CNN15 v Minister for Immigration and Border Protection

Federal Court of Australia|2017-06-06|Before: Gilmour J

The appeal be dismissed.
The appellant pay the costs of the first respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background 1 The appellant appeals from a judgment of the Federal Circuit Court which dismissed his application to review a decision of the Administrative Appeals Tribunal refusing him a Protection (Class XD) Visa: CNN15 v Minister for Immigration and Border Protection [2017] FCCA 67. 2 The following background, which is uncontroversial, is drawn substantially from the written submissions of the first respondent, the Minister for Immigration and Border Protection (Minister). 3 The appellant is a citizen of Vietnam born on 10 May 1977, who lived in Nghi An province until he departed for Australia. He arrived in Australia at Darwin on 23 March 2013 as an irregular maritime arrival on a boat codenamed Studebaker. 4 The appellant applied for a Protection (Class XA) visa on 11 June 2014, and he was invited to attend an interview on 28 October 2014 to discuss his visa application and his claims for protection. He attended an interview before a delegate of the Minister (the delegate) on 28 October 2014. 5 On 19 December 2014 the delegate refused to grant the appellant a Protection (Class XA) visa (the delegate's decision). 6 The appellant applied to the former Refugee Review Tribunal for review of the delegate's decision on 31 December 2014. On 27 March 2015 the Refugee Review Tribunal made a decision affirming the delegate's decision not to grant the appellant a Protection (Class XA) visa. 7 The appellant sought review of the Refugee Review Tribunal's decision by the Federal Circuit Court of Australia, and on 13 August 2015 Judge Jarrett made an Order by consent remitting the matter to the second respondent, now the Administrative Appeals Tribunal (Tribunal), on the basis that the Refugee Review Tribunal decision involved a jurisdictional error, as the Tribunal had failed to treat the application as an application for a Temporary Protection (Class XD) visa. 8 After the application for review was remitted to the Tribunal, the appellant was invited to attend a hearing scheduled for 30 September 2015. The hearing was subsequently rescheduled to 30 October 2015 in response to a request from the appellant's representative. 9 On 27 October 2015 the appellant's representative provided written submissions to the Tribunal, a statutory declaration by the appellant made on 17 October 2015, and various supporting documents. On 30 October 2015 the appellant attended a hearing before the Tribunal with his representative to give evidence and present arguments in relation to the issues arising in his case. On 6 November 2015 the appellant's representative provided post hearing submissions to the Tribunal. The submissions stated that the appellant's fear of persecution is due to his religion and membership of the social group of practicing Catholics at Dong Son church. 10 The Tribunal, by its decision on 12 November 2015, set aside the decision to refuse to grant the appellant a Protection (Class XA) visa, and substituted a decision refusing to grant the appellant a Protection (Class XD) visa (Tribunal's decision). 11 On 30 November 2015 the appellant filed an application with the Federal Circuit Court of Australia seeking review of the Tribunal's decision on the basis of four unparticularised grounds of application. By an amended application dated 5 July 2016 the appellant sought review of the Tribunal's decision on the basis of eight new grounds of application. The application was dismissed on 18 January 2017. It is from this judgment that the appellant appeals.

Notice of Appeal 12 The notice of appeal contains the following grounds: (1) "I think the Decision maker did not consider all of the evidence or did not take into account relevant consideration or based the Decision on wrong information. (2) I think the Decision is affected by bias. (3) I think the Decision maker misinterpreted the law." 13 It is apparent that none of these grounds is an articulation by the appellant of any appellable error by the primary judge. It is not clear whether the "Decision maker" is intended to refer to the Tribunal or the primary judge. If it be the Tribunal, and I consider this the more likely position, then, as the Minister submits, this alone is a sufficient basis for the appeal to be dismissed, as such a fundamental deficiency in a notice of appeal is not a mere matter of form, as no original jurisdiction is vested in the Federal Court of Australia to review errors perceived to have been committed by the Tribunal: see SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 at [6]-[7]. 14 Even if it is a reference to the judgment of the primary judge being in error because his Honour did not conclude that the Tribunal had committed one or other of the errors alleged, the appeal would still have to be dismissed: SZJHE at [8]. 15 The appellant did not file written submissions but made brief oral submissions none of which sought to advance any of the grounds pleaded. Rather he made submissions in the most general terms that he did not agree with the finding (by the delegate and later affirmed by the Tribunal) that he was not at risk of harm should he be returned to Vietnam. 16 He described the human rights situation in Vietnam as getting worse, with beatings of Christians who gathered to conduct "prayer sessions". He said that he too had been beaten and oppressed which is why he had left Vietnam in order to seek refugee status. He said that his province in Vietnam was a "hot point" in politics and that religious freedom was absent. He then spoke anecdotally about the ill treatment and imprisonment of some unnamed failed asylum seekers upon their return to Vietnam. 17 These submissions amount to an impermissible merits review and are confronted by unassailable factual findings by the Tribunal, challenged unsuccessfully before the primary judge, rejecting the appellant's claims as to what gave rise to his asserted fears of harm. 18 It is sufficient, in this respect, to set out paragraphs [18] and [19] of the reasons of the primary judge. 18. As can be seen from this narrative the applicant made significant new claims at different stages or at a late stage of the process, particularly the claim, subsequently withdrawn, that he had been arrested, and claims that, following confrontations at the church, he received a summons or letters of invitation from the police, that the police had visited his home on multiple occasions looking for him before he left Vietnam and the claim that he was on a blacklist of government opponents which prevented him travelling outside his province to obtain work. 19. These matters were raised relatively late and after the applicant had, with legal or professional assistance, completed a statutory declaration that did not mention them and in the case of his second statutory declaration, also prepared with professional assistance, did not mention that he was on a blacklist of government opponents. These matters raised obvious and serious questions about the applicant's credibility and suggested he may not be telling the truth. After considering the applicant's explanations, including those relating to stress, anxiety and poor mental health, the Tribunal did not accept that the applicant was ever involved in confrontations with the police or the applicant's claims more generally about frequent confrontations between police and parishioners at the applicant's church. The Tribunal did not accept that he was ever summonsed by the police or sent letters inviting him to go to the police or that he refused to go to the police out of fear. It did not accept that he feared that the authorities would take action against him, that he was on any list of opponents or that he was of any adverse interest to the Vietnamese authorities. In essence, the Tribunal did not accept that the applicant had a profile that led him to come to the attention of the Vietnamese authorities or that he suffered any of the claimed harm. 19 Nonetheless, I will consider the individual grounds in turn.

Ground 1 - Decision maker did not consider all of the evidence/did not take into account relevant considerations/based the decision on wrong information 20 This ground is unparticularised as to just what evidence it is alleged was not considered by the Tribunal or what relevant considerations the appellant alleges the Tribunal did not take into account, or as to what "wrong information" the Tribunal is alleged to have based its decision upon. 21 This first ground of appeal is merely an unparticularised assertion of jurisdictional error. As was said in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]: (This ground is) an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969. 22 The first ground therefore fails.

Ground 2 - Decision is affected by bias 23 Again, this ground is unparticularised and was, as I mentioned, not the subject of any submissions by the appellant. It falls to be dismissed on this basis alone. 24 An allegation of bias must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507 per Gleeson CJ and Gummow J at 531 [69] and Kirby J at 546 [127]. 25 Moreover, Ground 2 is a repetition of the third ground of application in the application as originally filed in the Federal Circuit Court. The unparticularised allegation of bias was not pursued in the amended application before that Court. The appellant cannot now seek to rely upon such an allegation which was not an issue advanced before the primary judge. This ground fails.

Ground 3 - Decision-maker misinterpreted the law 26 This ground too is unparticularised, and may be dismissed on this basis. 27 Further, Ground 3 repeats ground 4 of the application in the original application in the Court below which, again, was not pursued in the amended application. Accordingly, the appellant may not pursue this ground before this Court. 28 Ground 3 fails

Orders 29 For these reasons, the appeal will be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

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