FEDERAL COURT OF AUSTRALIA

BWS16 v Minister for Home Affairs [2019] FCA 1151

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    The applicant must pay the first respondent's costs of the application, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant is a citizen of Vietnam who arrived in Australia by boat in 2013. He sought judicial review in the Federal Circuit Court of Australia of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the first respondent (the Minister) to refuse him a protection visa. The application for judicial review was dismissed because the applicant did not appear at the hearing of the application. The primary judge subsequently dismissed an application for reinstatement of the proceeding. The applicant now seeks leave to appeal from that decision.

2    At the hearing of the present application, and with the consent of both parties, I directed that the application for leave to appeal and any appeal from that decision be heard and determined at the same time. That was because even if leave to appeal was granted, the appeal allowed, and the application for judicial review in the Federal Circuit Court reinstated, there would still be a need for that court to determine the merits of the judicial review application. The most efficient course in this court would therefore have been to hear and determine both the application for leave to appeal and any appeal at the same time. However as will appear from these reasons, I decline to grant leave to appeal, so there is no need to determine any appeal.

3    The principles to be applied in an application for leave to appeal are well established, as are the principles on an application for reinstatement of a proceeding which was dismissed because of default in appearance. In relation to an application for leave to appeal, the two major considerations that will generally be addressed in the exercise of the discretion are whether the decision sought to be appealed from is attended with sufficient doubt to warrant its being reconsidered by the appellate court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

4    In relation to an application for reinstatement, the discretion is a broad one, but three factors are consistently considered: whether the applicant has an adequate explanation for the non-appearance; whether there is any prejudice to the Minister if the matter is reinstated; and whether the applicant has an arguable case on judicial review: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] (Mortimer J).

5    Here, the Minister has accepted that the applicant has an adequate explanation for his failure to appear, and did not contend that the Minister would suffer any prejudice were the application for judicial review to be reinstated. The sole issue the primary judge needed to determine in dealing with the reinstatement application was therefore whether there was an arguable case for judicial review.

6    When assessing that, it is important that the court not proceed as if the application is a final hearing of the judicial review proceeding; rather, the threshold is whether a ground of review is arguable, that is, not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the court sufficient for the court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument: CAL15 at [5]-[6].

The application for leave to appeal

7    While the decision not to reinstate the application for judicial review was interlocutory, so that leave to appeal is required, it is clear that substantial injustice will arise if the decision was wrong and is undisturbed on appeal. The applicant will have been denied the opportunity to have his application for judicial review heard by reason of a decision of the primary judge which, in practical terms, would end any redress he may have concerning any jurisdictional errors in the decision of the Tribunal.

8    There are no circumstances here which raise questions different to those that usually arise in applications for leave to appeal. So the issue remaining before me for the purposes of the application is whether the primary judge's decision is attended with sufficient doubt to warrant it being reconsidered by the appellate court.

9    There was one ground of appeal in the draft notice of appeal. It alleged, in general terms, that the primary judge erred in law in concluding that the reinstatement application did not have reasonably arguable prospects of success. It was supported by two particulars which raised two distinct issues: first, whether the trial judge mistook the facts in finding that the Tribunal had dealt with what were said to be three 'integers' of the applicant's claim to be a refugee; and second, that the primary judge's decision not to reinstate the application was unreasonable and plainly unjust, such that it should be inferred that there has been a failure to properly exercise the discretion to consider reinstatement.

10    The three integers of the applicant's claim to protection with which, it is said, the Tribunal failed to deal, were that:

(a)    his family's land was seized by the local authorities in 2009;

(b)    as a result, his family had been unable to farm; and

(c)    his father had been active in demonstrations against land seizures since that time.

11    In fact there were four proposed grounds of review before the primary judge on the reinstatement application. Three of them, however, relied on a failure to deal with the alleged integers I have described, with each ground characterising that as a certain kind of jurisdictional error, respectively: failure to deal with a claim; irrationality and illogicality; and denial of procedural fairness.

12    The primary judge found that the three grounds did not disclose an arguable case. His Honour considered that the Tribunal squarely dealt with the three integers at one point in its reasons and also referred to those aspects of the applicant's claim at several other points: [2018] FCCA 2816 at [9]. He observed (at [10]) that the Tribunal did not consider the claims to be credible and had found that the applicant had 'embroidered' his claims about his father's activities. He noted (at [11]) that the Tribunal had in the end made a determination based on the totality of the applicant's circumstances that the applicant was not a person to whom Australia owed protection obligations. At [12] his Honour found that in the course of dealing with the applicant's claim to complementary protection, the Tribunal referred to the father's claimed conflict with the Vietnamese authorities over the seizure of the family's land.

13    That disposed of the first proposed ground of review. His Honour similarly found in relation to the second ground that there was no arguable case that the Tribunal's reasons were illogical or irrational: [2018] FCCA 2816 at [14]. In relation to the third ground, his Honour concluded (at [15]) on the basis of the Tribunal's reasons that the applicant was 'alive to the issues' and that there was 'no arguable case identified at an impressionistic level, nor a failure to accord the applicant procedural fairness …'.

14    Counsel for the applicant criticised the primary judge's approach in two ways. The first was that his Honour was wrong to conclude that the grounds were not arguable. The second was that his Honour, in effect, assessed each ground as if it was a final substantive hearing. This was despite the fact that his Honour stated the correct test for assessing the merits of the grounds of review for the purposes of a reinstatement application and, consistently with that, had expressly described the assessment he was undertaking as being made at 'an impressionistic level': [2018] FCCA 2816 at [13]-[15]. Counsel submitted that nevertheless the error alleged 'is demonstrated inferentially by the result'.

Proposed grounds of review 1-3 - alleged failure to deal with claims

The applicant's claims before the Tribunal

15    It is necessary to provide some background in order to understand the case that the Tribunal failed to deal with integers of the applicant's claim.

16    In his application for a protection visa, the applicant claimed to fear persecution on return to Vietnam, because he was a Catholic, because of his imputed political opinion against the Vietnamese government as an opponent of land confiscation, and because he was a member of the particular social group of failed asylum seekers. Only the second of these is relevant to the application for leave to appeal.

17    The claims were supported by a statutory declaration the applicant made on 15 June 2014. By the time the matter was before the Tribunal, the relevant claims were, in summary:

(a)    In the applicant's province the local authorities had confiscated many farmers' land. There was a protest and in response the government sent troops and police to beat people. A petition was presented to the federal government in Hanoi but nothing came of it. People who complained about the confiscation would be abducted and later found dead.

(b)    The local authorities confiscated 1.8 acres of land which the applicant's family owned and had used for farming. The authorities cleared the land in preparation for building a government factory. As a result, the family was left with a small plot of land where their house was located, and had no land to farm. They wrote to the authorities many times asking for the land back, but nothing happened.

(c)    The applicant's father would often speak on behalf of others in the local parish to try to get their land returned and went to Hanoi many times to speak to the government about the problem of land confiscation. The land was not returned. The applicant's father was beaten a few times and attacked while riding his motorcycle.

(d)    The applicant's father had been active in protests against unfair land confiscations since the confiscation of the family's land in 2009, and often travelled to Hanoi, 280 km away, for those protests.

(e)    Because of his father's activities, the local police have engaged in harassment of the family, including throwing stones, bricks and Molotov cocktails at the house and putting pesticide in the family's well. The police have also hired people to threaten the family and throw things at their house.

(f)    The applicant believes that his family is listed as 'rebellious' and that is why they are subject to monitoring by the local authorities. He believes he will be arrested and detained if he returns to Vietnam, because the police said so to his father, on an occasion when the father was given a summons in 2013.

(g)    After the applicant left Vietnam for Australia, the authorities came to the house to ask his father about the applicant's whereabouts and the police beat his father, breaking his arm and damaging the tendons in his left wrist. The applicant fears that this happened because the authorities found out that the applicant had sought asylum in Australia

The Tribunal's alleged errors

18    As can be seen, the alleged integers which, it is said, the Tribunal did not address properly, emerge from these claims. The submissions advanced on behalf of the applicant on the application for leave to appeal were largely directed to establishing the Tribunal did not deal with them adequately or at all. Instead, the Tribunal 'did no more than skirt around, and did not deal with, the claim that the family's land had been seized', and did the same with the related claim that the family had been unable to farm.

19    In relation to the third 'integer', that of the father's activism against land demonstrations, counsel submitted that while the father's profile as an agitator and activist was before the Tribunal, and noted by it, it 'never was decided'. Counsel submitted that while the Tribunal did deal specifically with two particulars of the claim - namely, that Molotov cocktails had been thrown at the family home and that the father was beaten and had his arm broken - 'no findings were made about the remainder of his assertions going to this important factual claim'. Thus, it was said, the Tribunal, though it identified the three integers, 'completely failed to address, engage with and make findings about them'.

20    The Tribunal's reasons in relation to the relevant 'integers' may be set out in full:

36.    In this case, the Tribunal accepts the applicant's claims that he is a practising Catholic and was a member of his church youth group in Vietnam. The Tribunal also accepts his claim that some of the land belonging to his family was confiscated by the local authorities. His evidence as to this matter is consistent with the available country information, and his account of the matter has been generally consistent and coherent.

37.    On the other aspects of his claim, however, the Tribunal found some of his responses to questions put to him to be vague and generalised, as for example when it asked him about the activities of the youth group which led them into conflict with the local authorities. In light of the problems in his evidence and the relevant country information, the Tribunal considers that he has exaggerated aspects of his evidence for the purpose of bolstering his protection claims. This is discussed in more detail in the following paragraphs.

Political opinion, real or imputed

38.    The applicant claims that his family's land was seized by the local authorities in Nghe An in 2009. He claims that as a result of this, the family has been unable to farm and that his father has been active in demonstrations against land seizures since that time. He also claims that the family home was regularly assailed by unknown persons throwing rocks, stones and Molotov cocktails, and his father was beaten a number of times by unknown assailants.

39.    The applicant's evidence is despite this situation his parents continue to live in their home because the local authorities have issued an order forbidding them from relocating, and that because of this order the family was unable to leave Vietnam in 2011.

40.    The applicant then claims that despite the order of the local authorities, his father was able to obtain a passport for him in 2012 and he was able to depart legally with that passport in 2013.

41.    The Tribunal does not accept these claims as credible. In the Tribunal's view, if the applicant's family was unable to leave Vietnam because of the order of the local authorities then he would also have been unable to obtain a passport and leave the country. His response to this issue at the hearing, that he was able to obtain the passport and depart the country because the local authorities had not advised the passport authorities of their prohibition order contradicts his claim that the order prevented his family from leaving.

42.    In the circumstances, the Tribunal considers that whether or not his claim as to the seizure of his family's land is true, the applicant has embroidered his claims about his father's activities in relation to land seizures generally, and the responses of the authorities to those claims. In particular, the Tribunal does not consider the applicant's claims that the family home had Molotov cocktails thrown at it and that his father was beaten and had his arm broken to be credible.

43.    The Tribunal is satisfied that the applicant's activities and those of his father are not such as to give rise to a real chance that the Vietnamese authorities would harm him either because of his actual or perceived political opinions. The available country information certainly indicates that some political activists experience problems on returning to Vietnam, however the Tribuna1 is satisfied that the applicant does not have the kind of profile that places him in the category of people who face a real chance of harm at the hands of the authorities on their return.

21    The first two sentences of paragraph 38 set out aspects of the applicant's claims in a way that is practically indistinguishable from the three integers which, it was submitted, the Tribunal failed to address adequately. Nevertheless, counsel for the applicant developed that submission as follows. First, he said that paragraph 41 dealt only with the claim or claims recorded in paragraphs 39 and 40, concerning a claim that the local authorities had issued an order preventing the family from relocating, so that there the Tribunal did not deal with the claims recorded in paragraph 38. He then put a reading of paragraph 42, and in particular the phrase 'whether or not his [the applicant's] claim as to the seizure of the family land is true', that left that claim unresolved. Counsel then submitted that the last sentence of paragraph 42 indicates that the Tribunal only considered the claims about Molotov cocktails and the beating of the applicant's father, leaving the claim that the father has been active in demonstrations unresolved. So, although there was a broad finding in paragraph 43 that the applicant's activities and those of his father were not such as to give rise to a real chance that the Vietnamese authorities would harm him because of actual or perceived political opinions, it was submitted that the Tribunal did not make dispositive findings about the three integers identified at the beginning of paragraph 38.

22    Counsel also, initially, submitted that it was important that the Tribunal had failed to consider the effect of confiscation of the farming land as a form of persecution, as it meant that the family was unable to farm. However after further discussion between bar table and bench, counsel correctly conceded that the applicant's claim had not been that the confiscation was itself persecution, but rather that the persecution occurred as a result of the applicant's father's response to the confiscation, namely his subsequent activism and agitation. Counsel thus, in oral argument, placed most emphasis on his submission that it was strongly arguable that the Tribunal failed altogether to deal with the third claimed integer, that the father had been active in demonstrations against land seizure.

Whether the claims that the Tribunal erred were arguable

23    Counsel for the applicant submitted, correctly, that the first three proposed grounds of review should be considered together. He did not attempt to develop the second ground, alleging irrationality and illogicality, independently of the first, alleging failure to deal with integers of the applicant's case. And he confirmed that the third ground, alleging denial of procedural fairness, was raised only because some cases, such as Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389, characterise a failure to address a claim as an error of that kind.

24    For the following reasons, I consider that the primary judge was correct to conclude that the first three proposed grounds of review disclosed no arguable case of jurisdictional error.

25    First, this was not a case of the Tribunal simply overlooking the relevant contentions or claims. At paragraph 38 of its reasons, it summarised the three claimed integers. That was in the course of its dispositive consideration of the claims; it was not, in other words, a case of the Tribunal referring to the claims earlier in its reasons and then forgetting about them when it expressed its findings and conclusions.

26    Second, the Tribunal did not leave the claim that the family's land had been seized by the local authorities unresolved. As counsel for the applicant acknowledged, at paragraph 36 of its reasons the Tribunal said it accepted the applicant's claim 'that some of the land belonging to his family was confiscated by the local authorities'. But counsel submitted that the reason why the Tribunal referred only to 'some of the land' was 'mysterious'. With respect, there is no mystery. The Tribunal had earlier referred (at [17]) to the summary of the applicant's claims by the delegate, as being that the authorities had confiscated 1.8 acres of land that was used for farming, so that the family was left with only a small plot where their house was located. Consistently with that, the Tribunal summarised the applicant's claims before it as including a claim that '[s]ome of his family's land was confiscated without compensation in 2009 by the local authorities to build an industrial site'. Plainly, the Tribunal accepted that claim. So where, at paragraph 42, it makes findings 'whether or not his claim as to the seizure of his family's land is true', the Tribunal is not expressing doubt about that claim; it is accepting it but saying that it does not change its ultimate conclusion.

27    Third, the Tribunal expressly rejected the other aspects of the applicant's claim. It did so in general terms at paragraph 37, in relation to 'the other aspects of his claim' (emphasis added) and explained that it did so because it found some of the applicant's responses vague and generalised. Because of the problems with his evidence (clearly, its vagueness and generality) and because of the country information, the Tribunal considered that the applicant had exaggerated aspects of his evidence for the purpose of bolstering his protection claims. In short, the Tribunal did not believe the applicant's claims, other than the claim that the farming land had been confiscated. It said it discussed that in more detail in the following paragraphs.

28    Fourth, it is immediately after this that the Tribunal records the three claims that form the basis of the present application for leave to appeal. It may be inferred that, apart from the claim that the land was confiscated, these claims were among the ones which the Tribunal did not believe because of its conclusion about the applicant's credibility. But there is no need to rest on inference in relation to the third, key 'integer' concerning his father's activism. At paragraph 42 the Tribunal says in terms that 'the applicant has embroidered his claims about his father's activities in relation to land seizures generally, and the responses of the authorities to those claims'. As I have said, this does not follow on from any expression of doubt about whether the land was seized. It can only be referring to the key 'integer' recorded at paragraph 38: 'his father has been active in demonstrations against land seizures since that time'. It is a finding that this claim was 'embroidered', following on from and elucidating the earlier finding that the applicant had exaggerated his claims. In short, the Tribunal did deal with the claim, and it did not accept it.

29    Fifth, while it is true that the only specific factual contentions to which the Tribunal refers at paragraph 42, when it makes its finding that the applicant has embroidered its claims, are those concerning Molotov cocktails and the father being beaten, the fact remains that for reasons I have given, the Tribunal expressly finds that the applicant embroidered his claims about his father's activities. While the sentence about those specific contentions commences with the words '[i]n particular', it does not follow that they are the only factual contentions that the Tribunal finds are not credible. The Tribunal recites them because they are particulars of 'the responses of the authorities' to the father's alleged activities, being the second aspect of the claims which the Tribunal found to be embroidered. The first aspect - about the father's activities, as distinct from the authorities' response to those activities - were also, in the Tribunal's view, 'embroidered', and this is clearly (and expressly) related to the difficulties with the applicant's evidence described at paragraph 37.

30    Sixth, the Tribunal then goes on at paragraph 43 to say, in terms, that the applicant's activities and those of his father are not such as to give rise to a real chance that the Vietnamese authorities would harm him because of his actual or perceived political opinions. This is also a finding about the key integer of the applicant's claim. The Tribunal then goes on to say, in effect, that the applicant's profile does not give rise to a real chance of harm at the hands of the authorities on his return. In my view, the argument that the Tribunal failed to deal with the relevant aspects of the claim is not tenable.

31    Seventh, after the passage I have quoted, at paragraph 47, the Tribunal repeats that it 'has rejected the applicant's claims regarding involvement in land disputes'.

32    Eighth, it is true that it is arguable that the claims which the Tribunal says, at paragraph 41, that it does not accept as credible, are only the claims about the alleged order preventing the applicant's family from relocating. But even so, for the reasons I have given the Tribunal does go on to make a finding about the claims recorded at paragraph 38. So even if the construction that the applicant seeks to put on paragraphs 39 and 40 and the first sentence of paragraph 41 is correct, it does not follow that the Tribunal did not address the key integer of the claim, namely that the applicant's father had agitated against land confiscation.

33    For those reasons, I consider that it is clear that the Tribunal did deal with the claims that the family's land had been confiscated and that the father had become an activist in relation to land confiscation (and, for reasons I have explained earlier, it did not need to give separate consideration to the claim that as a result of the confiscation the family had been unable to farm). The first three proposed grounds of review raise no arguable claims of jurisdictional error.

Proposed ground of review 4 - the statutory declaration

34    The proposed grounds of review also raised a fourth alleged error: that it was irrational, illogical and legally unreasonable for the Tribunal to place no weight on a certain statutory declaration of the applicant. However that ground of review is not specifically mentioned in the draft notice of appeal. Also, while counsel for the applicant sought to address it in his oral submissions, there had been no attempt before the hearing to put the statutory declaration into evidence in the application for leave to appeal. Counsel did not even seek to tender a copy at the hearing, but offered to file one within seven days. In the face of the objections of the Minister, and in view of the lateness of the attempt, I did not permit that tender.

35    In any event, in its reasons all the Tribunal said about this statutory declaration was that it contained a claim that the applicant had difficulties in obtaining translation of a newspaper article because translators feared persecution for themselves and their families if they translated the document. The relevance of that is obscure, but in any event the Tribunal rejected it on the straightforward basis that it was contradicted by the fact that such material is regularly produced to the Department and the Tribunal, as well as to international agencies. The primary judge found that this could not be said to lack an evident and intelligible justification. I agree. In all the circumstances I do not consider that proposed ground of appeal 4 discloses an arguable case of jurisdictional error on the part of the Tribunal.

Conclusion on the application for leave to appeal

36    One might criticise the Tribunal's reasoning on the relevant aspects of the applicant's protection claims; at certain points it is a little obscure. But counsel did not put the applicant's case that way. Instead, it was put in terms of a failure to deal with important claims. In my view that is not arguable, in the sense that it does not have a basis in the material sufficient for the court to be satisfied it is appropriate to hear full argument on it. That is especially so when one bears in mind the well-known caution against over-zealous scrutiny of administrative decisions in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.

37    It follows that I do not accept that the primary judge misconceived the task before him on the reinstatement application. He explicitly addressed each proposed ground of appeal at an impressionistic level and concluded that they were not sufficiently arguable. Since I agree with his Honour in that regard, there is no reason to suppose that, in substance, he applied any different criteria.

38    That disposes of the application in so far as it relates to the first particular raised in the proposed ground of appeal. As I have said, the draft ground of appeal is also supported by a particular claiming that the primary judge's decision not to reinstate the application was unreasonable and plainly unjust, such that it should be inferred that there has been a failure to properly exercise the discretion to consider reinstatement. This was put, in the alternative to the first particular, as invoking the following observation in House v The King (1936) 55 CLR 499 at 505:

It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

39    As the reasons above indicate, it does appear how the primary judge here has reached the result embodied in his order, so the premise underlying this second particular falls away. In any event, that particular seemed to rely on a claim that the primary judge changed his approach during the hearing of the reinstatement application. It was said that his Honour started with an intention to reinstate the proceeding at the outset, and then deal with the application for judicial review. When counsel for the applicant indicated that he was not prepared to deal substantively with the application for judicial review, his Honour then proceeded to deal only with the reinstatement application (and dismissed that application). Counsel for the applicant submitted that his Honour's apparently firm initial view that the proceeding should be reinstated did not find expression in his ultimate reasons for decision. It was said that his sudden change of mind was unexplained.

40    On the present application for judicial review the applicant sought to make these claims good by tendering transcript of the hearing. The Minister opposed the admission of the transcript on the basis that it was irrelevant. I agreed that it was irrelevant, and for that reason did not admit it into evidence. Even if it were to be admitted, there was a straightforward explanation for the approach his Honour took. The Minister had conceded that the applicant had a satisfactory explanation for his failure to appear at the application for judicial review, and that the Minister would not suffer prejudice from reinstatement. In those circumstances, the only issue before his Honour concerned the merits of the application for judicial review. It appears that in those circumstances, his Honour considered that it would be more efficient to proceed straight to the hearing of the substantive application. But when counsel for the applicant indicated he was not prepared for that, his Honour decided to deal only with the reinstatement application. That is unremarkable. Even if I had admitted the transcript into evidence, it would not have given any basis for saying that the decision appealed from was unreasonable or plainly unjust.

41    I therefore consider that the primary judge's decision is not attended with sufficient doubt to justify a grant of leave to appeal. The application will be dismissed, with costs.

42    Although his client has not been successful in the result, the court wishes to record its gratitude to counsel for the applicant for the assistance he has singlehandedly rendered, pro bono.

Associate:

Dated:    29 July 2019