AAV21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FCA 863
•8 August 2024
FEDERAL COURT OF AUSTRALIA
AAV21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 863
Appeal from: AAV21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1027 File number: NSD 1478 of 2023 Judgment of: ROFE J Date of judgment: 8 August 2024 Catchwords: MIGRATION – appeal from decision of Federal Circuit and Family Court of Australia (Division 2) (Federal Circuit Court) – where delegate of first respondent refused to grant the appellant a protection visa under s 65 of Migration Act 1958 (Cth) – where primary judge affirmed delegate’s decision – where Federal Circuit Court dismissed application for judicial review of Authority’s decision – whether the Administrative Appeals Tribunal made a finding that was illogical, irrational or not based on evidence – whether the Tribunal incorrectly applied s 423A of the Act – grounds of appeal concerning the credibility of supporting evidence – no jurisdictional error identified – appeal dismissed with costs Legislation: Migration Act 1958 (Cth) Cases cited: AAV21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1027
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 60 Date of last submissions: 5 July 2024 Date of hearing: 15 July 2024 Counsel for the Appellant: S Crock (pro bono) Counsel for the First Respondent: K Hooper Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs. ORDERS
NSD 1478 of 2023 BETWEEN: AAV21
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
ROFE J
DATE OF ORDER:
8 AUGUST 2024
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.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.
REASONS FOR JUDGMENT
ROFE J:
1. Introduction
The appellant appeals from the whole of the decision of the Federal Circuit and Family Court of Australia (Division 2) dated 13 November 2023, dismissing her application for judicial review of a decision of the second respondent (the Tribunal) dated 14 December 2020: AAV21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1027 (J or primary judgment). By its decision, the Tribunal affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
By an Amended Notice of Appeal dated 12 June 2024, the appellant advances two grounds of appeal regarding the primary judgment.
(1)The primary judge erred by failing to find that the Tribunal’s decision was affected by jurisdictional error on the basis of an unreasonable, irrational or illogical determination that the appellant had decided not to attend a Departmental interview in November 2015 in respect of her protection visa application (Ground 1).
(2)The primary judge erred by failing to find that the Tribunal’s decision was affected by jurisdictional error by reason of a failure to give genuine, reasonable and realistic consideration to the evidence and credibility of the appellant’s supporting witnesses (Ground 2).
2. Background
The appellant is a citizen of Vietnam. She arrived in Australia in 1999 on a student visa and has lived in Australia since that time. She has a son who was born in Australia in 2002, and a sister and brother who are both Australian citizens.
On 26 November 2015, the appellant applied for a Protection (Class XA) (Subclass 866) visa on the basis of her fear of being persecuted for her political beliefs if she returned to Vietnam. The application was submitted by a migration agent and was supported by a statutory declaration from the appellant dated 26 November 2015, in which she claimed to fear harm in Vietnam because, since being in Australia, she had been exposed to democracy and her free spirited and free-thinking nature may cause her to speak up about political matters and against the communist regime.
On 11 November 2016, the appellant’s former registered migration agent received an invitation addressed to the appellant from the Department of Immigration and Border Protection (as it was then known) inviting the appellant to attend an interview on 21 November 2016, to discuss her protection visa application. On 18 November 2016, the appellant’s former migration agent, wrote that the appellant declined the invitation and requested that the delegate make a decision based on the written material provided.
On 25 November 2016, a delegate of the Minister refused the appellant’s visa application. The appellant sought review of the delegate’s decision by application to the Tribunal made on 5 December 2016.
On 12 August 2020, in response to a request to provide submissions and evidence on which she proposed to rely before the Tribunal, the appellant provided material including photographs, a letter dated 9 August 2020 from a supporting witness, known as NQP, and a statutory declaration dated 12 August 2020, in which the appellant raised a new claim to have participated in anti-communist regime activities in Australia since 2015.
The Tribunal convened a hearing on 19 October 2020. The appellant was represented by a new representative — a solicitor — at the hearing. The appellant appeared in person to give evidence before the Tribunal, with the assistance of an interpreter.
The appellant relied on evidence from two supporting witnesses:
(a)a letter from NQP dated 9 August 2020 stating that the appellant was well known to him and had participated in various “anti-communist regime in Vietnam” activities in the Sydney Vietnamese community since 2015, including the Viet Tan; and
(b)a letter from HAL dated 26 October 2020, forwarded to the Tribunal after the hearing, stating that he was a human rights activist who had known the appellant for many years and confirming that she had attended and participated in various anti-communist protests and activities.
3. Tribunal’s decision
On 14 December 2020, the Tribunal made its decision and provided its statement of reasons (R). At R [31]–[32] the Tribunal observed that the appellant advanced new claims to it concerning her involvement in the Viet Tan, which were not made in the statutory declaration in support of her visa application dated 23 November 2015. The Tribunal raised this discrepancy with the appellant at the hearing and recorded her response at R [24] and R [31]:
[24]With regard to the application before the Department the applicant said her then representative did not inform her about the interview and she did not know she had been invited to one. She said she wanted to provide more information at an interview and was denied that opportunity. The Tribunal noted that the information she provided in her more recent statement regarding her actions in 2015 are not mentioned in the first statement dated November 2015. Specifically, it is not mentioned that she became involved with the Viet Tan organisation in 2015. The applicant repeated that she wanted the opportunity to speak about her situation at an interview before the Department and was denied that opportunity.
…
[31]The Tribunal again put to the applicant that she did not mention anything about her involvement in, or even knowledge of, Viet Tan in her first Statutory Declaration lodged with the application in November 2015. It explained to her that under s423A of the Migration Act the Tribunal must draw an adverse inference about claims and evidence that were not put before the Department unless a reasonable explanation is given for not providing the claim/information earlier. Given that she has now stated that she came to know and become involved with this organisation since 2015, why didn’t she mention it earlier to the Department. In response she explained that she wanted to discuss it in more detail at an interview but she was denied the opportunity. She only knew about the interview when told by her current new representative. Her English was limited when she was communicating with her previous representative, and this may also explain the absence of this information.
The Tribunal drew an adverse inference pursuant to s 423A of the Act on the basis of the absence of a proper explanation for the appellant’s failure to mention her involvement with, or knowledge of, the Viet Tan or any political activism or protest activity in Australia, in her original claim made in November 2015. Relevantly for the purposes of this appeal, the Tribunal stated the following at R [49]–[52] and R [55]–[56]:
[49]Considering the timing and content of her evidence the Tribunal has significant concerns about the genuineness and motivation of the applicant’s claims relating to her political activities and association with Viet Tan.
[50] She failed to mention her involvement with, or knowledge of, Viet Tan or any protest events or political activism or activity in Australia in her original statement of claims lodged with the application. Her response when asked why she did not mention Viet Tan or her participation in any specific events in her initial Statutory Declaration was that she wanted to provide more detail in an interview but was denied the opportunity. The Tribunal has carefully considered her explanation and the circumstances and content of her application for protection lodged with the Department, and it does not accept that she has provided a reasonable explanation for the omission of this information at the primary stage. The Tribunal finds it inconsistent and contradictory that she told the Tribunal it was her association with Viet Tan that triggered her fear of returning and the reason she decided to lodge a protection application in Australia when she did but did not mention this in her original statement of protection claims. She was assisted by a registered migration agent to prepare her application and the content of the Statutory Declaration mentions advice and information she was given. The Tribunal also does not accept that she was not aware of the Department interview, given specific evidence on the file of an email from her representative advising that she declined the offer of interview and requested a decision be made on the papers.
[51] Having regard to s423A of the Act (requiring the Tribunal to draw an adverse inference as to the credibility of claims or evidence not provided at the Department stage unless a reasonable explanation is provided), the Tribunal finds the applicant has not provided a reasonable explanation and draws an adverse inference of the credibility and genuine motivation of her involvement with the Viet Tan organisation and the level and extent of her engagement in activities and events associated with them. It does not accept that she was involved from 2015 as claimed, and more likely commenced attending activities after that time.
[52] It has considered the supporting evidence provided of photos and support letters from Ngoc Quang Pham and Hung Anh Le, and her oral evidence at hearing about the events and activities she has participated in. On the basis of this evidence it is prepared to accept that she has attended the claimed events and protests organised by the Vietnamese community in Sydney and Canberra, including events arranged by, or attended by, members of the Viet Tan organisation. She demonstrated a reasonable, though basic, level of knowledge of this organisation, which the Tribunal notes is easily available to be learned from open source material. The Tribunal accepts that Viet Tan are among the organisations behind events and protests organised in Australia against the Vietnamese government and her attendance at these events is consistent with support for such groups and their views. However, it considers her evidence of attending a handful of events and protests over the past few years, suggests she has been, at most, a low level participant with no organising profile or role. Although she asserted in her August 2020 Statutory Declaration that she is a member of Viet Tan, she has provided no evidence of membership of this or any other organisation. The Tribunal does not accept her claim made in her Statutory Declaration of being in a ‘participative’ role. It found her oral testimony at the hearing did not support this. She told the Tribunal she mostly participated in secret or in private and not in public, and only referred to attending a handful of events in 2019.
…
[55]While on the one hand the timing of the applicant’s recent involvement in anti Vietnamese government events and protests, likely following the delegate’s refusal decision, strongly suggests it was done solely for the purpose of strengthening the claim to be a refugee, the Tribunal has considered her response when this was put to her, together with her original statement of claims indicating her general political opinions and views, and the circumstance of the lengthy period she has been outside Vietnam without returning. Taking these into account, it has decided to give her the benefit of doubt and accept, as plausible and credible, that she has long held anti- communist political views and her recent engagement in these events and activities may be consistent with her existing political opinions and ideology and therefore was not solely to strengthen her protection claims.
[56]On this basis the Tribunal accepts the applicant is likely not a supporter of the current government and ideology in Vietnam, and has in recent times participated in anti Vietnamese government events and protests in Australia. It does not, however, accept that she played any organising, co-ordinating or activist role in these events beyond attendance at occasional events and protests in recent years. Given her lack of any activist history in Vietnam or Australia, and the long period of absence from the country during which time she has had no ongoing engagement in any specific issues or concerns, it does not accept that she will engage in political activity or activism that will bring her to the attention of the authorities upon her return. The Tribunal has considered her evidence about issues that have been the subject of adverse government action in Vietnam in recent years, such as Formosa, Dong Tam and the sentencing of Chau Van Kham, and observes that each of these are referred to in the latest DFAT Country Information Report on Vietnam, suggesting she may have studied, learned and rehearsed her evidence to support her claims, adding to the Tribunal’s underlying concerns about the genuineness of her political convictions. The Tribunal was not otherwise convinced about her knowledge of or commitment to human rights or political concerns in Vietnam. Her lack of involvement or engagement in politics or activism in Vietnam in the past and limited engagement in Australia also do not support that she will get involved in activities of this nature upon return to Vietnam in the reasonably foreseeable future.
(Citations omitted.)
4. Decision of primary judge
The primary judge dismissed the appellant’s application for judicial review in the Court below. That application pressed two grounds of judicial review, which correspond to the two grounds of appeal before this Court.
After stating the test for legal unreasonableness on judicial review applications, the primary judge dismissed Ground 1 for three reasons.
(a)First, it was reasonably open to the Tribunal to conclude that the email from the appellant’s former representative declining the Department’s invitation to attend an interview was based on the appellant’s express instructions: J [50].
(b)Second, any argument that the appellant may have been confused about the invitation to attend an interview due to language difficulties rose no higher than speculation: J [51].
(c)Third, it was not established that any error in the Tribunal’s treatment of the invitation to attend an interview was material to the ultimate outcome in the Tribunal: J [52].
In relation to Ground 2, the primary judge was satisfied that the Tribunal did in fact give “active and genuine consideration” to the evidence of NQP and HAL: J [54]. Further, the primary judge regarded that it was reasonably open to the Tribunal, having considered that evidence, to conclude that the appellant’s involvement with anti-communist protest activities would not support a finding that she would engage in such activities on her return to Vietnam or be at risk of harm: J [55].
5. Appeal
At the outset of her oral submissions, the Minister’s counsel observed that the Minister was not making a materiality argument with respect to either ground of appeal. Counsel for the Minister submitted that, as there is no legal error affecting the Tribunal’s reasoning, the consideration of materiality is not required.
5.1 Ground 1
Ground 1 focuses on the Tribunal’s treatment of the appellant’s failure to attend an interview offered to her by the Department prior to the determination of her visa application in November 2016. The jurisdictional error alleged by Ground 1 centres on the reasonableness of the Tribunal’s state of satisfaction reached under s 423A of the Act that the appellant had no reasonable explanation for failing to raise her political protest activities in her protection visa application before the delegate’s decision was made.
Section 423A applies if, in an application for review, the applicant (a) raises a claim that was not raised before the primary decision was made; or (b) presents evidence that was not presented before the primary decision was made. In making its decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
5.1.1Appellant’s submissions
Because the Tribunal was satisfied that the appellant did not have a “reasonable explanation” for her failure to mention her political protest activities to the Department at the application stage, the Tribunal at R [49]–[52] drew an adverse inference against her credibility pursuant to s 423A of the Act.
Section 423A of the Act details how the Tribunal is to deal with new claims or evidence. The provision is extracted below.
423A How Tribunal is to deal with new claims or evidence
(1) This section applies if, in relation to an application for review of a Part 7-reviewable decision (the primary decision), the applicant:
(a) raises a claim that was not raised before the primary decision was made; or
(b) presents evidence in the application that was not presented before the primary decision was made.
(2)In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
In short, the appellant submits that she did not include any reference to her involvement with the Viet Tan in her initial statutory declaration accompanying her protection visa application because she intended to provide more detail in an interview. The appellant submits that her failure to provide that further information — including because of her failure to attend an interview offered to her by the Department — is reasonably explained by a misunderstanding caused by communication and language difficulties, which resulted in the email of 18 October 2015 declining the interview. Attending the interview would have enabled the appellant to raise her involvement with the Viet Tan before her protection visa application was determined.
The appellant submits that the underlying premise that the email declining the interview was caused by language difficulties and miscommunication was supported by examples of language difficulties that arose in the course of the proceeding in the Tribunal, including:
(a)the fact that the appellant had demonstrated language difficulties requiring a Vietnamese interpreter to be present at the hearing; and
(b)the fact that the former representative of the appellant had previously cancelled a video hearing before the Tribunal without the appellant’s full understanding of this decision due to language difficulties.
The appellant contends that the Tribunal did not consider or engage with her explanation as to her failure to attend the interview, and thus did not provide the information at that interview. Instead, it leapt to a conclusion adverse to the appellant after failing to give genuine and realistic consideration to the evidence before it, and the Tribunal failed to engage with her explanation actively and intellectually. That failure amounted to jurisdictional error.
5.1.2Minister’s submissions
The Minister submits that the Tribunal’s state of satisfaction for the purpose of s 423A of the Act was not attained in a legally unreasonable manner. The finding at R [50] was properly open and did not involve the Tribunal overlooking or misunderstanding the explanation the appellant proffered for failing to raise her material protection claims in her protection visa application. Rather, the Tribunal considered and rejected the appellant’s explanation.
The Tribunal’s reasons provide an evident and intelligible justification for its factual finding. Essentially, the Tribunal found it inexplicable that the appellant would not have mentioned in her protection visa application the very claims she said were the cause of her lodging that application, in circumstances where she was assisted by a registered migration agent and her statutory declaration mentioned advice and information she was given.
The Tribunal had before it an email from the appellant’s migration agent stating the appellant declined the invitation to a departmental interview and wanted a decision made on the claims provided. It was open to the Tribunal, acting logically and rationally, to reject the assertion that the appellant was unaware of the departmental interview, on the basis of this evidence.
5.1.3Consideration
The appellant’s challenge concerns her explanation as to why the further information was not provided at an interview prior to the decision being made: the language difficulties resulting in the email declining the interview. The appellant contends that if the Tribunal had given genuine consideration to her explanation, it could not have been satisfied that there was no reasonable explanation for her failure to attend the interview offered by the Department.
It is not the task of the Court in conducting a judicial review of a decision to assess what it thinks is reasonable and thereby conclude that any other view displays error. Rather, the Court’s task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects, to assess whether it is lawful: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [12] (per Allsop CJ).
The characterisation of a decision as legally unreasonable because of illogicality or irrationality is not easily made: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33] (per Allsop CJ, Besanko and O’Callaghan JJ). An unreasonable decision is one in which a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28] (per French CJ).
In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision, the decision is not legally unreasonable: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]–[45] (per Allsop CJ, Robertson and Mortimer JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] (per Hayne, Kiefel and Bell JJ), [105] (per Gageler J); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] (per Crennan and Bell JJ).
The Tribunal was concerned by the absence of any mention of the appellant’s involvement with the Viet Tan or her participation in specific events in her original claim and statutory declaration. It noted that it raised this concern with the appellant several times in the course of the hearing. Each time the appellant responded that she intended to raise the matters at her interview, however, was denied that opportunity. The Tribunal was well aware of the appellant’s explanation for her failure to mention her involvement with Viet Tan or her participation in specific events prior to the delegate’s decision, including the language difficulties aspect.
The Tribunal first noted its concern at R [24], observing that the information that the appellant provided in her more recent statement regarding her actions in 2015 were not mentioned in the first statement dated November 2015, and noting that the appellant said she wanted to provide more information at the interview, but was denied the opportunity.
After setting out its discussion with the appellant as to why she made her visa application in 2015, and whether she had any involvement with the Viet Tan prior to 2015 (R [25]–[30]), the Tribunal at R [31] noted that it again put to the appellant that she did not mention anything about her involvement in, or even knowledge of the Viet Tan in her first declaration lodged in November 2015. In that context, the Tribunal recorded that it explained to the appellant the effect of s 423A, and that it must draw an adverse inference about claims and evidence that were not put before the Department, unless a reasonable explanation was given for not providing the claim or information earlier. The Tribunal recorded the appellant’s response — that she wanted to discuss it more at the interview, but was denied the opportunity. The Tribunal expressly noted the appellant’s “English was limited when she was communicating with her previous representative and this may also explain the absence of this information”: R [31].
At R [38], the Tribunal noted the appellant’s explanation for the timing of her application, that she made the application after she began to participate with the Viet Tan and realised the risk to her of going back to Vietnam.
At R [47], the Tribunal repeated its concern that the appellant’s original statutory declaration made no mention of the Viet Tan organisation or her participation in protest events or political activities, noting that the application was lodged with the assistance of a registered migration agent, and that she was invited to an interview to further discuss her claims but, through her representative, she declined the invitation.
The appellant contends that she was denied the opportunity to supply the further information at an interview as, due to language difficulties, her former migration agent declined the offered interview. This explanation explains why the further substantive information was not provided in the interview. As conceded by the appellant’s counsel, the appellant provided no explanation to the Tribunal as to why the information was withheld from her original claim, with the intention of being raised at the interview.
At R [48], the Tribunal noted that the appellant’s involvement with the Viet Tan was raised for the first time in her statutory declaration dated 12 August 2020. At R [49], the Tribunal noted that it had “significant concerns” about the genuineness and motivation of the appellant’s claims relating to her political activities and association with the Viet Tan, considering the timing and content of her evidence.
At R [50], the Tribunal noted that it had “carefully considered” the appellant’s explanation and “the circumstances and content of her application for protection lodged with the Department”, and held that it did not accept that the appellant had provided a reasonable explanation for the omission of the information at the primary stage. The Tribunal explained that it found it inconsistent that the appellant told the Tribunal that it was her association with the Viet Tan that triggered her fear of returning and the reason she decided to lodge her application for a protection application, but made no mention of her association with the Viet Tan in her original statement of protection claims, noting that the appellant was assisted by a registered migration agent in preparing her application.
It is apparent from the reasons that the Tribunal gave careful consideration to the appellant’s explanation as to why the information about her association with the Viet Tan and political activities were not raised before the delegate’s decision was made. The Tribunal was aware of the language difficulties aspect of the explanation during its consideration. The Tribunal’s conclusion that the appellant’s explanation was not reasonable was open to it on the material before it, including the appellant’s responses to questions on the issue put by the Tribunal at the hearing.
On this basis, it was open to the Tribunal to apply the adverse inference pursuant to s 423A of the Act, as its state of satisfaction for the purpose of that provision was attained in a legally reasonable manner.
There is no jurisdictional error and ground 1 must fail.
5.2 Ground 2
5.2.1Appellant’s submissions
Ground 2 relates to the Tribunal’s consideration of the supporting evidence relied upon by the appellant: the corroborative letters of NQP and HAL (the support letters). The appellant submits that the Tribunal failed to adequately consider the supporting evidence of NQP and HAL and fell into jurisdictional error as a result.
The task of the Tribunal was to give proper and genuine consideration to the evidence relied upon by the appellant. The thrust of the evidence of NQP and HAL was that the appellant had participated and engaged in anti-Vietnamese government protest activities since 2015. By purporting to accept that evidence at R [52], but by making contradictory findings of fact that the appellant was not involved from 2015 as she claimed (at R [51] and R [55]) the appellant contends that the Tribunal’s reasoning process was irrational and illogical.
Further, the appellant submits that the Tribunal failed to consider the substance of the evidence of NQP and HAL, including their opinions as to:
(a)the sincerity of the appellant’s beliefs;
(b)the extent of the appellant’s involvement as a human rights activist; and
(c)the risk that the appellant would be persecuted if she were to return to Vietnam.
The appellant submits that it may have been open to the Tribunal not to accept that evidence, however, it was not open to the Tribunal to fail to consider that evidence or engage with its substance. The reasons of the Tribunal reveal that it failed to do so. Without explaining why it cursorily dismissed the directly contradictory evidence of HAL on this point, the Tribunal found that the appellant had no organising role in political protest activities and would not continue to engage in such activities on her return to Vietnam. The appellant contends that that error was jurisdictional: it revealed a lack of intelligible and rational reasoning that amounted to a constructive failure by the Tribunal to execute its statutory review task.
5.2.2Minister’s submissions
The Minister submits that when the Tribunal’s reasons are carefully read, there is no inconsistency. Nor did the Tribunal fail to take into account the evidence of NQP and HAL. As such, there is no failure to consider the evidence which could amount to a jurisdictional error.
5.2.3Consideration
The Tribunal identified the evidence before it at R [16], being the appellant’s statutory declaration dated 12 August 2020, NQP’s support letter, and some photos showing the appellant at protest activities (at R [48]). The appellant appeared before the Tribunal to give evidence (with the assistance of an interpreter). At R [42], The Tribunal recorded that after the hearing the appellant provided a support letter from HAL.
In addition to the evidence relied on by the appellant, the Tribunal also had regard to country information prepared by DFAT and the UK Home Office: see R [57] and R [59].
The letter from NQP states that the appellant has participated in many anti-communist regime in Vietnam activities since 2015. However, the letter does not say when in 2015 the appellant participated in these activities and gives examples of her partaking in protests in July 2018 and 2019, not 2015. The letter also does not state what date when the appellant first became involved with the Viet Tan.
The letter from HAL refers to first meeting the appellant in 2015 at an annual protest for a 30 April event organised by the Vietnamese community in Australia. It also does not specify when the appellant became involved with the Viet Tan.
At R [52], the Tribunal stated that it had considered the supporting evidence supplied by the appellant, including the two support letters, and the appellant’s oral evidence. On the basis of that evidence, the Tribunal was prepared to accept that the appellant had attended the claimed events and protests organised by the Vietnamese community in Sydney and Canberra, including events arranged by, or attended by, members of the Viet Tan organisation. However, the Tribunal considered that the appellant’s attendance at “a handful of events and protests over the past few years” suggested that she had been “at most, a low level participant with no organising profile or role”. On the basis of her oral testimony, the Tribunal did not accept the appellant’s claim in her declaration of being in a “participative” role. The Tribunal stated that the appellant’s evidence was that she mostly participated in secret or in private and not in public, and only referred to attending a handful of events in 2019.
At R [53], the Tribunal summarised the appellant’s evidence as follows:
… she has had no history of political activism or activity in Vietnam prior to coming to Australia, and no history of political activity in Australia from 1999 until her recent attendance in protests and events in the past few years.
Despite its misgivings as to the genuineness of the appellant’s political convictions, at R [55] the Tribunal decided to give the appellant the benefit of the doubt and accept, as plausible and credible, that she has long held anti-communist political views and her recent engagement in events and activities may be consistent with her existing political opinions and ideology and therefore was not solely to strengthen her protection claims. That finding is consistent with the evidence in the support letters.
The comment at the start of R [55] to the effect that the timing of the appellant’s involvement in anti-Vietnamese government events and protests “likely following the delegate’s refusal decision” is made where the Tribunal is voicing its misgivings as to the genuineness of the appellant’s application. However, as is apparent from the rest of that paragraph, the Tribunal puts its misgivings aside and decides to give the appellant the benefit of the doubt. No finding is made, contradictory to the evidence, that the appellant’s activities started after the delegate’s decision in November 2016. Rather, the Tribunal after considering the supporting evidence (which included the support letters) was prepared to accept that the appellant had attended the claimed events and protests, the earliest of which on the evidence was 30 April 2015.
At R [56], the Tribunal noted that it did not accept that the appellant played an organising, co-ordinating or activist role in the events, beyond attendance at occasional events and protests in recent years. That finding is not inconsistent with evidence in the support letters. The HAL letter gives details of the appellant’s attendance and participation at particular protests since the 30 April 2015 protest. The highest the evidence as to “organisation” is put is an assertion that HAL “saw her [take] part in organising Viet Tan’s events”, with no detail of what that entailed.
At R [58] the Tribunal observed that it had had regard to the appellant’s evidence and found that she was not an organiser or an anti-Vietnamese government political activist, concluding:
Given the applicant’s limited involvement in protest activity in Australia, and lack of any past political history or profile in Vietnam, the Tribunal does not accept the applicant will take part in anti-government political protests or activity if she returns to Vietnam in the reasonably foreseeable future and therefore does not face a real chance of serious harm on this basis upon return.
To the extent that the support letters commented on the nature and extent of the appellant’s involvement and the extent of her passion and commitment, that evidence was necessarily rejected in the Tribunal’s findings of generality addressing these topics in R [55] and R [56] (as set out above). The support letters were not the only evidence before the Tribunal. It also had the appellant’s declarations and oral testimony and the country information. It was a matter for the Tribunal how much weight it placed on the evidence before it. The Tribunal was not required to expressly refer to every piece of evidence on which it relied to reach its conclusions: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] (per French, Sackville and Hely JJ); Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [64]–[65] (per McHugh J).
The Tribunal’s conclusion was open to it on the supporting evidence before it and the Tribunal adequately considered this evidence.
I find that there is no jurisdictional error and ground 2 must fail.
6. Conclusion
By reason of the foregoing, the appeal must be dismissed and the appellant pay the first respondent’s costs as agreed or assessed.
Finally, I am very grateful to have received assistance from Mr Crock, who appeared for the appellant on a pro bono basis.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rofe. Associate:
Dated: 8 August 2024
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