ANR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 312
•5 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ANR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 312
File number(s): PEG 152 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 5 May 2022 Catchwords: MIGRATION – Judicial review – Immigration Assessment Authority decision – Safe Haven Enterprise visa – citizen of Vietnam – whether failure to exercise power to hear applicant legally unreasonable – whether failure to give intelligible justification for preferring particular country information – whether jurisdictional error Legislation: Migration Act 1958 (Cth) Pt 7, Div 4, Pt 7AA, Div 3, ss 36, 46A, 65, 414, 415, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473EA, 473GA, 473GB474, 476, 499
Migration Regulations1994 (Cth) reg 4.41
Cases cited: ABT17v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407
ANR17 v Minister for Immigration & Anor [2019] FCCA 419
ANR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 155
ANR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1439
BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365
BIN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1094
BWY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 860
CXS18 v Minister for Home Affairs [2020] FCAFC 18
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551
DHA16 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1443
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134; (2019) 366 ALR 665
EAJ18 v Minister for Home Affairs & Anor [2018] FCCA 3780
EAJ18 v Minister for Home Affairs [2019] FCA 1057
EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177
Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 95 ALJR 54; (2020) 385 ALR 212
Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475
Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526; (2018) 357 ALR 474
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1
SZQGC v Minister for Immigration and Citizenship [2012] FCA 598; (2012) 128 ALD 338
SZUEP v Minister for Immigration and Border Protection [2017] FCAFC 94; (2017) 160 ALD 35
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submission/s: 17 August 2021 Date of hearing: 17 August 2021 Place: Perth Counsel for the Applicant: Mr C. Jackson Solicitor for the Applicant: Oxford Law Group Counsel for the First Respondent: Ms K. Hooper Solicitor for the First Respondent: Sparke Helmore For the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 152 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANR17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
5 MAY 2022
THE COURT ORDERS THAT:
1.The originating application filed 26 May 2020, as amended on 17 August 2021, be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application by the applicant, ANR17, for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”), of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively”) concerning a decision a delegate (“Delegate’s Decision” and “Delegate” respectively) of the First Respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant ANR17 a Safe Haven Enterprise visa (“SHE Visa”).
The Court has before it the following material:
(a)the affidavit of Reuben Saul Jahnke affirmed 26 May 2020 (“Jahnke Affidavit”), annexing the Authority Decision and the DFAT Country Information Report Vietnam dated 13 December 2019 (“DFAT Report”);
(b)Exhibit 1, being the Court Book (“CB”) numbering 366 pages;
(c)the Minister’s written submissions filed 31 May 2021 (“Minister’s Written Submissions”);
(d)ANR17’s written submissions filed 20 July 2021 (“ANR17’s Written Submissions”); and
(e)the Minister’s further written submissions filed 2 August 2021 (“Minister’s Further Written Submissions”).
BACKGROUND
The relevant background to the Judicial Review Application is as follows:
(a)on 28 October 2012 ANR17, a 26-year-old citizen of Vietnam, arrived in Australia by boat and without a visa: CB 76 and 78;
(b)on 10 December 2015 ANR17 was told that the bar under s 46A of the Migration Act had been lifted and he was invited to apply for the SHE Visa: CB 17-18, and he did so on 29 March 2016: CB 33-75;
(c)ANR17’s claims were first set out in a statement accompanying the SHE Visa application: CB 76-80. The statement can be summarised as follows:
(i)ANR17 and his family are practising Catholics;
(ii)on 1 July 2012 ANR17 attended a mass at a church where a “group of people hired by the government officials as well as some armed government officials in uniform started to cause a scene”: CB 79 at [34], which led to ANR17 being hit by an officer when he sought to intervene to protect some nuns and other women who were being attacked;
(iii)a week later ANR17 was served a summons by the local police in relation to the incident;
(iv)ANR17 did not comply with the summons, and on 19 October 2012 he travelled to Australia;
(v)his family has been punished by the authorities since the incident on 1 July 2012, and they now have difficulty applying for official documents;
(vi)ANR17 feared that he would be detained by the Vietnamese government upon his return, or that it would make his life difficult and he would be unable to live a normal life; and
(vii)ANR17 believed he would be apprehended because of the incident on 1 July 2012 and because he had left Vietnam without an exit permit;
(d)on 13 October 2016 ANR17 attended an interview with the Delegate: CB 93, and explained that he had become politically active in Australia and had attended protests in Australia against the Vietnamese government: CB 200-201;
(e)on 2 December 2016 ANR17’s migration agent provided to the Delegate submissions, country information and a document that purported to be a translation of the summons ANR17 received before he left Vietnam: CB 108-191;
(f)in ANR17’s submissions to the Delegate he confirmed that he also feared harm because his personal information had been made accessible on the internet because of a 2014 data breach by the Minister’s Department (“2014 Data Breach”): CB 120-121;
(g)on 19 December 2016 the Delegate’s Decision was to refuse to grant the SHE Visa: CB 197-209;
(h)on 22 December 2016 the matter was referred to the Authority for review under Part 7AA of the Migration Act: CB 216;
(i)on 11 January 2017 ANR17’s migration agent provided submissions and country information to the Authority: CB 232-264;
(j)on 3 February 2017 the Authority affirmed the Delegate’s Decision: CB 270-284 (“2017 Authority Decision”);
(k)on 22 February 2019 this Court (then styled the Federal Circuit Court of Australia, and differently constituted) dismissed an application for judicial review of the 2017 Authority Decision: ANR17 v Minister for Immigration & Anor [2019] FCCA 419 (“ANR17 – FCCA 2019”);
(l)ANR17 – FCCA 2019 was appealed, and on 20 February 2020 the Federal Court remitted the matter to the Authority for redetermination on the basis that the Authority had failed to determine a clearly articulated claim made by ANR17, namely, that he would suffer harm as a result of expressing his political opinion on return to Vietnam: ANR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 155;
(m)on 25 March 2020 the Authority told ANR17 that it was reconsidering his case: CB 287-289;
(n)on 27 March 2020 ANR17’s lawyer sought an extension of time until 17 April 2020 in which to provide materials to the Authority: CB 255-256;
(o)on 30 March 2020 the Authority told ANR17 that it would not make a new decision on the review before 14 April 2020: CB 300-301;
(p)on 15 April 2020 ANR17 provided submissions and new information including a statement by ANR17 and social media screenshots directed to ANR17’s involvement in political activities in Australia: CB 302-339;
(q)on 21 April 2020 the Authority affirmed the Delegate’s Decision: CB 343; and
(r)later on 21 April 2020, at a time by which the Authority was likely functus officio because of s 473EA(3) of the Migration Act, ANR17 provided the Authority with further documents: CB 346-347.
AUTHORITY DECISION
Material considered
The Authority had regard to the material referred to it under s 473CB of the Migration Act, ANR17’s submissions provided in 2017 and 2020, the country information provided in 2020, and other new information provided in 2020: CB 344-345 at [2]-[3] and [5]-[9].
The Authority did not have regard to the country information provided in 2017 as it was not satisfied that either limb of s 473DD(b) of the Migration Act was met: CB 345 at [4].
Section 473GB Certificate
On 19 December 2016 the Department issued a non-disclosure certificate pursuant to s 473GB of the Migration Act which covered two age determination reports from 2012 and an integrity assessment prepared by a Departmental officer. In circumstances where the age determination reports were favourable to ANR17, and the integrity assessment was “limited in scope” and contained “nothing of significance” to the Authority’s review, the Authority did not consider it necessary to disclose the certificate or its contents: CB 345-346 at [11]-[14].
Factual findings
In making findings of fact the Authority:
(a)accepted that ANR17 is a citizen of Vietnam and a Catholic from a particular village in a particular province of Vietnam: CB 347 at [25];
(b)found that ANR17 was affected by the 2014 Data Breach, but was not satisfied that the Vietnamese authorities knew anything about his asylum claims. However, it was satisfied that they would be aware he had sought asylum: CB 348 at [28];
(c)did not accept that ANR17 had any contact with Vietnamese officials whilst he was in detention or that Vietnamese officials were given any information about him: CB 348 at [29]-[30];
(d)found that beyond the low-level discrimination ANR17 experienced at school, ANR17’s evidence indicated that he and his family were not threatened, discriminated against or otherwise harmed because of their faith, nor were they prevented from freely practising that faith: CB 350 at [37];
(e)found that ANR17 and his brother attended mass at a particular church on the day of a violent incident on 1 July 2012: CB 350 at [40]. The Authority had “no reason to conclude” that the summons issued to ANR17 as a result of the 1 July 2012 incident was not genuine: CB 350 at [41]. The Authority had some doubts as to whether ANR17 failed to comply with the summons as claimed, however, the Authority found that the significant issue was that ANR17 did not remain a person of interest to the Vietnamese authorities after the summons was issued: CB 351 at [44]. It made that finding on the basis that:
(i)ANR17 had only received one summons and no warrant was issued for his arrest after he failed to comply with the summons;
(ii)ANR17 remained in his home village for three months after his failure to comply with the summons;
(iii)ANR17’s evidence as to how he did not come to the attention of the Vietnamese authorities during that time was inconsistent and unpersuasive; and
(iv)critically, neither ANR17 nor his family were directly approached in the years that followed after ANR17 failed to comply with the summons: CB 351-352 at [45]-[49],
and it therefore did not accept ANR17’s account as to what occurred after the issuing of the summons was accurate, or that ANR17’s family had faced consequences for his failure to comply with the summons: CB 352 at [50] and [52], and these findings led the Authority to conclude that ANR17 was not a person of interest to the Vietnamese authorities at the time he left Vietnam or at the date of the Authority Decision: CB 352 at [51];
(f)accepted ANR17 would remain a committed Catholic and continue to attend church, but found that this would be the extent of his religious profile: CB 352 at [53];
(g)relying on country information, and given ANR17’s limited profile, found he would be able to freely practise his religion and any low-level interference or harassment he may face would not constitute serious harm: CB 353 at [54]-[55];
(h)found that ANR17’s attendance at protests in Australia was “superficial and infrequent” and “designed to strengthen his protection visa claims” and his political social media activities were “superficial, passive rather than activist, and low level”: CB 355-356 at [66], [71]-[72];
(i)accepted that there was evidence of ANR17’s political activity in Australia, but found the chance that ANR17 would be identified by Vietnamese authorities on this basis was “remote” and that the chance he would be targeted after being identified as “very remote”: CB 357 at [78];
(j)was not satisfied that ANR17 shared the risk profile of protestors and other political activists in Vietnam that had been identified in relevant country information: CB 358 at [81];
(k)did not accept ANR17’s claim that he would be politically active, involved or outspoken upon his return to Vietnam, even in a low-level sense: CB 356-358 at [73]-[80], and found that the reason ANR17 would not be politically active upon his return to Vietnam was because of the low-level nature of the political views he holds: CB 358 at [80]; and
(l)accepted the Vietnamese government would have assessed ANR17 as having departed illegally and found that it may be aware ANR17 had sought asylum, including as a result of the 2014 Data Breach: CB 359 at [86].
Refugee and complementary protection assessments
Regarding the refugee and complementary protection assessments, the Authority:
(a)found there was not a real chance ANR17 would face serious harm as a Catholic, or a Catholic in his particular diocese, because of his past profile associated with the particular church at which the 1 July 2012 incident occurred, or any other actual or imputed profile related to his religious profile: CB 353 at [56];
(b)was not satisfied ANR17 would face a real chance of harm due to his actual or imputed political opinion, as a result of his political activities in Australia, or because the Vietnamese authorities may determine he had applied for protection, or on the basis of any other related profile: CB 358-359 at [81];
(c)found, based on its review of country information, that it was not satisfied that ANR17 would face a real chance or risk of harm by reason of his illegal departure or his status as a failed asylum seeker: CB 359-360 at [84]-[92]; and
(d)therefore, found that ANR17 did not meet s 36(2)(a) of the Migration Act: CB 361 at [93], and its conclusion that he also did not meet s 36(2)(aa) of the Migration Act was largely reliant on its anterior findings of fact concerning s 36(2)(a) of the Migration Act: CB 361-362 at [94]-[102].
ADJOURNMENT
The matter previously came before the Court as presently constituted for hearing on 24 June 2021, at which time ANR17 was granted an adjournment of the hearing on medical grounds to a date to be fixed: ANR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1439. The hearing was relisted for 17 August 2021.
AMENDED JUDICIAL REVIEW APPLICATION
On 20 July 2021 ANR17 filed submissions, seeking leave to bring, and annexing, a proposed amended Judicial Review Application. The proposed amended Judicial Review Application abandons ground 1 of the Judicial Review Application, and in its place sought to substitute a new ground 1.
At hearing on 17 August 2021 the Court granted leave as sought by ANR17 to amend the Judicial Review Application in terms of the proposed amended Judicial Review Application (“Amended Judicial Review Application”).
The Amended Judicial Review Application thus contains two grounds which are set out below at [19] (ground 1) and [30] (ground 2).
EXTENSION OF TIME APPLICATION
The Amended Judicial Review Application contains an application for an extension of time (“Extension of Time Application”). At hearing the parties agreed that the Judicial Review Application was made within time. The Court agreed that the Judicial Review Application was properly made, within time, and the Court, therefore, did not need to deal with the Extension of Time Application any further.
AMENDED JUDICIAL REVIEW APPLICATION
Jurisdictional Error Required
This Court may set aside the Authority Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Authority:
(a)identifies a wrong issue;
(b)asks a wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Authority’s exercise or purported exercise of power is thus affected, resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
An instance where the Authority has made findings that are legally illogical, irrational and otherwise unreasonable may also amount to jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”); and see also the relevant principles in relation to legal unreasonableness as explained by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”), and subsequently by the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 (“Singh”), and summarised by the Federal Court in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J.
To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon ANR17 to establish jurisdictional error in the Authority Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
It is not within the jurisdiction of this Court to review the merits of the Authority Decision, or to actually determine ANR17’s SHE Visa application: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”); CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground 1
Ground 1 of the Amended Judicial Review Application is as follows:
1. The Authority’ decision to reject the Applicant’s evidence about his political activities, convictions, and intentions were he to be returned to Vietnam without exercising its power to hear from the Applicant pursuant to section 473DC(1) and (3)(b) was legally unreasonable.
ANR17’s Submissions
ANR17 made the following written submissions concerning ground 1:
(a)in ABT17v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407 (“ABT17”), the High Court held that it was legally unreasonable for the Authority to depart from the credibility findings made by the Delegate without exercising its discretion to hear from an applicant;
(b)in this case, the Delegate, who had had the opportunity to test his evidence, assess the demeanour of ANR17, and form a view about his credit, and general credibility, found him to be a credible witness. That included accepting his account of an attack upon the particular church he was attending, his assault while defending women during that attack, his receipt of a summons to attend the police station, and his subjective fear of persecution at the hands of the Vietnamese Communist party;
(c)unsurprisingly, given ANR17’s tender years on arrival in Australia, his processing of this information, and his political convictions, were evolving as he spent time with the expatriate Vietnamese community in Perth;
(d)ANR17 gave a clear and direct account of his activities in which he was unequivocal about the development of his political views and his intention to continue to express those views if he were returned to Vietnam;
(e)ANR17 was clear that the gatherings each week were “Viet Tan” gatherings, and that they helped to raise funds for the Viet Tan;
(f)on ANR17’s account, he had attended protests on the day known in the protest movement as “Black April” on an annual basis;
(g)ANR17 had spoken about his determination to continue to educate the Vietnamese people through his Facebook profile;
(h)it was open to the Authority to reject ANR17’s evidence. However, given the credibility findings made by the Delegate with respect to his evidence generally, it was legally unreasonable to reject this evidence without exercising the power to hear from ANR17 first;
(i)Edelman J’s observation in ABT17 at [112] (emphasis added and footnotes omitted in ANR17’s Written Submissions) is also applicable in this situation:
…. I agree with Nettle J and Gordon J that the Immigration Assessment Authority acted unreasonably by departing in its reasoning from the delegate's finding that the appellant's claims were plausible. As Nettle J explains, it was a legal error for the Authority, which did not have the opportunity to assess the demeanour of the appellant including the demonstration of his scarring, to depart from the delegate's assessment of the appellant's credibility. There was no legal basis to depart from the findings of the delegate, which were not contrary to incontrovertible facts or uncontested testimony, or glaringly improbable, or contrary to compelling inferences, or otherwise erroneous.
(j)in ABT17 at [62]-[63] per Nettle J (emphasis added and footnotes omitted in ANR17’s Written Submissions) it was said that:
Ordinarily, in an appeal by way of rehearing from the judgment of a judge alone, a court of appeal has before it, in the form of the record, all the material that was before the judge and the judge's reasons for judgment and determines the appeal on that basis without receiving further evidence. The court of appeal does not, however, have the opportunity of seeing and hearing witnesses give their evidence, or thus the opportunity of making a fully informed assessment of the witnesses' demeanour. Accordingly, the established position in relation to an appeal by way of rehearing from the judgment of a judge alone is that, where the judge's decision is affected by his or her impression of the credibility of a witness whom the judge has seen and heard give evidence, the court of appeal must respect the attendant advantages of the judge in assessing the witness's credibility. Of course, if, making proper allowance for those advantages, the court of appeal concludes that error is shown, it is incumbent on the court of appeal to proceed accordingly. That may be so where the judge's findings, despite being based or said to be based upon an assessment of credibility, are contrary to "incontrovertible facts or uncontested testimony", "glaringly improbable", or "contrary to compelling inferences". But where no such error is apparent, it is not a justification for the court of appeal to depart from the judge's assessment of the credibility of the witness that the court of appeal may consider that the judge did not give sufficient weight to matters that the court of appeal is of opinion bear upon the assessment. In those circumstances, it would be impermissible for the court of appeal to depart from the judge's assessment.
Parity of reasoning mandates that similar considerations apply to the IAA’s conduct of a fast track review….
Minister’s Submissions
The Minister made the following written submissions concerning ground 1:
(a)the discretionary powers conferred on the Authority by Div 3 of Pt 7AA (including s 473DC(3)) of the Migration Act are conferred on the implied condition that they are to be exercised within the bounds of legal reasonableness: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600 (“Plaintiff M174”) at [21] per Gageler, Keane and Nettle JJ. In DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134; (2019) 366 ALR 665 (“DPI17”) at [35] per Griffiths and Steward JJ the plurality in the Full Court of the Federal Court summarised propositions established by the plurality’s judgment in Plaintiff M174 in relation to Pt 7AA of the Migration Act;
(b)the Authority’s power in s 473DC(3) of the Migration Act is to invite an applicant to provide “new information” in the sense described in s 473DC(1) of the Migration Act and referred to in ABT17 at [9] per Kiefel CJ, Bell, Gageler and Keane JJ (“knowledge of facts or circumstances relating to material or documentation of an evidentiary nature”). Section 473DC(3) of the Migration Act does not confer upon the Authority a general power to invite an applicant to an interview to explain their claims: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 (“DGZ16”) at [72] per Reeves, Robertson and Rangiah JJ;
(c)as the High Court has observed, the test of legal unreasonableness is necessarily stringent: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1 (“SZVFW”) at [11] per Kiefel CJ, [51]-[60] per Gageler J, [78]-[87] per Nettle and Gordon JJ, and [131]-[135] per Edelman J; Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 95 ALJR 54; (2020) 385 ALR 212 (“DUA16”) at [27] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ. It is accepted there may be circumstances in which it would be legally unreasonable for the Authority not to exercise the discretion in s 473DC(3) of the Migration Act: Plaintiff M174/2016 at [21], [49] and [71] per Gageler, Keane and Nettle JJ, [86] per Gordon J and [97] per Edelman J; DPI17 at [36] per Griffiths and Steward JJ and [91] per Mortimer J. The present is not one of them. The Authority’s reasons reveal an “evident or intelligible justification”: Li at [76] per Hayne, Kiefel and Bell JJ, and those reasons permit the Court to comprehend how its discretionary decision was arrived at;
(d)whether it was legally unreasonable for the Authority not to have exercised its power in s 473DC(3) of the Migration Act must be assessed against the relevant statutory framework: BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71] per Thawley J; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 (“Stretton”) at [7] and [16] per Allsop CJ and [62] per Griffiths J; SZVFW at [59] per Gageler J and [90]-[98] per Nettle and Gordon JJ. Pursuant to s 473DA of the Migration Act, Div 3 of Pt 7AA together with ss 473GA and 473GB of the Migration Act “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule”;
(e)section 473DB of the Migration Act “sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant”: Plaintiff M174 /2016 at [22] per Gageler, Keane and Nettle JJ. There is no procedural fairness obligation on the Authority to put dispositive matters to an applicant or to alert an applicant that a matter might be decided on a different basis from how the matter was determined by the Delegate: DGZ16 at [72] per Reeves, Robertson and Rangiah JJ;
(f)Sub-Div C of Div 3 of Pt 7AA of the Migration Act provides for limited exceptions to the general rule that the Authority is not to accept or request new information: s 473DC of the Migration Act. Section 473DD of the Migration Act imposes restrictions on when the Authority can consider new information. The Authority’s obligations in relation to putting to an applicant particulars of new information are identified in s 473DE of the Migration Act. Importantly, the Authority was not obliged to put to ANR17 particulars of new information that ANR17 has given to it: s 473DE(3)(c) of the Migration Act and reg 4.41 of the Migration Regulations1994 (Cth);
(g)this is not a case in which there was a new dispositive issue before the Authority in relation to which it needed, but did not have, information from ANR17: cf Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 at [82] per Robertson, Murphy and Kerr JJ; Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526; (2018) 357 ALR 474 at [94] per Robertson, Murphy and Kerr JJ. On the contrary, the Authority made factual findings on the basis of the same body of material that was before the Delegate and new information ANR17 provided to it, which it applied s 473DD of the Migration Act to consider: DGZ16 at [72] per Reeves, Robertson and Rangiah JJ;
(h)the Authority did not reject ANR17’s account wholly or substantially on the basis of its own assessment of the manner in which the account was given contrary to an acceptance of that account by the Delegate: cf ABT17 at [25] per Kiefel CJ, Bell, Gageler and Keane JJ, or in circumstances where the Delegate made favourable findings on the basis of demeanour, and told ANR17 at interview that aspects of his account were accepted: cf DPI17 at [14] and [46] per Griffiths and Steward JJ;
(i)ANR17 relies predominantly on ABT17. ANR17’s Written Submissions at [50] do not represent a complete or entirely accurate statement of the ratio of the majority in ABT17. It is assumed that this paragraph in ANR17’s Written Submissions is intended to represent a fairly general and high-level statement by way of a summary of the outcome in that case. In ABT17 a delegate of the Minister had interviewed ABT17 personally. The Authority on review listened to an audio recording of that interview. The Authority then rejected a central part of ABT17’s account, which the Delegate accepted as plausible. Relevantly, the Authority reasoned that ABT17 at times sounded vague and hesitant in his evidence to the Delegate: ABT17 at [15] per Kiefel CJ, Bell, Gageler and Keane JJ;
(j)in ABT17 the majority held that the Authority was able to exercise its discretionary powers to get new information to bridge the informational gap in the review materials and that, on the facts of ABT17, legal reasonableness compelled it to do so: at [16], [18], [25], [29]-[30] per Kiefel CJ, Bell, Gageler and Keane JJ, and that the Authority is not required to interview a referred applicant merely because credibility is in issue, but that the Authority will act unreasonably if, without good reason, it does not invite an applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by an applicant, in that case, in an audio-recorded interview, which account the Delegate accepted, wholly or substantially on the basis of the Authority’s own assessment of the manner in which that account was given: at [24]-[25] per Kiefel CJ, Bell, Gageler and Keane JJ;
(k)ABT17 is plainly distinguishable from ANR17’s case as there was no “informational gap” between the Delegate’s Decision and Authority Decision in ANR17’s case. ANR17’s Written Submissions at [58] and [59] refer to the reasoning of Nettle and Edelman JJ in ABT17, who did not form part of the joint majority judgment. In any event, there was no departure by the Authority from favourable credit findings made by the Delegate on the basis of demeanour or at all;
(l)it was not legally unreasonable for the Authority to determine the review without exercising the power under s 473DC(3) of the Migration Act to invite ANR17 to give new information. At CB 345 at [10] the Authority considered its exercise of discretion pursuant to s 473DC(3) of the Migration Act in response to ANR17’s request that it invite him to give new information: CB 312 at [13], stating:
10. While the applicant has provided further new information about his activities in Australia, and aspects of my findings and assessment differ from the delegate, I am satisfied the determinative issues in this matter remain as they were identified by the delegate, including at the visa interview and in the delegate’s decision. I have not obtained further information, but have accepted and weighed the new country information put before me. I have accepted the applicant’s submissions, notwithstanding there [are] compliance issues in terms of the Practice Direction. I consider the submissions respond fully to the matters raised in the interview and later arising in the delegate's decision, but also in terms of his recent activities. I have weighed his request, but I consider the applicant has had a fair and reasonable opportunity to make his case and respond to the delegate’s decision. In all the circumstances, I am not satisfied it is necessary to obtain new information from the applicant or seek his further comment, whether at interview or in writing.
(m)the Authority engaged with ANR17’s request and its reasons reveal an evident and intelligible justification for its decision not to exercise its power under s 473DC(3) of the Migration Act: Singh at [47] per Allsop CJ, Robertson and Mortimer JJ. The Authority Decision at CB 345 at [10] must also be read in the context of those paragraphs immediately preceding it, in which the Authority applied s 473DD of the Migration Act favourably to ANR17 and considered new information he had put to it: CB 344-345 at [5]-[9]. The Authority also considered ANR17’s representative’s written submissions dated 2017 and 2020. There is no evidentiary basis to suggest that the Authority must have had reason to believe that ANR17 possessed some further relevant information that he had withheld the provision of: “all that existed was a mere possibility that the appellant might have something useful to say that had not already been said” and therefore legal unreasonableness cannot be demonstrated: BWY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 860 (“BWY17”) at [46] per Snaden J;
(n)legal reasonableness principles did not oblige the Authority to invite ANR17 to give it further new information going to his activities in Australia in or about 2017-2020, merely because the Authority’s appraisal of the new information it considered was, in summary, that it reflected a superficial degree of involvement in political activity: CB 356 at [71], showed limited involvement: CB 355 at [66] and 356 at [70], and where the Authority was not satisfied that the evidence supported ANR17’s assertion that he would be politically active, involved, or outspoken: CB 356 at [73]; and
(o)there was no departure by the Authority from findings made by the Delegate concerning the evidence of 2017-2020 activities; this material was not before the Delegate. The Delegate’s findings with respect to ANR17’s Australian activities (as they were put to the Delegate) included that ANR17 attended a demonstration to support people who relied on fishing income in his home area, not because of an interest in the Viet Tan group: CB 200, and ANR17’s involvement with the group was, to some extent, engaged in to strengthen his protection claims: CB 201, cf ANR17’s Written Submissions at [57].
Consideration – ground 1
In certain circumstances unreasonableness, and more correctly, legal unreasonableness, may constitute jurisdictional error: Li at [63]-[76] per Hayne, Kiefel and Bell JJ. Reasonableness is an implied condition on the valid exercise of the Tribunal’s statutory duty: Li at [92] per Gageler J. What is considered the legal standard of reasonableness is predicated on the scope and purpose of the statutory functions conferred upon the Tribunal under the Migration Act: Li at [67] and [74] per Hayne, Kiefel and Bell JJ. In Stretton at [9] per Allsop CJ it was observed that:
The conclusion that a decision is legally unreasonable by reference to the outcome, whether or not there are reasons therefor, is assisted by reference to expressions taken from cases such as those mentioned in [5] above. Any criticism that these explanations are circular and vague is to be met by attending to the terms, scope and policy of the statute and the values drawn from the statute and the common law that fall to be considered in assessing the decision. The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power - a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual - will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.
Legal unreasonableness is fact dependent and each case must be examined and determined in light of the individual circumstances and evidence in a proceeding: Stretton at [10] per Allsop CJ; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [30]-[33] per Allsop CJ, Besanko and O’Callaghan JJ (and cases there cited). Fact-finding can only be impugned where the factual determination is illogical, irrational or lacking a basis in a finding or inferences supported on logical grounds: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 at [52] per McKerracher J. SZMDS sets a very high threshold for findings of irrationality or illogicality, and that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence is insufficient to establish irrationality or illogicality: at [131] per Crennan and Bell JJ.
The relevant principles in relation to legal unreasonableness were conveniently summarised by the Federal Court in Pandey at [41] per Wigney J and included the following:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) …
(h) …
(i) …
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
In ABT17 at [27]-[30] per Kiefel CJ, Bell, Gageler and Keane JJ the majority in High Court said that:
27The gist of what happened is that the Authority listened to an audio recording of an interview which the delegate who made the referred decision conducted in person with the appellant. Finding the appellant's evidence in the interview "to be generally lacking in detail", the appellant "appear[ing] unable to expand in any detail on a number of his written claims and at times sound[ing] vague and hesitant", the Authority rejected a central part of the account given by the appellant in the interview which the delegate had accepted as plausible and generally consistent with country information. In particular, the Authority rejected the appellant's account of having been detained and beaten and sexually tortured by the Sri Lankan Army on suspicion of having been an LTTE supporter to find that there was "no credible information" before it indicating that he was of any interest to Sri Lankan authorities and that it was not satisfied that he had a "profile" that would be of interest to those authorities at the time of its decision or in the foreseeable future.
28 The Authority did not suggest that anything else in the review material rendered the appellant's account of having been detained and beaten and sexually tortured inherently improbable. To the contrary, the Authority noted that there was "ample country information" confirming "sexual based torture of Tamils who are suspected of LTTE or pro-separatist sympathies". The Authority was rather led to reject the appellant's account of the incident, "despite sympathetic questioning by the delegate" and despite its acknowledgement of cultural barriers to the appellant (as a young Tamil male) discussing sexual matters, having regard to the appellant's statement to the delegate (who was female) in the presence of his representative (who was also female) that he was "unable to talk about it", having regard to him being "unable to provide any details of what happened to him other than saying there were 2 or 3 [Sri Lankan Army] men and that he was unconscious for a lot of the time", and having regard to the reasons he gave in the interview for not seeking medical treatment being "unconvincing".
29 Had the Authority acted reasonably in performing its duty to review the decision of the delegate cognisant of its informational disadvantage in assessing the credibility of the appellant when compared with the delegate, the Authority would not have rejected the appellant's account of having been detained and beaten and sexually tortured on the basis of how he sounded on the audio recording without inviting him to a further interview so as to see him as well as hear him. By failing to invite the appellant to a further interview, the Authority transgressed the reasonableness condition implied into both the imposition of its duty to conduct a review and the conferral of its powers to get and consider new information in conducting a review.
30 To be clear, the breach of the reasonableness condition by the Authority lay not in evaluating the review material for itself to arrive at a different assessment of credibility than did the delegate, but in failing in the circumstances to use the powers at its disposal to get and consider new information in order to supplement the review material so as to place itself in as good a position to assess credibility as had been the delegate.
It is convenient to first deal with ANR17’s reliance on ABT17 because, to the not inconsiderable extent that ANR17 relies on ABT17, the circumstances of that case are readily distinguishable from the circumstances of the present case.
The primary requirement for the making of a decision by the Authority is that it be made without interviewing an applicant and that it be determined on the basis of the material that was before the Delegate, more precisely the material provided to the Authority by way of review material for the purposes of s 473CB of the Migration Act: Plaintiff M174 at [22] per Gageler, Keane and Nettle JJ.
In this case, the Authority made the Authority Decision on the basis of the same material as was before the Delegate, and on which the Delegate’s Decision was made, save for such new information as the Authority had regard to: see [4] above. Critically, however, there was no departure by the Authority in the Authority Decision from any credibility finding made by the Delegate, and it took a view as to the profile of these activities that meant that the Authority considered them to be so low profile as to not give rise to a risk of serious or significant harm to ANR17 upon his return to Vietnam. The Authority was not rejecting the account of ANR17’s activities, rather, it was making an appraisal of those activities and assessing their nature in terms of the political profile that they gave to ANR17. This did not involve making a different finding on credibility or demeanour to any findings made in the Delegate’s Decision in that regard and, therefore, did not warrant consideration of new information in this regard from ANR17. Section 473DC(3) of the Migration Act is not engaged merely because an applicant might have something more to say about a particular issue: BWY17 at [46] per Snaden J. In the circumstances, the determinative issues before the Authority remained the same as they were before the Delegate, and where no different finding on credibility or demeanour to the findings made in the Delegate’s Decision was made in the Authority Decision, the reasons for not exercising the discretion in s 473DC(3) of the Migration Act to consider new information concerning ANR17’s political activities was based upon an evident intelligible justification for the reasons set out in the Authority Decision at CB 345 at [10] (as set out at [21(l)] above), and was therefore not legally unreasonable: Pandey at [41(d)] per Wigney J.
For the above reasons, ground 1 of the Amended Judicial Review Application is not made out and does not establish jurisdictional error in the Authority Decision.
Ground 2
Ground 2 of the Amended Judicial Review Application is as follows:
2.The IAA failed to give an intelligible justification for preferring the assessment of risk of harm with respect to low level opposition protestors/supporters contained with the UK Home Office Report over the assessment contained within the DFAT report, and/or otherwise failed to deal with the DFAT report on a material fact.
Particulars
2.1 There was a conflict between the DFAT report and the UK report.
2.2 The DFAT report assessed that low-level protestors against the government and their supporters were at moderate risk of harassment from the authorities and violence, which meant that DFAT had observed sufficient incidents of this conduct to consider it a pattern.
2.3 The Authority summarised the UK report as stating that “low-level protestors/opposition supporters may be subject to intimidation”, arrest, and release, but that this “is not sufficiently serious to amount to persecution or serious harm”.
2.4 The Authority relied upon the UK report.
2.5 The DFAT report either contained additional information, or was inconsistent with the UK report, and the Authority was required to deal with the DFAT report, and/or explain why it preferred the UK report.
2.6 The Authority did not provide an evident and intelligible justification for ignoring detail contained in the DFAT report, or for preferring the UK report.
2.7 In assessing the Applicant’s claims, the IAA found that:
‘over the span of the last few years, the applicant has shared political postings on his Facebook profile’, but his ‘social media activities are superficial, passive rather than activist, and low level’;
‘there is evidence of his [protest] activities in Australia’;
‘his attendance at the Black April commemoration and protest in 2017 may be identifiable from social media’;
‘the protests he has attended may have been organised by the Viet Tan or VCA’;
‘the applicant has some low level progressive political views’;
‘the nature of his participation was superficial and low level’; and
if identified… the authorities would assess him as a low-level participant in political protests and social media in Australia
2.8 Having found that, if identified, the Applicant was a ‘low-level’ protester against the Vietnamese government, it was incumbent on the IAA to properly consider whether the ‘moderate risk of harassment from authorities, which may include arrest and being subjected to violence’ would give rise to a real chance of persecution or real risk of significant harm.
Applicant’s Submissions
ANR17 made the following written submissions concerning ground 2:
(a)it was mandatory for the Authority to take into account the DFAT Report. There was a fundamental conflict between the DFAT Report and the UK Home Office: ‘Country Policy and Information Note Vietnam: Opposition to the State’ 1 September 2018, (“UK Home Office Report”) and it was necessary for the Authority to confront it;
(b)the DFAT Report stated that there was a “moderate risk of harassment from authorities which may include arrest and being subjected to violence” for having been a “low-level protester against the Vietnamese government in Australia”;
(c)where DFAT used the term “moderate risk”, it meant that “DFAT is aware of sufficient incidents to suggest a pattern of behaviour”: Jahnke Affidavit, Ex 2, p 6;
(d)the Authority relied upon the UK Home Office Report, which it summarised as saying that “where a person is perceived to be a low level protestor/opposition supporter they may be subject to intimidation by police and may be arrested and subsequently released but this is not sufficiently serious by its nature and repetition as to amount to persecution or serious harm (in the UK context)”;
(e)this was either in direct conflict with the DFAT summary on the same point, or left out a critical component, which was that low-level supporters may be “subject to violence”;
(f)the Authority was required to provide an intelligible reason for preferring the UK Home Office Report over the DFAT Report. In BIN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1094 (“BIN18”) at [12] per Lee J the Federal Court said:
“While it was open for the IAA to prefer the views contained in the UK Home Office report over those in the DFAT report, it needed to show an intelligible reason why it did so, particularly in circumstances where the reports offered differing opinions on a matter integral to the question for determination.”
(g)the failure to provide such a determination was material because it could have affected the outcome.
Minister’s Submissions
In the Minister’s Written Submissions, the Minister made the following submissions concerning ground 2:
(a)it was a matter for the Authority, not this Court, to evaluate and assess the available country information and other material before the Authority, and to make findings of fact on that basis: SZUEP v Minister for Immigration and Border Protection [2017] FCAFC 94; (2017) 160 ALD 35 at [27] per Perram, Robertson and Wigney JJ; DHA16 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1443 at [46] per Banks-Smith J. That division of responsibility is important to the disposition of this ground because not all the country information before the Authority supported the contention underlying this ground, namely, that low-level protesters against the Vietnamese government faced a moderate risk of harassment;
(b)in addition to considering the country information that is the subject of this ground: the DFAT Report – CB 356 at [74], the Authority also considered, and elected to rely upon, the UK Home Office Report which was said by the Authority to provide that “where a person is perceived to be a low level protester/opposition supporter they may be subject to intimidation by police and may be arrested and subsequently released but this is not sufficiently serious by its nature and repetition as to amount to persecution or serious harm (in the UK context)”: CB 357 at [76]. Having reflected upon both items of country information, the Authority concluded that they in fact “highlight[ed] the risks for organisers and activists” and it was “not satisfied the applicant has anywhere near such a profile, whether actual or imputed”: CB 358 at [78]. ANR17 has not suggested that the two reports could not be reconciled in the manner undertaken by the Authority: BIN18 at [9] per Lee J;
(c)the Authority’s engagement with the two pieces of country information in question (as well as other sources) fed into its ultimate lack of satisfaction that ANR17 “shares, or would share, the risk profile of protestors and other political activists in Vietnam” and it was this lack of satisfaction that resulted in the Authority concluding that ANR17’s political activity (and the Vietnamese authorities likely perception of it) did not entitle him to the SHE Visa: CB 358-359 at [81]. Seen in that light, ANR17’s assertion that the Authority’s consideration of the relevant issue was not proper because the Authority did not use the country information in the way ANR17 would have preferred simply invites the Court to slide into impermissible merits review of the Authority’s findings on the issue: SZQGC v Minister for Immigration and Citizenship [2012] FCA 598; (2012) 128 ALD 338 (“SZQGC”) at [32] per Griffiths J.
In the Minister’s Further Written Submissions, the Minister made the following additional submissions concerning ground 2:
(a)on the Authority’s findings of fact, ANR17 on his return to Vietnam would not and did not fall within the category “low level opposition protestors/supporters”. If there was any distinction between the assessments of risk to such individuals by DFAT: DFAT Report, and the UK Home Office Report, this was immaterial to ANR17 because he was not such an individual;
(b)specifically, at CB 357-58 at [78]-[80], the Authority found:
(i)there was only a “very remote” chance that ANR17 would be identified and targeted by the Vietnamese authorities for his participation in activities in Australia. DFAT and the UK Home Office identified the risks for organisers and activists; the Authority was not satisfied ANR17 had anywhere near such a profile, actual or imputed, arising from his Australian activities: CB 357 at [78];
(ii)on return to Vietnam ANR17 had not satisfied the Authority that “he would be politically active (online or otherwise), or that he would be active as a protestor, dissident, leader or organiser, or have any other profile that would make him a person of interest for the Communist Party, the Vietnamese Government or authorities”: CB 358 at [79] (emphasis added in the Minister’s Submissions). That is, on return, the Authority was not satisfied ANR17 would be politically active at all, or have any profile at all. The Authority was satisfied that ANR17 “would not involve himself with protests on return to Vietnam”: CB 358 at [79]; and
(iii)it accepted that ANR17 “has some low level progressive political views”, but said that ANR17’s Australian activities did not genuinely or credibly reflect his low-level political opinions, “or how he would engage politically on return to Vietnam”, and found that on return to Vietnam ANR17 “would not be involved in political protests or any other political activities” and “would not engage with or join the Viet Tan or involve himself with any political groups on his return to Vietnam” and that any expression of ANR17’s views would not “put him at any chance or risk from the Vietnamese authorities”, and the Authority was “not satisfied he would attend protests or be politically active, even in a low level sense”: CB 358 at [80] (emphasis added in the Minister’s Submissions);
(c)at CB 358 at [81], having considered both the DFAT Report and UK Home Office Report (and other country information) the Authority was not satisfied that ANR17 had any risk profile, at all: see also the final sentence at CB 360 at [87]. Any difference in the assessments of DFAT and the UK Home Office, if there was any difference at all having regard to the different language they used and the different jurisdictional contexts, was completely irrelevant;
(d)the particulars to this ground of review refer to the Authority’s findings in relation to ANR17’s activities in Australia. As discussed above, the Authority found that on return to Vietnam ANR17 would have no political profile whatsoever and would not engage in any political activity at all. The Authority’s findings concerning ANR17’s “low level” activity and expression of views in Australia should not be conflated with its findings concerning his future activity on any return to Vietnam. There was no finding by the Authority that ANR17, on return to Vietnam, would be a low-level protester against the Vietnamese government. Its findings were directly contrary to an acceptance of such a proposition;
(e)ANR17 has not shown that there is any direct conflict between the DFAT Report and the UK Home Office Report, which the Authority was required to resolve in order to validly complete the exercise of its jurisdiction;
(f)there is no direct or necessary inconsistency between the two reports as set out at CB 356 at [74] and CB 357 at [76] (see below at [34]), particularly where there is no evidence as to what the criteria for the grant of protection in the United Kingdom are, and where the UK Home Office Report does not discuss in this paragraph the likelihood of violence to a low-level supporter, or expressly refer to violence at all. The Authority did not perceive the Reports to be inconsistent and rely on one in preference to the other, see, for example, CB 357-358 at [78] second to last sentence, CB 358-359 at [81] first sentence;
(g)the Authority also did not “ignore” either Report: ground 2, particular 2.6. On the contrary, its reasons reveal a careful engagement with, and repeated reference to, both Reports;
(h)the choice and interpretation of country information is a factual matter for the Authority: NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 (“NAHI”) at [11]-[13] per Gray, Tamberlin and Lander JJ; CXS18 v Minister for Home Affairs [2020] FCAFC 18 at [37] per McKerracher, White and Colvin JJ. To the extent, if at all, that the Authority preferred some information, or gave greater weight to certain information over that country information referred to by ANR17, this does not reveal jurisdictional error;
(i)contrary to ANR17’s Written Submissions at [8], it was not mandatory for the Authority to consider the DFAT Report because of Ministerial Direction No. 84 dated 24 June 2019, with effect from 25 June 2019;
(j)in making the decision under s 65, the Delegate was obliged to comply with any direction made by the Minister pursuant to s 499 of the Migration Act. This included Ministerial Direction No. 56 of 21 June 2013, which was revoked by Direction No. 84, but which was in force at the time of the Delegate’s Decision dated 19 December 2016. Direction No. 56 of course did not compel the Delegate to give any particular weight to a DFAT country information report prepared for protection status determination purposes: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J;
(k)both Directions numbered 56 and 84, in their terms, are said to be applicable to decision-makers performing functions or exercising powers under ss 65, 414 or 415 of the Migration Act. Section 499 of the Migration Act and Directions 56 and 84 have no application to reviews under Part 7AA: EAJ18 v Minister for Home Affairs & Anor [2018] FCCA 3780 at [21] per Judge Street, from which an appeal was dismissed EAJ18 v Minister for Home Affairs [2019] FCA 1057. This is because the Authority’s decision-making power arises under s 473CC of the Migration Act, not s 65 (Minister), or ss 414 or 415 under Div 4 of Pt 7 of the Migration Act (Tribunal); and
(l)in any event, it is clear that the Authority considered both the DFAT Report and the UK Home Office Report, and that they both formed part of ANR17’s new information which the Authority applied s 473DD of the Migration Act to consider, and they are both referenced expressly in the Authority Decision.
Consideration – ground 2
It is convenient to first set out the particular passages in the Authority Decision with which ANR17 takes issue for the purposes of ground 2. They are:
(a)regarding the DFAT Report, at CB 356 at [74]-[75] as follows:
74.I have considered the country advice before me. DFAT states that activists who are known to authorities as active organisers of protests, or who openly criticise the state, face a high risk of official sanction. This may include surveillance, harassment, preventative detention, physical assault, travel bans, arrest, and prosecution. This risk is higher for those engaged in areas judged politically sensitive, or who have well-established links with outlawed political organisations. Such activists may not be able to access legal representation, and are unlikely to receive a fair trial. DFAT assesses that low-level protesters against the government, and their supporters, face a moderate risk of harassment from authorities, which may include arrest and being subjected to violence.
75. The Vietnamese Government has targeted those who are outspoken and critical of the Vietnamese government and the Communist Party, and some political activists have experienced problems on return to Vietnam. DFAT reports that since late 2017 there has been a significant rise in instances in which authorities have arrested and charged high-profile activists under the national security provisions, and that many of those arrested have received lengthy sentences after highly publicised trials. While those recent cases are concerning, I consider they each relate to prominent activists, including for worker rights, anti-corruption, land rights, human rights and environmental activists.
(b)regarding the UK Home Office Report, at CB 357 at [76] as follows:
76. According to the UK Home Office, those who openly criticise the state or who protest against the government are likely to attract adverse attention from the authorities. Treatment will vary depending on a person’s level of involvement, the nature of the activities, the person’s role in those activities and their profile. Where a person is perceived to be a low level protester/opposition supporter they may be subject to intimidation by police and may be arrested and subsequently released but this is not sufficiently serious by its nature and repetition as to amount to persecution or serious harm (in the UK context). A person who is known to be an active organiser or leader of political opposition is likely to be subject to persecution and/or serious harm. The risk will depend on the profile, activities, nature of criticism and previous adverse interest.
(c)the findings made by the Authority at CB 356 and 357-358 at [71]-[72] and [78]-[79] respectively. It is convenient to set these out in full, with the particular sections identified in ground 2 emphasised:
71.I have weighed the applicant’s evidence and submissions about his political involvement in Australia, but find it superficial and unconvincing. I do accept he engages with members of the Vietnamese community after church on Sundays, usually at a residential home. I accept that some members of that community may be members of Viet Tan or VCA, however I find the applicant is not a member of these groups. I consider any involvement he has with members of the Viet Tan and VCA is incidental to his involvement with the Vietnamese community in Western Australia after church services, and relates to social and community support after church, rather than political activism or involvement. I accept the protests he has attended may have been organised by the Viet Tan or VCA, but I find his attendance at these protests was superficial and designed to strengthen his protection visa claims.
72. I have closely considered [h]is Facebook evidence. I accept over the span of the last few years, the applicant has shared political postings on his Facebook profile. I acknowledge this may not encompass the totality of his Facebook participation, but what he has provided indicates he shares his attendance at the protest in 2017, and around a half dozen political postings in both 2018 and 2019. The political posts are not created by the applicant, but he does provide some brief comment critical of the Communist Party when sharing some of the articles on his Facebook page. Significantly for the purpose of this review, other than sharing his attendance at the 2017 protest and a photo of him with an older person in a military uniform, which I accept is from a Black April commemoration, the applicant has not demonstrated any of his own political activities. The applicant does not appear to have created his own political posts, discussed or evidenced his own activism, detailed how he has been politically active or organised or incited protests, or provide any indication of online activism or opinion initiated by him. Consistent with my other concerns. I consider his social media activities are superficial, passive rather than activist, and low level.
…
78.In terms of the applicant’s claims, I accept there is evidence of his activities in Australia. I accept that his attendance at the Black April commemoration and protest in 2017 may be identifiable from social media. I also consider it is possible the Vietnamese authorities may have informants in the Australian Vietnamese community that attend these protests. While remote, I accept it is possible the Vietnamese authorities could identify the applicant from these protests. However, I consider the chance that the applicant would be identified and targeted by the Vietnamese authorities for his participation, to be very remote. Firstly, there is the remote chance of him being identified. Secondly, while the applicant may have attended three protests, I consider the nature of his participation was superficial and low level. There is no suggestion he was active or involved in the organisation of these protests, or that he had other active roles in political or activist groups. I consider the DFAT and UK Home Office advice highlights the risks for organisers and activists. I am not satisfied the applicant has anywhere near such a profile, whether actual or imputed.
79. On return to Vietnam, the applicant has not satisfied me he would be politically active (online or otherwise), or that he would be active as a protestor, dissident, leader or organiser, or have any other profile that would make him a person of interest for the Communist Party, the Vietnamese Government or authorities. I accept the submissions that the Vietnamese Government has a wide reach in terms of its surveillance of Vietnamese nationals domestically, overseas and online. However, if identified, I am satisfied the authorities would assess him as a low-level participant in political protests and social media in Australia. While I accept participation in protests in Vietnam may put a person at a risk of harm, as would certain activism online, I am satisfied he would not involve himself with protests on return to Vietnam, nor am I satisfied he would continue to engage politically online.
It is an established principle that in referring to and considering country information, the identification of relevant country information and the weight to be attributed to it are matters for the Authority: NAHI at [11] and [13] per Gray, Tamberlin and Lander JJ, and that the Authority is “not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item” NAHI at [14] per Gray, Tamberlin and Lander JJ. It is not for the Court to make an assessment of the “truth” of country information, for to do so would involve the undertaking of impermissible merits review: NAHI at [11] per Gray, Tamberlin and Lander JJ.
It is not an error for the Tribunal to rely upon country information that is wrong. In NAHI at [11] per Gray, Tamberlin and Lander JJ, the Full Court of the Federal Court stated:
…It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on “country information” that is not true. The question of the accuracy of the “country information” is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of “country information”, it would be engaging in merits review. The Court does not have power to do that.
It has been confirmed by the Federal Court that this passage from NAHI “remains good law” (albeit that it remains subject to the principles of legal unreasonableness): EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177 at [39] per Farrell J. Unreasonableness is to be assessed “at the time the power is exercised or should have been exercised”: DUA16 at [26] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ.
The Tribunal is not under a wide-ranging duty to investigate for itself the correctness of the propositions asserted in country information, such as a DFAT report: such a duty would be untenable: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15.
In reading the DFAT Report and the UK Home Office Report, it is not readily apparent, what, if any, conflict between these reports arises. The analysis made by the Authority at CB 356 at [74] and CB 357 at [76] concerning the two reports appears to be complementary, or at the very least, not in opposition. ANR17 has failed to articulate in written and oral submissions where it is that these pieces of information fail to be reconciled. It is apparent that the Authority has had regard to both pieces of information and made its findings at CB 357-359 at [78]-[81] in a manner that is logical, rational and in conformity with the overarching principle that the identification of relevant country information and the weight to be attributed to it are matters for the Authority: NAHI at [11] and [13] per Gray, Tamberlin and Lander JJ. The high threshold for establishing jurisdictional error by way of a failure by the Authority to provide an intelligible justification for its findings is simply not met: SZMDS at [131] per Crennan and Bell JJ. Otherwise, ground 2 seeks to have the Court examine the Authority Decision overzealously, in a manner which is impermissible: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; SZQGC at [32] per Griffiths J.
To the extent that ANR17 seeks to reply on BIN18, the matters are plainly distinguishable. BIN18 was a case where there was a clear and obvious conflict in the country information, such that the Authority itself recognised that the country information provided a conflicting assessment. In BIN18 the Authority purported to reconcile the conflicting information by essentially preferring one over the other without any further elaboration as to why it preferred the information that it did. That failure to provide any reasoning for preferring one source of country information over another was found to amount to jurisdictional error. In the present case, there is no such stark conflict in the country information, and it was unnecessary for the Authority to justify its acceptance of both items of country information, particularly in circumstances where the Authority’s factual findings regarding how ANR17 would conduct himself on return to Vietnam make immaterial any possible conflict in the country information. Ultimately the Authority’s finding at CB 358 at [80] that “[i]f the applicant returned to Vietnam … he would not be involved in political protests or any other political activities”, makes such distinctions immaterial: MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
The Court finds that ground 2 is not made out, and does not reveal jurisdictional error in the Authority Decision.
CONCLUSION AND ORDERS
The Court has concluded that neither ground of the Amended Judicial Review Application has been made out, and there is therefore no jurisdictional error in the Authority Decision. The Court will therefore order that the Amended Judicial Review Application be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 5 May 2022
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