GDQ18 v Minister for Home Affairs
[2019] FCCA 2174
•30 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GDQ18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2174 |
| Catchwords: MIGRATION – Safe Haven Enterprise visa – review of decision of Immigration Assessment Authority – whether the IAA failed to consider evidence – whether the IAA breached procedural fairness obligations – whether the IAA was biased – whether the IAA erred in law – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, div.3, ss.5J, 46A, 65, 473CB, 473DC, 473DE |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 |
| Applicant: | GDQ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 635 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 30 July 2019 |
| Date of Last Submission: | 30 July 2019 |
| Delivered at: | Perth |
| Delivered on: | 30 July 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $4,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 635 of 2018
| GDQ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex-Tempore; Revised from Transcript)
Introduction
This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 9 November 2018.
The IAA’s decision affirmed a decision of a delegate of the Minister for Home Affairs (“Minister”) to refuse to grant the applicant a Safe Haven Enterprise visa (the “visa”) under s.65 of the Migration Act 1958 (Cth) (the “Act”).
It is uncontroversial that in order to obtain relief in this Court, the applicant must establish that the IAA has fallen into jurisdictional error.
Before the Court is the judicial review application filed by the applicant, a Court Book (“CB”) comprising of 191 pages and marked as Exhibit 1, and an outline of submissions filed by the Minister on 9 July 2019.
The applicant appeared unrepresented before the Court. He was assisted by a Vietnamese interpreter. The Court thanks the interpreter for his assistance today. The Minister was represented by Ms Tattersall.
Background
The background to this matter was detailed in the Minister’s submissions at [3]-[6]. The Court adopts this summary. It accurately reflects the history of the matter as laid out in the Court Book and is not argumentative in nature.
The applicant, a citizen of Vietnam, arrived on Christmas Island as an unauthorised maritime arrival on 30 October 2013 (CB 108). On 20 June 2016, the Minister’s Department advised the applicant that the Minister had lifted the bar pursuant to s.46A of the Act, and invited the applicant to apply for the visa (CB 15-16). On 31 March 2017, the applicant applied for the visa (CB 18-54).
On 16 March 2018, the applicant attended an interview with the delegate to discuss his visa application (CB 75). The applicant’s claims for protection were set out in a statement lodged with his visa application (CB 55-58). Those claims were, in summary, as follows:
a)he is a Vietnamese citizen of Kinh ethnicity. In around December 2007, his mother and several others made complaints about financial corruption against the Vietnamese government. Immediately after the complaints were made, the government started to harass the applicant’s family and tried to trick his family into getting angry in order to arrest them;
b)after the complaint was lodged, the applicant’s father was unable to cultivate rice on his land because the government had ruined the surface of the land making it impossible to plough the seed. In 2008, when the applicant’s mother attended the local village to make a complaint, she was told to get out of the office and pushed;
c)when the applicant returned to his village in 2011 after spending a period in Ho Chi Minh City, the government would throw things on his roof and flatten his motorcycle tyres in order to make him retaliate and arrest him;
d)the applicant is Catholic and Catholics are discriminated against in Vietnam. When he applied for permission to move away from his village, he was refused because he was a Catholic; and
e)after he arrived in Australia, he protested against human rights violations in Vietnam in March 2015. Because the government has spies everywhere in Australia, they would know that he attended. He had also published negative comments about the Vietnamese government online.
At his interview, the applicant further claimed to fear harm because he had attended two subsequent protests in Perth in August/September 2017 and March 2017, because his brother was an anti-government activist and because his personal information had been released in the data breach in 2014.
On 8 June 2018, a delegate of the Minister refused to grant the applicant a visa (CB 105-128) and the matter was referred to the IAA on 13 June 2018 (CB 129-130). On 20 July 2018, the applicant provided supporting documents to the IAA (CB 131-161.) On 9 November 2018, the IAA affirmed the delegate’s decision (CB 165-183).
IAA’s Decision
The IAA’s decision is found at CB 165-183. It is 19 pages long, although four of those pages extract the applicable legislative provisions in full. It spans 73 paragraphs. The bulk of the IAA’s consideration is spent analysing the refugee criterion. One substantive paragraph addresses the complementary protection criterion.
The Court again notes that the Minister’s submissions accurately summarise the IAA’s decision. The Court adopts [7]-[19] of those submissions as its own. They provide, relevantly, as follows.
The IAA had regard to the material given to it by the Secretary under s.473CB of the Act (CB 166 at [2]). In relation to the other material before the IAA, it noted that the applicant had provided one submission containing documents and translations: (CB 166 at [3]). In relation to the documents relating to the family’s complaint against the local authorities in the area, the IAA noted that, based on the recording of the visa interview, it appeared that those documents were provided at the interview but copies were not taken and so it was satisfied that this was not new information (CB 166 at [4]-[5]). Similarly, it found that the baptism certificate was provided with the visa application and not new information (CB 166 at [7]).
The applicant also provided four letters of reference that were not before the delegate (CB 166 at [8]-[9]). The IAA noted that the documents appeared to predate the delegate’s decision and it was not clear why they were not provided earlier. However, the IAA was concerned that the applicant had copies of the documents on the day of the visa interview but was unable to provide them to the delegate on account of the delegate asking the applicant not to refer to the documents. The IAA found that the documents were credible personal information and that there were exceptional circumstances to justify considering the information.
The IAA accepted that the applicant’s family identified corruption originating with the local Vietnamese government in relation to inequitable dealings with land in their village and that his family challenged the corruption (CB 168 at [16]). It accepted that they faced harassment and mistreatment from the authorities, including interference with their farming land in 2007 and an assault on the applicant’s mother in 2008. It also found that the family was ultimately successful in resolving their complaint against the authorities (CB 168 at [17]). It considered the applicant’s evidence given at the interview that, after he returned to his home village in 2011 or 2012, at the behest of the local police, people set out to deliberately provoke him in order to start a fight so they would be justified in beating or arresting him (CB 169 at [24]).
The IAA noted that the property dispute resolved five or six years ago, and whilst it was plausible that the family had faced some bureaucratic delays in obtaining paperwork, the IAA found it significant that they were still able to obtain the paperwork and permissions they needed (CB 169 at [25]). The IAA was not satisfied that the applicant himself would again be provoked in the way claimed or that there was a real chance of being harmed by these persons or the authorities (CB 169-170 at [26]). It considered that, had there been a genuine intent to harm the applicant, he would have been harmed between when he returned to his village in 2011 or 2012 and when he left Vietnam in 2013. It found that there was not a real chance of the applicant facing him for reasons of his family’s profile or in connection with the land dispute (CB 170 at [27]).
In relation to the applicant’s claim to fear harm on account of his brother’s profile, the IAA noted that the applicant made no mention of his brother’s adverse profile in his written statement and that his evidence given at the interview was vague (CB 170 at [32]). It found it difficult to accept that if his brother was wanted for arrest for being a political dissident, he would continue to return home to visit his family or that he could do so without being identified or arrested by the authorities. Due to the late raising of the claim and the lack of specific detail, the IAA concluded that the claim was not genuine. Even if the IAA were to accept that the applicant’s brother did have a profile, it was not satisfied that the specific profile would cause the applicant to fear or face harm (CB 171 at [33]).
The IAA also considered the applicant’s claims to fear harm in connection with his political opinion. However, based on the limited evidence before it, it was not satisfied that the applicant had been politically active or outspoken online (CB 172 at [39]). The IAA found that the applicant’s political activities in Australia had been infrequent, having attended just three protests in two years, but he had otherwise not been politically active (CB 173 at [42]). It noted that the applicant had not been politically active in Vietnam and considered that the applicant’s infrequency and superficial activities in Australia were undertaken to strengthen his claims for protection (CB 173 at [43]).
In considering the applicant’s claims that there were pictures of the protests on the internet, the IAA considered that it was likely that photos or videos of the protests were available online (CB 173 at [44]). It accepted that it was possible that the authorities could identify the applicant from these protests, but considered this was very remote. It also considered that the applicant’s participation was superficial and very low level and there was no suggestion that he was active or involved in the organisation of the protests. It noted that the country information before it did not suggest that persons who held low level political views had a real chance or risk of harm for that reason.
It was satisfied that the applicant would not be seen as a political activist, dissident, leader, organiser or person of interest to the Vietnamese government or authorities (CB 174 at [45]). It was further satisfied that the authorities would asses him as a low level participant in political protests in Australia. It did not consider that the applicant would have any ongoing profile from his past low level protest activities in Australia or would face any chance of harm on that basis. Further, it was satisfied that the applicant’s political activities in Australia did not genuinely or credibly reflect his low level political opinions or that he would engage politically on return to Vietnam (CB 174 at [46]).
The IAA accepted that the applicant was a Catholic who had been heavily involved in his choir and church community in Australia (CB 174 at [48]). It also accepted that his activities in Australia were genuine and would reflect his level of adherence, activity and lifestyle on return to Vietnam. However, the IAA found that the applicant had given inconsistent evidence in relation to the interference and harm he had faced as a Catholic (CB 174 at [50]-[52]). It was not satisfied that he faced any social or official barriers, harassment, discrimination or mistreatment in connection with his religious profile. It was satisfied that the applicant would be able to freely practise his religion on return to Vietnam, as he had in the past, without fear of harm or interference from the authorities and would not face a real chance of serious harm due to his religion if he returned (CB 175 at [56]).
The IAA accepted that the applicant’s personal details were disclosed during the data breach in 2014 and was prepared to accept the possibility that his details were obtained by the Vietnamese authorities, although remote (CB 176 at [57]). However, it noted that there was no indication that his substantive claims were released and was satisfied that the applicant would have no additional adverse political or other profile arising from the breach (CB 176 at [58]).
The IAA found that the applicant departed Vietnam lawfully (CB 176 at [59]). In considering his return as a failed asylum seeker, after considering the country information, the IAA was not satisfied the applicant would face a real chance of harm because he had sought asylum in Australia or due to any additional adverse profile that would be imputed to him (CB 176 at [62]). Whilst it accepted that there were credible reports relating to returning activists, the IAA found that the applicant would return as an ordinary returnee who had left the country lawfully with no adverse profile (CB 177 at [64]). Nor did it consider that there was any real chance of the applicant facing harm on a cumulative basis (CB 177 at [68]).
In considering the applicant’s claims under complementary protection, the IAA relied upon its earlier findings and found that there was not a real chance that the applicant would suffer significant harm on return to Vietnam (CB 178 at [72]).
Proceedings in this Court
The applicant’s judicial review application raises 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.
While an affidavit was filed by the applicant with his judicial review application, it only contained the IAA’s decision.
Orders were made by a Registrar of this Court on 23 January 2019 allowing the applicant an opportunity to file any amended application, affidavits and an outline of submissions. Nothing further was received from the applicant.
The Minister’s submissions (at [22]) suggest that the grounds of review here are generic and unparticularised and that it has been held that this is a sufficient basis for an application to be dismissed.
Noting the remarks of the Federal Court that it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground, and that this is particularly the case in relation to protection visa applicants, the Court granted the applicant an opportunity to explain what he thought the Tribunal “did wrong”: see DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8].
To assist the applicant, the Court explained to him that this Court can only look at whether the IAA fell into jurisdictional error. The Court emphasised that the possible categories of jurisdictional error sometimes overlap and, 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 (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42] (“Htun”);
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; 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] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained to the applicant that this Court cannot undertake a “merits review” of the IAA’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. This Court cannot grant him the visa. Rather, the Court can only undertake an analysis of whether the IAA engaged in jurisdictional error of the sort outlined above.
The applicant’s evidence was not entirely clear. On one level, it is arguable that he simply takes issue with the conclusions drawn by the IAA and seeks impermissible merits review. On another level, however, he seems to suggest that the IAA failed to address concerns he has about his political activism in Australia (he indicated, for example, that he was a member of a political group, the Viet Tan) and his political activism in Vietnam more generally.
The Court will address these concerns below.
Consideration
Ground 1
1. I think the Decision maker did not consider all of the evidence or did not take into account relevant considerations
The Court notes the Minister’s submissions at [24]-[26] as follows:
24 This ground has two limbs to it: firstly, that relevant considerations were not considered and secondly, that “all of the evidence” was not considered. An error on the basis of a decision-maker’s failure to take into account a “relevant consideration” can only arise if that consideration was a “mandatory consideration”.
25 In order for a matter to amount to a mandatory consideration it must be expressly stated to be required to be taken into account by the relevant legislation or, otherwise, must arise by implication from the subject-matter, scope and purpose of the relevant legislation.
26 The applicant has not provided any particulars and on this basis alone the ground should be dismissed. In any event it is plainly not necessary for the Authority to refer to every piece of evidence submitted by the applicant in its written reasons. This ground is not made out.
(Emphasis in original, citations omitted)
As correctly identified by the Minister ground 1 could, in fact, be seen to provide two distinct grounds, as two complaints are arguably raised:
a)the IAA did not consider all the evidence; and
b)the IAA did not take into account a relevant consideration.
In the absence of the applicant identifying what evidence was not considered and what consideration was not taken into account, it is difficult for the Court to determine what his concerns are.
It should be noted that the IAA was satisfied that a number of materials that the applicant provided to the IAA met the criterion in s.473DD of the Act. In those circumstances, the Court is not satisfied that the applicant’s grounds are a reference to the IAA’s application of s.473DD.
On a reading of the IAA decision as a whole, it is clear that the IAA paid close regard to all of the evidence the applicant had given in support of his visa application. The delegate referred to documents the applicant had provided (see [22], [34], [36], [40], [48]), made reference to his “written statement” of claims that accompanied the visa application (see [24], [28], [32], [41]) and had clearly listened to the evidence the applicant gave to the delegate (see [23], [29], [35], [37]-[41] and [50]).
The IAA is not required to refer to every piece of evidence in its decision: Kocakaya v Minister for Immigration & Citizenship [2013] FCA 55 at [31]. It is only required to refer to the evidence it relies upon in making any findings of fact. The IAA has done this here, and has done so forensically and with care.
In the absence of the applicant indicating what evidence was not considered, the Court is not satisfied this ground has been made out.
Turning to the contention that there was a failure to take into account a relevant consideration, it is acknowledged that an applicant’s claims to meet the criterion for the grant of a protection visa are mandatorily relevant considerations: Htun at [42].
Here, the IAA summarised the applicant’s claims at [10] as follows:
The applicant fears serious and significant harm throughout Vietnam, from the Vietnamese Government and authorities, because of his political views and activities in Australia, his family membership (of a family involved in a land dispute and that has challenged the Vietnamese Government about corruption), and his Catholicism.
Not only did the IAA address each of those matters in comprehensive detail, it also considered the chance and risk of harm to the applicant on the basis of being an asylum seeker and as a result of the data breach, and then, finally, all of these matters cumulatively.
In the applicant’s statement of protection claims he stated as follows:
In summary, I fear harm throughout the whole of Vietnam including physical assault, harassment and imprisonment at the hands of Vietnamese Government officials on the basis of my political views, family membership and religion. I cannot rely on the protection of the Vietnamese state and cannot safely relocate anywhere else in Vietnam.
If the applicant is suggesting that the IAA did not address his “political activism”, the Court is satisfied that to the extent that any political activity was an issue before the IAA, the IAA did address that issue at [41] and [43] in its decision and rejected any suggestion that the applicant would be harmed on that basis. Further, lest it be suggested that the IAA failed to address the applicant’s involvement with the Viet Tan, again the Court notes that the IAA did address this issue within the context of the evidence that was before it at [40] and again at [43].
Having regard to the applicant’s statement of claims, the delegate’s summary of claims and the materials in the Court Book, the Court is satisfied that the IAA considered each of the applicant’s claims that were expressly raised, and those that arose from the materials. Nothing relevant was overlooked and nothing irrelevant was relied on by the IAA in concluding as it did.
Ground 1, accordingly, must fail.
Ground 2
2.I was not afforded procedural fairness
Division 3 of Pt.7AA creates a restrictive process that arguably denies individuals “rights” that might be considered matters of “procedural fairness” in other legal settings.
There is nothing apparent from the materials before the Court that the applicant was denied procedural fairness. His review was referred to the IAA in accordance with the Act. The applicant was provided an opportunity to provide “new information” and any submissions. The applicant provided “new information” and the IAA considered it. Insofar as the IAA may have used that information as a reason for affirming the decision, which it in fact did not, the IAA was not required to invite the applicant to comment as it fell into the exception in s.473DE(3)(c) of the Act.
It is also not the case that it can be suggested that there was an unreasonable failure to consider exercising the power under s.473DC(3) of the Act to obtain further information (in writing or at an interview) from the applicant. The IAA’s findings were not dissimilar from the delegate’s findings, and the basis on which the visa was refused, and the findings of fact that the IAA made, do not suggest that there was a need to invite the applicant to comment on any particular matter. For example, had the IAA found that the applicant’s political activities fell under s.5J(6) of the Act, it may have been necessary for the IAA to consider exercising the power under s.473DC. However the IAA did not make such a finding. Hence, the need for any consideration of that sort did not arise.
There is nothing further in the materials to suggest that the IAA breached any of the procedural fairness obligations provided in pt.7AA of the Act.
Ground 2 is, accordingly, dismissed.
Ground 3
3. I think the Decision is affected by bias
The Court notes the Minister’s submissions at [31]-[32] as follows:
31. The third ground alleges that the Authority’s decision was affected by bias. A claim of bias is serious and such an allegation must be firmly and distinctly made and clearly proven. The applicant has made no attempt to comply with this requirement.
32 There is nothing on the evidence before the Court to support an allegation of actual or apprehended bias. This ground is not made out.
This ground falls short of the requirement that a claim of bias must be firmly and distinctly made and clearly proven. The applicant has not pointed to anything which “clearly” proves bias: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531.
The Court has read the decision as a whole and is satisfied that there is nothing to suggest that the IAA displayed actual bias or apprehended bias. There is nothing to suggest that the IAA had a pre-existing state of mind when assessing the applicant’s claim, nor that it was unwilling to undertake any proper assessment.
Ground 3 must, accordingly, be dismissed.
Ground 4
4. I think the Decision maker misinterpreted the law.
The Court notes the Minister’s submissions at [33]-[34] as follows:
33 Ground four is a vague assertion that the law was misinterpreted. Again, the ground has not been particularised so as to make it meaningful. The first respondent submits that the Authority accurately summarised the applicable law, in relation to both the refugee and complementary protection criteria (CB 167, [11]-[12]; CB 178, [70]-[71]) and there is no error in the Authority’s application of the law to the applicant’s claims.
34 Accordingly, the first respondent respectfully submits that there is no jurisdictional error revealed by this ground and it ought to be dismissed.
(Emphasis in original)
The IAA accurately identified the legislative provisions that were applicable to the applicant’s case. In particular, the IAA summarised what was necessary for the applicant to be considered a “refugee” (at [11]-[12]) or to warrant protection under the complementary protection provisions (at [70]-[71]). An attachment also extracted, in full, the relevant provisions.
The IAA also employed the language of these particular statutory provisions throughout the decision and it is clear that the IAA understood what was required of it.
The Court is satisfied that the IAA took into account the correct legislative criterion and that it considered and applied these criterion. The IAA did not misinterpret the law. It applied the appropriate tests and understanding of the relevant provisions and was able to come to the conclusions it made on the basis of those provisions.
Ground 4 is, accordingly, dismissed.
Conclusion
The applicant has failed to identify any jurisdictional error in the grounds of his application. The Court is otherwise satisfied that the IAA’s decision does not contain any error.
The application must, accordingly, be dismissed.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 12 August 2019
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