mention singing a banned song, being arrested and beaten by the police, paying a bribe to be released or fleeing his village during his arrival interview I am not satisfied that the applicant attended a wedding, sung a banned song at the wedding, was arrested, detained and beaten by the Vietnamese police on his way home from the wedding, paid a bribe to be released from jail and then fled his village. This finding is consistent with the applicant’s evidence given during his arrival interview when he was asked if he or his family had been involved in any activities or protests against the Vietnamese government and he responded no.

14. The first respondent’s delegate had asked the applicant about how he managed to leave Vietnam via an airport when on his case the police had issued a summons for him.  The second respondent recorded the applicant’s evidence about this matter and determined that the applicant had fabricated his explanation of the police not sending on the summons to the “higher authorities” so as to explain why he was not intercepted at the airport on the way out of Vietnam.  The second respondent also found that the applicant fabricated his explanation for not having an original copy of the summons.  Ultimately, the second respondent was not satisfied that the applicant was ever served with a summons for anti-state activities or wanted by the Vietnamese police for anti-state activities.  The second respondent was also not satisfied that the police ever visited the applicant’s home in Vietnam when the applicant was in detention in Australia.

15. After considering the applicant’s evidence, the second respondent accepted that the applicant came to Australia to work and send money back to his family in Vietnam.

16. The second respondent had regard to certain country information specified in its reasons for decision.  Considering that information together with the findings it had made about the applicant’s religion, the second respondent concluded that the applicant did not have a religious or political profile that would be of any interest to the Vietnamese authorities or that he faced a real chance of any harm for reasons of his Catholicism or any real or perceived anti-Vietnamese government political opinion.

17. Again, using certain specified country information referred to in its decision, the second respondent was also not satisfied that the applicant faced a real chance of any harm on the basis of seeking asylum, because he was scheduled to attend an A18 delegate interview or because of the data breach.  The second respondent was not satisfied that the applicant would be at risk of serious harm as a consequence of routine investigation upon his return to Vietnam.

18. The second respondent concluded that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act because the applicant does not meet s.36(2)(a) of the Act.

19. The second respondent also assessed the applicant’s claims and its findings about them against the complementary protection provisions of the Migration Act. The second respondent concluded that the applicant did not face a real risk of significant harm for any of the reasons claimed by him.

The grounds of review

1. The applicant’s application for judicial review filed on 1 October, 2018 contains only one ground of review in the following terms:

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

2. The first respondent submits that “This is a template ground that has been advanced in a number of matters in the Perth Registry”.  However, I have no evidence before me that suggests that is so.

3. The application provides no further particularisation of the ground of review.  Neither does the affidavit that was filed with it.  The applicant did not take the opportunity afforded to him by the directions orders made in this case to file an amended application for review or file written submissions that properly explained his case. 

4. In his oral submissions to me, the applicant focussed upon the merits of the second respondent’s decision and suggested that I should believe his claims.  I was unable to elicit from him any suggestion that the second respondent had made any legal error in the way it had considered its case or in the reasons for decision that it gave.

5. I accept the first respondent’s submissions that any contention that the second respondent failed to consider the applicant’s evidence or otherwise failed to consider a relevant consideration cannot be maintained.   The second respondent’s reasons explain the evidence it took into account in detail and explains how it used that evidence to inform its findings. 

6. I also accept that there is no error apparent in the way in which the second respondent dealt with the new information given to it by the applicant or his requests for a further interview.

Conclusion

1. The applicant does not demonstrate that the second respondents’ decision is affected by jurisdictional error.  The application must be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 2 July, 2020.

Associate: 

Date: 2 July, 2020