GOK18 v Minister for Immigration
[2019] FCCA 3719
•22 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOK18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3719 |
| Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed |
| Legislation: Migration Act 1958 (Cth), ss.5AA, 473CC Acts Interpretation Act 1901 (Cth), s.4 |
| Cases cited: DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 DBC16 v Minister for Immigration [2018] FCCA 1802 |
| Applicant: | GOK18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 1290 of 2018 |
| Judgment of: | Judge Vasta |
| Hearing date: | 22 October 2019 |
| Date of Last Submission: | 22 October 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 22 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boccabella |
| Solicitors for the Applicant: | H & N Lawyers |
| Counsel for the First Respondent: | Ms Rayment |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
That the name of the First Respondent be varied to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
That the Notice to Produce filed 15 October 2019 be set aside.
That order 2 of the orders sought in the Application in a Case filed 15 October 2019 is withdrawn.
That the Applicant’s request for an adjournment of these proceedings, as set out in the Application in a Case filed 15 October 2019, is refused.
That the Applications filed 14 December 2018, amended on 7 April 2019 and further amended on 30 August 2019 are dismissed.
That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.
IT IS NOTED:
A. That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1290 of 2018
| GOK18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
Adjournment Application
This matter had been set for hearing on 13 August 2019. For reasons that I do not wish to go into right at this point, the matter did not proceed at that time. There was an adjournment sought, which was vigorously opposed. Nevertheless, I granted the adjournment until today’s date with some very strict orders as to the filing of material and the reliance that could be made thereon. Those orders, in effect, meant that any material that was filed after 30 August was not going to be allowed by me to be relied upon.
The Applicant, on 30 August, filed an amended originating application, an affidavit of the solicitor and an outline of submissions, all in accordance with the order that I had made. That originating application gave a number of extra grounds which were not part of the grounds that were in existence on 13 August.
Those grounds are grounds 2 and 3. In effect, ground 2 was a suggestion that the IAA had received legal advice and therefore the legal advice needed to be disclosed to the Applicant, otherwise there would have been a jurisdictional error. Ground 3 was that there were sufficient defects in the interpreting so as to make the recording of both the arrival interview and the SHEV interview an inaccurate account of the Applicant’s case.
Those grounds were supplemented by the submissions of the Applicant, which suggested that there must have been legal advice given, because a report into the AAT by the Honourable Ian Callinan QC had suggested that the AAT had, on a number of occasions, been given legal advice by the Department.
The grounds with regard to the failing to conduct a proper review were that there were some six hours of interviews; therefore, the IAA, in listening to those, as the IAA has said that they have done, must have made some form of notations. Those notations were not part of the record and have not been given to the Applicant. And so without those notes, the IAA cannot say that they have conducted a proper review.
The ground with regard to interpreting simply made a bald statement in the submissions that there were sufficient errors or inadequacies in the interpreting of the interviews to render the recording of the arrival interview and the SHEV interview an inaccurate account of the Applicant’s case, and another assertion that once the interpreting is flawed, there cannot be a proper review.
Subsequent to those submissions being filed, the Applicant had issued subpoenas to the department as well as a notice to produce. The notice to produce was that the Applicant requires the IAA to produce:
a)all written material consisting of internal memoranda, emails and other documents to and from the IAA to the MRD Legal Services;
b)any other material furnished or given to reviewer S. Ryan which could constitute or be considered as legal advice; and
c)all notes taken by or on behalf of S. Ryan relating to the Applicant’s arrival interview or SHEV interview.
There was a response from the AAT to that notice to produce. The subpoenas were a subpoena given to the IAA reviewer, Mr Ryan, to produce documents and also to the AAT to produce documents notwithstanding that this was an IAA matter.
In addition to those subpoenas being sought to be issued, or the notice to produce sought to be issued, the Applicant filed two affidavits of a person by the name of Tam Pham, who is a receptionist at the lawyers who are instructing counsel for the Applicant, Mr Boccabella.
The receptionist says that she was born in Vietnam in June of 2000 and lived in Vietnam till she was 10 years old and has always spoken Vietnamese at home. She stated that she started learning English in kindergarten and she has completed high school in Australia in English and is currently studying a Bachelor of Commerce. And she asserts that she is completely fluent reading, writing and speaking in both Vietnamese and English.
She, in another affidavit, annexed a document which did not make it into the electronic filing system too well, and I have now made another copy of that document as Exhibit 1. In that exhibit, she purports to review what it was that the interpreter, whom she calls a translator, actually said, what he was meant to say, what the Applicant said (as far as she was concerned in her interpretation), and what the interpreter actually said and has tried to highlight the discrepancies.
There has been objection to the issuing of the subpoenas and of the notice to produce. There has also been objection to the affidavits of the receptionist, Ms Pham.
The Applicant has submitted that the matter should be adjourned so that there be proper interpreting of the matters that were the subject of the arrival interview and the SHEV interview. The Respondent objects to that because of this matter being a review and has simply pointed to the fact that the interpreter was a fully qualified interpreter, which cannot be said to be the case with Ms Pham.
In the end, this is a review of what the IAA had and the material that was before the IAA.
It is really whether the affidavit of Ms Pham is sufficient to create a doubt as to the accuracy of the interpreting. And even if that, what difference has that made.
INTERRUPTION BY COUNSEL
The subpoena is not pressed. That is good.
I also am of the view that the notice to produce should be set aside. The notice was very vague. It has proceeded upon a premise that there must have been legal advice that had been given. There has not been a sufficient evidentiary basis given to me to suggest that that premise is correct. In any event, the letter that is the reply from the AAT to the Applicant’s solicitors, and is part of Exhibit 2, does say this in the last paragraph:
As a courtesy, I have inquired of MRD Legal Services and the IAA as to whether they hold any documents meeting the description of those you request. I have been advised that neither the IAA nor MRD Legal Services hold documents that meet your request. It is unnecessary for me to address the question of whether or not such documents can be provided to you.
In many ways, that document answers the matter, in any event, but I am still of the view that the notice to produce should be withdrawn. Obviously, that means that I have before me as evidence what is in the body of Exhibit 2.
With regard to the affidavits of Ms Pham, it seems to me that they are matters that do follow on from what was clearly a matter that had been put in issue within the timeframe that I had set. I do not feel that there has been any purposeful or deliberate flouting of the orders that I made on 30 August.
I am of the view that those matters – the material in those affidavits should be received by the Court. That includes exhibit 1. And it will be then a matter of weight for the Court as to what use it makes of that material.
Substantive Application
On 15 November 2018, the IAA affirmed a decision of the delegate not to grant the Applicant, GOK18, a protection visa. On 14 December 2018, the Applicant filed an application in this Court asking the Court to review that decision.
The matter had been set down for hearing before me on 13 August 2019. The grounds of the application were matters that I will talk to in a minute because they are still grounds that are pressed in this matter. The solicitor appeared that day, 13 August, and told me that he believed that counsel that he had briefed, Mr Hii, would attend that day to ask for an adjournment because there was new counsel briefed, Mr Boccabella, who could not appear that day.
It was with some annoyance that the Court adjourned the matter, given that it had been set down for quite some time and that the Court had not had the courtesy of contact by the solicitor to say that there was some problem. The Court adjourned the matter to a date which would suit Mr Boccabella’s availability and made certain directions.
The matter has come now before me today for the hearing of the matter.
The background to this is that the Applicant is a citizen of Vietnam. He arrived in Australia on 17 March 2013 by boat.
He was interviewed soon after arrival in an entry interview. He was then allowed to make an application for a Safe Haven Enterprise visa. He gave a written account of his claims and then was interviewed by the delegate. Because this is a fast-track application, the matter was then reviewed by the IAA after the delegate had declined to issue a protection visa to the Applicant.
The Applicant’s claims in general were that he had been persecuted by the Vietnamese Government and Police because of his Catholic religion, his political beliefs and his disability.
He claimed that his right eye was injured when he was five and he has limited visibility. He was abandoned by his own parents and has been subjected to discrimination by society and by prospective employers on account of his disability.
He claims that he was introduced to the anti-communist Viet Tan political party in 2006 by a student friend. He attended their events. He became a supporter, and he attended meetings and was in the process of becoming a member but had not actually become a member whilst he was in Vietnam.
He has claimed that, in 2011, he was one of a number of people arrested by police whilst working on construction to enlarge an existing Catholic church. He said that he was detained for two days, during which time he was beaten and interrogated. He was released with a warning not to make trouble.
He defied that order and continued to work on the church. He was followed by security forces and frequently stopped and interrogated about his activities and associations.
He claimed that, in February 2012, local police discovered he was involved in the Viet Tan after he attended a court hearing in relation to charges brought against 14 people charged with anti-communist activities because they were Catholics and Viet Tan members.
He was in a group of people outside the Court building that were attacked and beaten by police, but he escaped without being arrested. He said that he was monitored by security forces who would sometimes come to his home.
He said that, in July 2012, he participated in an anti-government protest in Vinh City organised by the Catholic Church. He was one of many people beaten by police when they stopped the parade, but he was not arrested.
He said that he fled Vietnam in February 2013 after having been constantly monitored and frequently stopped and questioned by police.
He said that whilst in immigration detention in Brisbane, he was questioned by Vietnamese Police and he was worried that they are looking to find people like him who have left for political reasons.
He said that since he arrived in Australia, he joined the Viet Tan party and has participated in anti-government protests as well as fundraising and social media activities.
He said that his sister, in Vietnam, participated in a demonstration in June 2018 and was arrested by police. She was detained, and she has been questioned on a number of occasions about him, the Applicant, because, he says, that the officials suspect that he, the Applicant, has incited his sister to become a dissident, and he fears being arrested and harmed by Vietnamese Police and government security agencies on account of his religious and political views.
The IAA went through these matters, it would seem to me, in a fairly thorough manner. The IAA did have some issues with the Applicant’s credibility.
The IAA noted his accounts of obtaining a Vietnamese passport. In his entry interview, he provided very specific information about having obtained a genuine Vietnamese passport in January 2013 to prepare for his boat journey, but in his 2016 SHEV application form, he declared that he had not held a passport and was not able to acquire a passport due to discrimination and persecution.
The IAA said that they considered his claims but found that key aspects of his evidence are significantly inconsistent, unconvincing and implausible to the extent that the IAA considered that the claims have been contrived for the purpose of strengthening the application.
The IAA then went through a number of omissions that they found in the entry interview. The IAA noted that they had reviewed the audio recording and took into consideration that the entry interview was not the same as a protection visa interview and that that is something that needed to be taken into account. But the IAA spoke of the interview having been conducted in a calm manner, that the interviewer did not interrupt the Applicant, did not prevent him from providing any more detailed answers, and, when he became emotional after describing his experience of discrimination due to issues with his eyesight, the interviewer allowed him to take a break before continuing his response. The interviewer also offered to reschedule the interview to a later date.
The IAA said this in paragraph 13:
…While I’ve considered the applicant’s explanation that he was fearful of providing information about his experiences in Vietnam, I note that the applicant was willing to disclose his Catholic faith and that he disapproved of the Vietnamese government’s policies on elections, human rights and freedom of religion.
The IAA noted that, in that interview, there was no claim that he was a religious or civil freedoms activist, or that he was involved with the Viet Tan or that he was subject to long-term surveillance, detention or repeated beatings by police.
The IAA said that those omissions could not be plausibly attributed to the interviewer’s instructions to provide brief responses or to the Applicant’s fear of providing responses about his political views.
The IAA looked at the profile that the Applicant had with Vietnamese authorities and went through what it was that the Applicant had said about those matters, especially then looking at what sort of profile he must have had if he was able to obtain a passport.
At paragraph 21, the IAA summarised their findings on the profile by saying this:
21. The applicant made no mention in the 2013 Entry Interview of having participated in any dissident activities, or having been harmed or harassed by police. He has not provided any independent evidence to corroborate his claims; such as photos, social media, news reports, police documents, or corroborating testimony from other church members or activists. Considering the extent of the omissions, inconsistencies and the overall scantness of the applicant’s evidence, and the lack of any independent evidence to substantiate them, I find that the applicant is not a credible witness in this regard and that his evidence in relation to having been a religious and civil freedoms activist in Vietnam is entirely fabricated.
The IAA then looked at the Applicant’s activities with the Viet Tan, and concluded at paragraph 27:
27. Given my findings in relation to the credibility of the Applicant’s claims to have been a religious and/or civil freedoms activist in Vietnam, the timing of this surplice activity in the context of the SHEV application, and the limited evidence he has provided in the SHEV application with regard to his political engagement, the Applicant has not satisfied me that he has engaged in the conduct for a purpose other than for the purpose of strengthening his claim to be a refugee.
Because of that, the IAA said that they would be disregarding this conduct for the purpose of determining whether the Applicant has a well-founded fear of persecution.
The IAA then looked at the disclosure of information to Vietnamese authorities, being that the Applicant was interviewed whilst in detention by a Vietnamese delegation. However, the Applicant had said with regard to this, that he only provided his first name and surname to that delegate, and didn’t provide any other information. And the IAA found that there was no other information divulged to Vietnamese authorities, other than his first name and surname.
The IAA then looked at the Applicant’s claim, as regard to his sister’s profile with the authorities, and looked at what he had originally said about his family. He had, as I previously mentioned, said that his family had abandoned him because of his disability with his eyesight. The Applicant had stated that he was estranged from his family, and had had no contact with them, and had no knowledge of their whereabouts. He then advised during the SHEV interview that he had re-established contact with his sister and parents in or around 2012.
The delegate pointed out that this was contradicted by information he provided in his application, and the Applicant responded that he must have forgotten to include this. The IAA was not persuaded by that explanation, especially when in the written claims, the Applicant had explicitly declared “I do not know where my sister or my parents are.”
The IAA concluded at paragraph 33,
33. Considering the limited evidence provided, my finding that the applicant has not provided credible evidence regarding his own activities in Vietnam, and the fact that he provided misleading evidence in relation to his contact with his sister, I am not satisfied that these have occurred as claimed. I do not accept that the applicant’s sister has been subject to arrest and interrogation, or that she participated in a political protest, or that she has a profile with Vietnamese police as [an] anti-government dissident.
The IAA then looked at the Applicant’s claim with regard to his disabilities, and concluded that, whilst the Applicant had difficulties with his vision in his right eye, the IAA did not accept that the Applicant suffers a disability that has affected his capacity to subsist, or has resulted in the discrimination that he claimed.
The IAA then looked at quite a deal of country information, as to how the government has treated Catholics, and how Catholics have subsisted in Vietnam.
The IAA also looked at what would happen to the Applicant upon his return to Vietnam because of his Catholic religion, and because of his being a failed asylum seeker. At paragraph 45, the IAA said:
45. There are credible reports of certain returnees being detained, interrogated, jailed, beaten and mistreated on return to the country, including dissidents, activists, people smugglers and members of certain minority ethnic groups. I have otherwise found that the applicant was not a religious and civil freedoms activist in Vietnam, and I am not satisfied that the applicant would have a profile on return as an anti-government dissident, or as a person involved as an organiser of a people smuggling operation. The information before me also does not indicate that Catholics are targeted for differential treatment by authorities when returning to Vietnam. I am not satisfied there is a real chance of the applicant being subject to long-term detention, investigation and prosecution or other harm. I am not satisfied the Applicant faces a real chance of harm as a returning asylum seeker who has departed illegally, and previously provided his name to the MPSI whilst in Australia.
Therefore, the IAA found that the Applicant did not meet the refugee criteria.
The IAA then looked at the complementary protection criteria, and looked at the Applicant’s political involvement in political activity in Australia, and came to the conclusion that they were not satisfied that he would face a real risk of significant harm if he were to be returned to Vietnam from Australia.
Having come to that conclusion, together with the refugee conclusion, the IAA affirmed the decision.
The further amended application that was filed on 30 August 2019 has a number of grounds. I will go through them seriatum.
Ground one is that the IAA did not have authority to review the delegate’s decision, because the Applicant travelled to Australia and arrived at Ashmore Reef. And because he arrived at Ashmore Reef, he was not an unauthorised maritime arrival, within the meaning of s.5AA of the Migration Act 1958 (Cth) (“the Act”). Alternatively, if it were that he arrived at Christmas Island, then Christmas Island was proclaimed a proclaimed port on 22 January 1981. But s.3 of the Act, which provided the power to proclaim a port, came into effect on 23 January 1981. That is, that the Christmas Island was purportedly proclaimed a port before the legislation came into effect that allowed such a proclamation to come into effect. The Applicant says that the proclamation of Christmas Island as a port is thereby invalid.
Ground one relies upon the decisions that were made by the Full Federal Court, and not appealed by the Minister in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 and DBC16 v Minister for Immigration [2018] FCCA 1802.
In layman’s terms, what is said there is this. Ashmore Reef was proclaimed as a port. However, the geography of Ashmore Reef does not allow anyone to properly disembark a vessel and step onto land. In the DBB16 and DBC16 (Supra) cases, what had occurred was that the Applicant had been intercepted, taken to Ashmore Reef where the Applicants were transferred, from their vessel, onto an Australian Border Force vessel, and that vessel then travelled to Darwin, so that the Applicants in those cases first set foot on Australian soil in Darwin.
If the proclamation of Ashmore Reef being a port was invalid because it could not actually geographically be a port, it means that the Applicants in DBB16 (Supra) and DBC16 (Supra) arrived in Australia at Darwin. Because they arrived at Darwin, Darwin was not an excised port under s.5AA. Therefore, those Applicants would not fit the definition of authorised maritime arrival under s.5AA.
What the facts in this case show is that the Applicant had his boat intercepted and was taken to Ashmore Reef, where he and others were disembarked from their vehicle onto an Australian Border Force vessel, and that vessel then sailed to Christmas Island, and that the Applicant set foot on Australian soil on Christmas Island.
The Applicant was taken into immigration detention there at Christmas Island, and the evidence before the Court shows this. Christmas Island is such a port. Therefore, the problems that occurred in DBB16 and DBC16 (Supra) do not occur in this particular case.
However, the Applicant – somewhat bizarrely argues – that Christmas Island should not be deemed to be a port either, and that is because when one goes through the matter, by notice published in the Commonwealth Gazette, number S9 on 22 January 1981, the Minister appointed ports in the territory of Christmas Island as proclaimed ports for the purposes of the Act.
However, the legislation that allowed for the Minister to make such an appointment, even though it had been passed by the Parliament and had been assented to, did not come into force until 23 January 1981. Whilst not saying that in so many words, and leaving it to the Court to somehow make the argument for him, the Applicant is saying that, because the legislation was not in force as at 22 January 1981, such a proclamation was invalid.
Of course, that submission does not take into account s.4 of the Acts Interpretation Act 1901 (Cth) at the time of publication of the Appointment in the Commonwealth Gazette, which had then been inserted by s.3(1) of the Acts Interpretation Amendment Act 1976 (Cth). That section says,:
(1) Where an Act (in this section, referred to as the Act concerned), being,
(a) an Act enacted on or after the date of commencement of this section that is not to come into operation immediately upon its enactment; or…
is expressed to confer power…to make an appointment or to make an instrument of a legislative or administrative character, (including rules, regulations or by-laws), then, unless the contrary intention appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power or bringing the appointment or instrument into effect before the Act concerned comes into operation as if it had come into operation.
2. An appointment or instrument made by virtue of sub-section (1) or, in the case of such an instrument containing a number of provisions, each of those provisions, takes effect:
…
(b) on the day in which the Act concerned comes into operation; or
(c) on the day on which the appointment, instrument or provision, as the case may be, would have taken effect if the Act concerned had been in operation when the appointment was made,
(d) whichever is the later.
That means that, even though the appointment of the Christmas Island ports was done on 22 January, it did not come into effect until 23 January.
The Applicant did not make any submissions to the contrary, though, would not concede the point for whatever reason. Counsel for the Applicant did not tell the Court that this statement of the law was incorrect, so really provided very little assistance to the Court in that regard.
It seems to me that the above interpretation could be the only interpretation that could be made in regards to the appointment the ports at Christmas Island, as such ports. It would seem to me that that is sufficient to dispose of ground one.
Ground two is that, to the extent the IAA reviewer received legal advice which was not disclosed to the Applicant, the IAA decision therefore was contaminated and affected with jurisdictional error.
This ground was based upon a paragraph in the report by the Honourable Ian Callinan QC into the AAT that suggested that persons within the Refugee and Migration Division of the AAT had given legal advice to members. Mr Callinan said this in paragraph 7.26 of his report:
As well-intentioned as this may have been, it is quite inappropriate, and if it is occurring it should cease because it involves participation in the work of the members by staff not appointed to do it, not under oath or affirmation to do it, and it presents risk of contamination of decisions.
There was nothing in the material that suggested in this particular case that the IAA had received such legal advice; there really was, it would seem, almost a stab in the dark that this “could have happened and they didn’t know about it”, and so a notice to produce was filed. I ordered that such notice to produce be withdrawn but, in any event, the AAT wrote to the solicitors for the Applicant and said that there was no such advice given. The Applicant then did not press ground two.
Ground three is set out as follows
3. There were sufficient defects in the interpreting so as to make the recording of both the Arrival Interview and the SHEV interview an inaccurate account of the applicant’s case such as to make the decision one founded on a jurisdictional error.
In the written submissions of the Applicant, all that was said about this was in these paragraphs:
1. There was sufficient errors or inadequacies in the interpreting of the interviews to render the recording of both the arrival interview and the SHEV interview an inaccurate account of the Applicant’s case;
2. There are many Federal Court authorities on this point. One example is M175 of 2002 v Minister for Immigration and Citizenship [2007] FCA 1212.
3. Once the interpreting is flawed, there cannot be a proper review.
It would seem to me, though, that there can’t be a denial of procedural fairness because of defective interpreting unless it is shown that the standard of interpretation was so inadequate that the Applicant was actually prevented from giving their evidence; or, that the errors made in the interpretation were material to a conclusion of the decision-maker and adverse to the Applicant.
What the Applicant relies upon here is an affidavit from a woman called Tam Pham. She states in her first affidavit of 15 October 2009:
I, Tam Pham of HM Lawyers, affirm:
(1) I am an employee of HM Lawyers and I am authorised to affirm this affidavit;
(2) HM Lawyers engaged online transcription services on 26 August 2019 to transcribe the arrival interview audio file into a written transcript;
(3) I listened to the arrival interview audio file on 13 September 2019 in both Vietnamese and English and I identified some discrepancies –
(4) I am fluent in both Vietnamese and English.
She supplemented that affidavit with another one on 17 October 2019, which states:
(1) I am an in-house receptionist in the employ of HM Lawyers;
(2) I refer to my affidavit of 14 October;
(3) I was born in Vietnam on 16 June 2000 and lived there until I was 10 years old. I have always spoken Vietnamese at home;
(4) I started learning English in Kindergarten. I have completed all of high school in Australia in English. I am currently completing a Bachelor of Commerce at UQ;
(5) I am completely fluent reading, writing and speaking in both Vietnamese and English.
I have considered these two affidavits too, notwithstanding that they were filed after 30 August, because they do relate to the ground that was in both the amended application and the written submissions. But the weight is question totally for me.
As well-intentioned as Ms Pham may be, she is not an accredited interpreter. She is simply someone who says that she is fluent in Vietnamese and English and that seems to be because of her living in Vietnam until she was 10 and the fact that she speaks Vietnamese at home. It is unknown how it is that she is fluent in reading, writing and speaking Vietnamese, though one may say that she can show that, having completed high school in Australia and studying for a Bachelor of Commerce at UQ, one would think that that does show some fluency in reading, writing and speaking in English.
The document that is now Exhibit 1, is a table that has four distinct columns. They are – and the use of the word “translator” should be “interpreter”, but in any event, it says this in the first column “What the Translator Said” Second column; “What the translator was meant to say”; third column, “What the client said” which seems to be a reference to the Applicant and fourthly “What the translator says”.
The Applicant had filed a transcript in an affidavit of the solicitor, Minh Huynh, of HM Lawyers. This was a transcript that had been completed by online transcription services.
The interview annexed to the affidavit is instructive. The persons speaking are the delegate of the Minister, the Applicant, and the interpreter. When answers are given by the interpreter, there is a double asterisk. When there is no double asterisk, then it is the Applicant himself who has spoken.
The Applicant points to the exchange that occurred at the transcript from line 532 on page 22 of the affidavit. I will read this into the record. Question:
Okay. I think, to put things into perspective a little bit, you're pretty lucky. Okay. So you're blind in one eye and you can’t see in one eye. In the grand scheme of disabilities and people being disabled, it’s not a huge disability. You can still see. You can hear. You can think. You can talk. You can walk. It’s not that bad. What did your smuggler tell you about Australia?
The interpreted answer is:
They said that over here, is the human right is high and that the humans – the humans are respected.
Question:
Did your smuggler say anything else about Australia? Did your smuggler tell you anything else about Australia?
Answer, interpreted:
Yeah, I was told there’s freedom about religion and compared with Vietnam, actually, it is a freedom in religion, but the reality is different. There’s no freedoms in religions.
Question:
How are you prevented from taking part in your religion in Vietnam?
Answer, which is interpreted:
Like, um, they stop you. They stop the vehicle to build the church. They over-controlled and - - -
Question:
They stop the vehicle to?
Answer, which is from the Applicant and not interpreted:
To build the church and they assaulted the people when arrested.
Question:
When arrested?
The interpreter says:
Yeah.
Question:
How long have you been a Catholic for?
The answer that is interpreted:
Since I was little.
Question:
Since birth?
Answer:
Yes.
And then the questioner moves on. The affidavit of Ms Tham says that the interpreted answer at line 540:
Yeah, I was told this. Freedom about religion and compared with Vietnam actually it is said the freedom in religion, but the reality is different. There’s no freedoms in religion.
Ms Tam heard that and interpreted as:
They say you come here. There’s freedom of religion. There’s also that same in Vietnam, but in reality we have no freedom in religion. Being Catholic can make you less than a normal person. You would be given no respect.
The next question:
How are you prevented from taking part in your religion in Vietnam?
The answer that the interpreter gave was:
Like, um, they stop you. They stop the vehicle to build the church. They over-controlled and -
And the answer was interrupted by the delegate, who then said:
They stop the vehicle too.
Ms Tam gives evidence in her affidavit that the answer that she interpreted was:
It’s like they interfere with church to be built. And when people go there to worship there are many times when they would assault us and will take people away. They, the police, won’t ask you anything, but they will bash you first.
The Applicant says that this is an almost devastating difference in the interpreting of the matter. He says this for this reason: the IAA, at paragraph 21, started their summary by saying:
The Applicant has made no mention in the 2013 entry interview of having participated in any dissident activities or having been harmed or harassed by police.
The Applicant claims that the Applicant in the entry interview was saying that he was involved in the building of the church. That building of a church is a dissident activity in and of itself. He says that the answer that Ms Pham heard, that:
There are many times when they would assault us and will take people away. They, the police, won’t ask you anything, but they will bash you first.
is him mentioning that he had been harmed or harassed by police.
Even if I were to accept as a matter of weight what it is that Ms Tam has said, and taking it at its highest, it does not seem to me that anything that was said truly does anything to cast doubt or undermine what it is that the IAA have said.
The first sentence in paragraph 21 has to be seen in the context of the whole of the reasons, rather than just by itself. The Applicant had made claims that he had been arrested by police while working on construction to enlarge the church; that he was detained for two days; that he was beaten and interrogated; and that he was released with a warning not to make trouble but he defied that order and continued to work on the church; and that he was followed by security forces and frequently stopped and interrogated about his activities and associations (those associations being his support and attendance of Viet Tan meetings since 2006).
It is clear when one looks at the whole of the entry interview, that the Applicant made no such claims in that entry interview. When asked about being harmed or harassed by police he is not specific and has not said that he himself was assaulted or taken away or bashed. Taking it at its highest, he says that:
There are many times when they would assault us, would take people away. And the police won’t ask you anything, but they will bash you first.
And then, if one looks at the actual transcript, he says in English, when asked about stopping the vehicle he himself says:
To build the church and they assaulted the people when arrested.
There is no iteration at all that he, himself, was bashed; that he, himself, was assaulted; that he, himself, was taken away. What he says is simply, that “this is what the police would do”. The way in which this was spoken, it could hardly be seen, if one looks at the entry interview as a whole, as an expression of an engagement in dissident activities. Neither was it a claim that he himself had been personally bashed.
There was plenty of opportunity for him to make that claim (that he had been personally bashed by the police because of his Catholicism), but he did not do so. As this ground, as to the interpretation, will rise and fall on there being an error in the interpretation material to a conclusion, I cannot see that, even if there were the statements uttered as Ms Pham says they were, and I have not accepted that that is the actual case, it was not material to a conclusion of the decision-maker.
When that sentence in paragraph 21 is read as a whole, it is a summary that is based on everything else that had been said and nothing that was said, even at its highest, by Ms Tam, would derogate from that particular conclusion.
There are no other matters in the interpretation in the entry interview that could even be thought to come to that standard, and there has been nothing put before me to say that the Safe Haven Enterprise Visa interview had any interpretation problems in it whatsoever. For those reasons ground 3 fails.
Ground 4 is that, “4. The IAA failed to conduct a proper review pursuant to s 473CC Migration Act and Part 7AA of that Act”.
The Applicant claims that the IAA did not give proper, genuine and realistic consideration to the merits of the case. It has been claimed here, by Mr Boccabella, that if one were to listen to both the entry interview, and the SHEV interview, that such recordings go for approximately six hours. As Mr Boccabella so eloquently said, “I defy anyone to remember salient points over six hours without making notes”. Because there have been no notes disclosed, the submission is that the IAA could not have properly listened to the recordings.
This is corroborated, it is submitted, by the fact that the IAA say, in paragraph 12, that:
I have reviewed the audio recording of the entry interview.
Mr Boccabella submits that the word “reviewed” is somewhat curious; if the IAA had listened to the interview, then they would have said that they had listened to it, rather than using the word reviewed. Mr Boccabella also submits that – and this follows on from the last ground – that the Applicant had clearly said in the entry interview that:
They assaulted the people when arrested…
and that if one listened to that, then the IAA could never have made the statement they made in paragraph 21, that the Applicant made no mention of having participated in dissident activities or having been harmed or harassed by police. The submission then concludes that when one taking all of those matters into account that the Court would be persuaded that the IAA had not conducted a proper review.
With regard to listening to the audio, it seems to me, if one reads the whole of the reasons, especially paragraphs 12 and 13, it is obvious that such statements could not have been made by the IAA unless they had actually listened to the interview.
The IAA have said that the interview was conducted in a calm manner, but evident from the overall flow of the interview was that the Applicant understood the Vietnamese interpreter and the questions that he was being asked; that the Applicant provided detailed and highly specific responses to questions about the circumstances of his departure and his reasons for leaving; that the interviewer did not interrupt the Applicant or prevent him from providing more detailed answers; and, that when the Applicant became emotional, the interviewer allowed him to take a break.
It seems to me that it is upon the Applicant to prove that the IAA did not listen to those interviews, and when one has a look at what has been said at paragraphs 12 and 13, it cannot be said that the IAA did not listen to the interviews.
The same observations that I made in relation to paragraph 21 and the last ground of the application are also applicable here. But there is something more with regard to this. The ground, in many ways, is trying to reverse the onus on the IAA. The onus is on the Applicant to show that there was not a proper hearing, or that s.473CC had not been complied with. The Applicant is, in many ways, contending that unless it is that the IAA produce notations that they must have made, then the IAA can’t show that there had been proper consideration given.
That totally reverses the onus and, in my view, is impermissible. There is nothing that would mandate that such notations, taken in the course of the examination of evidence by an IAA member, need to be kept or need to be part of the record. The reasons of the IAA are sufficient to speak for itself.
If the IAA has given proper consideration, then that will be evident from their reasons. If they have not given proper consideration, that will also be evident from their reasons. There is no need to impose upon the IAA, or any of those administrative arms of the department, a need to provide people, or provide anyone else, with notations that had been made.
I make those last remarks more as an aside. The ground itself fails on the merits that I had previously spoken.
The next three grounds can really be looked at as a whole. They are:
5. The decision was unreasonable.
6. The decision was an improper exercise of power.
7. The IAA did not properly apply and interpret the protection visa provisions of the Migration Act and Migration Regulations.
In the written submissions, all that is said is that the “unreasonableness ground” coalesces with other grounds; the conclusions of the review are illogical and/or lack an intelligible justification; that the reviewer set the bar too high in relation to the assessment of risk of harm. These grounds were not the subject of oral submissions, and Mr Boccabella was content to simply rely upon the written submissions.
As one can see, the written submissions and the grounds themselves give no particularly whatsoever. Having gone through the decision as I have, it would seem to me that the conclusions, which were made by the IAA, were conclusions that were open on the evidence before it. Therefore, it cannot be said that such was unreasonable. So ground five fails.
The ground that claims that the decision was an improper exercise of power fails simply because it has not been particularised.
With respect to ground 7, it is evident upon the summary of the reasons of which I had earlier spoken, that those provisions had been properly applied, and the proper interpretations had been made.
There is no merit in any of those grounds. The conclusion of the Court, therefore, is that there has been no jurisdictional error that has been illustrated.
I therefore dismiss the application with costs in the sum $7467.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 19 December 2018
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