AMG18 v Minister for Immigration
[2019] FCCA 2466
•16 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMG18 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2466 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of protection visas – applicants claiming a fear of harm in Vietnam – applicants disbelieved in critical respects and other fears found not to be well-founded – whether the Authority misconstrued argument as new information or made a legally unreasonable decision or overlooked the circumstances of the child applicants or erred in considering whether to receive documents considered – jurisdictional error established in the rejection of a submission as new information. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473DA, 473DC, 473DD, 473EA |
| Cases cited: ABT17 v Minister for Immigration [2019] FCA 613 Minister for Immigration v SZMTA (2019) 93 ALJR 252 | ||
| First Applicant: | AMG18 | |
| Second Applicant: | AMH18 |
| Third Applicant: | AMI18 |
| Fourth Applicant: | AMJ18 |
| Fifth Applicant: | AMK18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 263 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 3 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 16 October 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr A Aleksov |
| Solicitors for the Applicants: | Playfair Legal Pty Ltd |
| Counsel for the Respondents: | Ms J Davidson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 8 January 2018 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
THE COURT NOTES
The order of the first, second and third applicants appeared incorrectly on the originating application filed on 2 February 2018 and has been altered consistently with the amended application, but the order remains different from the order of the applicants in the claims before the Immigration Assessment Authority. References in this judgment to the applicant, or the applicant father, are intended to be references to the first applicant.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 263 of 2018
| AMG18 |
First Applicant
AMH18
Second Applicant
AMI18
Third Applicant
AMJ18
Fourth Applicant
AMK18
Fifth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 8 January 2018. The Authority affirmed a decision of the delegate of the Minister (delegate) not to grant the applicants protection visas. The following statement of background facts is derived from the submissions of the Minister filed on 27 August 2019.
The applicants are a family of five people from Vietnam, consisting of a husband (the first applicant in these proceedings), his wife (the third applicant in these proceedings) and three children (the remaining applicants in these proceedings). The family lodged applications for protection visas on 28 March 2017. On 30 August 2017, the delegate refused to grant them protection visas. The matter was referred to the Authority, which affirmed the delegate’s decision on 8 January 2018.[1]
[1] Relevant Documents (RD) 401
The Authority noted that the first applicant feared that he and his wife would be subject to beatings and imprisonment by Vietnamese authorities. The first applicant claimed to fear harm on the basis of an incident that occurred in May 2013 when he claimed a fishing boat he had been on was hit by a Chinese boat and its aftermath, including the warnings he had passed on to other fishermen about the incident; that his secrets had been revealed to an undercover police group called “A18”; that some of his personal details had been disclosed on the Minister’s Department’s website; that he had sought asylum in Australia and departed Vietnam illegally. The first applicant’s representative also claimed that he would face persecution due to imputed anti-government ideologies. The first applicant claimed that his children would be adversely affected upon return to Vietnam because they had embraced the Australian way of life, could not speak Vietnamese well, would have difficulty re-integrating into Vietnamese society and would be vulnerable to being trafficked. The delegate also considered that a claim to fear harm due to the first applicant’s Catholic faith arose on the materials.[2]
[2] The Authority decision at RD 404-405 summarises the applicants’ claims
The Authority noted that the applicants’ representative had provided submissions to it on 27 and 28 September 2017. To the extent that these submissions contained legal argument and responses to the delegate’s findings, the Authority found this was not new information and took it into account.[3] The Authority found the submissions also included new information for the purpose of s.473DD of the Migration Act 1958 (Cth) (Migration Act), namely, three documents and their translations purporting to be summonses issued to the first applicant; country information and a new claim in relation to the first applicant, specifically, that he would be accused of organising the departure of multiple individuals from Vietnam and face harm on return as a people smuggler.[4]
[3] [4]
[4] at [4], [7]
The Authority noted that the first applicant had not previously raised this claim, even though other claims related to his illegal departure were discussed; and considered what the first applicant said in his protection visa interview and arrival interviews. The Authority declined to consider this information. The Authority was not satisfied that it could not have been provided prior to the making of the delegate’s decision, or that it was credible personal information not previously known that, had it been known, may have affected consideration of the applicant’s claims; nor that there were exceptional circumstances justifying its consideration.[5]
[5] at [7]
The Authority accepted that the first applicant was a fisherman, but was not satisfied that he was involved in an altercation with a Chinese boat in May 2013 or subject to any adverse attention from the Vietnamese government or authorities as claimed.[6] Having regard to independent information concerning altercations between Vietnamese fishermen and Chinese boats as well as the first applicant’s evidence, the Authority did not accept that the first applicant had been detained or beaten after the incident, or that he had disclosed information about it contrary to instructions, or that he had been interrogated about it, or that police had visited his home every day and made verbal threats against him.[7] The Authority was not satisfied that the applicants faced a real chance of harm upon return to Vietnam as a result of any incident occurring between the first applicant and a Chinese fishing boat, or his actual or perceived anti-government ideologies or political opinion.[8]
[6] at [19], [23]
[7] at [23]
[8] at [24]
The Authority accepted that the applicants departed Vietnam illegally by boat and that the applicant father and mother may be briefly detained and interviewed on return to Vietnam, but the child applicants would not. The Authority was not satisfied that a brief period of detention and being interviewed and issued with a small fine constituted serious harm, nor that the applicants faced a real chance of serious harm on the basis of their illegal departure from Vietnam.[9] The Authority also was not satisfied that the child applicants would face any harm due to their parents being imprisoned upon return to Vietnam.[10]
[9] at [32]
[10] at [33]
Having considered other aspects of the applicants’ claims and having considered the claims individually and cumulatively, the Authority was not satisfied that the applicants would face serious harm due to their illegal departure, or that there was a real chance of harm due to their Catholic religion, any incident with the first applicant and a Chinese boat, the disclosure of any information about them, being failed asylum seekers, imputed political opinion and, in the case of the child applicants, having embraced the Western way of life, inability to access education, being socially ostracised or being trafficked.[11] The Authority similarly found that these claims did not give rise to a real risk of harm for the purpose of s.36(2)(aa) of the Migration Act. It found that a brief period of detention of the applicant father and mother and an interview and small fine due to illegal departure did not constitute significant harm for the purpose of s.36(2A).[12] The Authority was not satisfied that the applicants, including the child applicants, faced a real risk of significant harm for the purpose of s.36(2)(aa) arising from their illegal departure.[13] Considering their claims individually and cumulatively, the Authority was not satisfied that the applicants faced a real risk of significant harm in Vietnam for the purpose of s.36(2)(aa).[14]
[11] at [37]
[12] at [43]
[13] Ibid
[14] at [45]
The present proceedings
These proceedings began with a show cause application filed on 2 February 2018. The applicants now rely upon an amended application filed on 15 August 2019. There are four grounds in that application:
1. The IAA failed to consider a submission of substance made to it (which was not “new information” but simply argument) (IAA Reasons [7]) (CLV16 (2018) 260 FCR 482).
2. The decision of the IAA is affected by legal unreasonableness.
Particulars
a. The delegate accepted that the applicant had been on a boat that was attacked by Chinese boats, and a significant contributing factor to the delegate’s acceptance of that claim was … the apparent demeanour of the applicant in giving evidence about that event (in person).
b. The IAA rejected that the applicant had ever experienced such an incident, without considering whether to obtain, or without obtaining, new information from the applicant relevant to that question (see, DPI17 [2019] FCAFC 43).
c. This was unreasonable because the IAA could not otherwise lawfully have reviewed the decision of the delegate in circumstances where critical non-verbal information could not have been included by the Secretary in the review material.
3. The IAA failed to consider what may happen to the child applicants during any period of short-term detention faced by the parent applicants.
4. The IAA did not correctly understand or apply s.473DD, in that it must have applied too high a threshold for what constitutes “credible personal information” with respect to the summons documents.
The only evidence I have before me is the book of relevant documents in two volumes filed on 21 March 2018.
Both the applicants and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial on 3 September 2019.
Consideration
Ground 1 – did the Authority misconstrue argument as “new information”?
Applicants’ contentions
At [7] of its reasons, the Authority identifies that the first applicant had made a new “claim” before the Authority, being that he may be exposed to a well-founded fear of persecution on the basis of a possible imputation as a people smuggler.
The applicants contend that, although it is true that this was a new “claim”, that is not determinative of whether or not the limitation under s.473DD applied. Rather, the question was whether the new “claim” was proposed “new information”, or whether it was an argument (or submission) made for the first time to the Authority but arising from the “review material” already before it.
The word (and concept) of a “claim” is said not to have any special significance in relation to Pt 7AA reviews. The key issues are, what is the scope of the material that must be “reviewed” by the Authority (being the review material and such new information as is admitted for consideration), and then, what are the arguments or submissions that the Authority must respond to in order to perform the function of a review?
The applicants submit that it may be that some argument or submission, made for the first time in the Authority, requires the admission of new information before it can succeed. Alternatively, it may be that something in the manner in which the argument or submission is advanced presents as (itself) being new information. However, it may also be the case that the argument or submission is simply that, relying on the review material, and does not in any way propose to introduce any “new information”.
In the last of these situations, all that is presented to the Authority is a submission of substance, and not any proposed “new information”. It follows, in the applicants’ submission, that to perform the “review” as required by Pt 7AA, the Authority must consider that submission.[15]
[15] Minister for Immigration v CLV16 (2018) 260 FCR 482
The applicants submit that in this case, the new “claim” was in truth nothing more than a submission made to the Authority based on the review material already before it, which identified a new “claim” that emerged from that material. This had to be considered, and in failing to consider it, the Authority failed to consider a submission of substance.
Minister’s contentions
Ground 1 concerns [7] of the Authority’s reasons, which concerned the first applicant’s claim (via the 27 September 2017 submission) that he would be accused of organising the departure of multiple people from Vietnam and would face harm on return to Vietnam as a people smuggler. The applicants rely on CLV16 and submit that this new “claim” was nothing more than a submission made to the Authority on the basis of review material already before it, which had to be considered in order for the Authority to perform the review task required by Part 7AA of the Migration Act.[16]
[16] applicants’ submissions at [6], [7]
In CLV16, the Full Federal Court (Flick, Griffiths and Perry JJ) considered two questions, one of which was whether, and in what circumstances, the Authority can receive submissions. The Court in that case held that the Authority was not precluded by
ss.473DC and 473DD from entertaining a “submission” directed to matters such as “the information already made available to the Authority and the consequences which it is ‘submitted’ should flow from that already established pool of factual information”.[17] The Court concluded at [50] that a “submission” which “only addresses the information already made available for consideration by the Authority and which contains no additional factual information” was neither a “document” nor “information” for the purposes of the definition of “new information” in s.473DC. There was, their Honours explained at [54], “no clearly expressed legislative intent to deny to a claimant the ability to place before the Authority, and to have the Authority in fact consider, a submission directed to an established pool of factual information”.[17] at [35]
The applicants submit that where an argument or claim relies only on review material, and does not in any way propose to introduce any “new information”, it is not capable of being new information and must be considered. That is similar to the argument considered and rejected by McKerracher J in CVK16 v Minister for Immigration[18] at [49]-[51] where a question arose as to whether there was an impediment to the Authority considering a new claim (namely, the effect of existing information, generating a “different fear”[19]) based on the same existing information that was before the delegate. Justice McKerracher held that the new claim was “new information” for the purpose of s.473DC(1). Special leave was refused.[20]
[18] (2017) 257 FCR 297
[19] see CVK16 at [53]
[20] CVK16 v Minister for Immigration & Anor [2018] HCASL 47
In ADN18 v Minister for Home Affairs,[21] the applicant sought to distinguish CVK16 at [50] on the basis that it was inconsistent with Plaintiff M174/2016 v Minister for Immigration[22] at [17] and [24]. The plurality (Gageler, Keane and Nettle JJ) had observed in Plaintiff M174 at [24] that:
The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).
[21] [2018] FCA 1677
[22] (2018) 353 ALR 600
In ADN18, Griffiths J (a member of the Court in CLV16) approved McKerracher J’s analysis in CVK16 and rejected at [39] the claim that it was plainly wrong:
There is no inconsistency between what McKerracher J said at [50] and these subsequent observations of the plurality in the High Court. To the extent that the applicant contended that the relevant passage in CVK16 was plainly wrong, I respectfully disagree. Justice McKerracher's analysis at [50] is plainly correct, for the reasons given by his Honour.
In AYK17 v Minister for Immigration,[23] the question of whether CVK16 was inconsistent with Plaintiff M174 was again considered (the appellant having argued that it was clearly wrong and should not be followed[24]). Farrell J found that the claim in CVK16 was accurately described as involving “new information”, that this was consistent with CLV16 at [35] and [54] and that McKerracher J’s decision at [62] was not wrong.[25] Her Honour stated at [49]:
Having regard to the reasoning of Gageler, Keane and Nettle JJ in Plaintiff M174/2016 at [17] and the Full Court in CLV16, I accept that if the new material had comprised a claim which relied only on information which was in the factual pool of information that had been before the delegate, the Authority would have been required to consider that new claim. However, as the authorities currently stand, where a new claim (such as the new material) or an elaboration of an old claim (such as that AYK17 would be imputed political opinion as a failed asylum seeker who was also a witness to killing of those incarcerated with him) relies on “new information” (that is, “knowledge about some particular fact, subject or event” which was not in the factual pool of information which had been before the delegate when the decision to refuse the visa was made), the new claim or the variation of the old claim cannot be considered by the Authority unless both paragraph (a) and one of sub-paragraphs (b)(i) or (ii) of s 473DD have been satisfied.
[23] [2019] FCA 1053
[24] at [42]
[25] AYK17 at [48]-[49]
The Minister submits that the question arising in the present case is whether the first applicant’s claim that he would be accused of being a people smuggler relied on no more than the “pool of factual information” that was before the delegate. That question should be answered in the negative. The 27 September 2017 submission to the Authority referred to a Human Rights Watch document that was before the delegate concerning other returnees,[26] before referring to the fact that the first applicant brought his wife and three children with him and travelled with up to 13 other family members on a boat on which he and his brother-in-law used to go fishing.[27] The submission proceeded to state that the first applicant would be at risk of being accused of organising the departure of multiple individuals; and that DFAT’s[28] analysis concerning customers of people smugglers (which was before the delegate) would not be relevant, “as he has not been simply a paying passenger, but would be viewed as an organiser himself”. The submission added that “there is a high chance the authorities will become aware of [the first applicant’s] specific travel arrangements”.[29]
[26] RD 358-59
[27] RD 359
[28] Department of Foreign Affairs and Trade
[29] Ibid
The Minister contends that the claim was thus based on “knowledge about some particular fact, subject or event” (that is, activities in which the applicant engaged in bringing his family with him to Australia and that “he has not been simply a paying passenger”; and what he would be accused of in Vietnam as a result), that relied on more than simply the “pool of factual information” before the delegate. As in CVK16 and AYK17, the submission related to a “different fear” to those addressed by the delegate. The applicant could not establish that it relied only on information in the pool that was before the delegate. The Authority did not fall into jurisdictional error in treating this as “new information”.
Resolution
The first ground addresses the vexed issue of the Authority having to grapple with the distinction between argument and information and claims and argument. It is now tolerably clear that there is no material distinction between claims and information. There is, however, a difference between argument and information. In the very recent decision of the Full Federal Court in DNA17 v Minister for Immigration[30] the Full Federal Court considered a circumstance not dissimilar to the present at [38]-[45].
[30] [2019] FCAFC 146
I addressed the same issue myself very recently in DPH17 v Minister for Immigration & Anor.[31]
[31] [2019] FCCA 2258
As I stated in that case at [45]-[48]:
For present purposes it is important to note that it is now well established that, in dealing with a submission provided to the Authority, it will frequently be necessary for the Authority to separate argument from information. Where information is identified in a submission, it will generally be necessary for the Authority to consider whether the information is “new” information as defined.
It seems to me that, leaving aside the lack of a distinction between claims and information, and focusing instead on the distinction between argument and information, as a general proposition in any case there are four possibilities for the Authority to consider when dealing with a submission:
(a)there may be a reagitation of arguments previously put using information that was before the delegate;
(b)new arguments responsive to the delegate’s decision may be raised which draw on information that was before the delegate;
(c)a submission may take issue with findings by the delegate and seek to deploy information that was not before the delegate in order to respond to the delegate’s findings; and
(d)the submission may raise an argument or claim that was not considered by the delegate and seek to support it by reference to information that was not before the delegate.
It may safely be assumed that example (a) above would not involve the provision of new information. Conversely, example (d) would involve the provision of new information. Example (b) would probably not involve the provision of new information but example (c) may do. A finding on whether it does or not will generally involve careful consideration.
The present case could be an example of the circumstances arising as examples (b) or (c) above.
In my view, as in DPH17, the present case is an example of the circumstances set out at (b) above. In other words, the applicant was seeking to engage with the delegate’s decision by drawing on information that was before the delegate in the form of a responsive but new argument. The applicant was not seeking to introduce any new information in order to support the argument. It was already known that the family had travelled together and that the applicant father had arranged it.
I conclude that the Authority was wrong to regard the submission as new information. As in DPH17, the argument might not have been a strong one, but it could have made a difference to the outcome and the Authority should have considered it. By failing to do so, the Authority fell into error.
Ground 2 – is the Authority decision affected by legal unreasonableness?
Ground 2 alleges unreasonableness in the Authority’s treatment of the incident involving the first applicant and a Chinese boat or boats. The Authority addressed this at [19]-[23], concluding that it did not accept the first applicant was involved in an altercation with a Chinese boat in May 2013 “as claimed”.[32] The applicants contend that it was unreasonable for the Authority to reject that “the applicant had ever experienced such an incident” without considering whether to seek new information from the applicant relevant to the incident.[33]
[32] [23]
[33] applicants’ submissions at [8]-[10]
I prefer the Minister’s submissions on this ground.
In this case, the delegate accepted that the applicant father had been on a boat that was attacked by Chinese boats, and a significant contributing factor to the delegate’s acceptance of that claim was his demeanour in giving evidence about that event.
The Authority rejected that the applicant had ever experienced such an incident.
The applicants complain that the Authority did not mention at any point in its reasons that it had considered whether to obtain new information from the applicant relevant to this incident, including to consider the relevance or impact of the advantage available to the delegate in observing the applicant give evidence. In such circumstances and given the importance of this incident (being the key event that led to the applicant fleeing), the rejection of the applicant’s evidence about this incident, without having considered whether to seek out new information to respond to this situation, is said to have been legally unreasonable.[34]
[34] DPI17 v Minister for Home Affairs [2019] FCAFC 43
The onus is on the applicants to establish that the Authority failed to consider exercising its discretion to obtain new information, and that such a failure was material.[35] It should also be noted that s.473EA(1) of the Migration Act does not require the Authority’s reasons to include a statement as to the exercise of a procedural discretion (included whether or not to exercise a discretion).[36]
[35] see ASB17 v Minister for Home Affairs [2019] FCAFC 38 at [46]-[49]; ABT17 v Minister for Immigration [2019] FCA 613 at [25]
[36] BCQ16 v Minister for Immigration [2018] FCA 365 at [45], [49]-[50]; DYK16 v Minister for Immigration [2018] FCAFC 222 at [65]; CVS16 v Minister for Immigration [2018] FCA 951 at [29]–[30]; BVD17 v Minister for Immigration [2018] FCAFC 114 at [42], [47]
It is well established that the powers conferred on the Authority by Division 3 of Part 7AA (including s.473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness.[37] It is also the case that, having regard to s.473DA, the starting point for analysis in a case of this kind asserting legal unreasonableness is not a “natural justice lens”.[38] Close attention to the particular facts and circumstances in which an issue of legal unreasonableness is raised is critical.[39]
[37] see DPI17 at [35], citing the plurality judgment in Plaintiff M174
[38] DPI17 at [37], DGZ16 v Minister for Immigration (2018) 258 FCR 551 at [69], [72]
[39] DPI17 at [42]; see also at [47] (addressing the particular facts and circumstances arising in that case)
Of primary significance in relation to the applicant’s claims to face harm as a result of the alleged incident involving the Chinese boat, the Authority did not make significantly different findings to the delegate in relation to the events surrounding the aftermath of the claimed incident. The delegate accepted that the applicant’s boat was intercepted and attacked by Chinese boats near Truong Sa Island and that he reported the attack to local police on the island, who failed to intervene. The delegate also found that the applicant returned without incident to the mainland. The delegate did not accept that the applicant and his group were detained, threatened or physically harmed by Vietnamese authorities after reporting the incident, or that he was subjected to interrogation or other adverse treatment after returning to the mainland.[40] The Authority likewise did not accept that the applicant was detained on the island, beaten or denied food and water, or that he was summoned, interrogated or threatened upon returning to the mainland.[41] Unlike DPI17, in the present case the Authority did not reach a different conclusion to the delegate on a matter central to the applicant’s claims. There is nothing in the Authority’s reasons raising the prospect of it making different findings concerning the aftermath of the incident, even if it had not made identical findings concerning the incident itself.
[40] RD 313, 314
[41] [23]
Even if some significance could be attributed to discrepancies between the findings of the Authority and those of the delegate in respect of the incident, the unreasonableness relied upon is said to emerge from “a significant contributing factor to the delegate’s acceptance of [the] claim [being] his demeanour in giving evidence about that event”.[42] It is not apparent that demeanour was a significant factor in the delegate’s reasoning. The delegate referred to the level of detail provided by the first applicant in answering questions about the incident (by contrast to “critical non-verbal information” relied on in particular (c) to Ground 2) and also to supporting credible country information, stating the conclusion concerning acceptance that an attack occurred “[i]n light of country information cited”.[43] I do not accept that reasonableness required the Authority to consider seeking out new information about the incident pursuant to s.473DC(3).
[42] applicants’ submissions at [8]
[43] RD 311, 312
It is not necessary to rule on the Minister’s further submission that it would be necessary for the applicants to demonstrate that any unreasonableness, if established, was material, such as to give rise to jurisdictional error.[44] Whether an error could have affected the outcome of the Authority’s review will normally turn on an analysis of the applicant’s claims and the reasons given by it.[45] For completeness, I note that the Minister contends that the applicants could not discharge that burden in the present case, in view of the separate findings the Authority made as to the aftermath of the incident, the consistency between those findings and the delegate’s findings on the equivalent subject matter and the significance of those findings to the Authority’s conclusion as to harm to the applicants resulting from the incident involving Chinese boats.
Ground 3 – did the Authority fail to consider what might happen to the child applicants during any period of short term detention of their parents?
[44] Minister for Immigration v SZMTA (2019) 93 ALJR 252 at [45]-[46] per Bell, Gageler and Keane JJ
[45] EVS17 v Minister for Immigration [2019] FCAFC 20 at [42]; DPI17 at [51]
Ground 3 relies on NAVK v Minister for Immigration[46] and alleges a failure to consider an obvious claim concerning what may happen to the child applicants during a period of short-term detention faced by their parents upon return to Vietnam.
[46] [2004] FCA 1695; affirmed on appeal: NAVK v Minister for Immigration [2005] FCAFC 124
In this case, the applicant father applied for the visa with his children.
The Authority accepted at [32] that the parents may be detained for a short period upon any return to Vietnam, but that the children would not be detained.
The applicants contend that the obvious consequence of such a state of affairs is that the children may be separated from their parents. Although it was not expressly claimed, this state of affairs gave rise to an obvious claim on the materials that the Authority was bound to consider; what may happen to the children during any period of forced separation from their parents?[47]
[47] NAVK
I agree with the Minister that the factual foundation for this ground has not been made out. The Authority cannot be said to have failed to consider whether the child applicants would face harm as a result of their parents’ detention. The Authority expressly addressed at [33] the applicant’s claim that his children would be adversely affected if he and his wife were imprisoned, finding that it was not satisfied that the children would face any harm as a result. The Authority subsequently noted that the children, upon return, would have the support of their “extended families, with whom they used to reside and who remain in Vietnam”.[48] The Authority returned to the issue of harm to the children arising from illegal departure (including having regard to the likely period of their parents’ detention) at [43] in considering the complementary protection criterion.
Ground 4 – did the Authority err in considering whether to receive the summons documents?
[48] at [35]
Applicants’ contentions
One issue that arose from the delegate’s decision in this case was whether the applicant had been issued with written summons. Before the Authority, he advanced proposed new information in the form of copies of the four summons that he claimed had been issued to him.
In assessing whether the proposed new information met the requirements of s.473DD, the Authority is said to have reached a concluded view about the veracity of this information, finding that they did not constitute “credible personal information” under s.473DD(b)(ii), apparently on the basis that they were not genuine documents (so much is to be inferred from the statement that they added “little weight” to the claim).
In assessing the “credibility” of the proposed new information to a concluded review, the Authority is said to have applied too high a threshold for the receipt of new information. It should only have assessed whether the information was “capable of being believed”, not whether it is believed.[49]
[49] CSR16 v Minister for Immigration [2018] FCA 474
That is said to be significant because if the summons had been admitted for consideration, they carried at least some corroborative value which cannot be said to have been so slight that it could not have affected the decision.
Minister’s contentions
Ground 4 is concerned with the threshold the Authority applied for receipt of new information, specifically, the summonses said to have been issued to the applicant.[50] The Authority referred to the lack of specificity in the documents and to the explanations the applicant had provided as to why he had not provided them earlier, before stating that, overall, the documents were of “little evidentiary value in assessing the first applicant’s claims that he was summoned to the Phouc Hoi police/local government office regarding the Chinese boat incident”.[51] The applicants cite the decision of Bromberg J in CSR16 and contend that the Authority reached a “concluded view about the veracity of this information”, on the basis that the summonses were not genuine documents.[52]
[50] at [5]
[51] Ibid
[52] applicants’ submissions at [15]
The Minister submits that the Court should not accept that any jurisdictional error arose in respect of this information. The requirements of ss.473DD(a) and (b) are cumulative requirements in that the Authority must not consider new information unless it is satisfied that both paragraph (a) and paragraph (b) of s.473DD are satisfied.[53] It follows that if one of those requirements does not exist, then the Authority must not consider the new information.[54] The Authority was not satisfied that the requirements of any of s.473DD(a) or (b)(i) and (ii) were satisfied in relation to the summons documents.[55] In those circumstances, if there is any error in the Authority’s findings in relation to s.473DD(b)(ii) (which the Minister denies), those errors are said to have had no material effect, given the Authority’s findings pursuant to s.473DD(a).
[53] Plaintiff M174 at [31]; BVZ16 v Minister for Immigration [2017] FCA 958 at [9]
[54] BRA16 v Minister for Immigration [2018] FCA 127 at [26]
[55] Ibid
In CSR16, Bromberg J found jurisdictional error where the Authority had imposed a higher standard of satisfaction than the criterion in s.473DD(b)(ii) requires. The Court interpreted “credible” in s.473DD(b)(ii) as meaning “capable of being accepted by the Authority as truthful (or accurate, or genuine)” and not whether the information “is true” at [41]. While this Court is presently bound by the decision in CSR16, the Minister submits that that decision sits uncomfortably with the Full Court’s judgment in DYS16 v Minister for Immigration[56] at [37]-[39].[57]
[56] [2018] FCAFC 33
[57] see in this regard DLB17 v Minister for Immigration & Anor [2018] FCCA 1299 per Judge Smith
As explained in ALJ18 v Minister for Immigration & Anor[58] at [26] per Judge Kendall:
The error made by the IAA in CSR16 was that it found that the information was not credible because it had found that the applicant’s fear was not genuine: see CSR16 at [35]. The question of genuineness of a claimed fear was clearly one that had to be determined after the IAA had determined what information it could and could not have regard to and not before it had made that determination (EAA16 v Minister for Immigration & Anor [2018] FCCA 2624 (“EAA16”) at [42] as per Judge Smith). The Minister argued that the intellectual step of deliberating on and forming a concluded view about the applicant’s claims that occurred in CSR16 is not present in this matter.
[58] [2018] FCCA 3835
The same submission is put in the present case. CSR16 is said to be distinguishable on the basis that the Authority did not engage in a final deliberative process about the applicant’s claims in finding that the summons documents were not “credible personal information”.
Furthermore, the Minister submits that the Authority’s consideration can be characterised consistently with the approach required by CSR16. The Authority went beyond a mere conclusion that the summonses were not true or not genuine. The Authority’s reasoning was expressed at an anterior stage to its final decision, suggesting it was reasoning undertaken on a preliminary rather than deliberative basis. It uses the lack of detail in the summons documents to arrive at the view that they were of “little evidentiary value”. The applicants’ submission that the Authority reached a “concluded view” on the veracity of the summonses on the basis that they were not genuine documents is not supported by the Authority’s reasons and should not be accepted.
Resolution
The reasoning of the Authority in relation to this ground is set out at [5] of the Authority’s decision where it stated:[59]
The summons documents were purportedly issued by the People's Committee of Tan Nghia Town and requested the first applicant's attendance at the Working Office on 6, 8 and 10 June 2013 respectively for statements to be taken and to 'avoid any problem that may affect to the process [sic]'. These documents do not relate to any new claims or issue. Rather, the representative confirmed they were provided to support the first applicant's claim, made in his written statement with the visa application and which was rejected by the delegate, that he was summoned to attend the Phouc Hoi police/government offices in relation to the Chinese boat incident which occurred in May 2013. The representative submitted that the first applicant had been unable to locate these documents and it was not until after the refusal of their visas that he contacted his mother in Vietnam and she was able to locate them. However, this statement in fact suggests that the first applicant could have obtained and provided this material prior to the making of the decision had he contacted his mother earlier in the process. I note that these documents do not make any reference to the Phouc Hoi police or the Phouc Hoi local government office and nor do they refer to the Chinese boat incident. Moreover, they state that the applicant is to report to the 'Working Office' but without any reference to an address or location; they do not indicate what the first applicant is to make a statement about; and while they indicate that he is to report at 8.00, the documents do not state whether that is in the morning or evening. Overall, these documents are of little evidentiary value in assessing the first applicant's claims that he was summoned to the Phouc Hoi police/local government office regarding the Chinese boat incident. Having regard to the above matters, the applicants' have not satisfied me that the summons documents could not have been provided to the delegate prior to the making of the decision, or that these documents constitute credible personal information, which was not previously known, and had it been known, may have affected consideration of the referred applicants' claims. I am also not satisfied that there are exceptional circumstances to justify considering the summons documents. I must not consider this new material.
[59] RD 402-403
The Authority’s reasoning was detailed and the Authority plainly had doubts about the documents. Its conclusion, however, was only definitive in the sense that it considered the documents were of little evidentiary value in assessing the applicant’s claims.
In my view, the Authority’s reasoning in this case can be distinguished from that in CSR16 for the reasons advanced by the Minister.
I reject this ground.
Conclusion
The applicants have succeeded in establishing that the decision of the Authority is affected by jurisdictional error. I will order that the decision of the Authority be quashed and that the review be remitted to the Authority for redetermination according to law.
I will hear the parties as to costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 16 October 2019
0
23
2