FVC18 v Minister for Home Affairs
[2020] FCCA 1816
•6 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FVC18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 1816 |
| Catchwords: MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether IAA failed to take into account relevant consideration –whether IAA denied procedural fairness – whether IAA biased – whether credit findings open – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, ss.5, 36, 46A, 473CA, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 473GA, 473GB, 476 |
| Cases cited: BJB16 v Minister for Immigration & Border Protection [2018] FCAFC 49 CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | FVC18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 585 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 2 July 2020 |
| Date of Last Submission: | 2 July 2020 |
| Delivered at: | Perth |
| Delivered on: | 6 July 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms C Allen |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 585 of 2018
| FVC18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Vietnam. He arrived in Australia as an unauthorised maritime arrival on 8 May 2013 (Court Book (“CB”) 124).
On 27 July 2016, the applicant was advised that the first respondent (the “Minister”) had lifted the bar pursuant to s.46A(2) of the Migration Act 1958 (Cth) (the “Act”). This allowed the applicant to apply for a protection visa.
On 9 June 2017, the applicant applied for a Safe Haven Enterprise (subclass 790) visa (the “visa”) (CB 28-73). The applicant’s claims for protection were summarised in his statement of claim as follows:
39. If I were to return to Vietnam, I believe that the Vietnamese government would arrest and imprison me. They will ask information about my escape from the area as it is illegal to leave the country. They will accuse me of treason because of the existing belief that I am anti-government by being part of the protests. As I attempted to seek asylum elsewhere, it would strengthen their belief that I am anti-government.
40. I also believe that my family and I will be persecuted as we are Catholic Christian and we will not be able to practice our religion.
…
45. In summary, I fear harm throughout the whole of Vietnam including kidnapping, assault, and imprisonment at the hands of the Vietnamese government on the basis of my Christian Catholic religion. I have personally been assaulted by my feared persecutors. I cannot rely on the protection of the Vietnamese state and cannot safely relocate anywhere else in Vietnam.
46. I also believe I am now at further risk of being harmed by the Vietnamese Government because I was affected by the Data Breach
The applicant was invited to attend an interview with a Ministerial delegate on 7 March 2018 (CB 86-87). The applicant provided supporting documents including photographs, statements and a letter from the Viet Tan to the delegate (CB 88-120).
On 5 April 2018, the delegate refused to grant the applicant the visa (CB 121-138). The delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations.
On 10 April 2018, the applicant’s matter was referred to the Immigration Assessment Authority (the “IAA”) for review pursuant to s.473CA of the Act (CB 139-140).
On 30 October 2018, the IAA affirmed the decision to not grant the applicant the visa (CB 142-164).
On 8 November 2018, the applicant filed an application for judicial review of the IAA’s decision in this Court. The application is brought pursuant to s.476 of the Act. To succeed the applicant must show that the IAA has fallen into jurisdictional error.
IAA’s Decision
It is not disputed that the applicant here satisfies the criteria in s.5(1) of the Act for “fast track applicants”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information”. When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s.473DD of the Act which provides as follows:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
Here, the IAA’s decision is 23 pages long and spans 71 paragraphs.
The Minister’s submissions at [8]-[16] accurately summarises the IAA’s Decision. The Court adopts that summary as its own. With some amendments, it provides as follows.
The IAA had regard to the material given by the Secretary under s.473CB of the Act and noted that no further information had been obtained or received (at [3]).
The IAA then summarised the applicant’s claims for protection as follows (at [4]):
• He was born in Nghi Phuong village in Nghi Loc District, Nghe An Province. He lived in Nghi Phuong village all of his life. His parents and siblings continue to live there.
• He and his family are Catholic.
• From 1988 to 1993, his father was regularly beaten by local police due to his failure to pay a government debt. The debt was accrued as a result of his father’s inability to provide farm produce demanded by local police. The local police expected this from his family because they are Catholics. During the same period, local police stole produce from his family farm. These incidents stopped in 1993 as the family was able to pay back some or all of the debt.
• He joined the [omitted] (‘the youth group’) in 1999. His duties as a member of the youth group included helping the poor, collecting donations, and helping Catholic visitors to the nearby Saint Anthony shrine.
• On 17 February or 17 December 2011, the police attempted to uproot saplings on a tree plantation belonging to the Catholic community near the Saint Anthony shrine. The police did this because they wanted to seize the land. He was involved in a protest about this and asked the police officers why they were uprooting the saplings. He believes that because of this he was placed on a government watch-list and was considered to be opposed to the local authorities.
• On 1 July 2012, he and several other members of the youth group heard about an incident involving authorities and Catholics in Con Cuong District. They travelled to Con Cuong to see what happening and report back to their Parish Council. When they arrived the disturbance was over and authorities blocked their access to the site, so they returned to Nghi Phuong village.
• He and other members of the youth group clashed on a number of occasions with people he believes were local authorities in relation to the youth group’s activities at the Saint Anthony shrine. They offered a free motorcycle minding service and free religious statuettes to Catholic visitors to the Saint Anthony shrine. Local people or authorities objected to their provision of these services as they wished to charge a fee to mind visitors’ motorcycles. The last such clash occurred on 14 April 2013. He was assaulted by police in the course of this incident. He escaped to Saigon (Ho Chi Minh City) as he knew the police would be looking for him. He left Vietnam on 17 April 2013.
• The authorities contacted his family to ask about him on one or two occasions after he had left Vietnam.
• The Vietnamese Government will arrest and imprison him if he returns to Vietnam.
• They will accuse him of treason because of his past involvement in protests. They will see him as opposed to the Government because he sought protection in Australia. They will seek information from him about his escape from Vietnam as it is illegal to leave the country.
• As a result of the Department’s 2014 data breach, Vietnamese authorities will know that he has sought asylum in Australia. This adds to the risk that he will be harmed by Vietnamese authorities on his return to Vietnam.
• He cannot rely on the protection of the Vietnamese Government and would not be safe anywhere within Vietnam.
• He suffers from mental health problems due to trauma he experienced in Vietnam. These problems affect his ability to recall past events.
• Since his arrival in Australia, he has become a supporter of the Viet Tan. He has supported the group financially, shared Viet-Tan related pages on social media sites on the internet, and attended a rally or rallies to demand the release of human rights and democracy activists, including Catholic priests, imprisoned in Vietnam.
In relation to the applicant’s mental health, the IAA noted that no medical evidence to support his claims had been provided. Further, the applicant had not indicated what events in Vietnam had caused the claimed trauma (at [8]). The IAA accepted that the applicant was distressed during the entry interview and that that might provide a reasonable explanation for minor discrepancies in his claims (at [9]). At [10], the IAA then stated:
The applicant did not refer to his claimed mental health issues, or their impact on his ability to recall events, during or following the SHEV interview with the delegate. During the SHEV interview, the delegate put to the applicant that his statements during the entry interview were inconsistent with his later evidence. The applicant did not refer in his response to any problems with his memory or mental health. I note that the delegate asked the applicant whether there was anything else he wished to say on two occasions during the SHEV interview. He advised the applicant that any information he received before he made a decision would be considered. It does not appear that any further information was received by the delegate following the interview. On the evidence before me, I am not satisfied that the applicant’s ability to put forward his claims for protection, and any evidence to support those claims, has been adversely affected by any mental health problems, other than the distress he felt at the time of the entry interview, which I have found may account for minor inconsistencies in the applicant’s statements.
The IAA accepted that the applicant was Catholic, a long-standing member of a Catholic Youth Group and that he attended mass in Australia (at [11]).
The IAA noted that the applicant’s evidence about his previous harm related to his Catholic faith and his involvement in activities related to his faith (such as his claimed voluntary work as a member of a youth group (including the claimed activities at the Saint Anthony shrine)) was difficult to follow (at [13]).
The IAA then set out the applicant’s “unclear” evidence (as provided in his application and at the interview with the delegate) including an allegation that the police had uprooted trees at a plantation and that a protest followed (at [14]-[19]).
The IAA at [20] found:
On the evidence before me, I am not satisfied that the 2013 arrest of the two men was related to the claimed 2011 tree plantation incident, or to any of the activities of the youth group. Nor am I satisfied that these men were members of the applicant’s youth group. I found the applicant’s evidence about the tree plantation incident to be confused and I have some doubts as to the veracity of his claim to have been involved in such an event.
At [21], the IAA stated:
During the SHEV interview, the applicant indicated that he attended the site of a 1 July 2012 clash between Vietnamese authorities and Catholic parishioners in Con Cuong parish in Nghe An. He said he came to hear about the clash through his membership of the youth group and went that day with four other people to the site of the clash to see what was happening and report back to the parish council. He said that when they arrived at Con Cuong, the clash had ended. Authorities prevented them from entering the site of the conflict and there was nothing they could do, so they returned to their village.
The IAA did not accept that the applicant attended this incident as he had not disclosed this in his claims in circumstances where he had referred to other incidents of “less direct relevance” (at [22]).
The IAA then detailed further aspects of the applicant’s evidence relating to his involvement in the “youth group” (at [23]-[28]). The IAA noted that the applicant’s evidence was “general in nature”, “varied” and was “difficult to accept”. This lead the IAA to doubt that the applicant’s departure was prompted by any assault at the hands of authorities and to doubt his claims to have been involved in any clashes with authorities.
The IAA then noted as follows (at [30]-[33]):
30. When asked what he thought would happen to him if he returned to Vietnam, the applicant replied that he did not know. The applicant indicated during the entry interview that he was a member of a Catholic youth group which carried out social activities to help others. He indicated that neither he nor any members of his family had been involved in any activities or protests against the government. He indicated that the police security and intelligence organisations did not affect his day-to-day life in Vietnam. When asked why he chose Australia as his destination, the applicant indicated that he was told by those who arranged his travel that he would be going to a foreign country where he would be offered employment and would be able to work and earn money. In describing his arrangements for travelling to Australia, the applicant indicated that a man from a job network told him about the possibility of a foreign country where they would help him to find employment. When asked at the end of the entry interview whether there was anything that the interviewing officer had not asked that he would like to say, the applicant replied that when he arrived in Australia he saw the people in Australia had good hearts and he would like to settle in Australia.
31. The applicant has provided a number of explanations for the differences between his statements during the entry interview and his subsequent evidence. In his statement accompanying his SHEV application, he said that during the entry interview, he was asked to give a brief description of his claims and therefore did not provide details of all of his claims. The interviewing officer did not explain what was relevant or what he needed to tell her. He said that any inconsistencies may be due to issues with interpretation, or the limited time he had to answer questions, although he provided no further detail of these issues. 32. He provided in his statement accompanying his SHEV application a list of some eleven minor discrepancies in the information recorded in his ‘Client in Confidence’ (CIC) document and his ‘arrival interview’ which he believed to be the result of misinterpretation. The information about these claimed discrepancies indicates that the ‘arrival interview’ to which the applicant refers is the entry interview. The reference to the ‘Client in Confidence’ document is not clear. However, from the context and information cited, it appears that this document may be a record of a ‘biodata’ interview conducted prior to the entry interview, when the applicant first arrived in Australia. For example, the applicant indicates that the CIC document is handwritten, as are records of biodata interviews. The record of the applicant’s biodata interview, or the CIC document, if different, is not before me.
33. All of the purported discrepancies identified by the applicant are minor in nature. They relate to matters that appear to be minor spelling, typographical, or name order, errors in the names of the applicant’s relatives; minor errors or differences in dates of birth of the applicant’s relatives; and minor differences or errors in information about the name of the school the applicant attended, the age at which he started to work on his family farm, and his family composition. It is not evident that these errors are errors of interpretation as opposed to other errors such as errors of transcription, or even errors related to the applicant’s estimation of the ages of his relatives during the interviews. At least one item does not highlight any substantial inconsistency. The applicant claims that his religion is incorrectly in the ‘CIC’ document as ‘Christian’, and incorrectly recorded as ‘Catholic’ in the record of the entry interview (referred to as the arrival interview in his statement), as his religion should be recorded as ‘Catholic Christian’. Some of the matters relate to claimed errors in the CIC document rather than the record of the entry interview. As I do not have the CIC document before me I have not had any regard to this document or any errors it may contain. I do not consider that any of matters raised by the applicant indicates that any error of interpretation of any substance occurred during the entry interview
The IAA did not accept that any interpretation issues prevented the applicant from participating effectively in the entry interview or that the questions asked of him were so complex that the applicant was unable to participate effectively (at [34]-[35]).
At [36]-[38], the IAA then stated:
36. As mentioned, the recording of the entry interview is not before me. I am willing to accept that the applicant was directed to provide a brief description of his reasons for leaving Vietnam. The record of the interview indicates that the applicant was asked three questions about his reasons for leaving Vietnam. He indicated in his responses that his family’s poverty was his primary reason for leaving Vietnam, while his secondary reason for leaving Vietnam was the discriminatory treatment of Catholics by the Communist government, although he himself had not experienced any such discrimination. He stated elsewhere in the entry interview that he had not participated in any protests or activities against the government and that the police and security organisations did not affect his day-to-day life in Vietnam. While it is to be expected that applicants for protection will provide more detailed information about their claims for protection, including their reasons for leaving their country of origin, I do not consider that the applicant’s subsequent claims to have been assaulted and repeatedly harassed by Vietnamese authorities, to have participated in a protest against the actions of police as a result of which his name was placed on a government watch list, and to have escaped from Vietnam because he was afraid police were looking for him following his involvement in an April 2013 clash with police, can be characterised as no more than further detail relating to matters that were raised in broad terms during the entry interview. I consider the statements made by the applicant during the entry interview to be substantially inconsistent with his later claims.
37. I am not satisfied on the evidence before me that the applicant did not refer to the mistreatment he has subsequently claimed that he experienced at the hands of Vietnamese authorities due to the limited time available during the entry interview. While I have accepted that the applicant was distressed during the entry interview, and that this may account for minor discrepancies in the statements made by the applicant, I am not satisfied that any such distress represents an adequate explanation for the significant inconsistency between the applicant’s statements regarding his experiences in Vietnam during the entry interview and his subsequent statements in the context of his SHEV application and interview. As discussed, he was asked a number of questions about his reasons for the leaving Vietnam and appears to have provided appropriate responses to these questions. As mentioned, I am not satisfied that the applicant’s ability to recall past events is affected by any mental health problems. Nor am I persuaded that the record of the entry interview reflects any errors of interpretation of any significance.
38. The applicant states in his SHEV application that his application was completed with the assistance of volunteers from the ‘Humanitarian Group’, a community legal centre which provides free migration and legal assistance, and the assistance of an interpreter. He states that if there are errors in translation or information is missing from his SHEV application, this would be the result of the lack of resources available for adequate legal assistance for people seeking protection. The applicant has not identified any errors of translation or interpretation in his SHEV statement, or pointed to any information that is missing from his SHEV application. He provided a statement of approximately seven pages in length with his SHEV application. He appears to have received the assistance of a volunteer legal practitioner and / or registered migration agent in preparing his SHEV application. On the limited evidence before me, I am not persuaded that any errors of translation or interpretation of significance affected the applicant’s SHEV application. Neither am I persuaded that any information of significance to the applicant’s claims for protection has been omitted from the applicant’s SHEV application as a result of a lack of resources available for legal assistance.
In light of the considerable variation between the applicant’s written and oral claims, the IAA was not satisfied that the applicant experienced any form of mistreatment, including discriminatory treatment, related to his Catholic faith, or for any reason, in Vietnam (at [39]). The IAA considered it “highly likely” that the applicant had exaggerated his claims and that the primary reason the applicant came to Australia was because of poverty.
In particular, the IAA did not accept that the applicant was involved in a protest about police uprooting trees, that his name was placed on a watch list, that he was involved in providing services or items at the Saint Anthony shrine, that he was harassed or assaulted by local authorities or police, that he travelled to Con Cuong or that the Vietnamese authorities visited his family home after his departure (at [40]).
The IAA found that the applicant’s activities as a member of the youth group involved the provision of social services to the needy and was not satisfied that the applicant engaged in any form of religious activism or protest or would be perceived to be an activist or as someone who is opposed to the authorities (at [41]).
The IAA then summarised the country information relating to Catholics in Vietnam (at [42]). It noted that the applicant had not suggested that his church in Vietnam was unregistered, he had not claimed to have been prevented from practising his faith previously and he had not claimed that his family who remain in his village (and are members of the church and youth group) have suffered any mistreatment (at [43]).
At [44], the IAA concluded:
I have not accepted that the applicant was of any adverse interest to Vietnamese authorities at the time he left Vietnam for any reason related to his Catholic faith or religious activities. I have found that the applicant did not engage, or wish to engage, in any religious activism in Vietnam other than his church attendance and involvement in charitable work as a member of the youth group. The applicant claims that he has become a member of the ‘Viet Catholic community’ in Australia. He did not provide any further information about the nature of his involvement in this community. He did not claim to have engaged in any form of religious activism, other than his church attendance and interaction with the ‘Viet Catholic community’ in Australia. I have found below that the applicant attended a single rally or protest organised by the Viet Tan in Australia solely for the purpose of strengthening his claims for protection. Having regard to my findings as to the applicant’s past involvement in religious activities, I am satisfied that on the applicant’s return to Vietnam, he will not engage in, or wish to engage in, any activities related to his Catholic faith that will be perceived by Vietnamese authorities to challenge their authority, interests or policies.
The IAA then summarised the applicant’s evidence in relation to the claimed harm suffered by his father (at [45]-[46]). The IAA again found the applicant’s evidence to be quite unclear.
The IAA was willing to accept that the applicant’s grandfather died while detained by Vietnamese authorities, that produce was stolen from his family farm and that his father had owed money to people. However, the IAA was not satisfied that those events were related to the applicant’s father’s, or his family’s, Catholic faith. Accordingly, the IAA did not accept that the applicant was of any adverse interest to Vietnamese authorities for any reason related to his father or grandfather’s activities, religion or for any other reason. Nor did the IAA believe that there was any credible evidence to suggest that he would be harmed in the future (at [47]).
In relation to the applicant’s support of the Viet Tan since arriving in Australia, the IAA had regard to and summarised the applicant’s evidence at the SHEV interview (at [49]), his statement about his everyday activities in Australia (at [50]), the letter purportedly issued by a representative of the Perth chapter of Viet Tan (at [51]) and the photographs the applicant provided (at [52]-[53]).
The IAA noted that the applicant advanced no documentary evidence to support the claim that he had shared Facebook posts related to the Viet Tan and found his evidence in this regard to be vague (at [54]).
At [55], the IAA stated:
During the SHEV interview, the applicant said that he became involved with the Viet Tan after his release from immigration detention in Perth. He said that members of the group greeted him after he was released and he got to know the group after this. They made him aware of things that were happening in Vietnam. I find it surprising that the applicant did not refer to his involvement with and support for the Viet Tan in his statement accompanying his June 2017 SHEV application, particularly given his claimed fears related to his Viet Tan activities. As discussed, the applicant’s statement accompanying his SHEV application is quite detailed and addresses a range of matters that would appear to be of less immediate relevance to his claims for protection. As mentioned, I am not persuaded that the any information of significance has been omitted from his SHEV statement due to a lack of resources for legal assistance or that his SHEV statement includes any significant errors of translation or interpretation.
The IAA found that the applicant’s evidence during the interview with the delegate about the nature of his involvement with, and support of, the Viet Tan to be vague and inconsistent (at [56]-[57]).
At [58]-[59], the IAA stated:
58. The delegate accepted that the applicant was a person who had a low level of participation in the Viet Tan. He accepted that the applicant is a member of the Viet Tan but was not satisfied that he has a genuine political opinion against the Vietnamese government. Given my concerns about the applicant’s evidence, I do not accept he is a member of the Viet Tan or that he has any genuine interest in the activities of the Viet Tan. I am not satisfied on the evidence before me, that the applicant has shared any Facebook or other information associated with the Viet Tan with other people online. I am willing to accept however, that the applicant has attended one event in Australia organised by the Viet Tan. I find that he did so in order to strengthen his claims for protection. I am not satisfied that the applicant engaged in any other activity in Australia related to the Viet Tan, or in any activity that is, or may be seen to be, a form of political or religious activism. Having regard to my findings in relation to his past activities in Vietnam, and my findings in relation to his activities while in Australia, I am satisfied that the applicant will not engage in, and will not wish to engage in, any form of political or religious activism in Vietnam in future, other than his regular attendance of church, and any charitable work he may undertake as a member of a Catholic community group.
59. I am not satisfied that the applicant attended the single Viet Tan event in Australia for any reason other than to strengthen his claims for protection. Therefore, pursuant to s.5J(6) of the Act, I have disregarded this aspect of the applicant’s conduct, and any consequences flowing from it, for the purpose of assessing whether he has a well-founded fear of persecution for one of the reasons set out in s5J(1)(a).
The IAA accepted that the applicant’s personal details were released in the 2014 data breach and may have been accessed by the Vietnamese authorities (who may be aware that the applicant sought asylum in Australia) (at [60]-[61]). The IAA noted, however, that there was no indication that the applicant’s substantive claims had been released and that there was country information that suggested that there was no evidence of mistreatment of returning asylum seekers (at [62]).
Having outlined the country information regarding illegal departure from Vietnam (at [63]), the IAA accepted that the applicant departed Vietnam illegally (at [64]). Further, having regard to that country information, the IAA found that the applicant may be required to pay a fine and be briefly detained and interviewed – but was not satisfied that there was a real chance that he would suffer harm (at [64]).
Overall, the IAA was not satisfied that the applicant met the criterion of s.36(2)(a) of the Act.
The IAA then assessed the applicant’s claims under the complementary protection regime and stated:
68. I have not accepted that the applicant is a member of the Viet Tan, or that he had any genuine engagement with the Viet Tan in Australia. I have accepted, however, that he attended a single event organised by the Viet Tan Australia, solely for the purpose of strengthening his claims for protection. I am not satisfied that the applicant would come to the adverse attention of Vietnamese authorities on his return to Vietnam as a result of his attendance of this single event, even having regard to the publication of his personal details on the internet as a result of the Department’s 2014 data breach, his identity as a practising Catholic, his past membership of a catholic youth group, and his family’s past experiences. I am not satisfied that there is a real risk of harm to the applicant on his return to Vietnam on the basis of his attendance of this Viet Tan event in Australia, now or in the foreseeable future. I am satisfied, in view of my findings regarding the applicant’s lack of any genuine interest in the activities of the Viet Tan, that he would not engage in, or wish to engage in, any activities related to the Viet Tan in Vietnam in future.
69. I have accepted that the applicant may be briefly detained and interviewed and / or required to pay a fine on his return to Vietnam. I am not satisfied that any harm experienced as a result of any such treatment, even considered cumulatively, would constitute significant harm for the purposes of s.36(2A). I am not satisfied that there are substantial grounds for
The IAA otherwise relied on its anterior findings to conclude that the applicant did not face a real risk of significant harm for any other reason (at [70]-[71]).
In light of the above, the IAA affirmed the decision to not grant the applicant the visa.
Proceedings in this Court
The judicial review application filed 8 November 2018 contains four grounds of review as follows:
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.
The applicant was given an opportunity to file an amended application, any further affidavit evidence and an outline of submissions. Unfortunately, no further materials were filed by the applicant. Hence, the only materials before the Court are the judicial review application (with four “template” grounds of review that are not particularised), a Court Book numbering 168 pages (marked as Exhibit 1) and an outline of submissions filed by the Minister on 16 April 2020.
At the hearing, the applicant appeared without legal representation. He was assisted by an interpreter in the Vietnamese language. The Court thanks the interpreter for her considerable assistance during the hearing of this matter.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court gave the applicant an opportunity to outline orally what he thought the IAA “did wrong”.
To assist the applicant, the Court explained to him what this Court can and cannot do. The Court explained that its task is limited to assessing whether the IAA fell into jurisdictional error.
The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT (2013) 212 FCR 99 at [111] (“SZKRT”);
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the IAA’s decision or grant him the visa he now seeks. Rather, the role of the Court is restricted to determining if the IAA made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the Court invited the applicant to explain to the Court what he thought the IAA “did wrong”.
In effect, the applicant explained that he had submitted “a lot” of documentation to the IAA and the IAA ignored this documentation. The Court will address this in the context of ground 1. The applicant also referenced the IAA relying on incorrect time and dates to disagree with what he said. The Court will address this as an additional ground below.
The applicant was clearly nervous and, without the assistance of legal representation, understandably worried that he would say the wrong thing. He explained that he “has a bad history that he would like to forget”. The applicant was emotional and stated that he simply wanted to forget the bad things that had happened to him. The Court offered the applicant an opportunity to take a break. He indicated that he did not wish to do so. The Court explained to the applicant that it was not necessary for him to recall his past or any harmful events when speaking to the Court. Rather, he should simply identify any mistakes he thought the IAA made when assessing his application. The applicant proceeded to talk to the Court and explain his concerns. The Court is satisfied that he was able to do so in a way that was clear and articulate.
Consideration
Ground 1
Ground 1 provides:
I think the Decision maker did not consider all of the evidence or did not take into account relevant considerations.
The applicant did not identify what evidence or which relevant consideration was not taken into account. It is thus difficult to determine whether the IAA has erred as pleaded by ground 1.
At hearing, the applicant said the “material” he is referring to related to “suppression in Vietnam”. He believes the IAA found that material to be “fake” but disagrees with this assessment.
In relation to the “relevant considerations”, it is accepted that an applicant’s claims for protection are mandatorily relevant considerations: SZKRT at [111]. The Court has reviewed the materials in the Court Book to determine whether the IAA overlooked any express or implicit claims. The Court is satisfied that the IAA’s summary of claims is accurate and, indeed, comprehensive. When one compares the applicant’s initial statement in support of the visa, the matters he raised with the delegate at the interview and the summary prepared by the IAA, it is clear that the IAA identified each of the relevant considerations.
In terms of the IAA’s consideration of the applicant’s claims, the Court is also satisfied that there has not been any error in this regard. Here, the IAA considered:
a)the applicant’s involvement with the youth group and the fact that he practised as a Catholic. It considered whether the incidents the applicant claimed to have occurred while involved with the youth group or to Catholics in Vietnam generally would cause the applicant to be of adverse interest to the authorities or to face a risk or chance of harm (at [13]-[44]). It considered the applicant’s level of involvement prior to his departure and on return when assessing his risk or chance of harm;
b)whether the applicant was at risk or chance of harm due to his father or grandfather’s activities and because his father was in debt (at [45]-[47]);
c)the applicant’s claims to have become involved with the Viet Tan in Australia, whether his involvement may be perceived as religious activism and whether he would engage in such activity on return (at [48]-[59]);
d)whether the applicant faced any risk or chance of harm as a result of the 2014 Data Breach and his being identified as a returning asylum seeker by the Vietnamese authorities (at [60]-[62]); and
e)if the applicant, having departed Vietnam illegally, was at risk or chance of harm when returned (at [63]-[64]).
The IAA comprehensively addressed each of the applicant’s claims and made the necessary findings of fact that would inform its assessment of whether the applicant faced a chance or risk of harm for the reasons claimed. The IAA took into account the applicant’s claimed mental health problems and his explanation for inconsistencies when making its findings of fact. The IAA’s findings of fact were made after a careful and detailed analysis of the applicant’s evidence and by having regard to the relevant country information.
The Court is satisfied that the IAA considered all of the relevant considerations.
In his oral submissions, the applicant referred to the IAA finding certain material to be “fake”. The only materials that the applicant provided are those at CB 88-120. The IAA referred to these materials at [50]-[52] of its decision, which states as follows:
50. In his statement about his everyday activities in Australia, the applicant referred to a number of issues and events of concern to him which he said were happening in Vietnam. These included social catastrophe, abortion, social culture degradation, fighting in schools, education based on ethics classes, peeling of the skins of live animals, and the mistreatment of Catholic priests, human rights, democracy, and environmental activists. He did not articulate the relevance of these matters to his claims for protection. He said that he could not be returned to Vietnam because he will be imprisoned for a long time as he escaped from Vietnam and had now joined ‘the local communities and Viet Tan in Perth to allege and expose to the world’ the Communist Party’s treatment of Vietnamese citizens, or words to that effect. He suggested he would be beaten to get information and would be seen as betraying Vietnam because he had lived in Australia. He said he had participated in activities against the Vietnamese authorities.
51. Attached to the statement is a letter purporting to have been issued by a representative of the Perth chapter of the Viet Tan dated 22 April 2017. The letter purports to be a letter of appreciation thanking the applicant as a ‘long-term friend of Viet Tan Perth Chapter’ for his assistance in setting up the Viet Tan’s fundraising dinner of Saturday 22 April 2017. The letter lacks any formal letterhead, other than a symbol. There is no text in the letterhead or footer of the letter referring to the Viet Tan, or to the address of the Viet Tan’s Perth chapter. The letter does not include the address or contact details of the author. Having regard to these matters, I place limited weight on this document as evidence of the applicant’s support of the Viet Tan in Perth. I note also that the letter purports to have been written on the same date as the dinner and I find it somewhat surprising that letters of appreciation for those who had assisted in setting up the dinner would have been written on the same date as the dinner itself.
52. Six photographs were attached to the applicant’s statement concerning his everyday activities in Australia. No description of these images is included in the applicant’s statement and none of the images are dated or labelled in English. One of the images, a photograph of the applicant standing beside a man in a suit, has a caption of four or five Vietnamese words. No translation into English of this caption has been provided. The identity of the man in the suit and the context of this photograph is not apparent. I place no weight on this document as evidence of the applicant’s involvement with Viet Tan or any political or politico-religious activities in Australia. The other photographs are not labelled or captioned in Vietnamese or English.
The weight to be given to evidence and materials is a matter for the IAA: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10.
The Minister submitted that the applicant’s oral submission was no more than the applicant disagreeing with the weight to be afforded to these materials.
The Court accepts the Minister’s submission. The IAA clearly considered the materials the applicant was referring to. It did not find that these materials were “fake”. Rather, the IAA found that the materials did not support, or had limited weight in supporting, the applicant’s claims.
The reasons the IAA gave for doing so were entirely sound. Relevantly:
a)“the statement of everyday activities” was not “evidence”. It was a statement as to the applicant’s claims. The IAA addressed these (as the Court has noted above);
b)the IAA chose not to attach weight to the letter dated 22 April 2017 as the IAA had concerns about the genuineness of the document. Those concerns arose from the appearance of the document and from the circumstances in which the documents appeared to be provided. This was a sound basis for the IAA to place limited weight on it. It is open for the IAA to form its own views about the authenticity of documents: BJB16 v Minister for Immigration & Border Protection [2018] FCAFC 49; and
c)the weight attached to the photographs at [52] was limited because there was no context. In the absence of an explanation for why the evidence was provided, it was entirely open to the IAA to place no weight on the photos.
The applicant’s oral submissions do not identify any jurisdictional error.
Otherwise, in relation to any concern that the IAA did not consider all of the evidence, the IAA:
a)stated that it had had regard to all of the material referred by the Secretary;
b)expressly referred to the applicant’s visa application on numerous occasions and demonstrated a detailed engagement with that evidence (for example, when discussing the explanation for inconsistencies in the entry interview);
c)forensically detailed the evidence that had been given by the applicant at the interview with the delegate;
d)acknowledged that it did not have an audio of the arrival interview and took this into account when assessing the extent of any inconsistencies; and
e)referred to each of the documentary materials that the applicant had provided in support of his application.
The IAA has expressly identified and engaged with all of the evidence that the applicant had provided.
No jurisdictional error arises in this regard. Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides:
I was not afforded procedural fairness.
The applicant has failed to identify how the IAA has denied him procedural fairness. As noted above, the obligations of procedural fairness in pt.7AA reviews are strict and limited.
In the ordinary course, a review before the IAA is to be conducted on the papers without inviting an applicant to provide any further information or to attend a hearing: the Act, s.473DB. Nonetheless, here, the IAA did advise the applicant that if he wished to provide any submissions or submit “new information” he could do so. Nothing further was provided by the applicant. Hence, while the ability to consider new information is restricted, the applicant was not denied an opportunity to provide further information.
Here:
a)it was unnecessary for the IAA to consider exercising the discretion in s.437DC(3) of the Act to obtain new information as there was nothing to suggest, and no finding made by the IAA to suggest, that the IAA could not properly complete its review task without obtaining such information; and
b)the IAA did not obtain any “new information”. It was thus unnecessary for the IAA to invite the applicant to comment as per s.473DE of the Act.
The applicant was afforded procedural fairness in accordance with the obligations imposed by the Act.
No jurisdictional error arises in this regard. Ground 2, accordingly, is dismissed.
Ground 3
Ground 3 provides:
I think the Decision is affected by bias.
An allegation of bias must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
a)the IAA, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
b)the IAA, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the IAA had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
The applicant has advanced no argument or basis upon which it can be said that the IAA has displayed bias. There is nothing to suggest that the IAA was not open to persuasion or that it held a pre-conceived view as to the application.
The IAA addressed the applicant’s claims and evidence in detail. It accepted some aspects of the applicant’s evidence and it rejected, or had concerns with, others. When it did express concern, the IAA detailed its reasons why. There is nothing to suggest that “bias” played any role in this regard.
More recently in CNY17 v Minister for Immigration & Border Protection [2019] HCA 50 (“CNY17”), the High Court held that, in the context of a review by the IAA, if there are irrelevant materials that are prejudicial to an applicant before the IAA, then this may lead a decision-maker to display bias. These materials include those that may cause someone to view an individual as a person who should not be granted a visa or suggest that the person is not credible and should not be believed.
In this case, the Court cannot identify any materials of the sort addressed in CNY17. The information and evidence before the IAA was limited to the information that the applicant himself had provided (at the arrival interview, in his visa application and to the delegate).
No jurisdictional error arises in this regard. Accordingly, ground 3 is dismissed.
Ground 4
Ground 4 provides:
I think the Decision maker misinterpreted the law.
The IAA’s summary of the legal principles (at [5]-[6] and [66]-[67]) was formulaic. The IAA’s application of the principles was entirely orthodox. The Court does not consider that the IAA “misinterpreted” the law.
The IAA’s findings of fact do not demonstrate doubt. For example, at [39] the IAA states “I am not satisfied that the applicant experienced any form of mistreatment, including any discriminatory treatment, related to his Catholic faith, or for any other reason, in Vietnam.”. The IAA’s affirmative findings of fact led it to conclude that it was not satisfied that the applicant would face a real chance or a real risk of harm.
No jurisdictional error arises in this regard. Ground 4 is, accordingly, dismissed.
Oral Submissions
In his oral submissions, the applicant suggested that the IAA used “dates and times” to, in effect, undermine his credibility. Although not entirely clear, the Court assumes this to be an argument that the IAA erred in its assessment of the applicant’s credibility.
The Minister submitted that the IAA’s assessment of the applicant’s credibility was reasonable and had a probative foundation.
The IAA had a number of concerns with the applicant’s evidence that were not simply limited to “dates and times”. While the IAA did refer to the applicant providing inconsistent dates of particular events (see [15]-[16]) this was but one discrepancy that the IAA referred to when determining whether to accept or reject the applicant’s evidence and claims. Further, at [9] the IAA expressly stated that it accepted that the circumstances of the applicant’s arrival explained “minor discrepancies” such as “precise dates of events”.
Here, the IAA’s concerns and doubts about the applicant’s credibility arose from:
a)a number of inconsistencies and “considerable variation” in the applicant’s claims and evidence as provided in his application and at the interview with the delegate and his evidence during the interview (see: [10],[26],[36] and [39]). This was not limited to “dates and times”. It references particular details (such as who “beat” the applicant up);
b)the fact that the applicant had omitted or not included a number of details and claims in his visa application, some which were considered significant and more prominent than other claims he had expressly raised (see, [22]) and then only raised them at the delegate’s interview;
c)the fact that the applicant’s evidence as to various claims was vague, confused, unclear and “difficult to accept” (see, [13], [20], [25], [27], [47], [54] and [56]; and
d)the explanations that the applicant provided for any inconsistencies and deficiencies in his evidence being rejected (such as issues with interpretation). Overall, the IAA was not satisfied that these explanations accounted for the inconsistencies and discrepancies which occurred (at [31]-[38]).
As for the IAA’s consideration of the applicant’s explanation for discrepancies and inconsistencies (which included errors in translation, a lack of time to adequately explain, the applicant being distressed and a lack of legal assistance), the IAA’s assessment was thorough and comprehensive. Although no claim had been raised, the IAA also considered whether the applicant’s poor mental health may have inhibited his ability to recall events or present his claims.
The IAA’s detailed reasons for rejecting the applicant’s explanations included that the fact that applicant had answered the questions asked of him at the arrival interview and had indicated that he understood the interpreter – such that no significant interpretive errors arose – the fact that the questions asked of the applicant were not complex, the omissions the applicant made (during the entry interview) were significant and could not be explained by their being “insufficient time”, there being no evidence to support any concern that his mental health had adversely affected his ability to give evidence and that the applicant had provided a statement of seven pages length to outline his claims with the assistance of a volunteer legal practitioner or a migration agent.
The IAA methodically addressed the applicant’s explanations for discrepancies and rejected those explanations. It is not the case that the IAA rejected the applicant’s evidence on the basis of an objectively minor fact: CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146. Here, there were multiple concerns, each of which the IAA carefully considered as a whole before determining that it was not satisfied that the applicant had experienced the treatment that he claimed he had experienced.
No jurisdictional error arises in this regard.
Conclusion
The applicant’s judicial review application has failed to identify any jurisdictional error. The Court has otherwise reviewed the IAA’s decision and is satisfied that no errors arise.
The application for judicial review is, accordingly, dismissed.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 6 July 2020
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