GPH18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1152
•6 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GPH18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1152
File number(s): ADG 507 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 6 November 2024 Catchwords: MIGRATION – Judicial review application – decision of the Immigration Assessment Authority – refusal to grant Safe Haven Enterprise visa – citizen of Vietnam of the Catholic faith – claims of persecution on the basis of religion, Australian Government data breach and asylum seeker status – single unparticularised ground of review –whether unreasonableness – whether interpreter error – whether jurisdictional error otherwise – whether jurisdictional error
Legislation: Evidence Act 1995 (Cth) s 56(2)
Migration Act 1958 (Cth) Pt 7AA, ss 5H, 36, 473CA, 473DA, 473DB, 473DC, 473DD, 474, 476
Cases cited: ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
BIK18 v Minister for Home Affairs [2019] FCA 788
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196
BYP16 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCA 531
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173
CXF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1278
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 273 CLR 1; (2021) 95 ALJR 352; (2021) 388 ALR 363
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
FRK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144
FSQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383
GKH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1125
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 357 ALR 408; (2018) 163 ALD 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZQHH and Another [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of last submission/s: 7 February 2024 Date of hearing: 7 February 2024 Place: Perth First and Second Applicants: Appeared in person with the assistance of an interpreter Third, Fourth and Fifth Applicants: GPH18 by leave on behalf of the third, fourth and fifth applicants Counsel for the First Respondent: Ms G Ellis Solicitor for the Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 507 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GPH18
First Applicant
GPI18
Second Applicant
GPJ18 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
6 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The originating application filed on 14 December 2018 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application for judicial review (“Judicial Review Application”) filed by the applicants, GPH18, GPI18, GPJ18, GPK18 and GPL18 (collectively the “Applicants”) on 14 December 2018. Unless otherwise required the Court will generally only refer to the primary applicant, GPH18. The Judicial Review Application is made under s 476(1) of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application seeks judicial review of a decision made by the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) to affirm a decision made by delegate (“Delegate’s Decision” and Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”), not to grant GPH18 a Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHE Visa”). The Authority Decision appears in the Court Book (“CB”) at CB 369-382.
BACKGROUND
The background to this matter prior to the Authority Decision is as follows:
(a)GPH18 and GPI18 (GPH18’s wife) are citizens of Vietnam who arrived in Australia at Christmas Island on 30 April 2013 as unauthorised maritime arrivals: CB 88. GPJ18, GPK18 and GPL18 are the children of GPH18 and GPI18, and were born in Australia in January 2015, January 2017, and July 2018 respectively: CB 232, 234 and 309;
(b)on 30 May 2017 GPH18 lodged a SHE Visa application in relation to GPH18, GPI18 GPJ18 and GPK18: CB 43-180;
(c)in a statement dated 28 February 2017 that accompanied the SHE Visa application, GPH18 claimed to fear harm from the Vietnamese authorities because of:
(i)his Catholic faith;
(ii)his status as the leader of a Catholic religious group; and
(iii)as someone who had departed Vietnam illegally: CB 157-161;
(d)GPH18 claimed that:
(i)on 1 July 2012 he participated in a prayer gathering with others at a house, and that the prayer gathering was interrupted by the Vietnamese authorities;
(ii)a physical altercation occurred between the worshipers and the Vietnamese authorities which resulted in him being injured and going into hiding;
(iii)the police subsequently ordered him to report to the police station; and
(iv)the police interrogated his parents about his whereabouts, forcing him into hiding;
(e)in a statement dated 2 March 2017 GPI18 made claims that supported GPH18’s claims: CB 162-164;
(f)on 13 September 2017 the Department advised GPH18 that the Minister had exercised the power under s 46A(2) of the Migration Act to lift the bar on the making of a valid visa application by GPH18, and also advised that the SHE Visa application was valid: CB 182-189;
(g)on 20 February 2018 GPH18 and GPI18 attended separate interviews with the Delegate (“SHE Visa Interviews”): CB 199 and 202;
(h)on 8 March 2018 GPH18 and GPI18 provided a post-interview submission in which they claimed to fear harm because:
(i)GPH18 held an anti-government political opinion;
(ii)their children would not be able to enrol in school because of their Catholic faith: CB 277-292; and
(iii)the personal details of GPH18 and “his family” were released online during a data breach by the Department in February 2014 which disclosed all their names (“2014 Data Breach”): CB 279 at [6];
(i)in July 2018 GPL18 was born and was included in the SHE Visa application: CB 305-316;
(j)on 12 October 2018 the Delegate refused to grant the Applicants’ SHE Visas finding that they met neither the refugee nor complementary protection criteria: CB 322-343. Amongst other things, the Delegate:
(i)noted the discrepancies in evidence given at the entry interview for GPH18 and GPI18, the SHE Visa application statements, and the SHE Visa Interviews;
(ii)doubted the veracity of GPH18’s account of events regarding:
(A)his claimed role in a youth group;
(B)his role in the Church group overall; and
(C)the nature of the altercation that occurred on 1 July 2012: CB 331-333;
(iii)did not accept that GPH18:
(A)held a position of leadership in his Church community;
(B)founded the Church group;
(C)was deliberately targeted by the Vietnamese authorities; or
(D)had a heightened profile in Vietnam for being a Catholic or for any community activity: CB 336; and
(k)the matter was referred to the Authority pursuant to s 473CA of the Migration Act: CB 348-358.
AUTHORITY DECISION
On 13 November 2018 the Authority affirmed the Delegate’s Decision: CB 378.
In the Authority Decision the Authority:
(a)had regard to the material referred to it by the Secretary under s 473CB of the Migration Act: CB 371 at [4], and noted that no further (and therefore no new) information had been obtained or received;
(b)accepted GPH18’s background as claimed, and that he was a Catholic from a province in Vietnam: CB 372 at [6]-[7];
(c)recorded the inconsistencies and implausibility in the evidence given by GPH18 and GPI18 at their entry interviews, in their SHE Visa application, and in the SHE Visa Interviews;
(d)was not satisfied that:
(i)GPH18 had attended a prayer meeting on 1 July 2012 that was disrupted by the Vietnamese authorities;
(ii)GPH18 subsequently went into hiding; and
(iii)the Australian born children (GPJ18, GPK18, and GPL18) could not attend school in Vietnam because of their faith or that they were otherwise of interest to the Vietnamese authorities: CB 372-374 at [8]-[13];
(e)found that GPH18’s claim regarding his attendance at the prayer meeting in July 2012 was fabricated and that he was not a witness of truth: CB 373 at [12];
(f)based on its credibility findings above, did not accept GPH18’s claim that he was the leader of a Catholic religious group, but accepted that it was plausible that he was a member: CB 374 at [14];
(g)did not accept that GPH18’s membership of the Catholic religious group was of any particular interest to the Vietnamese authorities, or that he was harassed, threatened or subjected to surveillance by the Vietnamese authorities from 2006 onwards;
(h)found that the Applicants were not prevented from practising their faith in Vietnam: CB 374 at [14];
(i)had serious doubts about the route GPH18 claimed to have taken prior to arriving in Australia, but accepted evidence that the departure of GPH18 and GPI18 from Vietnam for Malaysia was on legally issued passports, and found that immigration records indicated that they departed Vietnam legally: CB 374 at [15];
(j)accepted that:
(i)GPH18 would have been affected by the 2014 Data Breach;
(ii)the 2014 Data Breach may reveal that GPH18 had sought asylum in Australia; and
(iii)GPH18 may be identifiable on re-entry to Vietnam as a person who had sought asylum in Australia: CB 374 at [16];
(k)found that GPH18 had not undertaken anti-Vietnam government political activities in either Vietnam or Australia: CB 375 at [17];
(l)found that there was no evidence of harm or harassment due to the alleged “Catholic activism” of GPH18’s cousin, and found that GPH18 would not be harmed because of the cousin’s activities or incarceration: CB 375 at [17];
(m)based on country information and the lack of evidence that suggested GPH18 had to modify his religious practice or conceal his views to avoid harm:
(i)found that GPH18:
(A)did not face a real chance of harm due to his Catholic faith: CB 375-376 at [20]; and
(B)was not a religious activist and would not participate in religious activism on return to Vietnam: CB 376 at [21]; and
(ii)was not satisfied that GPH18 faced a real chance of any harm on the basis that he would be considered a political activist: CB 376 at [21];
(n)based on country information and the lack of evidence that suggested GPH18 had to modify his religious practice or conceal his views to avoid harm, found that he did not face a real chance of harm due to his Catholic faith: CB 375-376 at [20];
(o)found that GPH18 was not a religious activist and would not participate in religious activism on return to Vietnam, and was not satisfied that he faced a real chance of any harm on the basis that he would be considered a political activist: CB 376 at [21];
(p)accepted that if GPH18 was returned to Vietnam involuntarily, the Vietnamese authorities would be aware that he was a failed asylum seeker: CB 376 at [22];
(q)recorded that it was an offence under Vietnamese law to flee the country to oppose the Government however, noting country information, did not accept that there was a real chance that GPH18 would suffer harm on return to Vietnam or that his family would face a real chance of persecution: CB 376 at [22]-[23];
(r)found that GPH18’s children who were born in Australia would be regarded as Vietnamese citizens and rejected the claim that the children would not be allowed to live in Vietnam: CB 377 at [24];
(s)based on a cumulative assessment of the claims made, was not satisfied that the Applicants would face a real chance of serious harm on return to Vietnam: CB 377 at [25];
(t)concluded that the Applicants did not satisfy the definition of “refugee” in s 5H of the Migration Act and that they did not meet s 36(2)(a) of the Migration Act: CB 377 at [26];
(u)relying on its anterior findings, was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Vietnam, there was a real risk that the Applicants would suffer significant harm, and concluded that they did not meet s 36(2)(aa) of the Migration Act: CB 378 at [29]-[30]; and
(v)as none of the Applicants met the refugee or complementary protection criterion, it also found that they did not meet the family unit criterion in either s 36(2)(b) or (c) of the Migration Act: CB 378 at [31]-[32].
JUDICIAL REVIEW APPLICATION
Sole ground
The Judicial Review Application contains a sole ground as follows:
I BELIEVE THE IAA COMMITTED JURISDICTIONAL ERROR IN MY CASE
Material jurisdictional error required
For present purposes it suffices to observe that this Court may set aside the Authority Decision upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (“LPDT”) at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, the majority plurality in the High Court said (footnotes omitted) that:
15What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
16In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
Not merits review
The Court’s role is not to review the merits of the Authority Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”). The “line between judicial review and merits review…must be maintained”: LPDT at [15] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, and the reasons of the Authority are not to be over-zealously scrutinised in a search for error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ.
Litigation history
It is appropriate to set out the litigation history of the matter, which is as follows:
(a)the Judicial Review Application and a supporting affidavit by GPH18 were filed on 14 December 2018 in the Adelaide Registry of the Court (then the Federal Circuit Court);
(b)on 6 February 2019 the Minister filed a Response seeking that the Judicial Review Application be dismissed on the basis that it did not establish any jurisdictional error in the Authority Decision;
(c)on 15 February 2019 a Registrar of the Court made consent orders (“Registrar’s February 2019 Consent Orders”) that included orders to the following effect:
(i)that GPH18 have leave to file and serve any amended Judicial Review Application and such further material that he may rely upon at the hearing of the Judicial Review Application by 19 April 2019;
(ii)the Judicial Review Application be listed for a final hearing on a date to be advised; and
(iii)the matter be listed for a directions hearing on 12 June 2020 at 9.30am;
(d)GPH18 did not file any documents pursuant to the Registrar’s February 2019 Consent Orders;
(e)for reasons which are not apparent from an examination of the Court file the 12 June 2020 directions hearing did not proceed and no date was set for a final hearing, and thus nothing further occurred with the matter for more than three years until May 2023 when the matter was docketed to the presently presiding Judge, and a directions hearing was listed for 22 May 2023;
(f)at the 22 May 2023 directions hearing, at which this matter was listed together with a judicial review application by GPH18’s brother-in-law, none of the applicants appeared and the matter was adjourned to 26 May 2023;
(g)at the 26 May 2023 directions hearing, at which this matter was again listed together with the judicial review application by GPH18’s brother-in-law, and at which an interpreter interpreted for GPH18, the Court:
(i)explained the nature of the process to be followed in relation to the Judicial Review Application: Transcript, 26 May 2023, pp 2-5;
(ii)the Court made orders (“Court’s May 2023 Orders”) setting aside the Registrar’s February 2019 Consent Orders and making further orders, including an order that GPH18 file and serve any amended Judicial Review Application, further affidavits, and an outline of submissions by 12 December 2023, and listing the matter for hearing by videolink on 7 February 2024. Additionally, the Court made a note on the Court’s May 2023 Orders to the following effect:
B.Having regard to the recent Federal Court judgment in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384, the Court has explained to the applicant:
a) the need to establish material jurisdictional error in the Immigration Assessment Authority decision;
b) the nature of jurisdictional error;
c) the necessity to provide grounds, properly particularised alleging what the jurisdictional error or errors committed by the Immigration Assessment Authority were;
d) that a failure to specify grounds and particularise grounds may result in the dismissal of the application or any amended originating application; and
e) that if the originating application or any amended originating application is dismissed at hearing the applicant may have to pay the Minister’s costs.
(h)the final hearing of the matter proceeded on 7 February 2024, and at the final hearing the Court:
(i)noted that GPH18 had not filed any materials pursuant to the Court’s May 2023 Orders;
(ii)reiterated what had been said at the 26 May 2023 directions hearing about GPH18 needing to establish material jurisdictional error in the Authority Decision, and the nature of jurisdictional error, and that the Court was not rehearing the merits of the SHE Visa application;
(iii)marked documents provided to the Court by GPH18 at the final hearing as MFI-1 (as to which see [10] below); and
(iv)said it would hear oral submissions from both GPH18 and the Minister: Transcript, 7 February 2024, pp 3-5.
Albeit that GPH18 did not file any amended Judicial Review Application, further affidavits, or an outline of submissions (in accordance with either the Registrar’s February 2019 Consent Orders or the Court’s May 2023 Orders) he was permitted to make oral submissions at hearing, consistent with Federal Court authority to the effect that even where there are unparticularised grounds of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a ground of review: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (“DQQ17”) at [9] per Colvin J, an authority regularly applied in the Federal Court, see, for example BYP16 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCA 531 at [35] per Wheelahan J; GKH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1125 at [26] per Banks-Smith J; BIK18 v Minister for Home Affairs [2019] FCA 788 at [3] per McKerracher J, and in this Court, see, for example, FSQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383 at [8(j)] per Judge Lucev and FRK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144 at [25]-[26] per Judge Ladhams.
The final hearing
Documents provided by GPH18
A series of documents were tendered by GPH18 at the final hearing and marked MFI-1. Those documents were as follows:
(a)Socialist Republic of Vietnam identity cards for GPH18 (issued in December 2011) and GPI18 (issued in March 2008) (copies of the identity card for GPH18 appear at CB 177 and 236 and for GPI18 at CB 178 and 228);
(b)four “Summon Notice[s]” addressed to GPH18 from July 2012 (a “First Notice” and a “Second Notice”) and June 2014 (again, a “First Notice” and a “Second Notice”) (copies of which appear at CB 297-300);
(c)two copies of a marriage certificate for the marriage of GPH18 and GPI18 in June 2009 in Vietnam (copies of which appear at CB 174 and 247);
(d)two copies of a birth certificate for a child born to GPH18 and GPI18 in December 2009 in Vietnam who is not an applicant in these proceedings (“2009 Child”) (copies of which appear at CB 167 and 219);
(e)two copies of a birth certificate for a child born to GPH18 and GPI18 in April 2012 in Vietnam who is not an applicant in these proceedings (“2012 Child”) (copies of which appear at CB 168 and 214);
(f)a copy of a Vietnamese primary school confirmation for 2016-2017 for the 2009 Child (a copy of which appears at CB 224);
(g)a undated copy of a Socialist Republic of Vietnam Household registry for a household comprising GPH18, GPI18, the 2009 Child, and the 2012 Child (and which appear at CB 172 (as a single page) and 267-268, and also as separate pages at CB 229 (page 1) and 242 (page 2)); and
(h)a one page written submission (“Written Submission”).
Consideration – documents provided by GPH18
All of the documents in [10(a) to (g)] above:
(a)were translated from documents written Vietnamese by an accredited translator on 8 December 2016, while the Written Submission was translated on 28 February 2017, respectively nearly 23 months and more than 20 months after the date of the Authority Decision; and
(b)are in the Court Book and were before the Delegate at the time of the Delegate’s Decision and would therefore have been in the material referred to the Authority.
The documents also do not relate to any allegation of jurisdictional error made in these proceedings: as to which see [10] above and [35]-[36] below. They are therefore inadmissible as evidence on the Judicial Review Application as they are not relevant to any allegation of jurisdictional error: Evidence Act 1995 (Cth), s 56(2), and appear only to invite merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27] per McKerracher J; CXF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1278 at [54] per Banks-Smith J.
The Written Submission will be considered as a submission by GPH18 for the purposes of the Judicial Review Application: see [14]-[15] and [19]-[36] below.
GPH18’s submissions
The Written Submission
The Written Submission is marked as page 2 of 2 and has obviously been taken from another document. Page 1 was not however in the documents tendered to the Court.
In the Written Submission GPH18 says that:
(a)in July 2012 he received a summons from the Vietnamese police;
(b)he ran away from his locality;
(c)he subsequently received another summons;
(d)the Vietnamese police had put him under watch because he had joined “the Praying Group”, so he moved away and did not go back because his parents had advised against it because the police had confirmed that he attended the “praying mass” and “was involved in the fighting there”;
(e)he moved from place to place but did not return home as his parents advised him the police were checking to see if he was home; and
(f)he was sad to live in a communist country without freedom, and decided to escape, with GPI18, and after a period at sea they arrived in “a country with freedom and humanity … which brings about happiness to us … Australia”.
GPH18 and GPI18’s oral submissions
In GPH18’s oral submissions: Transcript, 7 February 2024, pp 5-6 and 10, GPH18 submitted that:
(a)he had submitted “all the paperwork” and he was worried that the Delegate’s Decision had been made, seemingly without considering that paperwork;
(b)he was worried that the Vietnamese police would arrest him if he returned to Vietnam;
(c)he had three children since arriving in Australia, and they have been enrolled in schools here, and he does not know “how we would survive if we go back to Vietnam”;
(d)the documents provided to the Court: see [10] above, were provided because they are the documents obtained from Vietnam;
(e)he does not think the Authority Decision was reasonable because he has a sound basis for his claim;
(f)the Vietnamese police “watch and create pressure” for him and his family and he is “extremely fearful” that he will be put in jail if he returns to Vietnam, and that his children (both in Vietnam and Australia) will not have a father;
(g)he thinks that the interpretation at the SHE Visa Interview was not accurate. The following exchange from Transcript, 7 February 2024, p 6 captures that claim:
HIS HONOUR: All right. Does the applicant wish to say – or the applicants wish to say anything specifically about what error or errors they say the authority made in the authority decision?
THE INTERPRETER: … I think the interpretation was not accurate. That’s why I applied for the court to review. If the court and the authority consider the 100 per cent sure that if I am able to go back to Vietnam without being arrested then I will be happy. I’m happy to go back to Vietnam. If that cannot be guaranteed, then I would seek protection.
HIS HONOUR: No evidence has been submitted by you in relation to the interpretation issue.
THE INTERPRETER: So some of the words that I say, some of the language that I use, might not be accurate and I think they might have misheard me.
HIS HONOUR: But you filed no transcript and interpretation from the hearing to indicate what those errors are that you allege.
THE INTERPRETER: So often I would – I’m not very clear about that matter or what to do. I just don’t understand why my family is not allowed to stay here. I just want the court to consider to have us reviewed on that matter.
(h)the Court should think about his three children (in Australia) and how they will deal with the change in environment, especially with their schooling, if they have to return to Vietnam, and requested that the Court consider letting GPH18 and GPI18 and their three Australian born children “continue on living here”.
In GPI18’s oral submissions: Transcript, 7 February 2024, pp 6-7, GPI18 submitted that:
the fact is that we’ve got three children here. They have been here for a long time. They are integrated into life here and we just seek … sympathy and empathy from the court, … to let our children and us to be able to continue with our lives here.
Minister’s submissions
The Minister submitted that:
(a)the unparticularised nature of the sole ground of review is a sufficient basis for it to be dismissed, citing WZATH v Minister for Immigration and Border Protection [2014] FCA 969;
(b)the Authority properly performed its statutory task as set out in Part 7AA of the Migration Act;
(c)the Authority took into consideration the relevant legislation for the grant of the SHE Visas: CB 375 at [18]-[19] and 377 at [27]-[38];
(d)the Authority accurately summarised the claims made by GPH18: CB 371 at [5];
(e)the Authority Decision discloses an active intellectual engagement with the claims made, and the findings and conclusions it ultimately reached were open to it on the evidence: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 (“Carrascalao”) at [43]-[46] per Griffiths, White and Bromwich JJ; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [131] and [135] per Crennan and Bell JJ;
(f)for the purpose of reaching its conclusion that the Applicants failed to meet the test in s 36(2)(aa) of the Migration Act there was no error in the Authority referring to its previous factual findings: DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 273 CLR 1; (2021) 95 ALJR 352; (2021) 388 ALR 363 at [27] per Kiefel CJ, Keane, Gordon, Edelman and Steward JJ; SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56] per Robertson J; and
(g)the Authority’s procedural fairness obligations are limited in a review under Part 7AA of the Migration Act. Section 473DA(1) of the Migration Act relevantly provides that Division 3 of Part 7AA of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. This section leaves no room for the operation of the common law rules of procedural fairness: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196 at [31] and [33] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ. Additionally, s 473DB(1) of the Migration Act provides that the Authority is to conduct reviews by considering the review material “without accepting or requesting new information” and “without interviewing” the applicant. The Authority conducted its review in accordance with the relevant terms of the Migration Act.
Consideration – whether jurisdictional error in the Authority Decision
No jurisdictional error alleged or particularised
The Court notes that GPH18 was given a number of opportunities to file material setting out an alleged jurisdictional error in the Authority Decision. The first opportunity was upon the making of the Judicial Review Application on 14 December 2018. That opportunity was not taken. The second opportunity was as a consequence of the Registrar’s February 2019 Consent Orders which permitted GPH18 to file an amended Judicial Review Application and further material by 19 April 2019, but he did not do so. The third opportunity was as a consequence of the 26 May 2023 directions hearing, at which GPH18 had the assistance of an interpreter, and at which the May 2023 Court Orders were made allowing GPH18 to file an amended Judicial Review Application, any further affidavits and an outline of submissions by 12 December 2023. GPH18 did not file any of those documents. At the final hearing on 7 February 2024 the nature of jurisdictional error, and the requirement to establish material jurisdictional error in the Authority Decision, and that the Court did not engage in merits review of the Authority Decision, were all again explained to GPH18, but GPH18’s submissions did not assert any alleged jurisdictional error, save for unreasonableness and the possible issue of misinterpretation at the SHE Visa Interview. In the circumstances, the Court is satisfied that GPH18 had adequate opportunity to allege and particularise any alleged jurisdictional error in the Authority Decision: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [31]-[35] per Feutrill J; DQQ17 at [8]-[9] per Colvin J.
Having explained the nature of jurisdictional error to GPH18 and given GPH18 the opportunity to assert and explain what jurisdictional error he alleged affected the Authority Decision, the failure to go beyond the bare assertion of jurisdictional error in the sole ground of review, and the failure to particularise the sole ground of review, is sufficient reason to warrant this Court dismissing the sole ground of the Judicial Review Application: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 at [60] per Perry J, citing WZAVW.
Consideration of claims and whether jurisdictional error otherwise
Claims prior to final hearing
The crux of GPH18’s claims prior to the final hearing was that he feared harm from the Vietnamese authorities because of:
(a)his Catholic religion;
(b)his status as a returnee asylum seeker who departed Vietnam illegally; and
(c)the 2014 Data Breach.
The Authority Decision deals with GPH18’s claims as to:
(a)his Catholic religion at CB 372-374 at [6]-[14], 375 at [17], 375-376 at [20]-[21] and 378 at [29]: see [4(b), (d)-(h), (l), (m)(i), (n), (o) and (u)] above;
(b)his status as a returnee asylum seeker who departed Vietnam illegally, including the treatment of his Australian born children on return to Vietnam at CB 376-377 at [22]-[25] and 378 at [29]: see [4(p)-(s) and(u)] above; and
(c)the 2014 Data Breach at CB 374 at [16] and 378 at [29]: see [4(j) and (u)] above.
It is evident from the review of the Authority Decision set out at [4] and [22] above that the Authority engaged with each of the claims made by GPH18, and considered country information in relation to those claims, as it was required to do: as to claims, see, for example, Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ, and as to country information, see NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11]-[13] per Gray, Tamberlin and Lander JJ and Minister for Immigration and Citizenship v SZQHH and Another [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481 at [27] per Rares and Jagot JJ. It is clear from its reasons that the Authority made specific findings on GPH18’s claims. The Authority considered the country information and utilised the country information and the conclusions drawn therefrom to find that GPH18 did not require protection as a refugee or under the complementary protection or family unit provisions of the Migration Act: CB 377-378 at [26], [30] and [32]. The Authority therefore properly performed its statutory task as set out in Part 7AA of the Migration Act.
In the circumstances, the Authority Decision was one that was open to the Authority on the evidence before it, for the reasons that it gave, and it cannot be said that no other rational or logical decision-maker could not have drawn the same conclusions: SZMDS; Carrascalao at [43]-[46] per Griffiths, White and Bromwich JJ. While GPH18 might not agree with the Authority Decision, that is not indicative of jurisdictional error, and the weight to be afforded to the material before the Authority was a matter for the Authority, and the Court cannot engage in a general review of the merits of the Authority Decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
It follows that the Court is unable to otherwise discern any error, let alone material jurisdictional error, in the Authority Decision itself.
Claims at final hearing
Unreasonableness
At the final hearing GPH18 submitted that the Authority decision was unreasonable because he “has a sound basis for his claim[s]”.
In certain circumstances unreasonableness, and more correctly, legal unreasonableness, may constitute jurisdictional error: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225 (“Li”) at [63]-[76] per Hayne, Kiefel and Bell JJ. Reasonableness is an implied condition on the valid exercise of the Authority’s statutory duty: Li at [92] per Gageler J. What is considered the legal standard of reasonableness in migration cases is predicated on the scope and purpose of the statutory functions conferred upon the Authority under the Migration Act: Li at [67] and [74] per Hayne, Kiefel and Bell JJ. It is well established that unreasonableness may be found where an administrative decision-maker reaches a conclusion that no reasonable decision-maker could have reached, or makes a decision that lacks an evident and intelligible justification: Li at [76] per Hayne, Kiefel and Bell JJ. Unreasonableness is not established merely because reasonable minds could have come to different conclusions: SZMDS at [130]-[131] per Crennan and Bell JJ. The test for legal unreasonableness is stringent: Li at [113] per Gageler J; Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 357 ALR 408; (2018) 163 ALD 1 at [11] per Kiefel CJ.
As set out at [23]-[24] above the Authority engaged with the claims made by GPH18, and the Authority Decision was one that was open to it on the evidence. There is nothing to suggest that the Authority Decision was beyond power, or was otherwise arbitrary, capricious, without common sense or just plainly unjust or unreasonable: Li at [28] per French CJ and [110] per Gageler J. GPH18’s claim is not one of unreasonableness, but rather one which seeks impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
It follows from the above that the possible further ground of unreasonableness is not made out and does not establish jurisdictional error in the Authority Decision.
Claim of misinterpretation or interpreter error
The claim made by GPH18 at final hearing with respect to possible misinterpretation, or more correctly interpreter error: see [16(g)] above, raises a possible ground of jurisdictional error. It is not a strong possibility, as GPH18’s submission asserts only that the interpretation at the SHE Visa Interview was “not accurate”, that some of the words that he (GPH18) said “might not be accurate” and that “they might have misheard”. In the end GPH18 said he was “not very clear about that matter”. Otherwise, there is no content to the alleged interpreter error. Further, to the extent that GPH18’s own words might not have been accurate there is no jurisdictional error which arises.
Notwithstanding a number of opportunities to do so: see [19] above, GPH18 filed no amended Judicial Review Application alleging interpreter error, nor did he file any supporting affidavit evidence in the form of a transcript of the SHE Visa Interview or setting out his recall of the matters alleged to have been misinterpreted, to support any possible claim of interpreter error at the SHE Visa Interview. Further, GPH18 made no submission to the Authority, and therefore there was nothing before the Authority to suggest that interpreter error was an issue which the Authority might need to address (subject to the new information provisions in ss 473DC and 473DD of the Migration Act).
An error in interpretation may result in a jurisdictional error where:
(a)the standard of interpretation is so inadequate that the applicant is effectively prevented from giving evidence; or
(b)the errors in interpretation are material to adverse conclusions reached by the decision-maker: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 (“SZRMQ”) at [9] and [24] per Allsop CJ and [66] per Robertson J.
In relation to the standard of interpretation required at the SHE Visa Interview, and any assertion of error in relation to that interpretation, the Court makes the following observations and findings:
(a)there is no evidence before the Court that would enable it to determine if inadequate interpretations occurred, and, if they did occur, whether they were material to the outcome of the Delegate’s Decision, and hence, by extension, to the Authority Decision; and
(b)based upon the Delegate’s Decision at CB 322-343 it appears that GPH18 answered the questions put by the Delegate’s adequately and directly in relation to what was being asked of him, and, on the face of the Delegate’s Decision there is no evidence that the interpreter was not conveying to the Delegate what was being said by GPH18 (and vice versa), and the Court cannot find any error, let alone jurisdictional error, in relation to the issue of interpreter error.
It follows from the above that the possible further ground of interpreter error is not made out and does not establish jurisdictional error in the Authority Decision.
Written Submission and other matters
In relation to the Written Submission and the other matters raised in GPH18’s oral submissions these were factual matters appropriately dealt with by the Authority, and in respect of which no jurisdictional error arises: see [23]-[24] and [28] above. In respect of the Delegate’s Decision and the assertion that the Delegate’s Decision was made without considering “all the paperwork” the Court observes that it is not within the Court’s jurisdiction to review the Delegate’s Decision for error: Migration Act, ss 474 and 476. It is, however, evident from a reading of the Delegate’s Decision at CB 322-343 that it dealt with the matters that were raised with it, and, in any event, on review the Authority Decision likewise dealt with the claims made by GPH18.
It follows from the above that the other matters raised do not give rise to jurisdictional error in the Authority Decision.
Jurisdictional error otherwise
The Court is cognisant that GPH18 was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error having been made by the Authority: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J. Save for the matters otherwise considered in these Reasons for Judgment, it is not evident to the Court that some other form of possibly arguable legal error, and in particular possibly arguable jurisdictional error, arises in relation to the Authority Decision.
CONCLUSION AND ORDER
The Court has concluded that the Applicants have failed to establish jurisdictional error in the Authority Decision. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 6 November 2024
SCHEDULE OF PARTIES
ADG 507 of 2018 Applicants
Fourth Applicant:
GPK18
Fifth Applicant:
GPL18
0
41
2