BLD16 v Minister for Immigration

[2017] FCCA 1401

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLD16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1401

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – whether tribunal’s decision affected by jurisdictional error – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 162 CLR 24
NAHI v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZTBJ v Minister for Immigration [2015] FCCA 580

Applicant: BLD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 528 of 2016

Judgment of: Judge Jarrett

Hearing date: 2 December 2016

Date of Last Submission: 2 December 2016

Delivered at: Brisbane

Delivered on: 22 June 2017

REPRESENTATION

Counsel for the Applicant: Mr Mac Giolla Ri

Solicitors for the Applicant: Wallace O’Hagan

Solicitors for the First Respondents: Sparke Helmore

The second respondent entered a submitting appearance.

ORDERS

1. The applicant has leave to add ground 6 to his amended application for review filed on 1 December, 2016;

2. The amended application filed 1 December, 2016 be dismissed.

3. The applicant pay the first respondents costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 528 of 2016

BLD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the second respondent dated 16 May, 2016 whereby the Tribunal affirmed a decision of a delegate of the first respondent made on 12 December, 2014 to refuse to grant the applicant a Protection (Class XA) visa.

2. The first respondent opposes the application and the second respondent enters a submitting appearance.

3. Both parties have filed written submissions in support of their positions.  Initially, the applicant proposed four grounds of review.  However in the written submissions delivered for the applicant, he made it clear that he does not rely on grounds 2, 3 or 5 of the application filed 13 June, 2016. 

4. The applicant only relies on grounds 1(c) and 4 in that application.  To formalise the position, he sought, and was granted, leave to file an amended application omitting those grounds.  In addition, the applicant sought leave, which was granted, to add a further ground of review to his application.  I will set out the additional ground later in these reasons.

Background

1. The applicant is a citizen of Vietnam who arrived in Australia as an irregular maritime arrival on 23 March, 2013.  On 24 October, 2013 he made an application for a Protection (Class XA) visa.

2. In a statutory declaration submitted with the application for the visa, the applicant claimed to fear harm from the Vietnamese authorities if he returned to Vietnam due to his anti-government political opinion and his Catholic religion.  He further claimed that:

   a)in December, 2012 and January, 2013 at 30 April Square in Ho Chi Minh City, he attended two anti-government protests in which he held a slogan naming two islands of Vietnam which had been taken by China. The military ended the protest using sticks and tear gas; 

   b)if he returned to Vietnam, he claimed to have no hesitation in attending future anti-government protests;

   c)in August, 2012 the Vietnamese authorities attempted to confiscate land belonging to the Con Cuong Catholic community. When people from the community went to the area to pray, the government stopped them. The community protested against this which resulted in two people being arrested; and

   d)once the applicant turned 18, he would be required to do military service.  He did not want to do military service given he would then be part of a government that oppressed people.

3. In submissions provided after an interview with a Departmental officer, the applicant’s representative advanced further claims on the applicant’s behalf that he feared harm as a failed asylum seeker who departed Vietnam illegally and because his personal information was released on the Department’s website .

4. On 12 December, 2014 the delegate refused to grant the applicant the visa.  The applicant sought review of the delegate’s decision by the second respondent.

5. Because the Tribunal was unable to make a decision favourable to the applicant on the material before it, the Tribunal invited the applicant to appear before it to give evidence and present arguments at a hearing scheduled for 15 March, 2016.

6. Although the original date of the hearing was postponed, a hearing took place on 19 April, 2016.

The Tribunal’s decision

1. The Tribunal decided the application for review on 16 May, 2016.  It delivered written reasons for its decision.

2. The Tribunal accepted that the applicant was Catholic and practised Catholicism in his home village, in Ho Chi Minh City and in Australia.  It further accepted that there were protests between the Catholic community and Vietnamese authorities due to the resumption of land but that, on the applicant’s evidence, he was not present at any of the protests.

3. The Tribunal found that there was no evidence to indicate that the applicant was perceived by the authorities to be a Catholic activist and found that he would be able to freely practice his Catholic faith.  It did not accept that his fear of persecution for this reason was well-founded.

4. Whilst it had some doubt as to the credibility of the claim, it accepted that the applicant attended the two protests at 30 April Square as he had claimed.  However, it did not accept that the applicant faced a real chance of harm as a result of such attendance noting that the applicant did not claim to have been detained or arrested by police during the protests and there was no credible evidence to suggest that the authorities were aware that the applicant attended the protests.  It therefore did not accept that the applicant would be suspected by the authorities of holding an anti-government political opinion.

5. The Tribunal did not accept the applicant’s claims that his friend, Mr Lien, told the applicant that he had to leave the construction site, or that he had delivered envelopes for Mr Lien.  The tribunal was concerned that these claims had been raised for the first time at the Tribunal’s hearing.

6. The Tribunal accepted that the applicant would be required to register for military service but found that there was no evidence to indicate that the applicant would be treated differently to any other person in relation to the requirement to register and attend training or that he would be harmed for this reason.

7. The tribunal also accepted that the applicant was affected by the data breach of February, 2014 but found that details of the applicant’s claims for protection, or the fact that he had made a protection visa application, were not released.  Whilst it accepted that the Vietnamese authorities may have accessed the spread sheet inadvertently released, it found that if the applicant was returned to Vietnam, that information would more than likely become evident from the fact the that authorities would need to be contacted to provide the applicant with a travel document to permit him to return to Vietnam.

8. The Tribunal accepted that the applicant would be prosecuted for committing an offence against Vietnam’s entry and exit laws due to his illegal departure and, relying on country information, he would be liable to pay a fine.  It found that the applicant would be treated as a victim of people smuggling and would be detained for a brief period of time to establish his identity however did not accept he would face a real chance of harm as a result of his illegal departure or for his being a failed asylum seeker.  It relied upon country information that persons who have sought protection outside of Vietnam are not treated differently to other returnees.  The Tribunal did not accept that the applicant would face a real risk of significant harm if he was returned to Vietnam.

9. Accordingly, the Tribunal was not satisfied that the applicant met the criteria for the grant of the visa in ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) and the decision under review was affirmed.

The grounds of review

1. The first ground of review pressed by the applicant is ground 1(c).  It is in the following terms:

   1. The Tribunal erred in relying on irrelevant information, namely:-

   (c) In finding that “prosecution for an offence against Vietnam’s entry and exit laws ... is not persecution”, the Tribunal stated that “Most countries have similar provisions”. The fact that other countries have similar laws is not a relevant consideration for the question of persecution. Persecution is not a test of relativity. It is a question established on the facts of the particular case. Regardless of whether other countries have similar laws, the Applicant’s submission was that Viet Nam’s (sic) application of the law, given his background, would result in his persecution. This question was not sufficiently considered.

2. As the first respondent submits, for a matter to constitute an irrelevant consideration, the consideration must be one that, either expressly or by implication, a decision maker is forbidden or prohibited from taking into account.  As Judge Lloyd-Jones observed in SZTBJ v Minister for Immigration [2015] FCCA 580:

   95. For a consideration to be irrelevant, it needs to be established that the decision-maker is forbidden or prohibited by the subject matter, scope or purpose of the relevant legislation from taking the consideration into account in the exercise of a discretionary power. The concept is, in effect, the inverse of the concept of failing to take into account a relevant consideration. The former is prohibited while the latter is mandated: Minister Administering The Crown Lands Act v Illawarra Local Aboriginal Land Council [2009] NSWCA 289; (2009) 168 LGERA 71 per Hodgson JA at [80]. In [Ballantyne v WorkCover Authority of New South Wales [2007] NSWCA 239; (2007) 5 DDCR 97], Basten JA observed at [113]:

   113. In the language of judicial review, “relevant considerations” are mandatory considerations in the sense that any failure to take them into account, in circumstances where they are engaged, will be an error in point of law. A similar principle is reflected in the concept of “irrelevant considerations”. These are factors which are extraneous to the proper exercise of the power, so that to take them into account will also reveal legal error. These two categories do not, however, constitute an exclusive description of matters which may be considered. There will, in very many cases, be a category of legitimate factors, consideration of which is neither mandated or precluded...

3. The Tribunal was not forbidden or prohibited from taking this into account. In circumstances where the applicant advanced claims to fear harm due to his illegal departure, these issues were not irrelevant considerations and appropriately considered by the Tribunal.

4. The applicant made a claim to fear harm due to his illegal departure and, as such, the Tribunal was required to consider the claim. The Tribunal accepted that the applicant would be prosecuted for an offence against Vietnam’s entry and exit laws but found that did not amount to persecution for the purpose of s.36(2)(a) of the Act. The Tribunal dealt with this aspect of his claim in paragraphs [95] – [102] of its reasons. It is a relatively lengthy passage, but it is important to set it out in full so as to appreciate the Tribunal’s reasoning (footnotes omitted):

   95.    The Tribunal notes the applicant’s claim that if he is returned to Vietnam he will face punishment as a person who departed Vietnam illegally. The Tribunal accepts that this is true. However this is prosecution for an offence against Vietnam’s entry and exit laws, it is not persecution. Most countries have similar provisions.

   96.    The country information referred to in the country information section above indicates that the applicant will be subject to a fine upon return under Article 21 (regarding “Violations of the regulations on exit, entry and transit”) of the Decree on Sanctions against Administrative Violations in the Sector of Security and Social Order. A fine of between VND 2 million ($122 AUD) to VND 10 million ($600 AUD) is specified for leaving Vietnam without a passport or equivalent, departing without undergoing official exit procedures, or departing using another person’s documents. A fine of between VND 20 million and VND 50 million is specified for leaving Vietnam using a false passport or equivalent. There is no evidence to indicate that the applicant used a false passport or false identification document. He is therefore liable to the lesser fine.

   97.    DFAT assesses that persons who paid money to organisers of people smuggling operations are viewed by the government as victims of criminal activity rather than as criminals. There is no evidence before the Tribunal to indicate that the applicant was involved in organising his illegal departure or that of others. After assessing the evidence the Tribunal is satisfied that the applicant will be regarded as a victim of people smuggling operations and as such he will be detained for a brief period of time to establish his identity and his registration and will be liable for the lesser fine.

   98.    The Tribunal has carefully considered the documents the applicant submitted in support of his application, as outlined in paragraph 16 above. The information provided by the applicant confirms that the people who are detained for a lengthy period of time, interrogated, arrested and imprisoned are the organisers of the illegal departures.

   99.    The applicant claims that if he is returned to Vietnam he will face harm as a person who has claimed asylum in Australia.  In Australia, applications for protection are confidential. According to DFAT there is no information to suggest that people known to have or believed to have sought asylum in other countries receive different treatment from the Government of Vietnam for having sought asylum. DFAT states that in the past some returnees have been held for a brief period upon return for the purpose of interview by the Ministry of Public Security in order to obtain information relevant to the investigation of people smuggling operations. According to DFAT, in general, those who have been detained upon return have been detained primarily due to their political views, held or imputed, rather than the fact that they have sought asylum.

   100.  DFAT asserts also that there is no information to indicate that returnees who have sought protection outside Vietnam are treated differently to other returnees. DFAT also states that returnees are able to obtain household registration if their previous registration has lapsed.

   101.  The United States Department of State and the United Kingdom Home Office both report that failed asylum seekers who departed Vietnam illegally are seen as victims of people smugglers and victims of crime. Both confirm the information provided by DFAT regarding the identification checking procedures, brief period of detention while this occurs, and the fines imposed for illegal departure. Both report that known political dissidents are detained further, but not failed asylum seekers and others who departed illegally.

   102.  The Tribunal is satisfied that the applicant does not have the profile of a political activist, or a Catholic activist, or a person who has acted against the Vietnamese government. Accordingly the Tribunal is satisfied that on return to Vietnam the applicant will be prosecuted for having committed an offence against Vietnam’s entry and exit laws by departing the country illegally and travelling by boat to Australia. After assessing the evidence, including all the evidence submitted by the applicant in support of his claims in this regard, the Tribunal is satisfied that the applicant does not face a real chance of serious harm as a result of his illegal departure and his having sought protection in Australia. The Tribunal has considered these claims in combination with the fact that the applicant has been inadvertently identified in the Immigration Department’s data breach. The Tribunal is satisfied that the applicant does not face a real chance of serious harm on cumulative grounds.

5. It is true, as the applicant argues, that in [95] of the Tribunal’s reasons it refers to “Most countries have similar provisions”.  The Tribunal was not forbidden or prohibited from taking into account such a matter in the sense described in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 162 CLR 24. However, the applicant’s argument that the fact that other countries have similar laws is not a relevant consideration for the question of persecution is not without merit. That most other countries might have similar laws is of little moment when determining if, in the context of this particular case, the laws of Vietnam will be applied or operate upon the applicant in a persecutory fashion if he was to be returned to Vietnam.

6. But the applicant’s contention that the Tribunal did not sufficiently consider whether the application of the relevant law, given his background, would result in his persecution cannot be made good.  The Tribunal did consider that matter in detail as appears from paragraphs [96] – [102] of its reasons.  In my view, it was not swayed by the proposition that most countries might have similar laws.  It considered the nature of the relevant laws in Vietnam and the information that it had before it from both the applicant and other sources about their application in practice.  The Tribunal derived an opinion on the issue for itself and expressed that opinion in paragraph [102] of its reasons.  Thus, even if the Tribunal strayed into error by referring to the position in most other countries, that error had no operative effect upon the Tribunal’s decision or the reasoning by which it derived that decision.

7. There is no jurisdictional error revealed by this ground of review.

8. The second ground of review pressed by the applicant is in the following terms:

   4.  The Tribunal [per paragraph 93] failed to consider that the ‘data breach’ would provide Vietnamese authorities with the following additional information about him:

   a. The fact that the Applicant was in detention at the time of the data breach;

   b. By inference from (a) above, that the Applicant was unlawfully in Australia - this information cannot be inferred from the fact that the Applicant was required a new travel document to travel to Vietnam;

   c. By inference from (a) above and the notorious position of asylum seekers in Australia, that the Applicant had applied for asylum.

9. Paragraph [93] of the Tribunal’s decision is in the following terms:

   93.    Given the limitations on the personal information published as outlined above, the Tribunal does not accept that the Vietnamese authorities would be aware of the applicant’s claims for protection as a result of the data breach itself. According to the reports, including the reporting in the Guardian Australia, which broke the story, the information that was available to be accessed did not include details as to whether applicants had lodged protection visa applications or any other type of visa application. The Tribunal finds, therefore, that the details of the applicant’s claims were not accessed during the time that the information was available.

10. However, paragraph [94] is also important.  It is in the following terms:

    94.    While there is no definitive information as to whether or not the Vietnamese authorities accessed the spread sheet listing 9,250 detainees, the Tribunal accepts that the Vietnamese authorities may have done so. If this is the case, the Vietnamese authorities would have discovered the applicant’s name, date of birth, nationality, arrival and detention details including that the applicant was in detention because he arrived illegally in Australia on a boat. Irrespective of this, if the applicant is returned to Vietnam, it is more than likely that this information about the applicant would be evident regardless of the data breach. It would more than likely become evident from the fact that the authorities would need to be contacted to provide the applicant with a travel document enabling him to travel to and enter Vietnam.

1. Contrary to the applicant’s assertion, the Tribunal did not fail to consider that the Vietnamese authorities would have information that the applicant was in detention at the time of the data breach.  The Tribunal accepted that the Vietnamese authorities had accessed the spreadsheet which was the subject of the data breach.  As paragraph [94] expressly sets out, the Vietnamese authorities would have become aware of the fact of the applicant’s detention and his illegal arrival by boat because that information about him was in the information available about him on the Department’s website.  The tribunal’s reasons further demonstrate that it posited an alternative – that the Vietnamese authorities did not access the relevant information in the data breach, but would otherwise become aware that the applicant was unlawfully in Australia and in detention.  It is tolerably clear that the Tribunal relied upon DFAT country information to the effect that, upon return, the applicant’s identification and registration records would be checked and he would likely be questioned about his departure.

2. In either scenario, the Tribunal approached the matter on a view of the facts of the case that were most favourable to the applicant.

3. I accept the first respondent’s submission that it should not be lightly inferred that the information referred to in paragraph [94] was not considered: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47].

4. In my view, there is no jurisdictional error revealed by this ground.

5. At the hearing, the applicant, by his counsel, sought leave to add an additional ground of review (numbered 6 in the amended application filed on 1 December, 2016).  I propose to grant leave to add that additional ground.  That additional ground is in these terms:

   6.  Insofar as the tribunal found that the applicant would not be viewed by the Vietnamese government to be a failed asylum seeker or that such a view by the Vietnamese government would amount to a real chance of serious harm, it was not open to the Tribunal to engage in the process of reasoning in which it did engage nor to make the findings it did make on the material before it because:

   a. The tribunal had no logical basis on which to conclude that the Vietnamese government would not view that (sic) the applicant as a person who had claimed asylum in Australia.

   b. In determining that returned asylum seekers, including the applicant, did not face a real chance of serious harm in Vietnam the tribunal referred to and relied on evidence that did not exist;

   c. In determining that returned asylum seekers, including the applicant, did not face a real chance of serious harm in Vietnam the tribunal failed to have regard to submissions and evidence put forward by the applicant;

   The errors ultimately resulted in the decision to refuse the applicant protection being illogical and or the result of failing to give the applicant a fair hearing.

6. As the first respondent submits, this ground proceeds from a misunderstanding of the Tribunal’s reasons.  The Tribunal did not find that the applicant would not be viewed by the Vietnamese government to be a failed asylum seeker.  In fact, the Tribunal proceeded on the basis that he would be viewed by the Vietnamese Government as a failed asylum seeker.

7. It seems however, that this grounds seeks to cavil with the Tribunal’s finding that notwithstanding that the applicant might be viewed in that way by the Vietnamese Government, he would nonetheless not be exposed to a real chance of harm for that reason should he return to Vietnam.

8. The Tribunal discussed the material in its possession relating to the treatment of failed asylum seekers in Vietnam in paragraphs [68] – [76] of its reasons.  It provided its analysis of that material in the context of this case in paragraphs [93] – [102] of its reasons, which I have reproduced elsewhere in this judgment.  The Tribunal, in my view, carefully explains how it arrived at the finding that it did about this issue. 

9. However, in the course of its reasons in the paragraphs that I have just mentioned, the Tribunal referred to the following country information:

   a)DFAT, Country Information Report, Vietnam, 31 August 2015;

   b)UK Home Office, Country Information and guidance, Vietnam: Opposition to the Government December 2014; and

   c)US Department of State, Country Report on Human Rights Practices 2013: Vietnam, 27 February 2014.

10. In paragraph [73] of its reasons, the Tribunal says:

    73.    The United States Department of State and the United Kingdom Home Office both report that failed asylum seekers who departed Vietnam illegally are seen as victims of people smugglers and victims of crime. Both confirm the information provided by DFAT regarding the identification checking procedures, brief period of detention while this occurs, and the fines imposed for illegal departure. Both report that known political dissidents are detained further, but not failed asylum seekers and others who departed illegally.¹⁹

11. Footnote 19 in that passage refers to the last two documents adumbrated in the list in the preceding paragraph. The parties agree that neither report contains any statement to the effect of the emphasised sentence in that passage extracted above. The statement and its attribution are repeated in paragraph [101].

12. The applicant argues that his representative made careful and detailed submissions on this question to the first respondent’s delegate, including reference to “reputable country information”.  The applicant argues that the Tribunal only made reference to these submissions and information when listing the documents on the applicant’s departmental file.  The Tribunal, it is said, made no reference to any of the information or submissions put by the applicant’s representative when considering neither whether the applicant would be viewed as a returning asylum seeker nor when considering whether returned asylum seekers face a real chance of serious harm.

13. The Tribunal accepted that the applicant would be identified as a failed asylum seeker.   Given that approach, it was then necessary for the Tribunal to decide whether, having been so identified, there was a real chance that the applicant would suffer harm as a result.  That is the task that the Tribunal undertook.  Contrary to the applicant’s submissions, the Tribunal turned its mind to the treatment of returned asylum seekers in Vietnam.  In some senses, the applicant’s argument cavils with the Tribunal’s reliance upon particular country information rather than other country information.  The applicant’s complaint relates to the weight given to the country information before it.  It is well settled that the choice, assessment and weight to be given to of country information is a factual matter for the Tribunal: NAHI v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10 at [l l]-[13].

14. To the extent that the Tribunal has formed an erroneous view of the material contained in either the UK Home Office report or the US Department of State report, the erroneous view is a mistake of fact.  Ordinarily such mistakes do not amount to jurisdictional error. 

15. I decline to infer, as the applicant invites me to do, that the Tribunal did not consider the applicant’s submissions and country information which tended to show that returning asylum seekers face a real chance of serious harm in Vietnam.  The applicant’s material and submissions were referred to by the Tribunal.  As has been observed by the Full Court, it:

    46.    … is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

    47.    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

    Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (above)

16. The Tribunal plainly resolved the issue raised by the applicant for the Tribunal’s determination.  It resolved the issue against the applicant’s argument.  It does not follow that the Tribunal made an error or that the applicant’s submissions were not considered.

17. Further, as the first respondent submits, the applicant’s argument might be characterised as an argument that the Tribunal’s decision was unreasonable given that the sentence immediately preceding the footnote in paragraphs [73] and [101] of the Tribunal’s reasons is not contained in the relevant country reports.

18. Three observations should be made about that argument.

19. First, the relevant test for unreasonableness is set out in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. To make out an argument of illogicality or irrationality, the applicant must demonstrate that no rational or logical decision maker could arrive at the impugned finding on the same evidence.

20. Second, it is not at all certain that the footnote reference in the Tribunal’s reasons is intended to refer only to the sentence where it appears.  It appears at the end of the paragraph and one might reasonably think that the footnote and the two reports to which it refers are intended as a reference for all of the propositions within paragraphs [73] and [101].

21. Third, in any event, there was ample other evidence contained within the reports to which the Tribunal referred, including those from the US State Department and the UK Home Office that provided a basis for the conclusions to which the Tribunal arrived.

22. Although it is arguable that the Tribunal made an error by suggesting that the final sentence in paragraphs [73] and [101] of its reasons were directly supported by the country information referred to in the footnote at the end of each of those paragraphs, such an error does not reveal jurisdictional error because:

    a)it was an error or errors of fact and they were not errors of jurisdictional fact;

    b)it is not at all clear that the footnote reference was not intended to refer also to the balance of the propositions in paragraphs [73] and [101] of the Tribunal’s reasons; and

    c)the decision to which the Tribunal came concerning the applicant’s likely treatment as a failed asylum seeker returning to Vietnam was not a decision that no rational or logical decision maker could arrive at on the same evidence that was before the Tribunal.

Conclusion

1. For the reasons expressed above, the application, as amended, does not reveal jurisdictional error.  It must be dismissed with costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 22 June, 2017.

Date: 22 June, 2017