BMJ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 759
•20 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BMJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 759
File numbers: PEG 286 of 2023
PEG 287 of 2023Judgment of: JUDGE LADHAMS Date of judgment: 20 August 2024 Catchwords: MIGRATION – applications for judicial review of decisions made by the Immigration Assessment Authority affirming decisions not to grant the applicants protection visas – where Authority obtained new country information – whether the Authority acted unreasonably in failing to exercise its discretion in s 473DC of the Migration Act 1958 (Cth) to invite the applicants to comment on the new country information – no jurisdictional error – applications dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 46A, 473CB, 473DB, 473DC, 473DD, 473DE Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
CRW16 v Minister for Immigration and Border Protection [2018] FCA 710
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456; [2020] FCAFC 29
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 22 July 2024 Place: Perth In PEG 286 of 2023 Counsel for the Applicant: Mr B Zipser (direct access) Counsel for the First Respondent: Mr B Kaplan Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers In PEG 287 of 2023 Counsel for the Applicant: Mr B Zipser (direct access) Counsel for the First Respondent: Mr B Kaplan Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 286 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BMJ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
20 AUGUST 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
ORDERS
PEG 287 of 2023 BETWEEN: BMH17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
20 AUGUST 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).]
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicants in these two applications, BMH17 and BMJ17, are brother and sister. They are citizens of Vietnam and they both made applications for a protection visa. Their claims for protection were similar and, in each matter, a delegate of the Minister refused to grant them a protection visa and the delegate’s decision was affirmed by the Immigration Assessment Authority (Authority).
BMH17 and BMJ17 now both seek judicial review of the respective Authority decision relating to them, relying on the same ground of application. That ground asserts that the Authority acted unreasonably in each case by failing to exercise its discretion in s 473DC of the Migration Act 1958 (Cth) (Migration Act) to invite BMH17 and BMJ17 to comment on new country information that the Authority obtained, namely a report on Vietnam published by the Department of Foreign Affairs and Trade (DFAT) in 2022.
Given that both judicial review applications have similar factual backgrounds, that the Authority reasoned in a similar way in making its decision in each matter, and that the ground of application is the same in each application, it is convenient to address both applications in a single judgment.
For the reasons explained below, the applicants have not established that the Authority decisions are affected by jurisdictional error. The applications for judicial review are therefore dismissed.
FACTUAL BACKGROUND
BMH17 and BMJ17 entered Australia on the same boat in April 2013 and they are both unlawful maritime arrivals within the meaning of s 5AA of the Migration Act. They separately attended Irregular Maritime Arrival Entry Interviews (entry interviews) in 2013.
The applicants both made applications for protection visas on 23 August 2016, after the Minister exercised his discretion in s 46A(2) of the Migration Act to lift the bar in s 46A(1) and invited them to make applications for protection visas.
The applicants attended separate interviews with an officer of the Minister’s Department on 15 December 2016 to discuss their claims for protection (protection visa interviews).
On 13 January 2017 a delegate of the Minister refused to grant each of the applicants a protection visa and their matters were referred to the Authority for review in accordance with s 473CA of the Migration Act.
The Authority purported to affirm the delegate’s decision in each matter on 21 March 2017. The applicants both sought judicial review of the Authority’s decision in their matter and, while the judicial review applications were dismissed by this Court, an appeal to the Federal Court in each matter was successful. On 8 September 2023 the Federal Court quashed the Authority decision in each matter and remitted each matter to the Authority for reconsideration according to law.
Following the remittal, the Authority wrote to each of the applicants on 11 October 2023 advising that the Authority would reconsider their matter and enclosing a copy of the Authority’s Practice Direction.
On 12 October 2023 the Authority wrote to each of the applicants inviting them to provide English translations of various untranslated Vietnamese documents that they had provided to the Department. Neither applicant provided translations of the documents, or any other new information or submission, to the Authority.
On 1 November 2023 the Authority affirmed the delegate’s decisions not to grant BMH17 and BMJ17 protection visas. Those parts of the Authority decisions that are relevant to the judicial review applications are referred to in the discussion of the ground below.
JUDICIAL REVIEW APPLICATION
BMH17 and BMJ17 each filed an application for judicial review on 5 December 2023, and the application in each case was therefore made within 35 days of the Authority decision, as required by s 477(1) of the Migration Act.
The application as filed in each matter contained two grounds, but Counsel for the applicants indicated in his submissions to the Court that ground 1 of each application was not pressed.
Ground 2 of each application, which is now the sole ground that the applicants rely upon, is similar in each application. In BMJ17’s application, the ground reads:
The 2023 IAA exercised its power under s 473DC of the Migration Act to obtain a DFAT report about Vietnam dated 11 January 2022. The 2023 IAA reasoned in its decision at [3] that “given it is almost six years since the delegate’s decision, and the majority of the country information the delegate relied on dates back to 2013, 2014 and 2015, I am satisfied there are exceptional circumstances to justify consideration of this new information”. The IAA at [49] and [64] relied on aspects of the country information in the January 2022 report in a manner adverse to the applicant. In light of the passing of six years, the 2023 IAA ought to have also considered its power under s 473DC to invite the applicant to comment on the new country information. It was legally unreasonable for the 2023 IAA not to exercise its power in this way.
The only difference in the ground as set out in BMH17’s application is that the reference to [49] and [64] of the Authority’s reasons in BMJ17’s application is replaced by reference to [59] and [69] of the Authority’s reasons, to reflect the different paragraph numbers in each matter.
The evidence before the Court in each matter comprises a court book filed on behalf of the Minister on 20 February 2024.
CONSIDERATION OF THE APPLICANTS’ GROUND
Relevant legislation and authorities
The focus of the applicants’ ground is on s 473DC of the Migration Act, which confers on the Authority a power to get new information. That section provides:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)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.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
It is a discretionary power and the Authority is required to act reasonably in the exercise of its discretion: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21], [86]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [3], [61], [80]. Determination of whether a particular decision of the Authority is unreasonable necessarily requires consideration of the specific facts of the case, as each case will turn on its own facts: FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456; [2020] FCAFC 29 at [59].
In assessing the reasonableness of the Authority’s exercise or non-exercise of its discretion in s 473DC, it is important to view the provision in its proper context in Division 3 of Part 7AA of the Migration Act. This includes that:
(a)subject to Part 7AA of the Migration Act, the Authority must conduct the review by considering the review material provided to it under s 473CB without accepting or requesting new information and without interviewing the referred applicant: s 473DB(1) of the Migration Act;
(b)the Authority has an obligation to give to a referred application particulars of new information that has been or may be considered and which would be the reason, or part of the reason, for affirming the delegate’s decision and invite the applicant to comment on that information, but this obligation does not extend to information such as country information, which ‘is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member’: s 473DE(1) and (3)(a) of the Migration Act.
Both parties in their submissions referred to CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17). In that case, Thawley J considered a submission that the Authority unreasonably failed to invite the appellant to comment on new country information and said at [47] and [54]-[56]:
47.In addition to s 473DC(2), a further important aspect of the statutory scheme is that s 473DE(3)(a) expressly contemplates that new information (such as new country information) can be used to affirm a decision (see s 473DE(1)(a)(ii)) without giving a referred applicant an opportunity to be heard. That does not mean that s 473DC could never be used in circumstances where the exclusion in s 473DE(3)(a) applied. Nor is to say that the particular circumstances of a case may be such that it would be legally unreasonable not to exercise or consider exercising the discretion in s 473DC despite there being no obligation (as a consequence of the exclusion in s 473DE(3)(a)) to afford the opportunity to be heard contemplated by s 473DE.
…
54.… [A]ssuming there was failure to consider exercising the discretion under s 473DC, such a failure does not have the characteristics of being legally unreasonable. The appellant did not show that the way in which the 2017 DFAT Report (which itself was “new information”) was used by the Authority gave rise to any new issue; nor did the appellant show that the principle of legal unreasonableness otherwise required the Authority to consider its discretion under s 473DC to seek new information from the appellant. The appellant did not show, for example, that the 2017 DFAT Report was used in a way which was materially different to the way in which the delegate had used the 2015 DFAT Report and the other country information which had been before him. Indeed the appellant conceded, properly, that the two reports were used in the same way to support materially similar conclusions. The only matters which the appellant relied upon were the fact the reports had different dates and that they were not identical. This is not sufficient to support a conclusion that it was legally unreasonable to fail (assuming that to be the case) to consider exercising the discretion under s 473DC.
55.The appellant submitted that the failure to “invite comment” under s 473DC(3) was legally unreasonable because the failure had the effect that a decision was made by the Authority in reliance upon information the significance of which the appellant was left unaware. The appellant submitted that there was no intelligible justification for doing so.
56.This submission incorrectly views the matter through the lens of natural justice. It fails to recognise that the statutory scheme expressly contemplates review decisions being made on the basis of information the significance of which the review applicant is unaware. Section 473DE(3), for example, expressly contemplates such a result. What the appellant had to show was that in circumstances where:
(1)the statutory scheme restricted the natural justice hearing rule; and
(2) s 473DE(3)(a) disengaged what otherwise would be the operation of s 473DE(1) (for present purposes it is not necessary to decide whether s 473DE(1) would in fact have applied – that is whether s 473DE(1)(a)(i) and (ii) were satisfied),
there was nevertheless a legally unreasonable failure to exercise the discretion conferred by s 473DC.
The Minister also submitted that care must be taken not to conflate the notions of procedural fairness with legal unreasonableness, citing CRW16 v Minister for Immigration and Border Protection [2018] FCA 710 (CRW16) at [42]:
Both the content of the rules of procedural fairness and the principle of “unreasonableness” must necessarily be constrained by the statutory context. Although unnecessary to resolve the argument, it is difficult to see how “unreasonableness” could so operate as to confer a procedural entitlement upon a claimant which is otherwise excluded, expressly or impliedly, by the terms of Pt 7AA. Not only would such a conclusion potentially run contrary to the scheme set forth in Pt 7AA; it would also potentially prejudice the intended legislative intent behind s 473DA(1). Such a construction would only henceforth invite grounds of review being reformulated to characterise an alleged procedural deficiency as being “unreasonable” rather than a denial of “natural justice”. On such an approach, a draftsman could avoid the constraints imposed by s 473DA by re-characterising a ground of review as “unreasonableness” rather than a requirement of “natural justice”.
Relevant reasoning of the Authority
The Authority said at [6]-[7] in its decision in BMH17’s matter and at [2]-[3][1] in BMJ17’s matter (footnote omitted):
6.I have obtained the most recent Australian Department of Foreign Affairs and Trade (DFAT) country information report for Vietnam of 11 January 2022 prepared for protection status determination purposes only. The report draws on DFAT’s on-the-ground knowledge and discussions with a range of sources in Vietnam and elsewhere. It takes into account information from government (including the Vietnamese Government) and non-government sources, including (but not limited to) those produced by the US Department of State, the UK Home Office and relevant UN agencies, and reputable news organisations.
7.Given it is almost six years since the delegate’s decision, a significant period of time, and that the country information the delegate relied on mostly dates back to 2013, 2014 and 2015, I am satisfied there are exceptional circumstances to justify consideration of this new information.
[1] The paragraphs in BMJ17’s matter appear to be misnumbered, with [1]-[4] appearing under the subheading ‘Visa application’ and additional paragraphs [1]-[3] appearing under the subheading ‘Information before the IAA’. The reference to [2]-[3] referred to in this paragraph of the Court’s judgment is a reference to the paragraphs that appear under the subheading ‘Information before the IAA’.
The Authority referred to the 2022 DFAT report in several paragraphs of its reasons. In advancing their submissions to the Court, the applicants referred to the Authority’s use of the 2022 DFAT report explained in the following paragraphs.
Both applicants made claims to fear harm on the basis that their family had an ongoing land dispute with the Vietnamese authorities. One document that the applicants provided to the delegate to support this claim was a summons to attend a police station received by their parents shortly before the applicants’ protection visa interviews. The Authority said at [49] of BMJ17’s decision (emphasis added, footnote omitted):
…I find it far-fetched that the day prior or just prior to their SHEV interview, their parents would receive an invitation or summons from the authorities to attend the police station when the last one allegedly received from the police was three years prior in September 2013. The summons or invitation provided at the time of their interview as noted earlier has two dates on it, that of 14 December 2016 at the top of the page and 15 December 2016 in the body of the document. While I am speculating without an official translation, I can assume this date of 15 December is a request for them to attend on that date and as the applicant’s own evidence at her SHEV interview, the same date as the applicant and her brother’s SHEV interview. In contrast the applicant said her father had attended ‘yesterday’ and been beaten and his face was swollen. Her brother however could not say definitely whether his father had gone to the police station. I am also mindful of the country information which indicates document fraud is common in Vietnam. DFAT understands from sources that fraudulently obtained genuine documents are more common than documents that were fake in the first place.
The Authority made a similar, albeit less detailed, finding in BMH17’s case, where it said at [59] of its reasons (emphasis added, footnote omitted):
I also have concerns that only the day before their SHEV interview the authorities would summons or invite their parents for questioning, beat their father and that their mother would need to flee to Saigon. I do not find this evidence convincing. I accept there is a summons with the date of 14 December 2016, and it appears to request someone to attend on 15 December 2016, but this would be the day of their actual interview. I consider it too coincidental that their parents would be come to the authorities’ attention at the time of their SHEV interview. I am also mindful of country information which indicates document fraud is prevalent in Vietnam.
The Authority accepted that the applicants would be returning to Vietnam as failed asylum seekers and that the Vietnamese government may know that the applicants had sought asylum in Australia. The Authority said at [64] of its reasons in relation to BMJ17 (emphasis added, footnote omitted):
I accept the applicant will be returning to Vietnam as a failed asylum seeker who departed her country illegally. I accept the applicant’s uncle was responsible for arranging the boat and their trip; however, neither the applicant nor her brother have claimed to be involved in this process. According to DFAT, article 23 of the Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three- and 20-years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.
The Authority said at [65]-[66] of its reasons in BMJ17’s matter (emphasis added, footnotes omitted):
65.In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.
66.DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
The Authority said at [68] of its reasons in relation to BMJ17 (emphasis added, footnote omitted):
Returnees, including failed asylum seekers typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. DFAT assesses that most people who have been subject to people smuggling are seen by the Government as a victims, not criminals. Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government.
The Authority considered the economic circumstances of Vietnam at [70] of its reasons relating to BMJ17, where it said (footnote omitted):
According to DFAT, Vietnam has been described as a ‘development success story’ and its GDP one of the fastest growing in the world; official unemployment is low at 2.4 per cent although the rate of formal unemployment is high. The majority of the poor are from ethnic minority groups. According to World Bank data, between 2002 and 2018 more than 45 million people were lifted out of poverty. In that period, the poverty rate fell from over 70 per cent to below 6 per cent. The economy continues to grow and has strong growth potential, with 2.9 per cent growth in 2020 despite the COVID-19 pandemic. This is reflected in a growing middle class and increasing urbanisation.
The Authority then referred to BMJ17’s employment history and ability to be supported by her parents and was satisfied that she would be able to find employment on her return to Vietnam and that she would be able to live with her parents.
The Authority in BMH17’s case made similar findings to those described at [27]-[31] above at [69], [71]-[72], [73] and [75]-[76].
Was it unreasonable for the Authority not to invite the applicants to comment on the 2022 DFAT report?
The applicants submitted, based on CCQ17, that they bear the onus of persuading the Court that the Authority used the 2022 DFAT report in a way which gave rise to a new issue or in a way that was materially different to the way in which the delegate had used the country information that was before them. Counsel for the applicants accepted, in response to the submissions advanced by Counsel for the Minister, that the words used by Thawley J in CCQ17 at [54] are not a proposition of law or a test, but rather an indication of circumstances in which an applicant might attempt to persuade a court that the Authority’s conduct is legally unreasonable.
The applicants submitted that the Authority used the report in a way that gave rise to new issues and was materially different to the way in which the delegate used the country information that was before them because:
(a)the delegate did not rely on any country information which suggested document fraud is prevalent in Vietnam;
(b)the delegate did not consider Articles 120 and 121 of the Vietnamese Penal Code and so did not consider country information concerning these provisions;
(c)the delegate did not rely on country information to support a conclusion that being a failed asylum seeker is not generally stigmatised; and
(d)the delegate did not rely on any country information about the Vietnamese economy in support of reasoning that each applicant would not face economic hardship amounting to serious harm.
The applicants also submitted that even if there were overlaps between the manner in which the delegate relied on country information and the manner in which the Authority relied on country information, it is likely that aspects of the political, humanitarian and security landscape in Vietnam had changed between 2017 and 2023 and this contributes to the unreasonableness of the Authority’s conduct.
The Minister submitted that this was not a case in which the 2022 DFAT report gave rise to any new issue or was used in a way that was materially different to the way in which the delegate used the country information before them. Counsel for the Minister also submitted that, in referring to a new issue arising at [54] of CCQ17, his Honour Thawley J may have had in mind cases such as Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210, and noted that in that case, the Authority was unable to complete its statutory task without seeking new information in relation to the new issue.
I consider each of the matters raised by the applicants in turn.
I first consider the Authority’s use of the information that document fraud is prevalent in Vietnam.
The Minister submitted, and Counsel for the applicants accepted, that the Authority’s express finding was not that the summons document was fraudulent, but rather that it was not satisfied that a summons would be received the day before the protection visa interviews, a circumstance which the Authority considered to be far-fetched. Counsel for the applicants submitted it was implicit that the Authority did not consider the summons to be authentic and it is clear that it had regard to country information regarding the prevalence of document fraud. I accept that even though the Authority did not make any express finding that the summons was fraudulent, it took into account the country information regarding the prevalence of document fraud in Vietnam in not being satisfied that the summons was received the day before the protection visa interviews.
I accept that the delegate did not refer in their decisions to country information about the prevalence of document fraud in Vietnam. As Counsel for the applicants submitted, the delegate considered that the essential and significant reason for the harm experienced and feared by the applicants was due to the land dispute and was not for a Convention reason.
I also accept the Minister’s submission that it appears that there was similar information about document fraud in Vietnam in the materials before the delegate. This can be seen from the purported decisions made by the Authority in 2017, which were subsequently quashed by the Federal Court. At [34] of its reasons for each applicant, the Authority relevantly said:
I have also considered the information before the delegate which states that document fraud in Vietnam is common and corruption is prevalent in Vietnam.
I accept the Minister’s submission that the applicants were on notice that there was information before the delegate to the effect that document fraud was prevalent in Vietnam irrespective of whether that issue was addressed by the delegate.
I do not accept that it was unreasonable for the Authority not to invite the applicants to comment on the information in the 2022 DFAT report relating to the prevalence of document fraud in Vietnam. The applicants each gave evidence about the land dispute and the reasons they feared harm as a result of the land dispute in their written claims and in their protection visa interviews. In assessing the claim, the Authority took a different approach to the delegate. The Authority in conducting a review de novo was not required to notify the applicants if it was considering taking a different view, adverse to them, of the material considered by the delegate: DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12 at [72]. Although the source of the information cited by the Authority in its decision was the 2022 DFAT report, similar information had been before the delegate, and was therefore before the Authority in any event, and the applicants were aware of this, or ought to have been aware of this, from the 2017 purported decisions made by the Authority.
The second use of the 2022 DFAT report that is referred to by the applicants is the Authority’s reliance on information that DFAT was not aware of cases where Articles 120 and 121 of the Penal Code, which prohibit organising, coercing or instigating illegal emigration for the purpose of opposing the Vietnamese Government, had been used against failed asylum seekers returned from Australia.
I do not consider that this gives rise to any new issue before the Authority or that it amounts to the Authority using country information in a materially different way to the delegate’s use of country information. While the delegate did not refer expressly to Articles 120 and 121 of the Penal Code, the delegate did consider, based on country information before it, whether the applicants would face harm as a result of their illegal departure from Vietnam. In so doing, the delegate considered an example of 46 asylum seekers on a boat intercepted in 2015, of which the four organisers were convicted in 2016 and sentenced to 2 to 2.5 years imprisonment, an example which was also referred to by the Authority. The delegate referred to information that the Vietnamese Government was upholding its assurance to the Australian Government not to prosecute any of the returned people for their illegal departure and also referred to information provided to DFAT in 2015 that the Vietnamese authorities treat individuals who travelled to Australia illegally by boat as victims rather than criminals and that the Hanoi post has received no information of returnees being subject to penalties or mistreatment.
The information in the 2022 DFAT report that DFAT was not aware of Articles 120 and 121 being used against failed asylum seekers returned from Australia is substantially the same, albeit with slightly greater specificity, as the information referred to by the delegate, in particular the information that there was ‘no information of returnees being subject to penalties or mistreatment’.
The information that DFAT was unaware of failed asylum seekers being detained overnight for questioning was not expressly referred to by the delegate but is not so materially different from the information relied upon by the delegate so as to amount to a separate issue or to give any indication that the Authority would be disabled from undertaking its statutory task without getting further information from the applicants.
The Authority did not act unreasonably in failing to exercise its discretion in s 473DC of the Migration Act to invite the applicants to provide new information in response to the information in the 2022 DFAT report that DFAT was not aware of Articles 120 and 121 being used against failed asylum seekers returned from Australia or the information that DFAT was not aware of failed asylum seekers being held overnight for questioning.
The applicants also rely on information from the 2022 DFAT report that being a failed asylum seeker is generally not stigmatised.
I accept the Minister’s submission that this information is not dissimilar to the information that was before the delegate and referred to in the delegate’s reasons. This includes information from the United Kingdom Home Office that the Vietnamese authorities usually cooperate with international humanitarian organisations, including the United Nations High Commissioner for Refugees, in the provision of protection and assistance for returning refugees and asylum seekers, as well as country information from 2014 which suggested that authorities in Vietnam questioned failed asylum seekers on return, generally cooperated with humanitarian organisations in providing protection and assistance, and claimed not to discriminate against or harass them.
In response to this, the oral submissions advanced on behalf of the applicants contained a different focus to their written submissions. The applicants accepted that the delegate had considered whether the applicants would be prosecuted or detained and questioned in a way that amounted to serious harm but did not consider whether the applicants would be able to reintegrate into society and this was the aspect of the 2022 DFAT report that was not dealt with by the delegate in 2017.
I do not consider that the Authority acted unreasonably in failing to exercise its discretion in s 473DC of the Migration Act to invite the applicants to comment on the information in the 2022 DFAT report that failed asylum seekers are not stigmatised or that they can face difficulties upon reintegration. The information about failed asylum seekers not being stigmatised overlaps with the issues considered by the delegate. The applicants have not identified how the information about reintegration was used adversely against them. The reference to that information from the DFAT report, which can be seen in the extract of the Authority’s reasons set out at [29] above was not used in any way that was adverse to the applicants. It was an acknowledgement that returnees can face difficulties but the Authority then went on to consider the particular circumstances of these applicants, as well as the information about the economic circumstances in Vietnam, in finding that the particular applicants before it would not face serious harm as a result of any difficulties reintegrating or with unemployment or underemployment.
The final piece of information relied on by the applicants is the information about the economic development in Vietnam. Although this was not considered by the delegate, I accept the Minister’s submission that this was not a new issue upon which the applicants have not had an opportunity to comment. Rather, the Authority was responding to a claim that the applicants made in their respective entry interviews that they were poor and had economic reasons for leaving. It was not unreasonable for the Authority not to invite the applicants to comment on this information.
Finally, to the extent that the applicants rely on their written submission that it is likely that aspects of the political, humanitarian and security landscape in Vietnam had changed between 2017 and 2023 and this contributes to the unreasonableness of the Authority’s conduct, I would not accept that this gives rise to unreasonableness. The submission is speculative and does not identify what changes, if any, in the political, humanitarian and security landscape were relevant, or, separate to the matters discussed above, how the Authority relied on new information in the 2022 DFAT report in relation to any of these considerations. Had the applicants wanted the Authority to consider any developments in the political, humanitarian and security landscape, it would have been open to them to put that information before the Authority and make submissions as to why they say the requirements of s 473DD of the Migration Act were met in respect of that information.
Taking into account the statutory scheme in which the Authority was operating, including the limited procedural fairness obligations, and the extracts from CCQ17 and CRW16 set out above addressing the assessment of legal unreasonableness within that statutory scheme, I am satisfied that the Authority did not act unreasonably in failing to invite the applicants to comment on information in the 2022 DFAT report. In reaching this conclusion, I have considered the matters raised by the applicants individually, as set out above, and also collectively.
The ground relied on by the applicants is not established.
CONCLUSION
Given that I have found that there is no jurisdictional error in the Authority decisions, it follows that the applications for judicial review filed by BMH17 and BMJ17 are dismissed.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 20 August 2024
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