FPK18 v Minister for Immigration

[2020] FCCA 953

FEDERAL CIRCUIT COURT OF AUSTRALIA

FPK18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 953

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Grant or refusal of visas – Credibility findings.

CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Protection visa decisions – Fast track review process – Reviewable decisions – assessment of credibility.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 473CA, 473CB, 473DD,

473DE

Applicant: FPK18

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 551 of 2018

Judgment of: Judge Jarrett

Hearing date: 24 April 2020

Date of Last Submission: 24 April 2020

Delivered at: Brisbane

Delivered on: 28 April 2020

REPRESENTATION

The Applicant in person via telephone link with an interpreter

Solicitors for the First Respondent: Australian Government Solicitor

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 24 October, 2018 be dismissed; and

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 551 of 2018

FPK18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Vietnam who arrived in Australia as an irregular maritime arrival on 13 July, 2013.  On 1 June, 2017 he applied for a Safe Haven Enterprise (Subclass 790) protection visa.

2. On 31 May, 2018 a delegate of the first respondent refused to grant the applicant a protection visa. That decision was referred to the second respondent in accordance with s.473CA of the Migration Act 1958 (Cth) on 5 June, 2018.

3. On 28 September, 2018 the second respondent affirmed the delegate’s decision not to grant the applicant the visa for which he had applied. 

4. By his application filed on 24 October, 2018 in this Court the applicant seeks judicial review of the second respondent’s decision.  In his application, he claims that the decision is affected by jurisdictional error because:

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

   2.  I was not afforded procedural fairness.

   3.  I think the Decision is affected by bias.

   4.  I think the Decision maker misinterpreted the law

5. Despite the opportunity to do so, the applicant has not amended his grounds of review from those set out in his original application.  Nor has he taken the opportunity afforded to him to make written submissions in support of his case.  I have the benefit of written submissions made on behalf of the first respondent.

6. For the reasons that follow, none of these grounds have merit.  Moreover, the second respondent’s reasons for decision do not demonstrate jurisdictional error on its part.

The applicant’s protection claims

1. The applicant’s protection claims were limited to the inferences about his political opinions or beliefs that might be inferred from:

   a)his participation in a protest against the Chinese government’s involvement in the South China Sea and subsequent detention on, and escape from, a bus on 2 June, 2013; and

   b)his status as a failed asylum seeker who departed Vietnam illegally.

The second respondent’s decision

1. The second respondent had regard to the material given by the Secretary to the first respondent’s department pursuant to s.473CB of the Act. No further information was obtained or received. The second respondent summarised the facts relating to the applicant’s claims in [3] of that decision. Having regard to the applicant’s entry interview and the statement attached to his visa application, the summary was accurate.

2. The second respondent accepted all of the matters asserted by the applicant concerning his place of residence and his background in Vietnam.  The second respondent accepted that the applicant was of Catholic faith.  Although the applicant had not at any stage referred to any fears on the basis of his religion, the second respondent considered country information regarding the situation for Catholics in Vietnam and concluded that it was not satisfied that the applicant faced a real chance of harm on the basis of his religion.

3. The second respondent considered in detail the applicant’s claims that he took part in an anti-Chinese protest. It commenced by recording the applicant’s evidence set out in his statement that accompanied his visa application.  It also recorded that another person had made a protection visa application based upon the same protests (the applicant’s uncle) and it sought and obtained the applicant’s permission to discuss his case with his uncle and that his uncle had given permission for his case to be discussed with the applicant. 

4. The second respondent then set out the evidence that the applicant gave at his visa application interview with the delegate.  The second respondent set these matters out at length.  It then referred to two media articles concerning the protests that were before the delegate and that the delegate had put these to the applicant for his comment.  The second respondent set out the applicant’s responses at length.

5. The second respondent recorded that the applicant had provided a written submission to the delegate after the visa application interview.  It set out the content of that submission.

6. The second respondent recorded a number of inconsistencies between the media reports and the applicant’s version of events and the differing accounts provided by his uncle and the applicant.  The second respondent noted that the applicant provided no meaningful explanation for the inconsistencies.  The second respondent stated that the applicant was unable to provide any information about where the house he stayed in with his uncle in Hanoi was located, any specific details about the location of the protest, any landmarks around the area of the protest or the day of the week on which the protest occurred. The second respondent considered that the applicant’s evidence regarding the protest was vague and unpersuasive. The second respondent also found the applicant’s description of his escape from the bus by jumping out of a window in circumstances where he said there were 8 or 9 police officers to be entirely implausible.

7. After considering all the information before it, including the country information reports regarding the protest, and the significant inconsistencies between the applicant’s evidence and his uncle’s evidence, the second respondent was not satisfied the applicant was describing events in which he had actually participated.

8. The second respondent considered the claim that the applicant attended a protest in Vietnam and that he was detained as a result were a contrivance.  Accordingly, the second respondent was also not satisfied the purported visits by Vietnamese authorities described by the applicant occurred, or that warrants or summonses were issued against the applicant.  The second respondent was not satisfied that the applicant faced a real chance of being harmed on the basis of any actual or imputed political opinion.

9. The applicant’s details were apparently made public for a time in the now infamous “data breach” that occurred in 2014.  Although the applicant did not claim to fear harm on the basis of the unauthorised disclosure of his personal information as a result of that event, the second respondent considered whether the applicant faced a real chance of harm on this basis.  The second respondent concluded that it was not satisfied that the applicant faced a real chance of any harm on return to Vietnam as a result of the data breach.

10. The second respondent accepted that the Vietnamese authorities may be aware that the applicant applied for asylum in Australia, but found the applicant’s account that authorities visited his parents’ house to advise them that they knew the applicant was in Australia was implausible and it was inconsistent with his claim that the authorities continue to visit his parents to ask them to present the applicant to the police. The second respondent was not satisfied that the applicant faced a real chance of any harm on return as a result of being a failed asylum seeker or that the applicant faced a real chance of serious harm if he returned to Vietnam on the basis of his illegal departure from Vietnam.

11. Relying upon its findings in relation to the applicant’s protection claims, the second respondent was not satisfied that the applicant was at real risk of suffering significant harm.

Consideration

1. As I have recorded above, the applicant did not file any written submissions to assist the Court with the resolution of his application.  He made oral submissions, with the assistance of an interpreter.  They focussed upon the merits of his application and the second respondent’s failure to accept the credibility of his claims.  He did not seek to expand upon his grounds of review as set out in his application.  I will consider each separately.

Ground 1

1. Ground 1 alleges that the second respondent did not consider all of the evidence or take into account relevant considerations.  But the second respondent’s reasons demonstrate that it did consider all of the material placed before it by the secretary of the first respondent’s department.  There was, in my view, a careful recitation of the evidence given by the applicant, in his statement attached to his visa application, in his interview with the delegate and in his post-interview submission.  I accept the first respondent’s submissions that the second respondent considered all of the applicant’s evidence.

2. As the first respondent points out, the applicant did not provide any new information to the second respondent. The second respondent also considered the evidence of the applicant’s uncle, limited to what was detailed and presented to the applicant in his interview before the delegate. It weighed up all of this evidence and did not accept that the applicant had a well-founded fear of persecution or that he would face a real risk of significant harm upon his return to Vietnam.  None of the second respondent’s findings or conclusions appear to be illogical, irrational or unreasonable.

3. The ground raises no demonstrable jurisdictional error.

Ground 2

1. This ground asserts that the applicant was not afforded procedural fairness. There is no basis for this assertion demonstrated on the material before me. The second respondent appears to have conducted its review in accordance with Part 7AA of the Act. The second respondent conducted the review on the papers, taking into account the material provided to it by the Secretary under s.473CB. The applicant did not provide any new information to the second respondent and so, s.473DD of the Act was not engaged. Nor was s.473DE of the Act.

2. This ground of review demonstrates no jurisdictional error.

Ground 3

1. By this ground of review the applicant alleges that the second respondent was biased.  Again, there is no basis set out in the material for such an allegation.

2. I accept the first respondent’s submissions that the second respondent carefully and independently assessed the applicant’s claims, as it was required to do, and its rejection of some of the applicant’s claims does not indicate bias.  Moreover, there is nothing to indicate any prejudgment on the part of the second respondent.

3. This ground of review does not reveal jurisdictional error.

Ground 4

1. By this ground the applicant claims that the second respondent misinterpreted the law. The applicant has not specified how the second respondent has misinterpreted the law. In my view, on a fair reading of the second respondent’s decision, there can be no suggestion that it misinterpreted the law. The second respondent correctly identified the criteria in ss.36(2)(a) and 36(2)(aa) of the Act as being relevant criteria.

2. I accept the first respondent’s submission that the second respondent’s approach to these subsections was entirely orthodox.  Its reasons do not reveal that it identified a wrong issue or asked itself the wrong question.

3. This ground reveals no jurisdictional error.

Conclusion

1. No error on the part of the second respondent is demonstrated, let alone jurisdictional error.  Accordingly, the application must be dismissed.  Costs should follow the event and be in the fixed sum claimed by the first respondent.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 28 April 2020

Associate: 

Date: 28 April 2020