BOL15 v Minister for Immigration

[2016] FCCA 1994

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOL15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1994

Catchwords:
MIGRATION – Judicial review – decision of former Refugee Review Tribunal – Vietnamese citizen – alleged political and human rights violations in Vietnam – credibility issues – whether real risk of serious or significant harm on basis of applicant’s political opinion or that applicant failed asylum seeker or because of applicant’s criminal conviction in Australia – whether denial of procedural fairness by not hearing witness for the applicant – whether merits review sought – whether jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.65, 426, 476, 501

Cases cited:

BTF15 v Minister for Immigration & Border Protection [2016] FCA 647

Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50
Minister for Immigration & Border Protection v SZUXN [2016] FCA 516
Minister for Immigration & Citizenshipv Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181
Minister for Immigration & Citizenshipv SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural & Indigenous Affairsv Katisat [2005] FCA 1908

Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118; (2005) 88 ALD 304
Minister for Immigration & Multicultural & Indigenous Affairsv SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002[2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1
Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609

SZOGI v Minister for Immigration & Anor [2010] FMCA 390

VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178

Applicant: BOL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 357 of 2015

Judgment of: Judge Antoni Lucev

Hearing date: 23 June 2016

Date of Last Submission: 23 June 2016

Delivered at: Perth

Delivered on: 5 August 2016

REPRESENTATION

For the Applicant: In person (with the assistance of an interpreter)

Counsel for the First Respondent: Mr A Burgess

For the Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. A writ of certiorari issue quashing the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal, made on 25 June 2015.

2. A writ of mandamus issue requiring the Administrative Appeals Tribunal to re-hear the applicant’s application for review dated 23 March 2015 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 357 of 2015

BOL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 27 July 2015 and amended on 9 November 2015, the applicant seeks judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), dated 25 June 2015. The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) not to grant the applicant a Protection (Class XA) visa under s.65 of the Migration Act (“Protection Visa”). The Tribunal Decision is at Court Book (“CB”) 162-168.

Background prior to the Tribunal Decision

Visa and citizenship history

1. The applicant’s visa and citizenship history is as follows:

   a)the applicant, a citizen of Vietnam: CB 22, first arrived in Australia on 16 July 1999 on a student visa: CB 111;

   b)subsequent student visa applications were refused, as the applicant did not complete his studies: CB 111;

   c)in October 2007 the applicant departed Australia and returned to Australia in January 2008 as the holder of a provisional partner visa: CB 111;

   d)the applicant was granted a permanent residence visa in March 2010: CB 111;

   e)a delegate was prohibited from approving the applicant’s application for conferral of Australian citizenship by reason of the applicant’s imprisonment, a decision that the applicant was notified of on 24 April 2014: CB 111;

   f)the applicant’s permanent residence visa was cancelled under s.501 of the Migration Act on 17 September 2014 following the applicant being convicted of sexual assault and sentenced to 18 months imprisonment by the District Court of Queensland at Brisbane on 5 September 2013: CB 111;

   g)the applicant lodged the Protection Visa application on 26 November 2014: CB 111;

   h)on 17 March 2015, the Delegate refused to grant the applicant a Protection Visa: CB 110-126; and

   i)on 23 March 2015, the applicant lodged an application with the Tribunal for review of the Delegate’s Decision: CB 127.

Other history

1. The applicant:

   a)married a Vietnamese born Australian citizen in July 2007. The applicant’s wife has a Vietnamese born child from a previous relationship who has also acquired Australian citizenship: CB 111;

   b)travelled to Vietnam from Australia on 8 October 2007 and returned on 21 January 2008: CB 82

   c)travelled to Vietnam from Australia on 10 May 2010 and returned on 26 May 2010: CB 82 and 111;

   d)during the period from October 2008 to June 2012 and prior to his imprisonment for sexual assault, had been imprisoned for observations or recordings in breach of privacy and common assault, and had been fined and placed on probation, without conviction, for committing public nuisance and unlawful stalking: CB 12, 53 and 87;

   e)following completion of his 18 month sentence of imprisonment for sexual assault was transferred to Yongah Hill Immigration Detention Centre (“Yongah Hill IDC”): CB 111; and

   f)has parents, two brothers and a sister who continue to reside in Vietnam: CB 111.

Applicant’s claims and request for witnesses to be called before the Delegate

1. In his Protection Visa application the applicant made the following claims:

   a)that Vietnam is a communist country, and that its citizens do not have freedom of speech, and that he was one of many activists who had fought for human rights and freedom of speech, and against government corruption, and he would be charged and tortured and be liable to 10 to 20 years’ imprisonment for his actions against them if he returned to Vietnam: CB 27-29;

   b)the applicant claimed that he had heard about many Vietnamese activists being arrested, tortured and imprisoned and that under Vietnamese law activists could be charged and put in prison for 10 to 20 years: CB 28-30; and

   c)the applicant claimed that his face was known to the Vietnamese Communist Police and that a Vietnamese General had threatened him: CB 29.

2. In a further statement dated 26 January 2015 (“January 2015 Written Submissions”) the applicant claimed that:

   a)upon return to Vietnam in 2010 he met with some dissidents about freedom of speech, human rights and “the right for Vietnamese people”: CB 97-98;

   b)he had heard that the Vietnamese Communist Police were looking for him: CB 98;

   c)“the adviser” said he should not go back to Vietnam as he will be arrested, tortured and imprisoned for 10 to 20 years: CB 98;

   d)he had been posting on Facebook under a particular name: CB 97-98;

   e)whilst in Yongah Hill IDC in 2014 he had met some dissidents that he had seen before in Vietnam; and

   f)“I have all of evidences and witnesses to stand and show that, my action against the Communist Government are correct … Dear Sir, if you do think that all of my evidence are not strong enough to get protection I will bring up the witnesses in the nearess interview to show that my action against the Communist Vietnamese Government are truly and correct”: CB 98-99. (copied from the original without amendment). (The next interview with the Delegate was on 25 February 2014: CB 103)

Delegate’s Decision

1. The Delegate’s Decision (which is at CB 110-126) indicates that the applicant’s January 2015 Written Submissions were before the Delegate: CB 112. The Delegate notes that the applicant attended an interview before the Delegate on 25 February 2015 and did not request an interpreter and was not represented at the interview with the Delegate: CB 113. The Delegate seemingly had regard to the content of the claims made in the January 2015 Written Submissions in making findings of fact as to the applicant’s credibility: CB 113-115, before finding that the applicant had embellished his claims for protection and in particular the level of political activity that he engaged in during the two week period he was in Vietnam in 2010: CB 116, and therefore found that the applicant was not a credible witness: CB 116. At no stage in so doing did the Delegate refer to the applicant’s request to bring witnesses if the Delegate did not consider that the applicant’s own evidence was strong enough to persuade the Delegate to grant the applicant the Protection Visa. Nor did the Delegate otherwise refer to that request in the Delegate’s Decision in making findings as to Australia’s protection obligations to the applicant. The Delegate did observe that prior to the conclusion of the interview the applicant was given the opportunity to provide any further information regarding his Protection Visa claims: CB 121. It does not appear that the applicant repeated his request for witnesses to be produced before the Delegate during the interview with the Delegate.

2. The Delegate was not satisfied that the applicant was a person to whom Australia had protection obligations, and refused to grant the applicant a Protection Visa: CB 126.

Applicant’s further claims and request for witness to be called before the Tribunal

1. Following the Delegate’s Decision refusing the Protection Visa application, and the applicant’s application to the Tribunal for review, an invitation to attend a Tribunal hearing was forwarded to the applicant on 7 May 2015: CB 133-136. Seemingly in response thereto the applicant sent an undated submission (“Undated Submission”) to the Tribunal in which he said that:

   a)he was “writing this letter to state that the reason (include evidences & witness) for my claim protection from the Australian Government”;

   b)his claim was “against the Vietnamese Communist Government for political and human rights and the rights for people in Vietnam”;

   c)he had discussed these matters with dissidents in Vietnam and that because of that activity the Vietnamese authority had arrested the dissidents and put them in custody;

   d)he “would like to bring up to the … [Tribunal hearing] the witness and dissidents” (“Applicant’s Proposed Witness”), whom he said was an activist in the same group as another dissident who had been sentenced to 13 years in custody;

   e)the government in Vietnam was corrupt, restricted free speech, and tortured and killed those opposed to it;

   f)returning asylum seekers were subject to “revenge” and attacks, which could be ordered to look like a gangster or hooligan attacks; and

   g)the Vietnamese authorities had been “monitoring, checking and harassing” the applicant’s family, and on 7 April 2015 the Vietnamese police had come to his parents’ house and searched it and questioned his parents for several hours, and his brothers and sister had also been questioned and threatened: CB 137 (quotes copied from original without amendment).

2. The applicant’s “Response to Hearing Invitation”, seemingly sent together with the Undated Submission referred to above, requested that the Tribunal take oral evidence from the Applicant’s Proposed Witness who was detained at Wickham Point Detention Centre (near Darwin in the Northern Territory), and whom the applicant said “will be an important witness for my action against the VN Communist Government”: CB 154 (“Applicant’s Witness Request”).

Tribunal Decision

1. In the Tribunal Decision the Tribunal:

   a)affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 163 at [6] and CB 168 at [43];

   b)referred to the Applicant’s Witness Request and said as follows at CB 164-165 at [15]:

   The applicant invited the tribunal to contact ... [the Applicant’s Proposed Witness] as a witness. The tribunal enquired why, in circumstances where he claims to have met ... [the Applicant’s Proposed Witness] at Yongah Hill detention centre in November 2014, he did not mention him in his claims before the department, as a person who could corroborate his claims. The tribunal notes that he was interviewed by the delegate on 24 February 2015 and yet there is no mention in the delegate's decision of ... [the Applicant’s Proposed Witness]. The applicant responded that he was told he was not allowed to bring anyone else to his interview. He responded that he had mentioned him before the start of the interview and that it is not in the recording of his interview, and that during the recorded interview with the delegate there had been no chance for him to say more about ... [the Applicant’s Proposed Witness]. The tribunal does not accept this, and considers that the claims regarding ... [the Applicant’s Proposed Witness] have been fabricated following the delegate's decision, in an attempt to strengthen his claims. It considers that if in fact the applicant had a witness to corroborate his claims of political activism in Vietnam in May 2010, he would have made this claim at the earliest opportunity. For this reason the tribunal declined to take evidence from ... [the Applicant’s Proposed Witness].

   c)accepted that the applicant had been expressing his political view in relation to human rights violations by the Vietnamese government on Facebook since October or November 2014: CB 165 at [17], however, found that the applicant did so for the sole purpose of creating a protection claim: CB 165-166 at [20];

   d)did not accept that the applicant had been politically active during his two week holiday to Vietnam in May 2010: CB 165 at [20], or that authorities had been to the applicant’s parents’ house to search for him: CB 166 at [21];

   e)did not accept that the applicant:

   i)would engage in any political activities in the future;

   ii)was a political activist; or

   iii)would face a real chance of serious or significant harm upon being returned to Vietnam:

   CB 166 at [22] and [24]; and

   f)relying on country information, found that the applicant did not face a real risk of serious or significant harm on the basis of his return as a failed asylum seeker: CB 167 at [31]-[32], or that he would be harmed as a result of his criminal conviction in Australia: CB 167 at [35]-[36].

Grounds of review

1. By amended application filed 9 November 2015 the applicant raises the following grounds:

   1. The Tribunal denial The applicant Procedural Fairness by refusing to allow him present the evidences through his witness to corporate his claim

   2. The Tribunal denial the applicant Procedural Fairness by fail to consider factors that The applicant family have been threatened, harassed by The authority

   (Copied from the original without amendment).

2. The applicant also filed an affidavit on 9 November 2015 (“Applicant’s November 2015 Affidavit”), and relevant matters arising therefrom are dealt with below: see [29] below.

Consideration – grounds 1 and 2

Ground 1

1. Section 426 of the Migration Act provides as follows:

   (1)  In the notice under section 425A, the Tribunal must notify the applicant:

   (a)  that he or she is invited to appear before the Tribunal to give evidence; and

   (b)  of the effect of subsection (2) of this section.

   (2)  The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

   (3)  If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.

2. Where, as here, the discretion under s.426(3) of the Migration Act is enlivened following notification under s.426(2) of the Migration Act, there can be no doubt that a failure by the Tribunal to have regard to the applicant’s wishes is a jurisdictional error: SZOGI v Minister for Immigration & Anor [2010] FMCA 390 at [36] per Driver FM (“SZOGI”). If an applicant requests that a Tribunal summons a witness, or take evidence from a witness, the Tribunal is not required to do so, at least in part because the Tribunal is under no duty to inquire: Minister for Immigration & Multicultural & Indigenous Affairsv Katisat [2005] FCA 1908 at [52] per Bennett J, citing Minister for Immigration & Multicultural & Indigenous Affairsv SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [43] per Gummow and Hayne JJ; VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 at [23] per Black CJ, Sundberg and Bennett JJ (“VJAF”). Albeit in relation to the equivalent provisions applying under the Migration Act to the then Migration Review Tribunal the position was explained by the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118; (2005) 88 ALD 304 by the majority Justices in that case (at [37] per Kenny and Lander JJ) as follows:

   It is in keeping with the Tribunal’s inquisitorial nature that the Tribunal does not err if it decides that, notwithstanding that the applicant wants oral evidence to be obtained from persons named in a notice under s 361(2) [here s.426(2)], it decides not to obtain such evidence, always providing that it acts in conformity with s 361(3) [here s.426(3)] of the [Migration] Act and has regard to the notice that the applicant has given. In this circumstance, there is no obligation on the Tribunal to take oral evidence from anyone other than the applicant.

3. In BTF15 v Minister for Immigration & Border Protection [2016] FCA 647 (“BTF15”) the Federal Court dealt with a decision of the Tribunal on a review of a delegate’s decision to refuse a protection visa, to decline to question two persons who had given written statements apparently corroborative of the claims made by the applicant for the protection visa. The Federal Court observed, by reference to recent High Court and Full Court of the Federal Court authority, namely Minister for Immigration & Citizenshipv Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 (“Li”) and Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 (“Singh”), that statutory discretions must be exercised reasonably and that there must be an intelligible justification within the reasons given for the exercise of the power by the Tribunal: BTF15 at [39]-[41] per Katzmann J.

1. In BTF15 the Federal Court also acknowledged the correctness of a submission made by the Minister that:

   … a decision as to whether to receive oral evidence will depend, to a significant extent, on the relevance and importance of the evidence. Where on the face of the material before the Tribunal there was no reason to suppose that the authors of the statements could allay its particular concerns about the appellant’s credibility, it was not unreasonable to decide not to question them. The Tribunal was not obliged to test their accounts or to give them an opportunity to elaborate upon them before it came to an adverse conclusion about their evidence. Proceedings in the Tribunal are inquisitorial, not adversarial. As the primary judge recognised, the rule in Browne v Dunn does not apply: Re Minister for Immigration; Ex parte Applicant S154/2002 201 ALR 437; [2003] HCA 60 at [57].

   BTF15 at [55] per Katzmann J.

2. The Minister submitted that:

   a)the Tribunal was not required to obtain evidence from the Applicant’s Proposed Witness in circumstances where it provided an “intelligible justification” for exercising the discretion not to obtain evidence: Li at [76] per Hayne, Kiefel and Bell JJ;

   b)the applicant had made no specific reference to the Applicant’s Proposed Witness prior to the Tribunal proceedings: CB 164 at [15] (and see also Transcript, page 4);

   c)the Applicant’s Proposed Witness had not provided a statement for the Tribunal proceedings;

   d)the applicant's credibility was damaged beyond repair: CB 165 at [15]: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002[2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1 at [49] per McHugh and Gummow JJ;

   e)there was no duty on the part of the Tribunal to take oral evidence from the Applicant’s Proposed Witness in circumstances where the Tribunal had raised its concerns as to the authenticity of the applicant's claims: CB 165 at [19]; VJAF; and

   f)there is no breach of procedural fairness arising from the Applicant’s Proposed Witness’ failure to give evidence.

3. It is not possible to determine whether or not the applicant was told, either by anyone at Yongah Hill IDC, or a representative of the Delegate, or a departmental officer, that he was not allowed to bring anyone else to the interview with the Delegate. In the absence of a transcript of the interview with the Delegate it is also not possible to determine whether or not there was a chance for the applicant to say anything about calling a witness before the Delegate. Obviously, the Tribunal did not accept the applicant’s contentions in that regard, and considered that those contentions had been fabricated following the Delegate’s Decision, in an attempt to strengthen the applicant’s Protection Visa claims. That conclusion falls to be considered in the context of the critical final two sentences at CB 165 at [15] in the Tribunal Decision, as set out at [10(b)] above. Critical also is the fact that the Minister expressly relies on this paragraph, and those sentences, to justify the Tribunal Decision. Those two sentences demonstrate that the Tribunal declined to take evidence from the Applicant’s Proposed Witness because it considered that “if in fact the applicant had a witness to corroborate his claims of political activism in Vietnam in May 2010, he would have made this claim at the earliest opportunity”. It is relevant to note that the rationale for declining to take evidence from the Applicant’s Proposed Witness is not related to his credibility as such, and the rationale is not that the applicant would have claimed that it was the Applicant’s Proposed Witness specifically who would be called to corroborate his claims of political activism in May 2010, but rather “a witness” who would have been called to corroborate the applicant’s claims: CB 165 at [15].

4. The applicant did in fact make a claim that he had “witnesses” to corroborate his claims with respect to his claims of political activism in May 2010: CB 98-99, see [5(f)] above. This claim, made in the January 2015 Written Submissions, preceded the interview with the Delegate by almost one month. The January 2015 Written Submissions were clearly before the Delegate: CB 112. The Court observes that the applicant did not request an interpreter for the interview with the Delegate, and was not represented at the interview with the Delegate: CB 113. In making findings of fact as to credibility the Delegate did not refer to the January 2015 Written Submissions’ notification that a witness or witnesses could be called to corroborate his Protection Visa claims: CB 113-116, and went on to find that the applicant was not a credible witness: CB 116. The Delegate did find that the applicant’s political activities did not commence until he was detained in Villawood Immigration Detention Centre in 2013: CB 115, 118 and 123, but made no reference to the applicant’s suggestion that he had witnesses who might prove that his political activities pre-dated his detention.

5. It is not evident from the Delegate’s Decision that there was any appreciation on the part of the Delegate that the applicant had in fact suggested that there were possibly witnesses who could be called to give evidence concerning the applicant’s claim to have been politically active in Vietnam during his visit in May 2010.

6. Generally, findings on credibility are matters for the Tribunal, not the Court: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J; NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ, but they are not thereby immune from giving rise to jurisdictional error. As the Federal Court has recently noted in Minister for Immigration & Border Protection v SZUXN [2016] FCA 516 (“SZUXN”):

   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: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. 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 (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

   SZUXN at [56] per Wigney J.

7. Unreasonableness in the Tribunal Decision might give rise to jurisdictional error. The relevant principles in relation to legal unreasonableness as explained by the High Court in Li, and subsequently by the Full Court of the Federal Court in Singh have been summarised by the Federal Court in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) as follows:

   (a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].

   (b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].

   (c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].

   (d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45 ]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].

   (e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].

   (f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].

   (g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].

   (h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].

   (i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].

   (j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].

   Pandey at [41] per Wigney J.

8. In SZUXN the Federal Court (by reference to the judgment of the High Court Minister for Immigration & Citizenshipv SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248, and a number of relatively recent first instance Federal Court judgments), observed that:

   a)jurisdictional error may be established on the basis of illogical reasoning or illogical or irrational findings by the Tribunal in the course of reaching its final conclusion: SZUXN at [54] per Wigney J;

   b)jurisdictional error will not be made out in relation to particular findings or reasoning challenged on the basis of illogicality or irrationality unless it is shown that those findings could not have been made, or that the reasoning could not have been employed, by a reasonable or rational decision-maker: SZUXN at [50] per Wigney J; and

   c)it is not sufficient to establish illogicality, irrationality or unreasonableness simply because one conclusion has been preferred to another possible conclusion: SZUXN at [52].

9. It is plain that there cannot be an intelligible justification for a finding not to take evidence from the applicant’s witness where that finding is based upon a factual finding by the Tribunal as to whether or not the applicant had claimed to have a witness to corroborate his claims of political activism in Vietnam in May 2010 prior to the Delegate’s Decision which is wholly incorrect. The applicant had made such a claim, and it is evident that the Tribunal (perhaps understandably in view of the Delegate’s Decision) did not appreciate this fact, which led it to make a finding based upon an incorrect factual premise. In the circumstances, the Tribunal Decision not to call the Applicant’s Proposed Witness lacks an intelligible justification, and is plainly unjust, and is therefore unreasonable in a legal sense: Li at [76] per Hayne, Kiefel and Bell JJ; Singh at [35] per Allsop Cj, Robertson and Mortimer JJ; SZUXN.

10. In this case, the Court cannot preclude the possibility that had the Tribunal been aware that the applicant had requested that a witness or witnesses be called by the Delegate, and that the applicant had claimed that that witness or witnesses could support his claim of political activism in Vietnam in May 2010, the Tribunal may have arrived at a different conclusion as to whether to call the Applicant’s Proposed Witness. Whether or not calling the Applicant’s Proposed Witness may have resulted in evidence being given which did not assist the applicant is not to the point, rather, the Court cannot preclude the possibility that such evidence might have assisted the applicant to establish his claims, and in particular his claim of political activism in Vietnam in May 2010. That evidence might well have influenced the Tribunal’s findings as to credibility, the first plank of which was that it did not accept that the applicant was politically active during his two week holiday to Vietnam in May 2010: CB 165 at [20]. Similar concerns were part of the rationale for the then Federal Magistrates Court granting prerogative relief in SZOGI: see [30] and [43] per Driver FM.

11. This is not a case of the applicant receiving poor or negligent or mistaken advice. Rather, the error in this case is that of the Tribunal in misconceiving what it was that had been put to the Delegate. On no proper reading of the departmental file which was before the Tribunal, and which contains the January 2015 Written Submissions in which the applicant requests that a witness or witnesses be called at the interview with the Delegate, can it be said that the applicant did not make a claim that there was a witness, or witnesses, who could corroborate his claims of political activism in Vietnam in May 2010. In those circumstances the Applicant’s Witness Request before the Tribunal was stultified, and wrongly rejected, because of the Tribunal’s erroneous understanding of what had been put by the applicant before the interview with the Delegate. Had the Tribunal read the January 2015 Written Submissions and properly understood what had been put by the applicant before the interview with the Delegate it is not inconceivable that the Tribunal might have acceded to the request to hear from the Applicant’s Proposed Witness, and that that evidence may have made a difference, both to the Tribunal’s findings as to its perception of the applicant’s political activities in Vietnam in May 2010 and as to the applicant’s credibility generally. That possibility then raises the possibility that the Tribunal might have viewed the applicant’s credibility differently, and may therefore have assessed the applicant’s evidence as being credible, or at least not formed an adverse view of the applicant’s credibility. That may, in turn, have affected the Tribunal’s consideration of the applicant’s claims: compare SZOGI at [41] per Driver FM.

12. In all of the above circumstances the Court is of the view that the Tribunal acted unreasonably in exercising its statutory discretion not to call the Applicant’s Proposed Witness. In those circumstances, the Tribunal Decision is affected by jurisdictional error, and ground 1 is made out.

Ground 2

1. The Tribunal referred to and considered the applicant's claim that authorities had attended his parents' house: CB 166 at [21]. The Tribunal specifically adverted to claims of threats against his parents made when authorities went to his parents’ house to search for him on 7 April 2015, and further referred to photographs purporting to be photographs of his parents’ home in a dishevelled state after it had been searched by the Vietnamese authorities. The Tribunal noted that the photographs were of the dishevelled interior of the home but that the cause of dishevelment was unknown, and the Tribunal did not accept the claim and considered that it had been concocted to strengthen the applicant’s Protection Visa claim: CB 166 at [21]. In the circumstances, ground 2 seeks impermissible merits review based on the applicant's dissatisfaction with the finding that the Tribunal did not accept the claim: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). It follows that ground 2 is not made out, and establishes no jurisdictional error.

Matters raised in Applicant’s November 2015 Affidavit

1. Annexure III to the Applicant’s November 2015 Affidavit raises a number of matters, including that:

   a)the applicant had been involved in political activities against the Vietnamese Communist government since 2010, and that the Vietnamese government and police have cracked down on all dissidents who are against them;

   b)an activist, the Applicant’s Proposed Witness, fled to Australia to seek protection. The applicant met him in 2010 in Vietnam, and he could be a witness as to their discussions concerning freedom and human rights in Vietnam;

   c)the applicant has been vocal on Facebook against the Vietnamese “Communist Dictator” government;

   d)the authorities in Vietnam had harassed his family causing his parents to abandon him; and

   e)the applicant will be arrested and imprisoned for up to 12 years upon return and may be tortured to death.

Consideration – possible further grounds of review

1. In relation to the matters identified at (a), (b), (c) and (e) of [x] above, it is evident that the Tribunal considered each of those matters, and to the extent that the applicant seeks to cavil with the findings in the Tribunal Decision in relation to those claims the applicant seeks impermissible merits review: Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, save to the extent the matter identified at [29(b)] above is encompassed by the Court’s finding of jurisdictional error in relation to ground 1 above: see [13]-[27] above.

2. In relation to the matter identified at [29(d)] above it is evident that the applicant made no claim, to either the Delegate or the Tribunal that his parents had abandoned him as a result of any alleged harassment. Accordingly, the Tribunal was not required to consider a claim which was not made: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244.

3. It follows that none of the possible further grounds of review have been made out, and that in that regard, no jurisdictional error is established in the Tribunal Decision, save again to the extent the matter identified at [29(b)] above is encompassed by the Court’s finding of jurisdictional error in relation to ground 1 above: see [13]-[27] above.

Conclusion and orders

1. The Court has concluded that:

   a)jurisdictional error has been established in the Tribunal Decision in relation to ground 1; and

   b)no jurisdictional error has been established in the Tribunal Decision in relation to ground 2 or the matters raised in the Applicant’s November 2015 Affidavit, save to the extent the matter identified at [29(b)] above is encompassed by the Court’s finding of jurisdictional error in relation to ground 1 above: see [13]-[27] above.

1. It follows from the conclusion that jurisdictional error has been established in relation to ground 1 of the Judicial Review Application that prerogative relief ought to be granted to the applicant. There will therefore be orders that a writ of certiorari issue quashing the decision of the former Refugee Review Tribunal (now the Tribunal) made on 25 June 2015, and that a writ of mandamus issue requiring the Tribunal to re-hear the application for review made by the applicant on 23 March 2015 according to law.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 5 August 2016