ASZ17 v Minister for Immigration
[2018] FCCA 2863
•16 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASZ17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2863 |
| Catchwords: MIGRATION – Application for judicial review of decision of the Immigration Assessment Authority – applicants Vietnamese Catholics – application for protection visa – fast track applicants – jurisdictional error – inconsistencies in evidence – breach of procedural fairness – applicants not invited to comment or give further evidence about inconsistencies identified by IAA – legal unreasonableness – conclusions reached by IAA said to be illogical or unreasonable – matters to be considered – no error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), Part 7AA. ss. 5; 5(1); 5H; 5J; 36(2)(a); 36(2)(aa); 46A; 46A(1); 46A(2); 65; 473BA; 473CA; 473CB; 473CC; 473DA; 473DB; 473DC; 473DC(1); 473DC(2); 473DC(3). |
| Cases cited: BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 179 |
| First Applicant: | ASZ17 |
| Second Applicant: | ATA17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 64 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 20 June 2018 |
| Date of Last Submission: | 20 June 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Barnes |
| Solicitors for the Applicant: | Connolly & Co |
| Counsel for the First Respondent: | Ms Wells |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | Submitting appearance |
ORDERS
The application filed 22 February 2017 be dismissed.
The applicants pay the First Respondents costs fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 64 of 2017
| ASZ17 |
First Applicant
| ATA17 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants in these proceedings seek judicial review of a determination of the Immigration Assessment Authority,[1] made on 25 January 2017, not to grant them Safe Haven Enterprise Visas,[2] pursuant to the provisions of the Migration Act 1958.[3]
[1] Hereinafter referred to as “the IAA”
[2] Hereinafter referred to as “SHEV”. This visa is analogous to a protection visa, which is created by section 35A of the Act.
[3] Hereinafter referred to as “the Act”
In particular, the applicants assert that they were not provided with procedural fairness, by the IAA, when it conducted its review of the ministerial delegate’s decision not to grant them a SHEV on the following ground:
·they were not invited to give further evidence to the IAA to clarify apparent inconsistencies identified by the IAA about salient aspects of their claim for asylum, which was unfair.
In addition, the applicants assert that the IAA failed to exercise the jurisdiction conferred upon it and therefore its decision is not a valid on the following grounds:
·the decision of the IAA is not a valid exercise of the jurisdiction conferred upon it because it is legally unreasonable in the sense that it is not logical or rational in its composition or reasoning;
·the IAA took into account incorrect considerations when it considered whether there was a real chance the applicant would suffer persecution, if returned to Vietnam, given the first applicant’s previous experiences in Vietnam.
The applicants are husband and wife. They are both citizens of Vietnam, who arrived at Australian territory, by boat, on 28 October 2017. As a consequence of their mode of arrival – without official authorisation to land in Australia – they are each classified as unauthorised maritime arrivals under the Act.
One of the consequences of this classification is to prevent the applicants being automatically able to seek any form of visa, under the Act, to remain in Australia, unless the Minister for Home Affairs[4] provides his authorisation to make such an application.
[4] Previously known as the Minister for Immigration & Border Protection, hereinafter referred to as “the Minister”
Once the legislative bar to the making of a visa application has been lifted by ministerial authority, the provisions of the Act, as amended by the Migration & Maritime Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 apply. In the case of the applicants, the Minister lifted the bar, pursuant to the provisions of section 46A, on 14 January 2016, which enabled them to each apply for a SHEV.
Pursuant to the provisions of Part 7AA of the Act, specific provisions are provided for the review of any decision regarding the immigration status of a visa applicant, in respect of whom the bar has been lifted. In general terms, the amending legislation provides for a fast track review process in respect of unauthorised maritime arrivals to Australia, in respect of whom the Minister has lifted the bar.
In particular, section 5 of the Act was amended to include a definition of a fast track applicant. Such a person is one:
(i) who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii) to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii) who has made a valid application for a protection visa in accordance with the determination; or
Section 5(1) also defines what is meant by the term fast track decision. In general terms, it is a decision to refuse to grant a protection visa to a fast track applicant. It is common ground between the parties that the applicants in these proceedings are fast track applicants, given the circumstances of their arrival in Australia.
Background
The applicants claim to have fled Vietnam because they feared suffering persecution, at the hands of the Vietnamese Government, because they are adherents of the Catholic faith and attended Catholic Church services in Vietnam.
In particular, the husband claims to have been targeted, by the Vietnamese authorities, because he was an active participant in a protest against the government’s treatment of Catholic priests in Vietnam, which led him to be both subject to assault and the prospect of arrest and arbitrary imprisonment. These allegations centre on his connection with the Church at Con Cuong.
In this context, the husband claims to have resided in Nghe An Province of Vietnam since birth and always to have been a practising Catholic. He further claims to have been involved in the Tan Loc Church, particularly a support group, known as the Khoi Binh Christian Community Support Group.
It is the husband’s case that the Con Cuong Church has been a focal point for the practice of the Catholic faith in Vietnam and, as a consequence, has frequently been targeted by the authorities. In these circumstances, in August of 2012, he travelled to the Con Cuong Church to attend a prayer service, which was utilised to advocate for an end to violence against Catholics and to protest against the mistreatment of its priest by the Vietnamese authorities.
The applicant claims that, on his arrival at the Con Cuong Church, he was beaten by three men, who were likely to have been retained by the Vietnamese authorities to intimidate and hurt Catholics, such as him, who were attending the protest prayer service. However, he was able to escape and, with assistance, return to his home.
It was the finding of the ministerial delegate that the husband’s account of this incident is marked by factual inconsistencies and therefore it is not likely to be credible. On review, the IAA took a similar view. This is the central aspect of these proceedings. It being asserted firstly, that the IAA should have taken oral evidence, from the husband, in order to allow him to resolve any apparent inconsistencies; and secondly, in the absence of this clarifying evidence, the basis of this finding is legally unreasonable and therefore untenable.
The husband further claims that, five or six days after the incident at Con Cuong, he was issued with a summons, from the police, to attend at police headquarters at Nghe An. He did not answer the summons and, approximately one week later, he was issued with another summons. In these circumstances, he and his wife elected to flee Vietnam. As such, it is implicit in the applicant husband’s case that he has been identified by the Vietnamese authorities as a person associated with the protest as Con Cuong Church.
It is the husband’s case that he and his wife fear that they will be targeted, by the government, if returned to Vietnam, because he, in particular, has a profile as an advocate for Catholics, within Vietnam and an opponent of the regime. In these circumstances, he and his wife fear to return to Vietnam because they believe they will suffer persecution, at the hands of the Vietnamese authorities, because of their adherence to the Catholic faith and because they are likely to be perceived, by the Vietnamese government, as opponents of it, because of their faith.
In particular, the husband fears he will be arrested and detained, by the Vietnamese government, if he is returned to that country, because of his association with the Catholic church, particularly at Con Cuong, as he will be perceived as having publically criticised the Vietnamese government, for its treatment of Catholics; and in addition, he has failed to respond to two summons’ to attend for questioning, by the authorities, and in this context left Vietnam illegally. If arrested, the husband claims that he is likely to be subject to torture and arbitrary imprisonment.
The applicable legal framework under the Act
The criteria required to be satisfied, in respect of a SHEV, are set out in Schedule 2 to the Migration Regulations 1994 particularly subclass 785 and 790. In general terms, the applicant for such a visa is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
“in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-found fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”
The expression well-founded fear of persecution is defined by section 5J and requires the applicants concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·there is a real chance the applicants would be persecuted for one of these reasons, if returned to Vietnam;
·the persecution in question would involve the applicant suffering serious harm.
Accordingly, the issue to be determined by the Ministerial Delegate and subsequently by the IAA, in conducting its review function, prescribed under Part 7AA, was whether there was a real chance the applicants would be subject to persecution, if returned to Vietnam because of their religious beliefs; political opinions, both actual and likely to be imputed to them, as opponents of the Vietnamese authorities; or because the husband was a member of a particular social group, namely a person who had illegally departed Vietnam.
Provisions relating to Fast Track decisions
Following the lifting of the bar each applicant applied to the Minister, pursuant to the provisions of section 65 of the Act, for a SHEV. Their applications were considered by the Minister’s delegate and a decision made on 16 September 2016 not to grant them each a SHEV. Prior to this decision, the husband had been interviewed by the Ministerial Delegate in respect of his claims for asylum in Australia.
Following any decision declining to grant a visa, to a fast track applicant, pursuant to the provisions of section 65, the Minister is required to refer such decisions for a limited form of review [section 473BA] as soon as reasonably practicable [section 473CA] after a decision is made.
In the current matter, the decision in question was referred to the IAA on 21 September 2016, following the Ministerial Delegate’s decision on 16 September 2016. In between these dates, the husband’s representative provided a further written submission for the possible consideration of the IAA.
Section 473CB sets out the material, which the Secretary of the Department[5] must provide to the IAA. It includes the reasons of the delegate; any material provided by the applicant concerned to the original decision-maker; and any other material considered to be relevant.
[5] Hereinafter referred to as “the Secretary”
Section 473CC provides as follows:
(1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a) affirm the fast track reviewable decision; or
(b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.
The procedure of the IAA and how it is to conduct its fast track review function is delineated in section 473DA, particularly what application the rules of natural justice have to fast track matters, including any requirement to refer documents to an applicant for comment. The section reads as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB indicates that a fast track review is to be conducted only in respect of the material referred to the IAA by the Secretary without accepting or requesting any new information or interviewing the applicant concerned. In the jargon of administrative review, the review arising under Part 7AA is to be “on the papers” alone.
In this context, the IAA’s authority to access additional review material, to that provided to it by the Secretary, is limited and delineated exhaustively in Subdivision C of Part 7AA. Section 473DC grants the IAA a discretion to obtain new information not previously before the Minister at time of decision if it might be relevant.
However, the IAA is under no obligation or duty to obtain such information regardless of whether it is requested to do so by the applicant whose case has been referred to it or any other person [see section 473DC(2)].
As a consequence of the Full Court decision in BMB16 v Minister for Immigration & Border Protection[6] it is clear that the function of the IAA is to evaluate, for itself, the review material provided under section 473CB together with any new information it obtains and then to either affirm the delegate’s decision or remit the decision for reconsideration, in accordance with such directions or recommendations as are permitted under the Regulations. Accordingly, it is open to the IAA to reach a different conclusion to the delegate in respect of matters arising in the review in question.
[6] BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 179
It is also clear from what was said by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection[7] that the various powers conferred upon the IAA, including that contained in section 473DC, must be exercised within the bounds of legal reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li.[8]
[7] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [21]
[8] Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
If the IAA fails to exercise any power conferred upon it reasonably it can render invalid its jurisdiction to conduct a review of any ministerial decision referred to it pursuant to section 473CC. Essentially legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision-making, including by the IAA.
Following on from Li, in Minister for Immigration & Border Protection v Singh, the Full Court identified two distinct areas in which a tribunal may fail to discharge the jurisdiction conferred upon it by acting in a manner which is legally unreasonable.
Firstly, such a tribunal discharges its reasoning functions in a way which is unreasonable in the sense that it is illogical or otherwise lacking in intelligibility. This refers to the process of reasoning, utilised by the relevant decision-maker concerned, in reaching a decision. It is focussed on process, including the application of any relevant statutory criteria to such a decision.
Secondly, the outcome of the proceedings is coloured by some species of caprice or arbitrariness, which renders the decision legally unreasonable, although the applicable jurisdictional questions have been addressed by the decision-maker in question. This second area is outcome focussed.[9]
[9] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44]
Essentially, in conducting its supervisory jurisdiction over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all, as it is outside the range of possible outcomes which are defensible in respect both the facts and the law.
It is also clear, from relevant Federal Court authority, that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme” not merely a situation where the minds of potential decision makers (and indeed a court on judicial review) might differ as to the outcome of the issue in question.[10] There must be no doubt that the decision sought to be vitiated is, on its face, axiomatically unreasonable.
[10] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
The first applicant’s case
The husband’s claim for protection was detailed in a statutory declaration, which was originally compiled in Vietnamese, which was then translated into English.[11] In the statutory declaration, the husband indicates that he was born to Catholic parents and has been involved in church activities for his entire life. It is evidence that the church at Con Cuong is a focal point for dissent, by Catholics, in the area of Vietnam in which he previously lived.
[11] See Case Book at pages 117 - 122
In 2012, one of the priests at Con Cuong, Thuc, was beaten by persons associated with the Vietnamese authorities and the church itself was damaged. Against this background, the husband and some of his friends, around twenty in number, decided to travel to Con Cuong together to attend a prayer meeting to express their solidarity with their fellow adherents there and protest against the discrimination experienced by Catholics in Vietnam, including Thuc, who was perceived to have a significant profile, with the authorities in the area. In his statement, the husband indicated the following occurred:
“When I arrived at Con Cuong Church, I was very excited so I got straight off the bus and went inside by myself. I saw three people who I believed belonged to the church so I wandered over to them and began talking to them casually. They asked me where I had come from and I told them that I had come from Than Loc, Cua Lo. During the conversation I also asked them details about why the authorities had beaten Thuc and damaged the church.
I had no idea that these three men may belong to the authorities because they were wearing casual clothing and looked very natural in the church. I realised when they turned around and began to beat me with sticks. When I arrived on Christmas Island, an x-ray was taken which shows these injuries”[12]
[12] Ibid at page 119 [20] – [21]
The husband was interviewed by the ministerial delegate about the incident at Con Cuong. I have not been provided with a transcript of this interview, which is summarised as follows in the delegate’s decision:
“During the PV interview, the applicant claimed when he arrived at Con Cuong Church he was the first person to get off the bus and enter into the church. He stated that he was talking to three men when they started to beat him with wooden sticks. He stated he did not know who the men were and that he did not ask them. He claimed he ran away, he ran for 30 minutes until he came to house and went in for help. He claimed they took him to the bus stop later that night and he returned to his mother in law’s house. He claimed he later received two summonses to attend the police station, after he received the second summons he decided it was not safe to stay in Vietnam and fled with his wife.
The applicant responded to questions about the claimed incident. He was asked where the other people were when he was hit, he said ‘…they standing around and I ran away they standing around the church’. During the interview he claimed no-one else was around he was questioned as why no-one else was in church, he said ‘…I am not going inside the church so not sure if anyone else in the church or not’.
During the interview, the applicant was asked how the police would know who he was and where to send the summons. The applicant claimed when he was talking to the three men that he told them where he was from, he was asked if he gave them his name, he responded with ‘no’. It was put to him that how would the police know who to send the summons to, he responded ‘…I don’t know whether somebody standing behind me in my group call my name, maybe they know because they tell them my name or something like that’.
During the PV interview, the applicant claimed after the incident he went to stay with his mother in law and did not return home. He claimed the summons was received by his father as this was his registered address with the authorities. He was asked if he could produce the summons but claimed his father destroyed the notices.
Although the applicant has been generally consistent with the information he has provided the Department to date regarding the claimed incident at the church, I do not accept that it actually occurred as I find aspects of the claimed incident implausible. I have concerns that the applicant claimed there was no-one inside the church at the time of the incident, yet then claimed he was not inside the church, and as such would not have been able to confirm who was inside. In addition, the applicant claimed to have travelled in a group of 20 to the church, yet I do not find it plausible that he was the only one that entered the church when he arrived given the group was attending the church for a prayer session. I would also expect someone from the group he travelled with to have helped him given he travelled with a group of 20. This group would have been outnumbered the three men that were only purportedly armed with sticks.
Furthermore, and based on not accepting the claimed incident actually took place at the Church, I also do not accept the applicant received a summons following the incident for this purported actions there. Based on response provided by the applicant, the three men he claimed were armed and present at the Church did not know his name, and he also did not indicate during the PV interview who he thought the men might have worked for, such as the Vietnamese authorities.
Moreover, and as discussed above, when questioned in relation to the purported summonses he received, the applicant claimed they were destroyed by his father. If the applicant had received summonses for his political activism which forms part of his claims for protection in Australia, I would expect the applicant would keep these as irrefutable evidence to support his claims, which he has not yet done to date.”[13]
[13] Ibid at page 307
As a consequence of this view of the evidence, although the delegate accepted the applicants were each sincere and active Catholics and had been so in Vietnam, she doubted that the incident at Can Cuong had occurred in the manner as claimed by the husband. She also doubted that the husband had received any summonses prior to his illegal departure from Vietnam, given his assertion that they had been destroyed. In these circumstances, she did not accept that the husband was likely to have a political profile, in Vietnam, which had in the past or would in future bring him to the notice of the Vietnamese Government as its opponent because of his Catholicism.
As a consequence of the delegate’s adverse decision, the applicants’ matter was automatically referred to the IAA for a review pursuant to the provisions of Part 7AA of the Act. Prior to this review, the applicants’ advisor made further submissions to the IAA regarding what she isolated as the three areas of inconsistency, identified by the delegate, regarding the husband’s account of what had happened to him at Con Cuong.
These matters centred on where the attack actually occurred and whether there was the possibility of some misunderstanding having occurred between the husband and the delegate as to whether the husband was asserting the attack had happened in the narthex (the porch or vestibule) of the church rather than within the nave, which might be said to clarify some of the inconsistencies identified by the delegate, including why no one had come to help the husband.
The IAA decision
The IAA accepted that both applicants were devout Catholics actively involved in their church and its community. The IAA however doubted that either was a political activist or had ever been an outspoken critic of the Vietnamese Government. In addition, it was accepted that much of the applicants’ evidence was credible.
However, the main focus of much of the IAA’s reviewing decision was on its assessment of whether what had occurred at Con Cuong had had the consequence of a creating a political profile for the husband, with the Vietnamese authorities, as a Catholic opponent of it or whether the husband had seized on the activities of others, at Con Cuong, to found his own claims for protection.
The IAA summarised the evidence in respect of the alleged attack on the husband, at Con Cuong, in the following terms:
·In his statement the husband had said he had got straight off the bus and entered the church by himself. He then spoke casually to three men, who were wearing casual clothes. He had asked why the authorities had beaten people and damaged the church. He had then been attacked. No one had come to help him and he had run away;
·In interview with the delegate, the husband said he had gone to the church with twenty others. When they got to the church, he asked three people, standing outside the church, why people had hit the church statues. He was then asked where he was from and he had told them. When he had stepped into the church, he was attacked.
The IAA found the apparent inconsistency to be a significant one. The reviewer further indicated that she had listened to the audio of the interview, including the portion in which the delegate asked the husband if anyone else was inside the church. In this context, it was not accepted that there had been a misunderstanding.
The IAA then turned to the issue of how the authorities came to know of the identity of the husband and so caused him to be summonsed. In the context of the applicants’ claim for protection in Australia this was a central issue. In logical terms, this information could have come from the men who had beaten the husband or one of the members of the group who had travelled with him to Con Cuong.
The IAA summarised this aspect of the evidence in the following terms:
“When asked how the police would have found him, the first named applicant said that he told the men at the church where he was from when he entered the church. When asked whether he gave them his name, he said he did not. When asked how the authorities would have known how to find him and issue a summons given they did not know his name, he said that it was possible someone behind him or someone in his group said or called out to him by name. I do not accept this explanation. His evidence has consistently been that he was the first to enter the church, and that the other members of his group were not present as they were washing up or doing other things.
He then suggested that someone in his group may have told the authorities his name. He was asked whether anyone else in his group received a letter, he said he was not sure. He only spoke to one person from his group after the incident, being the person who had originally invited him to the prayer service. The person told the first named applicant that after he was hit, the rest of the group did not want to go inside the church and decided to go home. If the group left, as he claims the person told him, these people had no further interaction, with the plain clothes men inside the church, and there would have been no opportunity for the people from the group to be interrogated about matters, including his identity.
I also found his evidence that he volunteered his home address to these mem difficult to accept. I am prepared to accept that the applicant may have told the men which town he was from, but I do not accept that he would have provided them with the details necessary to track him down as he claims. I find his evidence as to how the police found out his identity to be speculative and unsupported on the evidence.” [14]
[14] Ibid at page 367 [24] -[26]
In my view, the issue of how the husband’s identity could have been subsequently conveyed to the Vietnamese authorities, following the incident, was a matter of legitimate concern to the IAA. It was also an issue which was germane to the overall significance of the assault itself, particularly whether it would lead to the husband having both a subjective and objective fear that he would be subject to persecution, if returned to Vietnam.
Essentially, the IAA did not consider the incident itself would have caused the husband to be capable of being personally and specifically identified as an opponent of the Vietnamese Government. This consideration was the central element of the IAA’s reviewing task.
Whether the husband was assaulted inside the church or outside it, the IAA did accept there was a possibility of some form of incident having occurred, which involved the husband. In this context, the IAA considered the nature of the incident, particularly its potential to bring the husband to the adverse attention of the Vietnamese authorities because of his profile as a Catholic activist. This is turn was central to whether Australia owed protective obligations to the applicants pursuant to criteria enumerated in section 5J of the Act.
In this context, the IAA found as follows:
“Another concern for me is that the severity of the claimed incident. The church at Con Cuong has been the location of a number of serious incidents between the members of the church, the authorities and hired thugs. The incidents in July 2012 included violent protests and protracted clashes where church property was smashed and parishioners were seriously injured and arrested. The first named applicant’s claimed participation in August 2012, in contrast, was short and while I accept he was injured, I find his involvement was low level when compared to other events at the church. I can accept that local authorities may have wished to keep the church clear of Catholics during this time, however the short and low level nature of his claimed involvement raises a question for me as to why the authorities would have any ongoing interest in him at all” [15]
[15] Ibid at page 367 [27]
Having characterised the incident as low level the IAA question whether the alleged summonses had the result of causing the applicants to consider that they had no viable alternative other than to flee Vietnam. This resulted in the IAA reaching this conclusion:
“Given the nature of what transpired at Con Cuong, I also have concerns why he considered the summons letters were of such significance that he had no option but to flee the country. The first named applicant had intended to pray, but did not have any time or opportunity to engage in any protest or the prayer service. He did not seek to agitate or start any violence, in fact it was he who was attacked and injured. He never spoke with anyone about the level of interest the authorities had with him in relation to these matters, or whether he was at any threat or penalty. I accept the submissions and country information before me about the serious mistreatment of religious and political activists in Vietnam, however I am unconvinced that the applicant’s brief attendance at a prayer session in Con Cuong would have given him a profile as a political or religious activist, such that he would have been at risk of harm.” [16]
[16] Ibid at page 368 [28]
In this context, the IAA was sceptical of the claim that the husband had destroyed the actual summonses directed towards him, when their existence would have provided strong evidence in support of his claim that he was a person of interest to the Vietnamese authorities.
Overall, the IAA accepted the church at Con Cuong had been a flashpoint for conflict between the Vietnamese Government and Catholics since 2011/2012 and, as a consequence, there had been a number of violent incidents there, which had involved the Catholic community, including its priest, demonstrating defiance of the Government.
However, given its doubts about several aspect of the husband’s case, the IAA doubted the husband’s account of his involvement in any particular incident at Con Cuong and so his assertion that he had come to the personal attention of the Vietnamese authorities. In these circumstances, the IAA found as follows:
“I found the applicant’s evidence of his involvement at Con Cuong, and the consequences that followed, to be unconvincing. I have serious concerns about the consistency of his evidence as to whether he entered the church or not, his claims that he volunteered his home area to these men, the question of how the authorities would have identified him given that he did not provide his name, the destruction of the summons letters, and, given the brief nature of his involvement, the reason why he considered the risks so great that they would need to leave the country. Separately, these matters could have been explained or overlooked when assessing his evidence, but when considered together, they lead me to conclude that his claims in relation to Con Cuong are not credible. I find these concerns outweigh his other evidence, and the limited documentary evidence provided in support of these claims.
I find that he did not attend the Con Cuong church in August 2012, I do not accept he was attacked by plain clothes authorities, that he was issued (and defied) two summons by the authorities because of his attendance at the church, or that either of the applicants is otherwise at threat from the authorities for these reasons.
I find that the first named applicant has fabricated these matters to strengthen his protection claims to fear harm on the basis of religion, and as a person who is politically and religiously active and opposed to the government. I reject those claims entirely. It follows that I also do not accept that the authorities have made inquiries about the applicants since they left Vietnam, or that their children were denied access to school and were forced to move to Saigon on the basis of his involvement with the church.” [17]
[17] Ibid at page 368 - 9 [32] – [34]
It is these findings, together with the reasoning which supports them, which must be examined within the context of the second ground of review. In addition, the court must consider whether it was incumbent on the IAA to seek new information, from the husband, about what he had previously said had occurred to him at Con Cuong.
The Grounds of Review
In their amended grounds of review filed on 8 June 2018, the applicants have provided the following grounds of review:
Ground One
The IAA erred in failing the exercise its discretion to invite the Applicants to give new information in writing or at an interview, pursuant to Section 473DC(3) of the Act, in response to or clarification of the alleged inconsistencies in the First Applicant’s account of events which took place at the Con Cuong Church in August 2012, leading to a denial of procedural fairness.
Particulars
(a)The IAA identified that the First Applicant’s claim (and therefore both the First and Second Applicant’s claims) “principally turn on an incident in the Con Cuong church in Nghe An province in August 2012”: Decision, [13].
(b)In the analysis of the incident, the IAA identified alleged discrepancies relating to the First Applicant’s account and proceeded to conduct an analysis and arrive at adverse finding based on the decision of the Minister’s Delegate, the Applicant’s written submissions and listening to the English portion of the recorded interview of the First Applicant: Decision, [19] – [33].
(c)Having regard to the interests involved, before arriving at the finding that the First Applicant had fabricated the incident at the Con Cuong Church, the IAA should first have afforded the First Applicant an opportunity to respond to the concerns as to the account, either in writing or in interview.
Ground Two
The IAA’s conclusion that the Con Cuong Church incident was a fabrication was arrived at by a process of reasoning which was not logical and/or irrational and or was unreasonable.
Particulars
(a)The conclusion was arrived at by rejecting
(i)The submissions as to the particulars of the event at Con Cuong as to the location of the encounter with the men who allegedly attacked the First Applicant.
(ii)The police summonses which were issued to the First Applicant in the aftermath of the incident.
(b)The findings reached by the IAA in respect of first, the location of the encounter, second, the identification of the First Applicant by the men/authorities, and third, the destruction of summonses, entailed illogical and/or irrational reasoning.
Ground Three
Having wrongly found that the First Applicant’s account of the incident at the Con Cuong Church was a fabrication, the IAA erred in finding that there was nothing in the Applicant’s history which would lead the Vietnamese government to consider them to have “adverse religious or political profile” and that they did not face a real chance of being seriously harmed on the basis of their religion.
Particulars
(a) Having found that the treatment of Catholics who “worship quietly, and in a manner that is sensitive and consistent with government policy, only face a low risk of interference”, the IAA should have, but failed to, consider whether the Applicants would do so as a voluntary choice or in light of the potential consequences if they failed to do so: Applicant S395 v Minister for Immigration and Multicultural Affairs [2004] 2016 CLR 473.
Pursuant to section 473CC of the Act, the IAA is required to review any fast track decision referred to. Section 473CB delineates the material to be provided by the Secretary of the Department to the IAA. That material is largely constrained to the material which was before the ministerial delegate together with the reasons concerned. This is consistent with the outline of Part 7AA, contained in section 473BA, that the review to be provided is to be on the papers.
The specific task of the IAA, in its review function, is delineated in mandatory terms, in section 473DB. The IAA must review fast track matters subject to the following provisos:
·It does not accept nor request new information;
·It does not interview the referred applicant.
The relevant legislation does provide the IAA with a discretion to obtain new information, which had not been before the ministerial delegate, at the time of decision. Pursuant to section 473DC(3) this discretion includes the authority to invite an applicant to an interview or to provide additional information in writing.
However, it is clear that this discretion does not constitute any form of obligation on the part of the IAA. This is clear from section 473DC(2), which reads as follows:
The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
Ground one
Part 7AA provides a complete code as to how the IAA is to complete its review function. As indicated above, any obligations to apply the rules of natural justice are modified by virtue of section 473DA. As such, the regime provided by Part 7AA is not analogous to that provided under Part 7 relating to the review of migration decisions provided by the Administrative Appeals Tribunal.
In DGZ16 v Minister for Immigration & Border Protection[18] the Full Court, after contrasting the jurisdiction of the AAT with that of the IAA, said as follows:
“…the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.”
[18] DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12 at [75]
In DBE16 v Minister for Immigration & Border Protection[19] Barker J, after summarising the stipulated mechanisms applicable to fast track reviews said as follows:
“The burden of this scheme and these provisions is that the Authority was under no obligation to offer the appellant an interview or invite him to comment prior to making an adverse finding. It might be said that this is part of the nature of the fast track system as envisaged by Pt 7AA.”
[19] DBE16 v Minister for Immigration & Border Protection [2017] FCA 942 at [61]
I concede that I am still required to examine the outcome of the exercise of the power residing in the IAA to determine whether it is vitiated by legal unreasonableness in some way. Essentially, although the IAA was not required to take evidence from the husband in an attempt to clarify any perceived contradictions or inconsistencies in his evidence, was it legally unreasonable for it not to have done so, pursuant to the discretion granted to it under section 473DC(1) of the Act. I do not consider that it was.
In Minister for Immigration and Border Protection v SZVFW[20] the High Court (Nettle & Gordon JJ) said as follows:
“…legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.”
[20] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [84]
They went on to indicate that the applicable standard of what was reasonable, in any given situation, was to be derived from “the applicable statute but also from the general law”. In this matter, although the IAA has the authority to gather new information, the applicable statutory regime does not ordinarily envisage the interview of referred applicants.
In addition, in my view, it cannot be said that the IAA decision not to seek further evidence from the applicants in question was characterised by any aspect of caprice, which renders the outcome legally indefensible.The ministerial delegate interviewed the husband and so enabled him to put his position regarding the incident at Con Cuong. The IAA listened to the relevant audio tape of that evidence.
Further, the IAA did engage with the further written submissions provided by the applicants advisors about the incident. It did not ignore the matters raised in those submissions. More significantly, in my view, it is clear from the relevant decision, that the IAA closely considered the facts available to it, in reaching its decision regarding the overall credibility of the husband.
This assessment did not only turn on the circumstances surrounding the husband’s claim of having been assaulted at the Con Cuong Church and whether it was within or without the church but also on his evidence regarding how the Vietnamese Authorities had come to know of his identity and address and his subsequent explanation for purportedly destroying each of the summonses provided to him.
The IAA decided that all of these factors, when taken together, led it to the conclusion that the husband had exaggerated the degree of risk to which he was likely to be subject in Vietnam and he was not a credible claimant. In these circumstances, it does not appear to me to be legally unreasonable that the IAA did not exercise any power arising under section 473DC to take further evidence from him. It was not legally unreasonable. Ground one is not made out.
Ground two
The second ground of review is directed toward the intellectual processes, adopted by the IAA in assessing the evidence available to it in reaching the conclusion that the husband’s claim for protection, in particular, was not a credible one. It being the submission of the applicants that the IAA’s decision is illogical or irrational in some or all of its component factors, which led to it being vitiated by jurisdictional error.
In determining whether the reasoning utilised by the IAA is illogical or irrational in nature, the reviewing court must look to the applicable statutory framework applicable to the IAA’s decision as well as the decision itself. In so doing the court should not subject the IAA’s reasoning to any degree of heightened or overly zealous criticism or over-analysis, as this may have the unintended consequence of transforming a process of judicial review into one of involving a re-hearing on the merits.
In this context, the comments of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang must be borne in mind.[21]In the case, the High Court indicated that a court, conducting judicial review “should not be concerned with unhappy phrasing” or “looseness in the language” in the decision being subject to review.
[21] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
As previously indicated, the IAA indicated that one aspect of the evidence was not central to it reaching this conclusion. Rather, its assessment of all the evidence led it to the conclusion that the husband had fabricated the significant aspects of his account of what had occurred at Con Cuong, whilst accepting the majority of his other evidence regarding his Catholicism.
The factors, which led it this conclusion, were what it perceived to be the unlikelihood of the described incident causing the applicant to be personally identifiable by the Vietnamese authorities and thereafter the explanation as why there was no documentary evidence to support his claim that he had been summoned to attend upon the police in his home town. In blunt terms, the IAA formed a negative view of the husband’s credit, whilst undertaking its review task, as a consequence of its assessment of these factors as a whole.
Whilst accepting that Con Cuong Church was a flashpoint for conflict between the Vietnamese authorities and Catholic protestors, the IAA considered the incident, as described by the husband, to be minor in nature and as such not one which would have been anticipated to have created a profile, for him, with the Vietnamese authorities. In this context, it was troubled by the absence of some mechanism to explain how the husband’s details apparently came to the notice of the authorities leading to the alleged issues of two summonses. The physical absence of the documents and its lack of acceptance of the explanation as to why they had been destroyed were the final factors leading to its adverse credit finding.
In my view, an analysis of the reasons of the IAA indicate that it considered each component of the evidence individually. It then took a composite view of the evidence as a whole in reaching its ultimate conclusion. As such, this is not a case where some species of illogicality in a finding about a specific integer of the evidence causes the whole process to be tainted by legal unreasonableness. The question of what weight was to be given to various aspects of the evidence was a matter for the IAA.
To fall within jurisdiction, all administrative decisions require an evident and intelligible justification. All statutory powers are to be exercised reasonably.[22] One yardstick, frequently used to gauge whether an administrative decision is to be regarded as legally reasonable, is to ask whether the decision is one which no reasonable person could have made.
[22] See Minister for Immigration & Citizenship v Li (supra) at [26]
In Minister for Immigration & Border Protection v SZVFW[23] Kiefel CJ said as follows of this test:
“…it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.”
[23] Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 at [11]
Accordingly, the test of whether a decision is legally unreasonable is one which is to be applied strictly. In addition, it is one which is invariably driven by an analysis of the applicable facts and the identification for justification for the conclusions reached. Again in SZVFW Gageler J said as follows:
“…legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.”[24]
[24] Minister for Immigration & Border Protection v SZVFW (supra) at [84]
Two major areas of legal unreasonableness potentially follow from this rubric. Firstly, any finding of fact, which is not supported by evidence, is open to being characterised as unreasonable. Secondly, a finding that is axiomatically irrational or illogical, particularly as demonstrated when a decision-maker takes into account an irrelevant consideration or places excessive weight on some such irrelevant matter.
In Minister for Immigration & Citizenship v SZMDS[25] Crennan and Bell JJ said as follows in respect of how a court, conducting a judicial review of a primary decision maker’s determination is to assess whether that decision is irrational or illogical. Their Honours said as follows:
“On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.”
[25] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR611 at 649 [135]
In ARG15 v Minister for Immigration & Border Protection[26] the Full Court characterised the degree of illogicality or irrationality of fact finding required to found jurisdictional error, on this basis, as being extreme in nature. It is not sufficient for the fact finding involved to be controversial in the sense that the conclusion reached in any given case was one on which “reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”.
[26] ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109 [47]
In the context of judicial review of a previous decision maker’s assessment of credit, the reviewing court must be particularly careful not to convert its task inadvertently into one of merits review. Although it is open to a reviewing court to accept that a fact finder’s assessment of credit is illogical, it should only do so very cautiously.
Relevant Federal Court authority also makes it clear that a finding of adverse credibility, made by a decision maker, in respect of an applicant in the context of a refugee application may, in certain circumstances, also found a finding of jurisdictional error on the basis of unreasonableness.
In Minister for Immigration & Border Protection v SZUXN [27] Wigney J said as follows in respect of the issue of applying principles relating to legal unreasonableness to a primary decision maker’s finding of fact in respect of an issue of credit:
“An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error… That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.”
[27] Minister for Immigration & Border Protection v SZUXN [2016] FCA 516
Cases in which it has been determined that a finding that an applicant is not credible is illogical include those in which such a finding was based “on an objectively minor matter of fact” which in turn led to the rejection of a claim for protection holus bolus;[28] or the credit finding in question being based on a false evidentiary premise. As with any finding of fact, a finding regarding credit “must be rationally made and based upon facts having logical and probative weight”.[29] However, within its fact finding jurisdiction, an administrative decision maker necessarily has a large area of freedom in which to assess issues such as credit.
[28] See Minister for Immigration & Citizenship v SZRKT [2013] FCA 317 at [78]
[29] See CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 at [41]
Counsel for the applicants submits that various findings of the IAA regarding the husband’s account of what happening to him at Con Cuong are not logically based. In my view, the central finding of the IAA, relating to the claim for protection, was that the husband did not attend at Con Cuong Church on the occasion in question. As a consequence of this, he was not likely to have any significant profile, as a Catholic dissident, with the Vietnamese authorities.
This central conclusion was composed of a number of strands, each of which counsel for the applicant has subject to a rigorous degree of scrutiny. In my view, it is the composite strength of these strands, taken as a whole, which must be examined for logicality and probity.
In my view, it was logically open to the IAA to find there were inconsistencies in respect of the applicant husband’s account of where precisely he was assaulted at Con Cuong and the circumstances surrounding.
However, this finding, in respect of inconsistencies, was not dispositive of the claim for asylum. Rather, the disquiet raised by these inconsistencies, led the IAA to consider how it was that the husband’s identity had come to be known to the Vietnamese authorities, given that it was not the husband’s case that he was previously known to them or was a person long associated with the Con Cuong Church. This was a legitimate line of inquiry for it, which it raised with the applicant.
The IAA, in my view, was logically entitled to consider that the husband gave contradictory evidence about the issue. Centrally, he said that he both did and did not identify himself. In my view, it was logically open to the IAA to reach the conclusion that the husband was struggling to find some way of answering the line of questioning put to him, which was consistent with him having manufactured the central aspect of the claim for protection.
Finally, when these two aspects of the husband’s evidence, which the IAA found troubling, were added to the fact the husband had destroyed the summonses allegedly issued to him, the IAA reached its central conclusion that the husband’s account of what had happened to him at Con Cuong was unconvincing, which in turn founded the conclusion he was not likely to have a political profile with the Vietnamese authorities.
In individual terms, each of these integers of the IAA’s reasoning may not have been sufficient to found its finding about the husband’s credit on rational terms. However, in total, they are of sufficient weight to sustain the credit finding made which, in my view, was logically open to the IAA. Accordingly, in my view, the central finding of the IAA, namely:
“Separately, these matters could have been explained or overlooked when assessing his evidence, but when considered together, they lead me to conclude that his claims in relation to Con Cuong are not credible.”
is to be regarded as being rationally and logically based and thus within jurisdiction. Although another decision-maker may have possibly reached a different conclusion and weighed these very components of the evidence in other ways that is not the test of whether a decision is to be regarded as legally unreasonable.
This conclusion was reached after a careful examination of the evidence, including submission provided by the applicants’ advisor. In my view, there is no illogicality attaching to the IAA’s reasoning and it is a decision which was jurisdictionally open to it to make.
In this context, the IAA also considered other aspects of the applicants’ claim relating the husband’s injuries being consistent with the ill treatment allegedly sustained by him. The medical material alone could not have been dispositive of the issue of how the husband came to have been injured in the first place. In my view the weight the IAA gave to it was a matter solely for it. Ground two is not made out.
Ground Three
The IAA accepted that the applicants were devout Catholics. It also accepted that some Catholics, particularly those associated with dissent at Con Cuong had been subject to persecution at the hands of the Vietnamese authorities. In this context, counsel for the applicants is critical of the IAA’s finding that it was open to the applicants to return to their home area, where they would be able to continue to practice their faith, as they had done before, without coming to the adverse notice of the Vietnamese authorities.
In this context, it is submitted that the IAA fell into error by failing to apply the relevant legal principles relating to the assessment of harm as detailed by the High Court in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs.[30]
[30] Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 472=3
That is the IAA fell into jurisdictional error by failing to assess what was the real chance the applicants would be persecuted, if returned to Vietnam, but rather focussed on how the applicants might avoid being persecuted, if returned there.
Essentially, the IAA did not inquire what would happen if the applicants returned to Vietnam but impliedly investigated mechanisms by which they could avoid suffering adverse consequences there. This issue centres on Can Cuong and the level of the applicants’ relationship with the church there.
As I understand Mr Barnes’ argument, he contends that the IAA, after having found the applicants were each devout Catholics and Can Cuong was a centre of dissent, should have considered the degree of risk arising for the applicant of them going to Can Cuong and coming to the adverse notice of the authorities as a consequence. In this way, it fell into error in the manner described by Weinberg J in VFAC v Minister of Immigration & Multicultural & Indigenous Affairs[31]
“Asylum seekers are not required, nor can they be expected, to take reasonable steps to avoid persecutory harm. Nor are they expected to live “discreetly” to avoid such harm.”
[31] VFAC v Minister of Immigration & Multicultural & Indigenous Affairs [2004] FCA 367 at [18]
In this context, Mr Barnes places emphasis on the following passage from the IAA’s reasons:
“…Catholics that worship quietly, and in a manner that is sensitive and consistent with government policy, only face a low risk of interference.”[32]
[32] See Case Book at 370 [41]
The difficulty of this submission is that although it made positive findings about the applicants’ Catholicism and the degree of dissent centred on the congregation at Con Cuong, its ultimate finding was that the husband had not been personally involved in any violent incident at Con Cuong.
The IAA’s reasons disclose that the husband was given an opportunity to provide details as to why he would come to the notice of the authorities, if returned to Vietnam. In this context, he raised concerns centred on the Con Cuoug incident and his failure to respond to the two summonses. The applicants did not explicitly claim that they would have to modify their religious practices, if returned to Vietnam. In this context, the IAA found as follows:
“[The husband] made no reference to any other past religious activism or criticism of the government, nor did he suggest he would be at risk of harm on the basis of any future involvement in such activism…his failure to raise any claims to fear harm as a person outspoken or critical of government, in particular when question several times by the delegate about his future concerns, indicates to me that this aspect of his claims has been exaggerated.”[33]
[33] Ibid at 370 [39]
In my view, in the specific light of the IAA’s findings about both the husband’s involvement in the Con Cuong incident and its findings about the applicants’ previous level of involvement in religious/political activism in Vietnam, it cannot be said that the IAA fell into jurisdictional error by examining what was the risk of harm arising for the applicants if they practiced their faith discretely. Rather it applied the correct test by considering was their real chance of suffering persecution, if returned to Vietnam, as a consequence of the practice of their religious faith. Ground three is not established.
As none of the grounds contained in the amended application for review has been established. The application filed on 8 June 2018 must be dismissed. The first respondent seeks costs according to the schedule attached to the court’s rules. I will make an order to this effect.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 16 November 2018
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