FJT18 v Minister for Home Affairs
[2019] FCCA 1490
•30 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FJT18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1490 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Vietnam – applicant not believed – whether the review was unfair, in particular in relation to the refusal of an oral hearing or was an improper exercise of the power conferred, in particular in relation to whether all relevant material was considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 75 ALD 630; [2003] FCAFC 184 DYK16 v Minister for Immigration [2018] FCAFC 222 |
| Applicant: | FJT18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 1052 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 30 May 2019 |
| Delivered at: | Perth |
| Delivered on: | 30 May 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Ladhams of Australian Government Solicitor |
ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the time for the filing of the application is extended up to and including 15 October 2018.
The application filed on 15 October 2018 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,467, in accordance with Item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1052 of 2018
| FJT18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts concerning the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s outline of submissions filed on 23 May 2019.
Chronology
The applicant is a citizen of Vietnam who arrived in Australia at an unspecified place (possibly Christmas Island) as an unauthorised maritime arrival on 8 May 2013.[1]
[1] Court Book (CB) 50, 120
On 29 May 2013 the applicant participated in an Irregular Maritime Arrival & Induction interview, during which he indicated that he departed Vietnam and travelled to Australia seeking better economic opportunities.[2]
[2] CB 1-24, especially CB 13
On 11 August 2013 the applicant provided a letter to the Minister’s Department in which he indicated that:
a)his family’s income is dependent on the sea, and in recent years his family has been unable to go to sea because the boats are dilapidated, the government would not allow them to go to sea and Vietnamese fisherman were continually attacked and driven away by Chinese warships;
b)he submitted an “entreat help” letter to the Vietnamese government but received no response and then tried to send further letters but was prevented from sending them by the Vietnamese police;
c)his family and relatives arranged a “hot loan” from a bank and “gangland” to allow the applicant to escape and stay away from the Vietnamese police; and
d)he fears that if he returns to Vietnam the gang will hunt and kill him for their debt and that the Communist police will interrogate and beat him.[3]
[3] CB 25-26
The Minister lifted the bar under s.46A of the Migration Act 1958 (Cth) (Migration Act) to allow the applicant to make a valid application for a protection visa and on 27 July 2016 the Minister’s Department sent the applicant a notice inviting him to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa.[4]
[4] CB 31-32
On 22 September 2016 the applicant lodged an application for a Safe Haven Enterprise (subclass 790) visa (protection visa).[5] The applicant included with his protection visa application a statement of protection claims, in which he claimed to fear harm from the Vietnamese authorities on the basis that he had signed a petition in December 2009 calling for freedom of religion in Vietnam and that he signed further petitions in 2011 and 2012 in support of the fishing rights of Vietnamese people.[6]
[5] CB 36-79
[6] CB 74-77
The applicant attended an interview with an officer of the Minister’s Department on 13 December 2016.[7]
[7] CB 92
On 13 February 2017 the delegate made a decision to refuse to grant the applicant a protection visa.[8] The matter was then referred to the Authority in accordance with s.473CA of the Migration Act.
[8] CB 120-130
The Authority sent a letter to the applicant on 17 February 2017 acknowledging the referral and providing a copy of the Authority’s Practice Direction and information about the Authority.[9] The applicant did not provide any submission to the Authority, nor did he ask the Authority to take into account new information.
[9] CB 131-146
On 5 May 2017 the Authority affirmed the delegate’s decision.[10] The applicant sought judicial review of the decision and on 1 November 2017 the Court made orders by consent which had the effect of setting aside the Authority’s decision and remitting the matter to the Authority for reconsideration according to law. The Court was satisfied that there was jurisdictional error in the Authority’s decision of 5 May 2017 because the Authority failed to consider the applicant’s claim that he feared harm from a gang in Vietnam as a result of having arranged a hot loan from the bank and gangland.[11]
[10] CB 147-157
[11] CB 158
After the matter was remitted to the Authority, on 22 November 2017 the Authority sent a further letter to the applicant acknowledging the referral and providing a copy of the Practice Direction and information about the Authority.[12] The letter was delivered to the applicant by hand on 23 November 2017.[13] Again, the applicant did not provide any new information or submission to the Authority and the Authority again affirmed the delegate’s decision on 14 December 2017.[14]
[12] CB 169-170
[13] CB 171
[14] CB 175
The applicant again sought judicial review of the Authority’s decision and on 16 July 2018, the Court again made orders by consent which had the effect of setting aside the Authority’s decision of 14 December 2017 and remitting the matter to the Authority for reconsideration in accordance with the law.[15] On this occasion, the Court was satisfied that the Authority decision was affected by jurisdictional error, because the Authority had relied on a Five Country Conference Tier 3 Match Report (FCC Report)[16] which was provided by the Secretary under s.473CB(1)(c) of the Migration Act but which was not considered by the delegate and was therefore ‘new information’, without:
a)considering whether there were exceptional circumstances to justify considering the report in accordance with s.473DD(a) of the Migration Act, or
b)giving the applicant particulars of the new information which would be the reason or part of the reason for affirming the delegate’s decision and inviting him to comment in accordance with s.473DE of the Migration Act.[17]
[15] CB 189
[16] CB 114-115
[17] CB 189-190
On 30 July 2018 the Authority wrote to the applicant advising that it would reconsider his case.[18]
[18] CB 192
On 2 August 2018 the Authority wrote to the applicant inviting him to comment on information which might be the reason, or part of the reason for affirming the delegate’s decision.[19] The information set out in the letter was information contained in the FCC Report, which comprised information from the United Kingdom (UK) that the applicant had various aliases, that he was recorded as having entered the UK illegally on 1 May 2008, that he was convicted of drug production on 15 April 2010, that he was given a custodial sentence of two years on 9 July 2010 and that he was removed from the UK on 10 November 2010.
[19] CB 196-198
On 7 August 2018 the applicant provided a response to the Authority’s letter of 2 August 2018 via a legal representative.[20] In this response, the applicant’s representative claimed that the applicant had been trafficked or smuggled to the UK by his family in 2008 and, having needed to borrow money from the people smugglers en route to the UK, was then forced to work as a gardener at a house converted into a cannabis factory. The applicant also claimed that when arrested at the house, he gave a false name and date of birth to the UK police because this is what he had been told to do by others. The applicant also alleged that he signed a petition calling for religious freedom in December 2010, not December 2009 as previously claimed. The applicant claimed that in addition to his previous claims, he would also face harm or mistreatment if he returned to Vietnam as a result of his status as a victim of trafficking and a victim of modern slavery.
[20] CB 205-216
Authority decision
On 3 September 2018 the Authority again affirmed the delegate’s decision.
New information
The Authority accepted that the FCC Report comprised new information. The Authority found that there were exceptional circumstances to justify consideration of this information, noting that the report contained credible relevant information which contradicted the written and oral evidence provided by the applicant to the Minister’s Department.[21]
[21] [5]
The Authority also accepted that there were exceptional circumstances to justify considering new information provided by the applicant in response to the invitation to comment. The Authority accepted that the new information, including new claims in relation to human trafficking, was capable of being credible personal information. The Authority found that some of the country information reports provided that pre-dated the delegate’s decision did not meet the requirements of s.473DD(b)(i) or (ii), but obtained those reports for itself and relied on s.473DD(a). The Authority also had regard to the response to the invitation to comment, notwithstanding that it was provided late.[22]
[22] [6]
The Authority decided not to invite the applicant for an interview, as requested by his representative, noting that he had had an opportunity to attend an interview before the delegate, and noting that the Authority took into account all information provided in response to the invitation to comment.[23]
[23] [7]
Consideration of claims
The Authority set out in detail the evidence given by the applicant to the Minister’s Department at various times and found that there were significant and material inconsistencies throughout the applicant’s evidence.[24] Overall, the Authority found that the applicant’s evidence was self-serving and unreliable.[25]
[24] [18]
[25] [48]
The Authority did not accept that the applicant was ever involved in the following activities: signing a petition in Vietnam, participating or organising in protests in Vietnam, writing entreat help letters or preparing letters in Vietnam, being followed, arrested, beaten, interrogated, detained or charged by the Vietnamese authorities or police or being involved in religious and fishermen rights in Vietnam.[26] Rather, the Authority found that the applicant had fabricated these claims to strengthen his claims for protection.[27] The Authority was not satisfied that the applicant faced a real chance of serious harm or real risk of significant harm for any of these reasons.[28]
[26] [18]
[27] [18]
[28] [59], [72]
The Authority was not satisfied that the applicant or his family obtained hot loans from gangs or loan sharks, or that they had outstanding debts to gangs or loan sharks.[29] Instead, the Authority accepted that the applicant’s family mortgaged two of their properties to fund the applicant’s journey to Australia.[30] Accordingly, the Authority was not satisfied that the applicant faced any risk of harm from outstanding loans to loan sharks.[31]
[29] [21]
[30] [22]
[31] [60] (see also [72])
The Authority noted the applicant’s inconsistent evidence about whether he departed Vietnam legally or illegally and found that the applicant had left Vietnam legally using a genuine passport.[32]
[32] [25]
The Authority rejected the applicant’s claims to be involved in the Viet Tan in Australia, finding that his evidence was vague, general, lacking in detail and aspects of his evidence were implausible.[33] The Authority was not satisfied that the applicant would face a real chance of harm as a result of any involvement with the Viet Tan.[34]
[33] [27]
[34] [59] (see also [72])
The Authority accepted that the applicant had used people smugglers to facilitate his travel to the UK and to Australia. The Authority found that although the applicant did not arrange his travel, he was aware of where he was going and there was no suggestion that he was forced to go. The Authority was not satisfied that the applicant was a victim of human trafficking or modern slave labour. The Authority was not satisfied that his rent and work in the UK were arranged by people smugglers or human traffickers.[35] The Authority was not satisfied that the applicant would be destitute on return to Vietnam and was not satisfied that there was a real chance of serious harm as a result of human trafficking or being destitute in Vietnam.[36]
[35] [30]-[34]
[36] [36], [60] (see also [72])
The Authority did not accept that the Vietnamese government had put the applicant’s name on a blacklist or that the applicant had made public statements against the Vietnamese authorities.[37]
[37] [37]-[38]
The Authority did accept that the applicant was stopped by the police when working as a taxi driver in Vietnam and asked for money, but found that this would not lead to a real chance of serious harm or real risk of significant harm in the future.[38]
[38] [40], [58], [73]
The Authority accepted that the applicant would be returning to Vietnam as a failed asylum seeker and that the Vietnamese authorities may know of his failed claim for asylum. The Authority also accepted that the applicant’s personal information had been disclosed during the 2014 data breach. However, the Authority found that the applicant did not have any profile of concern and therefore would not face harm on the basis of seeking asylum or the data breach.[39]
[39] [61]-[62], [73]
Overall, the Authority was not satisfied that the applicant met the criteria in s.36(2)(a) or s 36(2)(aa) of the Migration Act.
The present proceedings
These proceedings began with a show cause application filed on 15 October 2018, having been lodged on 12 October 2018. The application was lodged four days outside the time period prescribed in s.477(1) of the Migration Act. The applicant sought an extension of time under s.477(2) of the Migration Act. The explanation for the delay is the applicant’s difficulties experienced as a detainee at Christmas Island and a lack of English. I granted the extension of time sought, having regard to the shortness of the delay, the explanation for it, and the somewhat unusual procedural issues arising in the Authority’s review.
The substantive grounds of review advanced are:
1.1(a) – That a breach of the rules of natural justice occurred in connection with the making of the decision
The Second Respondent Failed to afford procedural fairness
2.1(e) – That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
In reference to 1(e) – 2(b) – Failing to take a relevant consideration into account in the exercise of a power.
The Second Respondent failed to take into account a relevant consideration determining whether to exercise the discretion
Particulars
a)The Second Respondent failed to take all relevant information into consideration and properly consider all of my claims.
b) The Second Respondent failed to afford me procedural fairness by giving me a chance to comment on aspects of my claims.
c)By failing to afford me procedural fairness and failing to take relevant considerations into account while exercising its discretion the Second Respondent has made jurisdictional error throughout the decision-making process.
The primary issue is one of procedural fairness as limited by the code of procedure in Part 7AA of the Migration Act. The relevant matter is the Authority’s decision to receive adverse personal information as new information. The Authority properly gave the applicant the opportunity to comment on that new information. The applicant through his representative took up that opportunity and substantial submissions and information were provided.
The applicant sought an oral hearing. That request was declined, having regard to the extensive written material provided in response to the invitation to comment, and the prior consideration of the applicant’s claims including at interview before the delegate. In my view, the position adopted by the Authority in relation to the request for an oral hearing was within the range of responses open to the Authority.
I otherwise agree with the Minister’s submissions on the issue of procedural fairness.
Procedural fairness
The procedural fairness obligations owed by the Authority to the applicant are those set out in Division 3 of Part 7AA of the Migration Act. Pursuant to s.473DA(1), the provisions in Division 3 of Part 7AA, along with s.473GA and s.473GB (which have no application in the present case), comprise an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority. This has been held to exclude the operation of the common law rules of procedural fairness.[40]
[40] DBE16 v Minister for Immigration [2017] FCA 942 at [62]; BSQ16 v Minister for Immigration [2018] FCA 469 at [32]
The Authority complied with the provisions in Division 3 of Part 7AA in the present case. In particular:
a)the Authority recognised that the FCC Report was not considered by the delegate and therefore comprised “new information”.[41] The Authority considered whether there were exceptional circumstances to take the FCC Report into account, as required by s.473DD(a), and was satisfied that there were exceptional circumstances in the present case;[42]
b)the Authority sent a letter to the applicant setting out the information in the FCC Report, explaining why that information might be the reason or part of the reason for affirming the delegate’s decision and inviting the applicant to comment on the information.[43] This was done in compliance with s.473DE and no further steps were necessary for the Authority to meet its obligations under that section; and
c)the Authority recognised that the response from the applicant and the country information cited in the response[44] also comprised new information, and considered whether the new information met the requirements of s.473DD.[45] The Authority ultimately took into account all new information provided by the applicant.
[41] See also Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16 at [48]
[42] See [5] of Authority decision
[43] CB 196-198
[44] See CB 205-216
[45] See [6] of Authority decision
One of the particulars raised by the applicant relevant to this ground is that the Authority did not give him a chance to comment on one aspect of his claim. No such aspect is identified. However, it is apparent that the applicant’s representative requested that the applicant be invited to attend an interview to discuss his claims for protection that are “implicit in the material before the Authority”. The Authority declined to exercise its discretion in s.473DC to invite the applicant to give new information by way of oral interview, noting that there was no statutory entitlement to attend an interview. The Authority gave reasons for refusing to exercise the discretion in s.473DC, including that the Authority was satisfied that the applicant was given ample opportunity to present his case orally and in writing before the delegate’s decision was made, and that the Authority had regard to the applicant’s entire written response to the invitation to comment.[46] It is clear from the Authority decision that it considered the new claims raised in the submission to it, including those based on his allegations that he was a victim of people smuggling or human trafficking.
[46] See CB 224 at [7]
There is on the facts of this case no denial of procedural fairness in the Authority declining to invite the applicant to attend an interview. Section 473DC(2) makes clear that the Authority is not required to get new information in any circumstances, and s.473DB(1) sets up a review system that will ordinarily involve the Authority reviewing the matter based on the materials provided by the Secretary, without obtaining or receiving new information and without interviewing an applicant.
The Authority afforded the applicant procedural fairness in accordance with the provisions in Division 3 of Part 7AA of the Migration Act. There is no jurisdictional error in this matter arising from any denial of procedural fairness.
Although the applicant has not raised any issue of legal unreasonableness, as a model litigant, the Minister acknowledges that the Authority is required to exercise its powers and discretions in Division 3 of Part 7AA within the bounds of reasonableness.[47] In the present case, it is clear that there is nothing unreasonable (as that concept is explained in Minister for Immigration v Li[48]) in the Authority’s decision not to exercise the discretion in s.473DC to invite the applicant to give new information at an interview. The Authority considered whether or not to exercise the discretion in s.473DC and opted not to, giving reasons for not inviting the applicant to an interview, notwithstanding that the obligation to give reasons under s.473EA does not extend to procedural decisions.[49] The reasons given by the Authority are both reasonable and rational.
[47] Plaintiff M174 at [21]
[48] (2013) 249 CLR 332; [2013] HCA 18
[49] See CCQ17 v Minister for Immigration [2018] FCA 1641 at [39]
The representative for the Minister drew to the Court’s attention the Full Federal Court decision in DYK16 v Minister for Immigration,[50] in which the Full Federal Court found that the Authority did not act unreasonably in refusing to exercise the discretion in s.473DC to invite DYK16 to an interview as he requested. I accept that it is appropriate for the Court in the present matter to adopt a similar approach to that adopted by the Full Federal Court in DYK16 at [53]-[75] and find that the Authority did not act unreasonably in declining to exercise the discretion in s.473DC to invite the applicant to an interview.
[50] [2018] FCAFC 222
The remaining grounds of review advanced by the applicant have no real substance. I agree with the Minister’s submissions on those grounds.
Improper exercise of power
This ground is entirely without merit. The role of the Authority under s.473CC of the Migration Act is to review the delegate’s decision and either affirm the delegate’s decision or remit the matter for reconsideration with a recommendation or direction. In reviewing the decision, the Authority is to conduct a de novo review and consider for itself whether the applicant meets the criteria for a protection visa in s.36(2)(a) or s.36(2)(aa).[51]
[51] Plaintiff M174 at [17]
This is precisely what the Authority did in the present case. The Authority exercised its power for the reason the power was conferred by statute and there is no improper exercise of power.
Failure to take into account relevant considerations
The applicant has not identified what relevant considerations he alleges the Authority was required to, but did not, take into account.
The Authority is generally required to have regard to:
a)any claims or integers of claims expressly advanced by the applicant;[52]
b)any claims or integers of claims which were not expressly made by the applicant but which clearly emerged from the materials before the Authority;[53] and
c)evidence advanced by the applicant in support of his claims for protection, although it is not necessary for the Authority to expressly refer to every item of evidence in its reasons for decision and not every failure to consider evidence will result in jurisdictional error.[54]
[52] See NABE v Minister for Immigration (No.2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55], [68]; AYY17 v Minister for Immigration [2018] FCAFC 89 at [18]
[53] NABE at [55], [68] and AYY17 at [18]
[54] See Minister for Immigration v SZRKT [2013] FCA 317 at [111]; Applicant WAEE v Minister for Immigration (2003) 75 ALD 630; [2003] FCAFC 184 at [46]
In the present case, the Authority clearly considered all claims raised by the applicant in relation to his protection visa application and all claims which clearly emerged from the materials. Specifically:
a)the Authority considered the applicant’s claims in relation to obtaining a hot loan to depart Vietnam and being at risk from gangs if he returns;[55]
b)the Authority considered the applicant’s claims in relation to signing a religious freedom petition;[56]
c)the Authority considered the applicant’s claims in relation to his activities in relation to fishermen’s rights;[57]
d)the Authority considered the applicant’s claims based on being a victim of people smuggling/human trafficking and modern slavery;[58]
e)the Authority considered the applicant’s claim arising out of membership with the Viet Tan;[59]
f)the Authority considered claims relating to the applicant’s departure from Vietnam;[60]
g)the Authority considered the applicant’s allegation that when he was in Vietnam working as a taxi driver he was stopped by police and asked for money;[61] and
h)the Authority considered the applicant’s claims relating to the 2014 data breach and returning to Vietnam as a failed asylum seeker.[62]
[55] At [20]-[21], [33], [60], [72]
[56] At [11]-[19], [59], [72]
[57] At [9], [11]-[19], [59], [72]
[58] At [28]-[34], [60], [72]
[59] At [26]-[27], [59], [72]
[60] At [23]-[25], [64]
[61] At [58], [73]
[62] At [41], [61]-[64], [73]
In addressing each of the applicant’s claims, the Authority did not overlook any relevant evidence.
The Authority did not fail to consider any claim or evidence that it was required to take into account and there is no jurisdictional error on this basis.
In his submissions in reply, the applicant referred to a visit to his detention centre by Vietnamese officials and the fear of harm the applicant harbours as a consequence of that visit. That is a claim the applicant made from the bar table, and he referred to harm allegedly suffered by another former detainee who returned to Vietnam. This is not a claim that the applicant has made previously and hence it was not something which the Authority could consider. As I told the applicant, it is something he could raise with the Minister through his Department if he wished.
Conclusion
I conclude that the applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The relevant scale amount is $7,467. The applicant did not make any submission in relation to costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,467, in accordance with Item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 5 June 2019
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