BVZ15 v Minister for Immigration
[2016] FCCA 343
•19 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVZ15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 343 |
| Catchwords: MIGRATION – Application for protection visa – whether an extension of time should be granted pursuant to s.477(2) of the Migration Act 1958 – consideration of merits of substantive application – whether Tribunal erred by failing to make inquiries into a critical fact – whether Tribunal erred in making a finding of fact without any evidence – whether Tribunal’s decision was irrational or illogical – whether Tribunal failed to consider a claim or an integer of a claim made by the applicant – whether Tribunal unreasonably refused to adjourn its hearing – whether Tribunal conducted hearing so as to prevent the applicant from meaningfully appearing before it – finding that Tribunal’s refusal to adjourn the hearing was unreasonable in a legal sense – finding that the substantive merits of the applicant’s claim proven – finding that there was a reasonable explanation for the delay in filing an application for judicial review – extension of time granted – finding that Tribunal’s decision affected by jurisdictional error – orders that Tribunal decision quashed and matter remitted to be determined according to law. |
| Legislation: Migration Act 1958 (Cth), ss.360, 363, 427, 477 |
| Minister for Immigration and Border Protection v Pandey and Ors [2014] FCA 640 Australian Privacy Commissioner – DIBP Own Motion Investigation Report |
| Applicant: | BVZ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2067 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 29 January 2016 |
| Date of Last Submission: | 29 January 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 19 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Guo |
| Solicitors for the Applicant: | Maurice Blackburn |
| Solicitor Advocate for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Applicant is granted leave, pursuant to s.477(2) of the Migration Act 1958, to extend the period of time to file his Application for Judicial Review to 10 September 2015.
The name of the Second Respondent be amended to ‘Administrative Appeals Tribunal’.
A writ of certiorari issue, directed to the Second Respondent quashing the decision of the Second Respondent dated 12 June 2015.
A writ of mandamus issue, remitting the matter to the Second Respondent and requiring it to determine the matter according to law.
The First Respondent pay the Applicant’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2067 of 2015
| BVZ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the (then) Refugee Review Tribunal (“the Tribunal”) made on 12 June 2015, affirming a decision of a Delegate of the First Respondent made on 16 December 2014 refusing to grant the Applicant a Temporary Protection (Class XD) visa (“the visa”).
Pursuant to s.477(1) of the Migration Act 1958 (“the Act”), an application for judicial review by this Court must be made within 35 days of the date of the Tribunal’s written decision. The Tribunal decision was made on 12 June 2015. The Applicant was required to file any application with this Court by 17 July 2015. The application for judicial review was accepted for filing on 10 September 2015, almost 8 weeks out of time.
Accordingly, the application is incompetent, unless the Court grants an extension of time pursuant to s.477(2) of the Act. An extension of time will only be granted if:
a)an application for an order for an extension of time has been made in writing to the Court, specifying why the Applicant considers that it is necessary in the interests of the administration of justice to make that Order; and
b)the Court considers it necessary, in the interests of the administration of justice, to make an Order for an extension of time.
The Applicant has satisfied the first requirement, by seeking an extension of time in writing, by ticking the relevant box for an extension of time in his application for judicial review.
The Court’s consideration of factors to be considered in determining whether it is in the interests of the administration of justice to grant an extension of time, is not to be confined. However, there are factors which are commonly taken into account. Perry J recently summarised these in Mohammed v Minister for Immigration and Border Protection [2015] FCA 184 at [15]:
In determining whether to grant an extension of time, factors to be taken into account include the extent of the delay, and the explanation for it, any prejudice that the respondents may suffer by reason of the delay and the merits of the proposed appeal: see e.g. SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15] – [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 – 349.
Background and Claims
The Applicant is a 24 year old Vietnamese national of Kinh ethnicity, a practising Roman Catholic, who arrived in Australia by boat on 19 May 2013, as an unauthorised maritime arrival. The Applicant has been in immigration detention since his arrival in Australia on or around 2 June 2013.
In summary, the Applicant claims to fear persecution, because of his religion, his imputed political opinion – against the Vietnamese Government and membership of a particular social group – failed asylum seeker (CB 87).
In his entry interviews on 2 June 2013 and 11 October 2013 (CB 1 to 22), the Applicant nominated religious disagreements with the ruling Communist Party, as the reason why he left Vietnam. He said that Catholic people were persecuted when they prayed, and violence was used against them by the authorities. Upon return to Vietnam, the Applicant feared imprisonment, on account of illegally crossing the border and disagreeing with the Government.
In his application for the visa, the Applicant’s claims included (CB 51 to 54):
a)he had joined a Catholic Youth organisation at the age of 15, and had become Vice-Chairman of the Young People’s Committee for the local parish;
b)he had witnessed a lot of wrong doing by a corrupt regime, including oppression of Catholic people, which made him angry;
c)he and other religious people had composed and distributed pamphlets, calling upon people to fight for religious and other freedoms;
d)he had been summoned many times to attend the police station, where he would be asked questions, and had been threatened with imprisonment for inciting others to object to the authorities;
e)he had organised activities, such as erecting banners to protest against the Government. For example, when land was confiscated from the Catholic Church and when there was an attack on the Church in Con Cuong;
f)his parents had told him that his Uncle, Tran Tung Phuc, was a Priest, who had called on parishioners to help build a Church, and as a consequence had been imprisoned for eight years;
g)he feared returning to Vietnam, because his life was in danger. He had to leave to ensure his own safety;
h)he had prepared banners for a protest on 15 July 2012, and while distributing pamphlets outside the Church in Tiep Vo, Hong Linh, the police had come to arrest him, but people had come to his aid. He was struck three times in the ribcage by a police baton, but was able to run away;
i)a priest had taken him back to the Church of Xai Doai, gave him medication and treated his injuries. He hid there for over five months. Then he received news from his family that the police had issued a summons for him to attend the police station, to talk about what had happened. He was very scared, and thought that this time he was in real trouble. He feared imprisonment for inciting people to fight against the authorities. He was helped by some Priests to flee to Laos, where he hid for five months, before travelling to Australia;
j)he had left Vietnam, not just to protect his own life, but also for the sake of many in his Catholic Youth organisation;
k)he feared immediate imprisonment should he return to Vietnam, because of his religious and political activities, and that while in prison he would be tortured and subjected to inhumane and degrading punishment;
l)he was perceived as being against the regime, and as a result would receive no protection from the authorities; and
m)relocation to another part of Vietnam was not reasonable, as he would have to register, and the authorities would know where he was living. He would still want to fight against the regime, and its oppression of Catholic people, wherever he lived, and would not be safe from the authorities.
A sur place claim was made on the Applicant’s behalf, in submissions lodged following the Applicant’s interview with the delegate. This claim is expressed as follows (CB 89 to 93):
“We submit that our Client has a sur-place claim for protection on account of two events during his detention. The first being the Privacy Breach in February 2014 and the second being the visit of the Vietnamese police to detention centres in Australia.
In February 2014, our Client was informed that his personal information, including his name, date of birth and country of origin, was published on the Department of Immigration website.
Following the privacy breach, a report was issued by KPMG. The report dated 20 May 2014 entitled ‘Management Initiated Review Privacy Breach – Data Management’ states that the release of confidential data did not include any details of visa status or protection claims. However, details of Australia’s immigration policies are a matter of public record in the global community, and it is indisputable that the majority of detainees are Unauthorised Maritime Arrivals who all make, or intend to make, protection claims. The Department of Immigration’s own statistics show that in the 2011-2012 year, 14,438 out of a total of 19,376 detainees (74.51%) were Unauthorised Maritime Arrivals. By deduction it can be seen that the release of personal data of a large number of immigration detainees will by necessity include a high percentage of individuals claiming asylum. Without a clear indication of who does or does not fall into the category of protection applicants, there is a high probability that anyone with an interest in an individual’s circumstances will make an assumption, albeit perhaps incorrectly, that an individual is, or has been, an applicant for protection. This will trigger the imputation of a political opinion that will raise their risk profile accordingly.
…
We note the UNHCR has provided an Advisory Opinion on the Rules of Confidentiality Regarding Asylum Information. This Opinion states as follows:
Confidentiality in asylum procedures is particularly important because of the vulnerable situation in which refugees and asylum seekers find themselves. As discussed during the Global Consultations on International Protection, “the asylum procedure should at all stages respect the confidentiality of all aspects of an asylum claim, including the fact that the asylum seeker has made such a request….”
And further:
Secondly, sharing with the country of origin, information about the asylum seeker, including the fact itself that the person applied for asylum, may constitute an aggravation of the person’s situation vis-à-vis the Government alleged to be responsible for his persecution. In a situation where the initial elements of the claim presented by the asylum seeker would not lead to inclusion, sharing of confidential information with the country of origin could well lead to the asylum seeker becoming a refugee sur place.
A further important point is made by (sic) UNHCR that the release of information can also endanger family members in the country of origin….
We note that there has been considerable public and media attention paid to the release of confidential information and this will no doubt have triggered any foreign government with an awareness that they may have citizens requesting asylum in Australia to scrutinise the list of names published.
Given the high level of interest surveillance practiced by many countries around the world, we submit that there is a strong likelihood that the authorities of our Client’s country of origin would have become aware that our Client is an asylum seeker in Australia. It is impossible to gauge the extent of the dissemination of this information except to assume that it would have been very widespread. The KPMG abridged report on the Privacy Breach stated that the data was accesses (sic) by at least 104 IP addresses.
We submit that the privacy breach has given rise to a sur place claim for our Client. The Vietnamese authorities may now have credited our Client with anti-government views and thus his profile has been raised and is now at further risk of persecution if he were to be returned to Vietnam.”
Meeting with A18 police
In August 2013, it was reported in Australian media that Australian Immigration Officials invited Vietnamese police to meet with Vietnamese asylum seekers detained in Yongah Hill and Wickham Point.
The police were from the People’s Security Force
…
Vietnamese community leaders in Australia have estimated that around 110 asylum seekers met with the Vietnamese police. Following the visit, complaints have been lodged with the Australian Human Rights Commission and Immigration Ombudsman.
We submit that all Vietnamese asylum seekers in detention at the time Vietnamese (sic) may now have an increased profile as possessing anti-government opinions. The majority of immigration detainees are asylum seekers, a statistic which the Vietnamese police would have been aware of.
We submit that as a result of the Vietnamese police visiting immigration detention centres, it has given rise to a sur place claim to our client. If he is returned to Vietnam he will be subject to investigation in detention, and it is highly likely that he will be subject to torture and abuse.
…
Conclusion
The actions of the Australian Immigration Department, specifically the privacy breach and the invitation of Vietnamese police to Immigration Detention Centres have given rise to a sur-place claim for our Client. The cumulative result of these events, his claims of persecution on return to Vietnam have been significantly enhanced. The Vietnamese government does perceive seeking asylum as being against the government and would impute anyone in immigration detention in Australia with anti-government opinions.
The privacy breach provided a list of personal information of all people held in immigration detention, which is available to the world. In addition, Vietnamese police visiting the immigration detention centres, gathered personal information of detainees and gave this directly to Vietnamese authorities.
Our client has stated that the local Vietnamese authorities are aware that he has left Vietnam, which could be a result of the privacy breach. This combined with his known religious activism means that he will most likely be investigated if deported to Vietnam.
…
(footnotes omitted)
On 28 April 2015, Dr McIntyre sent post hearing submissions to the Tribunal together with a statutory declaration made by the Applicant on 24 April 2015. In the statutory declaration the Applicant relevantly stated (CB 193 to 198):
“23. In about August 2013, the Australian Government allowed Vietnamese officials into Yongah Hill to meet asylum seekers detained there. These Vietnamese officials are known to us as the ‘A18’ - the most feared intelligence officials in Vietnam.
24. The A18 met many of the Vietnamese asylum seekers at Yongah Hill. I was very worried I would also have to meet them and was very fearful they could send me back to Vietnam.
25. I also worry that since I was also in detention at Yongah Hill at this time my details were provided to these Vietnamese officials.
26. As well as my fear that my details were exposed to the A18 while in immigration detention in Australia, I also fear the consequences of my details being exposed in the major privacy/data breach of information about asylum seekers in detention in January 2014.
27. Regarding this major privacy/data breach, that leaked my details for anyone in the whole world to access on the Department’s website, the information about the privacy/data breach that is held by the Department has not been disclosed to me. Further, I do not know who in the world has my information as a result of this privacy/data breach. Therefore I do not know how this privacy/data breach might impact on me if I were to be returned to Vietnam. I do fear, however, that this privacy/data breach has increased the likelihood that I will suffer harm if I were to return to Vietnam.
28. Through likely exposure of my details to the Vietnamese A18 in Australia and through leaking of my details to the world in the major privacy/data breach, it is now certain that the Vietnamese authorities know I am here and that I am an asylum seeker in Australia.
29. This also means that my profile in Vietnam is raised and I am of interest to the Vietnamese authorities. I am certain that I would be imprisoned if I were to return to Vietnam.
The submissions made on the Applicant’s behalf (CB 199 to 224) relevantly said:
“68. It is submitted that when the department’s website allowed the access of personal information of (the Applicant) when he was in detention in February 2014, and the Department’s facilitation of the ‘visit’ of the A18 to Yongah Hill in about August 2013, when (the Applicant) was detained there, have generated fears in his mind that are well-founded, as they are grounded in his accurate understanding of how the Vietnamese authorities operate, and this contributes to his claim of being a refugee sur place.
…
72. … The information that the Department holds about the privacy/data breach has not been disclosed to the RRT nor to (the Applicant). The RRT does not know who has the information that was disclosed. Therefore, the RRT cannot make a decision about the impacts of the privacy/data breach on (the Applicant) if he were to be returned to Vietnam.
References were then made to various documents attached to the submission. The first document is the KPMG Privacy Breach – Data Management Report dated 20 May 2014 (a redacted copy of which is contained in CB 489 to 500). In that report, the observations with respect to the forensic examination included the following (CB 498):
·123 accesses via 104 unique internet protocol (IP) addresses attempted to retrieve the file at least once. Analysis of available data has provided the DIBP with some indication of the likelihood of each IP address having access to the personal information of detainees;
·It is not in the interests of detainees affected by this incident to disclose further information in respect of entities to have accessed the Document, other than to acknowledge that access originated from a range of sources, including media organisations, various Australian Government agencies, internet proxies, TOR network and web crawlers;
·Attempts were made by KPMG Forensic, as instructed by the DIBP, to reduce the risk of republication of material contained in the Document where a high likelihood of this occurring was identified. Any such efforts were considered in the context of the DIBP wanting to avoid disclosing any information which may alert potential recipients of their possession of, or ability to access, the personal information;”
…
The second document attached to the post hearing submission is a report prepared by the Australian Privacy Commissioner (“the Commissioner”) dated November 2014 (CB 502 to 513). In that report, the Commissioner stated that on 10 February 2014, the DIBP published a January 2013 detention report, which “includes statistics about asylum seekers.” The Commissioner stated:
“The spreadsheet included the personal information of approximately 9,250 asylum seekers…” (CB 504)
…
The categories of personal information compromised in the data breach consisted of:
a)full names
b)gender
c)citizenship
d)date of birth
e)period of immigration detention
f)location
g)boat arrival details
h)reasons why the individual was deemed to be unlawful.
The Commissioner was particularly concerned about this information being publicly available due to the vulnerability of the listed individuals (CB 505).
The post-hearing submission also includes a copy of the then Minister for Immigration, Multicultural Affairs and Citizenship’s correspondence to the President of the Vietnamese Community in Australia (Undated), regarding the visit of Vietnamese officials to Immigration Detention Centres (CB 547 to 548). In that correspondence the Minister states:
“I want to reassure you that at no time are Vietnamese officials given access to asylum seekers from Vietnam while it is being determined whether or not they are refugees. This would be in breach of our International obligations and a matter that we would not allow to take place.
If people are found to be refugees then they are granted protection visas. If someone is not found to be a refugee than they are required to return back to their home country. I can confirm that a small team of Vietnamese immigration officials have, over recent weeks, visited Yongah Hill Immigration Detention Centre, as well is centres in Darwin and Sydney.
You can’t return somebody to their home country without the cooperation of their Government. These are the only circumstances where Vietnamese officials have been given access to people in immigration detention. These individuals have not raised any claims that relate to the refugee convention. If they had been found to be fleeing persecution then they would no longer be in detention.”
Proceedings leading to the Tribunal Hearing
Given the grounds of judicial review prosecuted by the Applicant, it is appropriate to set out the proceedings leading up to the Tribunal decision.
On 24 December 2014, an application for review of the delegate’s decision was lodged with the Tribunal (CB 142 to 148). Dr McIntyre was appointed as the Applicant’s authorised recipient the next day (CB 151). She requested, by email dated 25 December 2014, that the Tribunal hearing not be listed before April 2015 (CB 149). In the email Dr McIntyre stated:
“Can you please confirm that you have received all of their R1 applications. My understanding is that these have been submitted to the RRT. If you have not received them, I request an extension of time to ensure that the forms can be completed and submitted.
…as I understand it, IAAAS assistance has been cut for these people. I am therefore assisting as a recipient and trying to find them pro bono representation to assist with their reviews. I am also lodging FOI requests for them so that their cases can be prepared for review.
Please also be aware that these people are at an extreme disadvantage now that they are without legal support, and due to their being in detention, their limited English language ability, and their lack of access to communication services and facilities where they are currently detained on Christmas Island.
Considering the time it may take to obtain pro bono legal support and to receive their records through FOI, and considering that it is now the holiday period, I request that the RRT allow considerable time before scheduling their hearings for review. I respectfully request that the hearing be schedule no earlier than April 2015.”
An invitation to appear before the Tribunal on 16 April 2015 was provided to the Applicant, by e-mail to Dr McIntyre, on 27 February 2015 (CB 162 to 164), and a Response to Hearing Invitation lodged with the Tribunal on 5 March 2015, confirming that the Applicant would take part in the hearing listed for 16 April 2015 (CB 170 to 172).
The Response included information that Dr McIntyre was appointed as a representative of and authorised recipient for the Applicant (CB 174). Attached to the Response there was a cover e-mail from Dr McIntyre, in which she stated that the Applicant had been unable to obtain pro bono legal support, and foreshadowed that a request to postpone the hearing was likely to be made, should he not be able to do so soon. Dr McIntyre said (CB 170):
“… (the Applicant) has not yet been able to read his Decision Record due to the highly technical and detailed nature of the language, and his lack of access to interpreters and translators who can assist him.”
On 19 March 2015, the Applicant sent correspondence, by email to the Tribunal, in Vietnamese, together with an English translation (CB 178). The Applicant stated:
a)until recently he was under the impression that his former migration agent would represent him at the forthcoming Tribunal hearing;
b)he was only informed recently of the Government’s decision, in March 2014, to withdraw IAAAS funding;
c)he cannot read the delegate’s decision, due to his limited English language ability and limited knowledge of the Australian legal system and visa requirements;
d)Dr McIntyre has offered to represent him as a migration agent and she expects to be registered by about mid-May 2015; and
e)he requests the hearing be stayed until after mid-May 2015.
On 30 March 2015, the Applicant sent a further e-mail to the Tribunal, requesting that the hearing be delayed until May or later, as he had no representation, was unable to read the Delegate’s decision and had a limited understanding of the visa requirements. The Applicant noted that Dr McIntyre had been told by the Migration Agents Registration Authority (“MARA”) that she could not represent anyone until she was registered in about late April (CB 179 to 180).
The Tribunal responded by e-mail on 30 March 2015, refusing the adjournment request and confirming that the hearing would proceed on 16 April 2015 (CB 179).
On 2 April 2015, Dr McIntyre sent an e-mail to the Tribunal, advising that she would not participate in Tribunal hearings until she was registered as a migration agent, that an indication from MARA had been provided that this could be finalised by 15 April 2015, and that once registered she would represent a number of Applicants with Tribunal matters pending (CB 181 to 182).
On 16 April 2015, Dr McIntyre lodged an Appointment of Representative form with the Tribunal, as a migration agent (CB 185). On the same day, she sent an email to the Tribunal, stating that she was unable to participate in the hearing scheduled to commence in the next hour and requesting that the scheduled hearing that day be postponed. She stated that her migration agent registration was approved on 15 April 2015, but that due to the slow responses from the Detention Centres, she received their signed authorities that day. Her reason for requesting the adjournment was that she had “very tight deadlines to provide post-hearing submissions for other clients whose hearings have gone before the Tribunal in recent weeks – one is due today, and three are due tomorrow”. Dr McIntyre requested that in the absence of a postponement, she be provided with a copy of an audio recording of the hearing and reasonable time to provide post-hearing submissions (CB 183 to 184).
The Tribunal refused the adjournment request, but advised that the Presiding Member “has provided until 27 April 2015 to provide post hearing submissions” (CB 191).
On 28 April 2015, the Applicant’s migration agent lodged a Statutory Declaration made by the Applicant dated 24 April 2015 (CB 193 to 198), submissions dated 27 April 2015 made on the Applicant’s behalf (CB 199 to 224), together with various documents in support (CB 225 to 552).
The Tribunal decision
The Tribunal’s rejection of the Applicant’s claims for protection arose from its adverse credibility findings.
At [31] of its Decision Record, the Tribunal stated that, having considered all the evidence before it, including the Applicant’s written claims and oral evidence at hearing, as well as the other evidence before the Tribunal, it had formed the view that the Applicant had not been truthful in relation to his claims for protection and did not find the Applicant a credible witness. It stated:
“…These findings are made as a result of the cumulative concerns arising from: inconsistencies, changes and contradictions in the applicant’s written and oral evidence; his inability to provide convincing explanations for aspects of his claims and gaps in his claims. His testimony appeared to be rehearsed, vague and brief or convoluted and evasive. The Tribunal considers that the applicant’s oral evidence regarding the reasons why he left Vietnam not believable.”
The Minister has accurately summarised the Tribunal’s particular findings, as to the Applicant’s credibility, in the “First Respondent’s Contentions of Fact and Law.” This summary is set out below:
“22. The Tribunal found that the applicant was not a credible witness, and had not told the truth in relation to his protection claims.
a) He had provided false information in the course of the first part of his entry interview, claiming to be under 18 rather than aged 22, and to have been brought up in an orphanage, rather than by his mother and father (CB p 564 at [32]-[33]). The Tribunal acknowledged that the Applicant subsequently disclosed that he had provided false information (CB p 565 at [35]).
b) The Tribunal did not accept that the applicant had made an anti-communist political statement to the police to the effect that, if you did not love your country up until the age of 20 you had no heart, and if you still loved the regime after the age of 20 you had no brains (CB p 574 at [72]).
i) He had made no reference in his statement of claims to making this political statement, which was first raised at the Tribunal hearing as a reason for his fear of imprisonment on return to Vietnam. The Tribunal rejected the Applicant’s explanation that he had not mentioned making this political statement to the police before, as there was not enough room on the visa application form (CB p 569 at [56]).
ii) The Tribunal found that had the Applicant made such a political statement to the police, escaped from arrest, and been regarded as a political activist, the authorities would have done more in an effort to locate and detain him than simply issuing a summons 5.5 months after the event for him to attend the police station to talk about what had happened (CB p 574 at [72]).
c) The Tribunal did not accept that the applicant had ever participated in, or written anything down in public to protest about, the Vietnamese Government selling the Spratly Islands to the Chinese, or against the Chinese Government’s actions in relation to these islands (CB p 567 at [43]), given that he exhibited limited understanding of the issue, and there were inconsistencies in his account.
i) The applicant expressed his opposition to the Vietnamese Government having secretly sold the Spratly Islands to the Chinese Government, whereas country information neither referred to, nor inferred that, the Vietnamese Government had sold the Spratly Islands to the Chinese or that there had been any protests about the prospect of such a sale in Vietnam (CB p 567 at [42]).
ii) The applicant told the Tribunal that he had not participated in protests about this issue, but had written down in public that the Vietnamese Government had already sold the islands to the Chinese (CB p 566 at [39]), but post-hearing submissions referred to his “protest in July 2012” when the Chinese had formally declared that a city had been created on the islands (CB p 207 at [22]). The Applicant’s claims were inconsistent (CB p 567 at [43]).
d) The Tribunal did not accept the applicant’s claim that he had escaped from arrest in July 2012, had hidden for 6 months at the Bishop’s House for fear that the police wanted to arrest him, and had only left Vietnam when he learned from his parents about a summons having been issued (CB pp 569/570 at [57]-[58]), as
i) It was not plausible that the police would wait until December 2012 to issue a summons for a person who had escaped from arrest, in particular a person who claimed to have made political statements against the Government (CB p 573 at [69]).
ii) The applicant stated that he did not leave Vietnam any earlier because he felt safe at the Bishop’s House, as only the Bishop and the priest had been aware that he was in hiding there (CB p 570 at [58]), but this was inconsistent with his later evidence that part of the reason for remaining in Vietnam had been that he did not want to be away from his family and friends, and that his parents had contacted him while he was at the Bishop’s House to tell him about the summons (CB pp 572/573 at [68]).
e) The applicant’s account of his father being summonsed in 2014 to attend the police station to explain his son’s conduct was not accepted by the Tribunal as
i) He had been inconsistent in his account, informing the delegate that three summonses had been issued to his father, and that his father had attended the police station twice (CB p 121.2), but telling the Tribunal that two summons had been issued and that he had attended once (CB p 537 at [70]).
ii) He had told the Tribunal that he did not know what had happened to his father as a consequence of not responding to the second summons, as he had not heard from him, but when reminded that he had previously said that he spoke with his family every two weeks, the Applicant said that he did not want to hear bad news, and that his father was not working and was staying at home. His previous evidence had been that his father was working from home (CB p 573 at [70]).
f) The Tribunal did not accept that the applicant had ever been summoned to the police station for any reason, as
i) he had been inconsistent about the reasons why he had been summoned to the police station, initially saying that it was because he had been handing out pamphlets, and later saying that he had been summoned simply for praying inside the church because the Government hated all church activity (CB pp 571/572 at [66]); and
ii) country information indicated that while there was a level of restriction on religious freedom in Vietnam, the Government generally respected the registered religions, including the Catholic Church (CB p 575 at [79]). The Tribunal did not accept that the Applicant would have been summoned to the police station simply for praying inside the church (CB pp 571/572 at [66]).
23. In the light of these credibility concerns, the Tribunal did not accept that the applicant had been involved in any protests or demonstrations, or that he had handed out any pamphlets (CB p 572 at [66]).”
The Applicant’s sur place claim was rejected by the Tribunal (CB 577 at [87]).
With respect to the data/privacy breach and the visit by Vietnamese officials to the Yongah Hill Detention Centre, the Tribunal:
a)accepted the findings of the delegate in his decision that the scope of the data breach, which occurred in respect of persons in detention on 31 January 2014, was limited to the name, date of birth and details of detention, and that this was confirmed by the Australian Information Commissioner (CB 577 to 578 at [90], [91] and [92]);
b)accepted the delegate’s findings that no details were released in respect of whether those detainees had made asylum claims or any details about those claims (CB 577 at [90] and [91]);
c)found the data breach was only available for a short period of time before it was removed (CB 577 at [91]);
d)conceded that it had no knowledge of whether Vietnamese in Australia accessed the information (CB 577 at [91]);
e)noted an article from the Guardian newspaper, citing the KPMG report, stating that the information was not downloaded in Vietnam (CB 577 at [91]);
f)considered that there was nothing in the data breach that could not be known to the Vietnamese authorities, should the Applicant be deported to Vietnam in the future (CB 577 at [91]);
g)rejected the assertion that the Applicant had not been informed about the full extent or scope of the information given to the Vietnamese authorities during their visit to Detention Centres or the information released through the data breach (CB 578 at [92]);
h)accepted the advice contained in correspondence from the Minister, that the visit by the Vietnamese authorities was closely managed by the Department of Immigration and that they only met with those who had no ongoing immigration matters, and were on a pathway for removal. It concluded that as the Applicant had lodged an application for protection and had an ongoing immigration matter, he did not meet with the Vietnamese authorities (CB 578 at [92]); and
i)rejected, what it described as “the implied assertion”, that the Applicant’s details were given to the Vietnamese authorities prior to their visit to the Detention Centre on the basis of the Minister’s assurance that to have released any details about him or his claim would have breached international obligations, as well as the Applicant’s privacy and confidentiality (CB 578 at [93]).
The Tribunal acknowledged that the Vietnamese authorities would know that the Applicant had been detained in Australia, because the Department of Immigration would have to approach the Vietnamese consulate about obtaining travel documents for the Applicant (CB 579 at [96]), that the Vietnamese authorities “could well assume that the applicant claimed asylum in Australia”, and that he may be questioned and interviewed on his return, as a failed asylum seeker. However, it found, having regard to country information, that generally failed asylum seekers are not harassed or discriminated against by the authorities on return to Vietnam (CB 579 at [97]), and did not accept that seeking protection in Australia would of itself give rise to a real chance of serious harm or a real risk of significant harm on return (CB 579 at [98]).
The Tribunal found that the Applicant did not have the profile of a political dissident or a religious activist, or any other profile that might attract adverse attention from the authorities upon return to Vietnam (CB 580 at [100]), and that he would not be of adverse interest to the authorities upon return, or be imputed with a political opinion in opposition to the Government, on account of his seeking protection in Australia (CB 580 at [103]).
The Tribunal found that the Applicant would be considered to have left Vietnam, legally, using his own passport, and would not be harmed upon his return for having breached Vietnam’s exit laws (CB 580 at [101]).
The Tribunal concluded that, on the evidence before it, the Applicant did not have a well-founded fear of persecution, by reason of his religion, his imputed or actual political opinion, his membership of a particular social group - as a returnee from Australia or as a failed asylum seeker - or for any other Convention-related reason (CB 581 at [107]). Furthermore, the Tribunal did not accept that there were substantial grounds for believing that there was a real risk that the Applicant will suffer significant harm upon return to Vietnam (CB 581 at [108]).
Grounds of Judicial Review
By leave of the Court, the Applicant filed a Further Amended Application for judicial review on 29 January 2016. By this Further Amended Application, the Applicant prosecutes grounds one, four, five (b), six and seven.
These grounds are:
“1. The Tribunal erred at law by failing to make an obvious inquiry into a critical fact, naming to whom the applicant’s personal details were disclosed when the Department disclose the applicant’s personal details on its website in around February 2014.
4. The Tribunal erred at law by making findings of fact in circumstances where there was no evidence to support that finding, further or alternatively, that finding depended on inferences was irrational or illogical.
Particulars
At paragraph [93], the Tribunal held that the applicant’s details were not given to Vietnamese authorities. There was no evidence to support that finding. Further or alternatively, that finding depended on an inference that was irrational or illogical.
5. The Tribunal erred at law by:
b. Failing to consider the claim, or the integer of the applicant’s claim that Vietnamese authorities might impute that the applicant had lodged an unsuccessful protection visa application.
6. The Tribunal erred at law by unreasonably exercising its discretion to refuse to grant the applicant an adjournment and thereby denied the applicant procedural fairness.
Particulars
a. Prior to the hearing before the Tribunal on 13 April 2015, the applicant was represented by Playfair. Playfair ceased representing the applicant before the date scheduled for the applicant’s hearing before the Refugee Review Tribunal.
b. The applicant was unable to read properly comprehend the Delegates Decision, due to his lack of proficiency in the English language.
c. The applicant sought an adjournment of the hearing in order that a person who were shortly to be registered to provide pro-bono migration assistance could represent him.
d. That person was, in fact, registered on 16 April 2015. A further short adjournment was sought due to conflicting commitments of the Migration Agent.
e. The Tribunal declined to grant the further adjournment.
f. As a consequence of the failure to grant an adjournment, the applicant attended a hearing on 16 April 2015 without representation and without having read the reasons given by the delegate for the refusal to grant a protection visa.
7. The tribunal erred at law by denying the Applicant a meaningful appearance in prohibiting the Applicant at the hearing from referring to his original statement, and prohibiting the Applicant from taking notes at the hearing.
Extension of time
It is important to emphasise that the factors the Court may take into account in determining whether, in the administration of justice, it should extend the period of time for the Applicant to file his application for judicial review, is one at large.
The Minister does not oppose the extension of time application, in circumstances where the Applicant is in detention, the migration agent made an error and the Applicant was not informed that his application had not been accepted for filing.
Whilst the Minister does not oppose the extension of time application, in the exercise of my discretion under s.477(2) of the Act, I must nevertheless be satisfied, whether in the administration of justice, I should make an order granting an extension of time.
Delay and Explanation for Delay
The delay of an eight week period is not significant, and I accept that, in circumstances where the Applicant is in detention and the failure to lodge within the required time period was because of an error on the part of the Applicant’s migration agent, there was a reasonable explanation for the delay.
Merits of the Application for Judicial Review
In SZTES v Minister for Immigration and Border Protection [2015] FCA 719 (“SZTES”), Wigney J referred to a decision of Foster J in SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, wherein His Honour described one of the common factors a Court might take into account in considering the “interests of the administration of justice” as “whether the Applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time”: SZTES at [47]. His Honour went on to state that, “The expression “reasonably arguable” is no different in substance from other expressions that have been used to describe this factor, including “reasonable prospects of success”: SZTES at [48]. His Honour went on to say at [49] to [50]:
49. In the context of an application for the extension of time, it is generally inappropriate to fully investigate the merits of the substantive case, though obvious strengths or weaknesses may be a factor for or against extending time: ActewAGL Distribution v Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142 at [111]. In Seiler, again in the context of an application to extend time under s 7 or 11 under the ADJR Act, French J said the following about the assessment of the merits (at 98):
In deciding to allow time to be extended, I have not taken into account the merits of the application. It was fully argued on the merits in any event. In the circumstances, it would be artificial to import into the consideration of the extension of time some assessment of the likelihood of the success of the application. The question of the merits of a substantive application has to be approached with some caution in any consideration of a claimed extension of time. If an application has no reasonable prospect of success, then the decision to refuse an extension on that basis reduces to a decision to strike it out. To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it. In the event, and for the reasons outlined, I propose to grant the necessary extension of time.
50. These observations would also appear to be apposite insofar as the prospects of success of the substantive application is a relevant factor in considering the interests of the administration of justice in s 477(2) of the Act.
In accordance with the approach of the High Court in Wei v Minister for Immigration and Border Protection [2015] HCA 51 (“Wei”) at [39], I turn first to consider the substantive application and then return to the question of merits.
Ground One
This ground of review focuses on the duty of a Tribunal to make inquiries with respect to evidence not presently before it.
In Wei, Nettle J, agreeing with the decision of the majority, to grant constitutional relief, but for different reasons, stated at [49]:
In Prasad v Minister for Immigration and Ethnic Affairs[1], Wilcox J held that, although it is not enough to establish jurisdictional error on the part of an administrative decision‑maker that the court may consider that the sounder course for the decision‑maker would have been to make further inquiries, where it is obvious that material is readily available which is centrally relevant to the decision to be made, and the decision‑maker proceeds to make the decision without obtaining that information, the decision may be regarded as so unreasonable as to be beyond jurisdiction. In Ex parte Helena Valley/Boya Association (Inc)[2], Ipp J, sitting as a member of the Full Court of the Supreme Court of Western Australia, applied Wilcox J's reasoning in Prasad in order to conclude that a local council had failed properly to apply its mind to the question which needed to be decided in determining whether to approve a planning application. In Minister for Immigration and Ethnic Affairs v Teoh[3], Mason CJ and Deane J expressly approved of Wilcox J's reasoning in Prasad and of its application in appropriate cases. And in Minister for Immigration and Citizenship v Le[4], Kenny J surveyed the course of authority following Prasad and held that it was legally unreasonable for the Migration Review Tribunal to fail to make an obvious inquiry. Based on those decisions, in Minister for Immigration and Citizenship v SZIAI[5], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ similarly concluded that there may be circumstances in which a merits reviewer's failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, can be seen to supply a sufficient link to the outcome of review to constitute a constructive failure to exercise jurisdiction.
[1] (1985) 6 FCR 155 at 169-170.
[2] (1990) 2 WAR 422 at 445-446.
[3] (1995) 183 CLR 273 at 289-290; [1995] HCA 20.
[4] (2007) 164 FCR 151 at 174-179 [64]-[79].
[5] (2009) 83 ALJR 1123 at 1129 [25]; 259 ALR 429 at 436; [2009] HCA 39.
In SZIAI v Minister for Immigration and Citizenship[2008] FCA 1372 (“SZIAI”), Flick J, having referred to Prasad and other authorities, stated at [26]:
Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an Applicant and facts within his power to adduce: eg, Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13. In refugee cases, reference may also be made to the comparative difficulty in some circumstances confronted by an Applicant seeking refugee status and the comparative ability of decision-makers to elicit further information: cf Taylor S, Informational Deficiencies Affecting Refugee Status Determination: Sources and Solutions [1994] UTasLawRw 2; (1994) 13 U Tas LR 43. And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual -- an administrative decision-making process which impacts upon an individual’s freedom or a claimed ability to live in freedom may warrant more extensive inquiries being undertaken than one, for example, where the imposition of a modest pecuniary penalty is under consideration.
The Applicant’s submissions are as follows:
9. In February 2014 the Department inadvertently published personal details of the Applicant and others who were also in immigration detention. This became known as the ‘data breach’ incident. The Department later commissioned KPMG to review and report on the incident.
10. KPMG published an ‘abridged’ version of its report, as well as an unabridged version. The Applicant, through his migration agent, has only ever been able to access the ‘abridged’ version. The ‘unabridged’ version appears to have been kept confidential to the Department and Minister.
11. The unabridged version appears to contain information about the locations from which the Applicant’s personal details were accessed. Since the Applicant has never been privy to this version, he has been unable to make sensible submissions about how he was affected by the data breach.
12. Equally, however, the RRT was not apprised of the unabridged version. It was thus not apprised of information that may have been central to the question of whether the Applicant was at a real risk of serious harm.
13. While the RRT referred to media speculation that the information was not downloaded in Vietnam, the RRT, significantly, also highlighted that it had ‘no knowledge of whether Vietnamese in Australia accessed the information’. That is, it had ‘no knowledge’ of whether hostile Vietnamese officials in Australia might have accessed the information.
14. Accordingly, the RRT simply did not know who accessed the Applicant’s personal details (even if it could be satisfied that the information was not downloaded in Vietnam). However, it nonetheless proceeded to conclude that the Applicant did not have a sur place claim.
15. The fact that the RRT did not make the ‘obvious inquiry’ about a critical fact, the existence of which could be easily ascertained through the RRT exercising its powers to obtain the unabridged report, means the RRT has constructively failed to review the decision
16. While the RRT does not have a general duty to inquire, there is at least a ‘confined category’ of case in which the failure to make an ‘obvious inquiry’ will give rise to jurisdictional error. This case is an example. There was nothing more that the Applicant could have done to make out his case since the relevant information was kept confidential from him, and the details of the persons who accessed the information is ‘centrally relevant’ to the question at hand.
(footnotes omitted)
The Applicant submits that access to the un-redacted KPMG report was centrally relevant. It is argued that a critical fact to the determination of the Applicant’s sur place claim was, to whom the Applicant’s personal details were disclosed. In particular, the Applicant notes that the Tribunal itself acknowledged that it did not have information about whether the details disclosed in the data/privacy breach were disclosed to Vietnamese in Australia.
In oral submissions, the Applicant dealt with the comparative difficulty of the Applicant and the decision-maker. The Applicant, it was argued, faced insurmountable barriers to accessing the full KPMG report. On the other hand, pursuant to its powers under s.427(3)(b) of the Act, the Tribunal had the power to compel the Minister to produce the full KPMG report.
The Minister’s submits, relying on the principles enunciated in SZIAI, that the material the Applicant submits the Tribunal had a duty to inquire about or obtain, was not centrally relevant to the Applicant’s claim. The argument is that the Tribunal dealt with the Applicant’s claim, that the Vietnamese authorities would be aware he had claimed asylum, by making that assumption and then considering it. The argument is developed in the Minister’s Contentions of Fact and Law at [40] to [41]:
40. The Tribunal rejected the applicant’s suggestion that his being an asylum seeker may have been leaked in the data breach (CB p 578 at [94]), but accepted that the Vietnamese authorities “could well assume that the Applicant claimed asylum in Australia”. Based on country information, the Tribunal went on to find that
a) the applicant may be questioned and interviewed on return to Vietnam as a failed asylum seeker (CB p 579 at [97]);
b) generally failed asylum seekers were not harassed or discriminated against on their return (CB p 579 at [97]);
c) no differential treatment was applied to returning Vietnamese citizens on the basis of being failed asylum seekers, or being Catholic failed asylum seekers (CB p 579 at [98]); and
d) the applicant did not fall within the profile of failed asylum seekers who are harmed on return to Vietnam (CB p 580 at [100]).
41. These findings were open to the Tribunal on the materials, and it was for the Tribunal to decide what country information to rely upon and the weight to be placed on such country information. The applicant’s complaint about his sur place claim being rejected by the Tribunal without knowing who had accessed the applicant’s personal details as a consequence of the data breach fails because the Tribunal rejected the claim that the applicant’s status as an asylum seeker had been leaked in the data breach, and found that even if the Vietnamese authorities assumed that the applicant had claimed asylum in Australia, he did not have the profile of a failed asylum seeker who would be harmed on return to Vietnam.”
(footnotes omitted)
In oral submissions, the Applicant argued that the Minister’s submission, that the Tribunal dealt with the claim that the Vietnamese authorities would be aware that he was an asylum seeker by reference to the Tribunal’s statement in its decision record (CB 579 at [97]), that it accepted that the Vietnamese authorities would assume the Applicant was an asylum seeker, was erroneous. The Applicant contends that the Minster’s reference to the Tribunal Decision Record is selective. The Applicant submits that the relevant paragraph commences as follows:
“97. The Tribunal also accepts that authorities in Vietnam could well assume that the applicant claimed asylum in Australia so that he could remain permanently in Australia as many Vietnamese citizens detained in Australia for overstaying their visas in Australia do.…”
The Applicant argues that in this sentence, the Tribunal is referring to those who seek asylum for economic reasons, and not for Convention related reasons. Consequently, the Tribunal’s penultimate finding (CB 580 at [103]):
103. The Tribunal does not accept on the basis of the country information referred to above that the applicant’s lodging of a protection visa application or being unlawful in Australia or being held in detention does of itself give rise to a real chance or real risk that the applicant faces serious or significant harm on return to Vietnam because he is a failed asylum seeker or was unlawful in Australia or was held in detention in Australia.
is coloured by earlier findings, as to the circumstances of Vietnamese detainees, who are economic asylum seekers. In other words, the Tribunal, the Applicant argues, only considered the Applicant’s claim from the perspective of Vietnamese citizens seeking residency in Australia for economic reasons, and not as an asylum seeker, claiming persecution for Convention reasons.
Consideration
I agree with the Minister’s submission, that the full KPMG report was not a document that was central to the Applicant’s claim.
The Applicant’s sur place claim is that, as a consequence of the data/privacy breach, the Vietnamese authorities will be aware that he is an asylum seeker and that, as a consequence, he will face persecution in Vietnam as a failed asylum seeker.
This argument necessarily begins from an assumption that the abridged version of the KPMG report did not fully disclose the details of detainees, within the scope of the data/privacy breach. This assumption is inconsistent with the evidence before the Tribunal.
The Australian Privacy Commissioner described the scope of the data/privacy breach, as including the full names, gender, citizenship, date of birth, period of immigration detention, location, boat arrival details and the reason why the individual was deemed to be unlawful. There is no reason to suppose that the Commissioner, who expressed his concern about the impact of this data/privacy breach, did not correctly summarise the nature of the details of detainees that were disclosed. Missing from the Commissioner’s summary of the details of detainees released, is the claims or reasons why the detainees sought residency in Australia.
The Tribunal’s decision to reject the Applicant’s claim, that the fact he was an asylum seeker was released as part of this data/privacy breach, was, in my opinion, soundly based.
In any event, the Tribunal proceeded in effect to consider Applicant’s claim to fear persecution as a failed asylum seeker. This it did by accepting that the Vietnamese authorities could well assume that the Applicant claimed asylum in Australia (CB 579 at [97]).
I reject the Applicant’s submission that the Tribunal was confining itself to a consideration of Vietnamese citizens, seeking residence in Australia for economic reasons. The point being made by the Tribunal is clear, which is that the Vietnamese Government takes the view that the citizens who are detained and make asylum claims, generally do so for economic reasons. The Tribunal, however, then proceeded to consider the position of asylum seekers as a whole. This is apparent in the next paragraph, where the Tribunal considers country information as follows (CB 579 at [98]):
“The country information referred to in the delegate’s decision, which the Tribunal discussed with the applicant reports that DFAT has “received no information indicating different treatment being applied by the Vietnamese government to persons known or believed to have sought asylum in other countries. Post’s understanding is that the Vietnamese government’s view is that Vietnamese citizens who make asylum/refugee claims are generally doing so to achieve residence in countries such as Australia for economic reasons. Post assesses that ordinary citizens, known or suspected to have made asylum claims in other countries, are not treated differently on that basis after their return.”. Based on that available information, post assesses that no differential treatment is being applied by the Vietnamese government to failed asylum seekers know (sic) to be Catholics compared to non-Catholics”.
(footnotes omitted)
It is manifestly clear from this paragraph, that the Tribunal is considering country information on the treatment of Vietnamese citizens, generally, returning to Vietnam, not limited to those seeking residency in another country for economic reasons. The Tribunal then proceeded to consider the Applicant’s particular profile as a failed asylum seeker, and found that he did not fall within the profile of failed asylum seekers who are harmed on return to Vietnam. The Tribunal did not accept the Applicant had a profile as a political dissident or as a religious activist or other kind of activist against the Vietnamese Government.
Having considered the country information with respect to failed asylum seekers (see [59] above) and having determined what weight to give this country information, it proceeded to make findings, including that the Applicant did not fall within the profile of a failed asylum seeker.
As the inquiry, which the Applicant urges ought to have been engaged in by the Tribunal, was not central to his claim, it was not an obvious inquiry for the Tribunal to make.
I am not satisfied that the Applicant’s claim on this ground is made out.
Ground Four
Paragraph [93] of the Tribunal’s Decision Record is concerned with the Applicant’s claim that members of the Vietnamese “A18” visited the Detention Centre in which he was then detained and, as he expressed it (in his statutory declaration signed on 24 April 2015):
25. I also worry that since I was also in detention at Yongah Hill at this time my details were provided to these Vietnamese officials.
Paragraph [93] of the Decision Record must be read in context, which commences at paragraph [92] of the Decision Record. These two paragraphs are extracted in full (CB 578):
92. The Tribunal rejects the assertion that the applicant has not been informed about the full extent or scope of his information given to the Vietnamese authorities during the visit or the information released through the data breach. The Australian Information Commissioner’s Report confirms the content of the published information is that as stated by the delegate. The correspondence from the Minister referred to in the submissions clearly indicates that the visit by the Vietnamese authorities was closely managed by the department and they only met with those who had no on-going immigration matters and were on a pathway for removal. The Applicant had lodged an application for protection and had on-going immigration matters, he did not meet with the Vietnamese authorities and the Tribunal accepts the advice that at no time were the Vietnamese authorities given access to persons such as the applicant who had lodged an application for protection.
93. The Tribunal rejects the implied assertion that the applicant’s details were given to the Vietnamese authorities prior to their visit to the detention centre. According to the submission, those interviewed by the Vietnamese officials stated the officials appeared to have been provided with personal information of a large number of Vietnamese asylum seekers prior to their exposure to those officials, suggesting that the precondition was that the asylum seeker was in immigration detention at this time. As the applicant had already sought asylum and as stated by the Minister to have released any details about him or his claim would have breached international obligations as well as the applicant’s privacy and confidentiality.
I turn first to the Applicant’s submission, that the Tribunal made a finding of fact with no evidence to support that finding. It was held in MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at [83] that:
“A distinction is to be drawn between the failure to deal with a claim (a constructive failure to exercise jurisdiction) and what has been described as errant fact-finding: HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] per Allsop J; cited with approval by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 where the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an Applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims.”
It is clear from what was said by the Full Court in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [54] that there can be a constructive failure of the Tribunal to exercise its jurisdiction, by failing to consider or ignoring evidence that is important to a claim, having regard to the course of the decision-making. This requires consideration of what was important to the decision-making, as revealed by the exercise of the review by the Tribunal. In this regard, I take into account the caution identified by Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [111] as follows:
In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
The Applicant submits that the Tribunal’s finding that the Applicant’s details were not ‘given’ to Vietnamese authorities was one unsupported by any evidence. The consequence of this, it is argued, is that an integer of the Applicant’s claim was not dealt with. This integer was characterised as being that the Vietnamese authorities would know that the Applicant was a failed asylum seeker, who sought protection for a Convention reason. This integer is part of the Applicant’s claim to fear persecution as a failed asylum seeker. The Applicant submits, in relation to the Tribunal’s finding that the Applicant’s details were not given to the Vietnamese authorities, who visited various Detention Centres:[6]
[6] Outline of Submissions for the Applicant at [19].
19. The highest foundation on which this conclusion rests is a statement by the Minister that the release of the Applicant’s details ‘would have’ been contrary to law. This does not support a finding that the information was not in fact given. The RRT could not rationally infer that the law was complied with on a subsequent occasion when it was breached on a prior occasion (the data breach itself). As such, the RRT’s finding is based on speculation rather than evidence, or alternatively, on findings that depended on inferences that were irrational or illogical.
(footnotes omitted)
In my opinion, the Applicant’s submissions are misconceived. Firstly, there was evidence before the Tribunal. This was the correspondence of the (then) Minister to the President of the Vietnamese Community in Australia (see [15] above). It is not correct to assert that there was no evidence, when in fact this correspondence constituted evidence before the Tribunal. The correspondence was from a Minister of the Commonwealth Government. The Tribunal was entitled to give weight to this evidence: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11].
Secondly, as stated in Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347:
“A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.”
The Tribunal made a finding of fact, which was critical to the Applicant’s claim, having given weight to particular evidence before it. The Tribunal was entitled to do this. The making of the finding of fact did not constitute jurisdictional error.
The next limb of the Applicant’s fourth ground of review is that the finding of the Tribunal was irrational or illogical. The principles where an Applicant claims the Tribunal’s reasoning and findings were irrational or illogical were summarised in the joint judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611 (“SZMDS”) at [130] to [131] and [135]. Their Honours explained the approach as follows:
130. In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s.65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be on that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing Court to be illogical or irrational or unreasonable, simply because one conclusions has been preferred to another possible conclusion.
…
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.…”
This approach has subsequently been applied by the Full Court in Tisdall v Webber [2011] FCAFC 76; (2011) 193 FCR 260 at [126]-[128] per Buchanan J (with whom Tracey J agreed), Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307 at [85]-[88] per Jagot J (with whom Nicholas J agreed) and SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 (“SZOOR”) at [82]-[85] per McKerracher J (with whom Reeves J agreed).
In SZOOR, Rares J at [15] held:
“The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decisions-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, and if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path….”
The Applicant’s submission is that, in the context of the subsequent data/privacy breach on the part of the Department of Immigration, reliance by the Tribunal on the Minister’s correspondence, to make a finding that the Applicant’s details would not have been given to the Vietnamese authorities during their visit to Yongah Hill, is illogical or irrational. The Applicant submits that in those circumstances, any weight given by the Tribunal to the Minister’s correspondence is speculative. The argument is that any reliance on the assurance by the Minister that at all times Australia’s obligations in relation to those seeking protection were complied with was irrational.
In my opinion there was nothing illogical or irrational in the Tribunal’s reasoning, which, in essence, was that it accepted the Minister’s assurance that Australia had complied with its international obligations during the period of the visit by the Vietnamese authorities to the Yongah Hill Detention Centre.
The Applicant’s submission is, in reality, one directed to the weight which ought to have be given to the correspondence, that is that no weight should have been given to the correspondence. This is, as the Minister points out in its submissions, in reality an invitation for the Court to engage in impermissible merits review.
I am not satisfied that this ground of jurisdictional error is made out.
Ground Five
The Applicant’s written submissions in relation to Ground 5(b) are:
25. Separately, the issue of the incorrect test also raises the data breach issue again. The RRT concluded that there was no publication of the fact that the Applicant made protection claims, but there was no apparent consideration of whether there was a ‘real chance’ that the Vietnamese authorities would infer from all of the circumstances that the Applicant sought protection.
26. Further, it is not enough that the RRT might have sought to insulate its decision with an apparent finding that asylum seekers ‘per se’ are not ‘mistreated on return’ (as opposed to asylum seekers with a definite public profile). The question that ought to have been asked is whether there was a ‘real chance’ that the Applicant would be mistreated. On this, there was no evidence before the RRT to support a conclusion that the Applicant was not at a real chance of being imputed by Vietnamese authorities as a political or religious leader, whether or not he was in fact one. At best, the RRT chose the Department’s country information over the Applicant’s country information, to support a conclusion that the Vietnamese authorities will affirmatively view the Applicant as an ‘economic asylum seeker’ rather than a political or religious one. However, arriving at this generalised conclusion is not the same as asking whether there was a ‘real chance’ that the Applicant might be perceived as being a political or religious asylum seeker with a certain threshold profile.
(their emphasis)
(footnotes omitted)
The Minister submits that it is apparent from the Tribunal’s Decision Record that the Tribunal acknowledged that the Vietnamese authorities “could well assume that the applicant claimed asylum in Australia”, and accepted that he may be questioned and interviewed upon his return, as a failed asylum seeker. The Minister notes that the Tribunal then proceeded to consider country information (see [50] to [51 ] and [59]), based on which it made findings that:
a)generally asylum seekers are not harassed or discriminated against by the authorities on their return to Vietnam (CB 579 at [97]);
b)no differential treatment was applied to failed asylum seekers or to failed Catholic asylum seekers (CB 579 at [98]);
c)the Applicant did not have a profile as a political dissident or a profile as a religious activist or any other kind of activist against the Vietnamese Government, and therefore did not fall within the profile of failed asylum seekers who are harmed on return to Vietnam (CB 580 at [100]); and
d)the Vietnamese authorities will not hold an adverse interest in or harm the Applicant because he had been held in detention in Australia or had sought asylum (CB 580 at [103]).
The Minister contends that these findings are findings which were available to the Tribunal to make. The Minister notes that the Tribunal rejected the claims of the Applicant, regarding his political activities and activist role in the Catholic Church, largely based on its adverse credibility findings. The Minister correctly notes that a finding on credibility is the function of the primary decision-maker par excellence: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 at [67].
As appropriately acknowledged by Counsel for the Applicant, his submission that the reliance by the Tribunal on the Minister’s correspondence in relation to the visit by Vietnamese officials to various Detention Centres, including the Yongah Hill Detention Centre was misconceived, overlaps with his earlier grounds of review.
For the reasons set out in my consideration of Ground one and Ground four (see [53] to [63] and [69] to [78] above, I am satisfied that the Tribunal did consider the Applicant’s claim that the Vietnamese authorities might impute that the Applicant had lodged an unsuccessful visa application.
It seems to me that paragraph [26] of the Applicant’s Outline of Submission, in reality, is one which cavils with the weight the Tribunal attributes to various evidence, and does not amount to jurisdictional error.
I am not satisfied that this Ground of review is made out.
Ground six
The relevant factual background to this ground is set out at [17] to [26] above. It is in summary:
a)An application for review of the Delegate’s decision was lodged with the Tribunal on 24 December 2014;
b)Dr McIntyre, who was appointed as the Applicant’s authorised recipient on 25 December 2014, requested by email dated 25 December 2014 sent to the Tribunal, that the Tribunal hearing not be listed before April 2015;
c)The Applicant was invited to appear before the Tribunal on 16 April 2015;
d)a Response to Hearing Invitation was lodged with the Tribunal on 5 March 2015 by Dr McIntyre, confirming that the Applicant would take part in the hearing;
e)In a cover email to the Response, Dr McIntyre foreshadowed that a request to postpone the hearing was likely to be made, stating, inter alia, that the Applicant had not been able to read the Delegate’s decision and referred to the lack of access by the Applicant to interpreters in detention;
f)on 19 March 2015, the Applicant sent correspondence by email to the Tribunal. This correspondence, which was in Vietnamese, with an English translation, was made in support of the request for a further adjournment, until after mid-May 2015. One of the reasons given was his limited English language ability and the fact he had not read the delegate’s decision;
g)on 30 March 2015, the Applicant sent a further e-mail to the Tribunal, requesting that the hearing be delayed until May or later, as he had no representation, was unable to read the delegate’s decision and had a limited understanding of the visa requirements;
h)this request for a further adjournment was refused by the Tribunal;
i)on 2 April 2015, Dr McIntyre sent an e-mail to the Tribunal, advising that she would not participate in Tribunal hearings until she was registered as a migration agent and that she anticipated the process would be finalised by 15 April 2015;
j)On 16 April 2015, Dr McIntyre lodged an Appointment of Representative form with the Tribunal, as a migration agent (CB 185). On the same day, she sent an email to the Tribunal, stating that she was unable to participate in the hearing scheduled to commence in the next hour and requested that the scheduled hearing that day be postponed. Her reason for seeking the adjournment was her work commitments. She requested that in the absence of a postponement, she be provided with a copy of an audio recording of the hearing and reasonable time to provide post-hearing submissions;
k)The Tribunal refused the adjournment request, but advised that the Applicant had until 27 April 2015 to provide post-hearing submissions; and
l)Post-hearing submissions were lodged with the Tribunal on 28 April 2015.
The question for determination is whether the Tribunal’s refusal to adjourn the hearing listed for 16 April 2015 was legally unreasonable. In Minister for Immigration and Border Protection v Pandey and Ors [2014] FCA 640 (“Pandey”), Wigney J stated at [41]:
The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh[2014] FCAFC 1 (Singh). The relevant principles may be summarised 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].
One of the decisions referred to by Justice Wigney in Pandey is Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (“Singh”). It is appropriate to set out the following extract from that decision regarding the relationship between s.360 of the Act and the discretion reposed in the Tribunal under s.363 of the Act. The Full Court stated at [48] to [53]:
48. The standard of legal reasonableness will apply across a range of statutory powers, but 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. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising Court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised.
49. In the case of discretionary powers vested in either the Refugee Review Tribunal or the Migration Review Tribunal under the Act, the location of those powers in the statutory scheme as aids to the performance of a review function is important. As French CJ observed in Li 297 ALR 225; [2013] HCA 18 at [10], in these Tribunals there is no contradictor, the review is not adversarial and therefore a balancing exercise by the Tribunal in terms of prejudice to other parties is unlikely to be necessary. As the plurality observed in Li at [80] the position of the Tribunal cannot be equated with that of a party to litigation who may be prejudiced by the delay of another: Aon Risk Services Australia Ltd v Australian National University(2009) 239 CLR 175; [2009] HCA 27. It might be said there is a different kind of balancing required as between the statute’s exhortation to the Tribunals to discharge their functions in ways which are “fair, just, economical, informal and quick” (see ss 353(1), 420(1)), and “according to substantial justice and the merits of the case” (ss 353(2), 420(2)), and the interests of individual Applicants. However, the entire function of a review under Pt 5 or Pt 7 of the Act (and, indeed, any similar statutory administrative merits review process) is to make the correct or preferable decision in respect of an individual Applicant or application: Li [2013] HCA 18; 297 ALR 225 at [93] per Gageler J; Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 425. In reality, no tension exists between provisions like ss 353 and 420, which are facultative rather than restrictive (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [49] per Gleeson CJ and McHugh J; Li 297 ALR 225; [2013] HCA 18 at [15] per French CJ, at [52] per Hayne, Kiefel and Bell JJ), and the manner in which these Tribunals are required to perform their functions and exercise their powers:
That context makes clear that it [s 353] cannot operate to allow the MRT to act other than according to the law set out in the Act in the exercise of its function of review, including the exercise of the powers and discretions conferred upon it in aid of that function. The MRT is not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law.
(Li 297 ALR 225; [2013] HCA 18 at [14] per French CJ.)
50. A further control on the manner in which these Tribunals may exercise discretions reposed in them is the interaction between their obligations of procedural fairness in the conduct of a review, and the standard of legal reasonableness. In some circumstances, an exercise of power which is said to be legally unreasonable may overlap with an alleged denial of procedural fairness because the result of the exercise of power may affect the fairness of the decision-making process. That will commonly be the case where the exercise of an adjournment power is under review, because refusing an adjournment may deny a person an opportunity to present her or his case: see for example Deane J’s comments in Sullivan v Department of Transport(1978) 20 ALR 323 at 343.
51. In the Act, this interaction is best reflected by the scope and purpose of s 360 (s 425 in respect of the Refugee Review Tribunal), which requires the Tribunal to give an Applicant a meaningful opportunity — a “real chance” — to appear and present evidence and argument. What is a meaningful opportunity, or a real chance, will be fact dependent in each case. However it is not difficult to see the overlap between the obligation in s 360 and the exercise of the adjournment discretion in s 363. Although the plurality judgment in Li ultimately did not rely on a contravention of s 360, it recognised the central place of that provision in the Tribunal’s function: see Li 297 ALR 225; [2013] HCA 18 at [60]- [62].
52. The language of s 363 ties the exercise of the adjournment power to “the purposes of the review”. This in turn necessitates reference back to the nature and content of the review established by Pt 5. In exercising its discretion for the purposes of the review the Tribunal must be cognisant of the requirements of provisions such as s 360 and of its function under ss 348 and 349 to make the correct or preferable decision on the review.
APPLICATION OF THOSE PRINCIPLES
53. The power in s 363(1) is expressly conferred on the Tribunal for the purposes of the review it is undertaking. It is to be exercised consistently, and not inconsistently, with the purposes of the review, which include the obligation in s 360 to offer a meaningful hearing to a visa Applicant. Where the Tribunal considers the exercise of power in s 363(1)(b), the approach cannot be a generalised one: the particular context and circumstances of the review before it are what must inform the exercise of the power. In early January 2013, the Tribunal’s obligation was to consider the first respondent’s request for an adjournment on the basis of the adjournment power being exercisable (one way or the other) for the purposes of this particular review, and to consider the request in the context of the stage the review had reached and the specific content of the application.”
The Tribunal dealt with the adjournment requests and its decision to refuse the second adjournment request as follows (CB 563 to 564 at [30]):
The Tribunal was advised late December 2014 that the applicant had appointed an authorised recipient, Dr McIntyre, who was seeking to find pro-bono representation for the applicant and sought to have any hearing in the matter listed no earlier than April 2015. The Tribunal agreed to the request and listed this matter for hearing on 16 April 2015, advising him early February 2015. On 11 March 2015 the applicant advised the department of the appointment of a new authorised representative and authorised recipient, Dr McIntyre and at the same time requesting FOI of the department and Tribunal files. At that time Dr McIntyre was not a registered migration agent. On 19 March 2015 the Applicant requested the Tribunal to postpone the hearing until he was able to secure pro-bono representation and that Dr McIntyre had advised him that she would assist when her registration was confirmed sometime by mid- May. A further request was received by him on 30 March 2015 on the basis of his limited English language skills, not understanding the legal process or why he had been refused. The Tribunal did not agree to the request as it felt that the matter had been delayed for some time to allow him time to obtain pro-bono assistance and that it could not keep postponing the matter indefinitely. As the matter involves an applicant who has been in detention for some time, it was in everyone’s interest for it to be resolved. Dr McIntyre was registered as a migration agent just prior to the hearing, lodging the necessary forms to be recorded as the applicant’s authorised recipient. She advised the Tribunal the day of the hearing that she was unable to attend as she had post hearing submissions for other applicants due that day and the following day. The Tribunal allowed the Applicant time following the hearing for his authorised recipient to provide submissions after listening to a recording of the interview. The Tribunal was satisfied that the applicant was able to fully participate in the Tribunal hearing and had the services of a Vietnamese interpreter. The Tribunal explained the definition of refugee and complementary protection to the applicant at hearing. The Tribunal also confirmed with the applicant why he wanted to apply for protection and his claims and he confirmed that he had nothing to add and that all the claims were true.
The Applicant’s written submission is as follows:
33. The opportunity to make post-hearing submissions does not cure the denial of procedural fairness that stemmed from the refusal of the adjournment application.
34. The RRT made a number of adverse credibility findings against the Applicant on the basis that the Applicant’s evidence to the RRT was inconsistent with the evidence given to the delegate. From there, it rejected the Applicant’s claims.
35. The difficulty with this approach is that it fails to acknowledge that the Applicant did not understand the delegate’s decision of which he sought review.
36. The RRT was on notice that Applicant did not understand the delegate’s decision at all. However, the RRT’s decision says nothing about what steps the RRT took to ensure that the Applicant understood the issues in the delegate’s decision that fed into the RRT’s assessment of credibility. The recording of the hearing itself contains only a perfunctory exchange in which the RRT member said to the Applicant that the delegate found the Applicant was not a credible witness. There was no elaboration—nothing about how or why the delegate reached that view.
37. Thus the RRT did not meaningfully address the fact that the Applicant did not understand the delegate’s decision. It could have done so by either explaining the delegate’s decision at the hearing, or granting the adjournment. It did neither.
38. Dr McIntyre’s post-hearing submissions would never have been able to address the credibility issues arising from the Applicant’s apparently-‘vague’, ‘brief’, ‘convoluted’ and ‘evasive’ oral evidence, which the RRT held was fatal to the Applicant’s credibility. Had the Applicant been properly advised—or represented at hearing—he would have understood the issues before him, together with the context of the delegate’s decision, and thus have been able to give properly-responsive answers. He was not afforded this opportunity, and the denial of the adjournment was unreasonable, to the extent that he did not have an opportunity to ‘meaningfully appear’: Minister for Immigration and Citizenship v Li [2012] FCAFC 74, [29] (Greenwood and Logan JJ); affirmed on appeal to the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 339-40 [5] (French CJ); 362 [61] (Hayne, Kiefel and Bell JJ).
(footnotes omitted)
The Minister relevantly submits:
“52. The Tribunal explained its refusal to grant the adjournment request in its Decision Record at [30] (CB pp 563/564); the matter had been delayed for some time to allow the applicant to obtain pro bono assistance (Dr McIntyre’s request of December 2014, CB 149), and could not be postponed indefinitely, and the applicant had been in detention for some time so that it was in everyone’s interest for the matter to be resolved.
53. The Act provides at s 427(6)(a) that an applicant appearing before the Tribunal to give evidence has no entitlement to be represented by another person. The Tribunal hearing process is an inquisitorial one, where it is for the applicant to give evidence and present arguments in support of his claim to have a well-founded fear of persecution or to be owed protection obligations. Here the applicant had nominated an authorised representative before he made an adjournment request, who subsequently elected not to attend the hearing, but was provided with a copy of the audio recording in order that post-hearing written submissions might be lodged on behalf of the applicant, an opportunity that was subsequently taken, with the provision to the Tribunal of a large quantity of further documents (CB pp 192/552).
54. It was not unreasonable for the Tribunal to proceed with the hearing, where the applicant was provided with an opportunity to give evidence and present arguments, including an opportunity to comment on issues raised in the delegate decision, to provide a copy of the audio recording of the hearing to the applicant’s authorised representative, and to allow an opportunity for post-hearing written submissions. It was plainly not legally unreasonable for the Tribunal to proceed with the review rather than waiting for some indefinite period in the hope that the applicant might eventually secure legal representation.
56. The applicant’s written submissions wrongly contend that the Tribunal hearing involved “only a perfunctory exchange in which the Tribunal member said to the applicant that the delegate found the applicant was not a credible witness. There was no elaboration – nothing about how or why the delegate reached that view.” Far from there being no elaboration, the Tribunal - having noted that the delegate did not find the applicant to be a credible witness, and that his credibility was an issue that the Tribunal too needed to consider (transcript pp 16/17, lines 18/29) - goes on to draw issues raised in the delegate’s decision to the applicant’s attention, and to seek his comments:
a) “The delegate’s decision refers to you not – well, to providing false information when you participated in the interview, the entry interview when you first arrived” (transcript p 22, lines 17/19).
b) “I think the delegate raised concerns as to the genuineness of the documents provided…The delegate was concerned based on the country information that indicates the ease of obtaining fraudulent documents in Vietnam” (transcript p 24, lines 11/15).
c) “It’s just that you told the delegate that there were three summons issued for your father” (transcript p 24, lines 23/24).
d) “So simply for praying in a church you can be arrested?” “…Yes.” “The independent country information as referred to in the delegate’s decision and as I’m going to refer to you now, refer it to you now, doesn’t support that statement” (transcript p 25, lines 21/24).
e) “Apart from concerns over the documents, the delegate also referred to some inconsistencies in your evidence. The delegate referred to inconsistencies you had given in your evidence in relation to the obtaining of your passport” (transcript p 26, lines 13/17).
f) “You also mentioned to the delegate about participating in some protests over the Spratly Islands” (transcript p 26, lines 25/26).
g) “The delegate also referred to some inconsistencies between your entry interview when you first arrived and the evidence you gave to the delegate during that interview” (transcript p 2, lines 15/17).”
(footnotes omitted)
In oral submissions, the Minister argued that it was apparent from Dr McIntyre’s email dated 25 December 2014, that she was in possession of the Applicant’s application, including the Decision Record. The Minister also argues that it had been open to Dr McIntyre, when she became the authorised recipient for the Applicant, to seek to facilitate the translation of the delegate’s decision, which it was contended she had a copy of, via the Applicant’s case manager at the Detention Centre. The Minister asserts that this is done on a regular basis. The Minister submits that the reasons, best known to herself, she elected not to do that and the Applicant elected not to ask for it either.
The Applicant’s response is that the words in the email from Dr McIntyre, “My understanding is that these have been submitted to the RRT” (see [17] above), support an inference that she did not have the Decision Record in her possession. The Applicant argues that it is apparent from the first page of the visa application, that it was lodged in Christmas Island, whereas Dr McIntyre was in Darwin in the Northern Territory. The Applicant contends that the mere fact that Dr McIntyre was the authorised recipient of the Applicant, does not warrant the conclusion that she was in possession of the delegate’s decision.
Consideration
I turn first to the question: whether Dr McIntyre was in possession of the delegate’s decision. In my view, the evidence before the Court supports an inference that she was not in possession of the Decision Record at the time she was appointed as the Applicant’s authorised recipient. Her email clearly states that she understood that the applications for review (which are required to be attached to the delegate’s decision) had been submitted to the Tribunal, in my opinion, this supports an inference that the Applicant, and not her, was in possession of the documents.
In any event, the real issue is whether the Applicant had read the delegate’s decision prior to the Tribunal hearing. There is no reason why I should not accept the repeated statements made by both the Applicant and Dr McIntyre to the Tribunal, that the Applicant was not able to read the delegate’s decision. The fact that steps could have been taken by Dr McIntyre to arrange through the Applicant’s case manager for a translation of the delegate’s decision is, in my view, neither here nor there. I am satisfied on the evidence before the Court, that prior to the hearing, a translation of the delegate’s decision had not been provided to the Applicant.
The Applicant appeared at the hearing without representation. The Tribunal was on notice that he had not read the delegate’s decision. I note that the Tribunal Member at the hearing did not ask the Applicant whether the delegate’s decision had been translated for him. He was asked by the Member whether he understood why the delegate refused his application. The Applicant said through his interpreter “I don’t really understand why he refused my visa.” (Transcript p16, lines 16-17). There then followed this exchange:
“The delegate didn’t find you to be a credible witness? Do you know what that means? --- What did you say?
The delegate didn’t find that you were a credible witness. Do you understand what credible means? --- What I did in Vietnam I have told the department all about what I did in Vietnam. Whether they believe me or not it is entirely up to them.
The delegate didn’t believe you and found that there was some---? --- Everybody request more about it.
So your credibility it (sic) actually in issue for the Tribunal as well so that’s an issue that I have to consider when I (sic) considering all your evidence that you’re giving to me?
---Yes.
The Tribunal’s reasons, evident from its Decision Record, for refusing the application for the second adjournment, were that the Applicant had been in detention, the matter had been delayed for some time, it was in everyone’s interest for it to be resolved, the Tribunal was satisfied the Applicant was able to fully participate in the Tribunal hearing and had the services of a Vietnamese interpreter and the Tribunal explained the definition of refugee and complementary protection to the Applicant at the hearing.
I can discern, from the Decision Record, no consideration of the Applicant’s circumstances in detention and, in particular, the repeated statements made by him and on his behalf that he had not read the delegate’s decision. I assume from this, therefore, that this was a factor the Tribunal did not take into account in refusing the application for a further adjournment.
It is evident from the transcript that, at the commencement of proceedings, the Tribunal explained the matters which it must consider, having regard to the definition of the refugee and complementary protection provisions. I have to say, however, that I doubt that the Applicant would have understood what was being said. This is not a criticism of the Tribunal Member, it is simply to say that, in my view, the fact that the Member explained these matters, does not of itself warrant a conclusion that he had an opportunity to present his case.
The Tribunal’s focus on the delay and its assertion that it would be in everyone’s interest that the matter be proceeded with at the listed hearing date is, in my view, misguided. Firstly, the delay sought was not lengthy. The period, from the date of the filing of the application for review (in late December 2014) to the adjournment date sought by the Applicant (May 2015), was around four months. I reject the Minister’s characterisation of the circumstances, as those where the Tribunal was being asked to indefinitely delay proceedings “in the hope the applicant might eventually secure legal representation.” In my view, this ignores one significant aspect of the circumstances or reasons for the application for adjournment; namely the Applicant’s inability to read the delegate’s decision.
Secondly, in the circumstances of this matter, as I find below, it was not in the interests of the Applicant that the matter be resolved without an adjournment. The question the Tribunal should have focused on was whether, in the circumstances, which included the circumstances of the Applicant, as well as the stage of the proceedings, a refusal to adjourn the hearing may deny the Applicant an opportunity to give evidence and present his case. That opportunity was required to have been meaningful. He was entitled to be given a real chance to present his case: Singh at [51].
The circumstances in this, case discernible by way of the evidence before the Tribunal and the reasons given in the applications for a further adjournment, were:
a)the Applicant was in detention on Christmas Island;
b)he had limited English language skills and could not read the delegate’s decision without a translation;
c)there was no evidence that the Applicant had access in detention to a translator in his language;
d)the Applicant and his authorised recipient both stated that the Applicant had not read the Delegate’s decision;
e)there was no evidence or facts from which it could be inferred that, other than being the Applicant’s authorised recipient, the Applicant had a meaningful opportunity to discuss his case with Dr McIntyre; and
f)the Tribunal was aware of the credibility issues raised by the delegate. The Tribunal extracted from the delegate’s decision various paragraphs in which the issue of credibility had been raised.
As to the outcome of the review, the Decision Record makes it plain that the Applicant’s credibility (before the delegate and at the Tribunal hearing) was central in the Tribunal’s reasoning in rejecting the Applicant’s claims to fear persecution for religious and political reasons.
The failure to adjourn in these circumstances, in my opinion, was arbitrary. It precluded the Applicant from being afforded a meaningful opportunity to appear and present his evidence and arguments to the Tribunal.
I do not accept that the opportunity for the Applicant to provide post-hearing submissions, overcame the insurmountable difficulties the Applicant would have faced when he appeared before the Tribunal without having read the delegate’s decision. It is obvious from the transcript referred to above (see [96] above), that the Applicant was not aware of the content of the delegate’s decision.
The Minister argues that this did not constitute a defect, as the Tribunal drew to the Applicant’s attention, during the course of the proceedings, credibility issues raised by the delegate.
Having read the transcript of the Tribunal proceedings, I find that the Member did draw the Applicant’s attention to credibility issues raised by the delegate, which later became significant to the Tribunal’s decision, arising from the delegate’s decision. However, I do not accept that this overcame a significant defect in the conduct of the proceeding; namely, the fact that the Applicant had not had the opportunity, prior to the hearing, to read the delegate’s decision.
In the Tribunal’s Decision Record, immediately under the heading “Credibility”, the Tribunal referred to the “difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons.” (CB 563 at [28]). I agree with this observation, as to the difficulties confronted by refugee Applicants. These difficulties are no doubt amplified where an Applicant has been in a remote detention facility for some time, has not had access to an authorised representative and has not had the opportunity to have the decision of the delegate translated for him prior to the hearing.
It seems to me that the reference by the Tribunal to the difficulties confronting refugee applicants was a mere incantation, which was not given substance in the conduct of the review. In my view, the Tribunal’s refusal of the request for a further adjournment completely ignored these difficulties. In other words, the Tribunal was not in fact mindful of the circumstances which confront refugee Applicants generally, and the individual circumstances confronting this refugee Applicant.
In my opinion, for the reasons set out above, the Tribunal’s decision to refuse a further adjournment was arbitrary, unjust and lacked intelligible justification.
I am satisfied that the Tribunal’s decision to refuse to adjourn the hearing was legally unreasonable, and that, consequently, the Tribunal’s decision is affected by jurisdictional error.
Ground 7
In his written submissions, the Applicant argues:
40. The transcript of the RRT hearing shows that the member suggested that the Applicant was not permitted to refer to his original statement:
MEMBER: I’m just wondering what you’re reading and writing?
APPLICANT: I’m writing down the question.
MEMBER: What are the papers underneath that you’re reading?
APPLICANT: This is my first statement.
MEMBER: Your first statement--so you need to refer to your first statement, do you, to refresh your memory?
APPLICANT: No.
MEMBER: Ok. That’s a good idea.
41. Later, this ‘suggestion’ became a directive:
MEMBER: How ‘bout you put your papers away? Put them—put them away.
42. The RRT member then prohibited the Applicant from taking notes:
MEMBER: Um, what was that? What did you--
APPLICANT: I need to write down the question.
MEMBER: Why do you need to write out the question?
APPLICANT: I just want to write the question.
MEMBER: I’m just wondering why do you feel the need to write out the question.
APPLICANT: I don’t need to explain it to you, but if you don’t want me to write it down, it’s your power.
MEMBER: Might be less distracting for you.
APPLICANT: Yes. Because when I first entered the room, my case manager let me bring a note book, that’s what I use to write down information.
43. It is well-established that when the RRT invites an Applicant to appear pursuant to section 425 of the Act, the appearance must be a ‘meaningful appearance’.
44. Nothing in Part 7 of the Act gives the RRT a power to prohibit an Applicant from taking notes or referring to material. Even if there was a provision of the Act that did empower the RRT to prohibit an Applicant from doing so, such a power must be exercised reasonably. In circumstances where credibility was a key issue by reason of alleged inconsistencies—and where the RRT recognised the difficulties that asylum seeker witnesses might have in memory and recollecting the (sic) prohibiting the Applicant from taking notes or referring to his statement was unreasonable, and his appearance not ‘meaningful’ as a result.
(footnotes omitted)
The Minister submits:
“56. After about 30 minutes into the hearing, the Tribunal asks the applicant what he is reading and writing, and is told that he is writing down the question and visiting his first statement. The Tribunal asks, “so you need to research your statement, do you, to refresh your memory?” The applicant replies “no”. The Tribunal then says “that’s a good idea”, presumably in response to the applicant putting his papers to one side (transcript p 8, lines 20/26).
57. Just over 10 minutes later, the Tribunal says, “how about you put your papers away. Put them away.” The applicant responds that he wants to write down the question, but if the Tribunal does not want him to do so, that was within her power. The Tribunal says “It might be less distracting for you?” The applicant responds “Yes. Because when I first entered the room my case manager gave me a notebook. That’s why I use it (to) write down the information”. The hearing then continues. (Transcript pp 10/11, lines 26/31 and 1/5).
58. A Tribunal hearing is an inquisitorial process, where the Tribunal member is tasked with probing evidence given, and testing arguments presented, by the applicant. It was open to the Tribunal to discourage the applicant from seeking to rely upon previously written statements in providing answers to its questions, and to encourage the applicant to answer its questions directly rather than after making notes. Ultimately the inquisitorial process is directed at enabling the Tribunal to determine whether the applicant’s claims are made out, and the applicant was not denied a meaningful appearance by the Tribunal seeking to ensure that its questions were answered directly and without reliance on pre-prepared written statements.
59. The applicant was given every opportunity to make his case, the Tribunal put to him for comment apparent inconsistencies between his different accounts, and the applicant requested, and was granted two ‘toilet break’ adjournments, when he could have refreshed his memory as to his written statement. Post-hearing written submissions were invited, accepted, and taken into account.
60. The applicant’s contention that he was denied a meaningful hearing is without merit.”
Consideration
The Tribunal Member did not “discourage” the Applicant from making notes or referring to documents. In my opinion, she made it perfectly clear to the Applicant, that he was not to make notes or refer to documents. I do not accept that toilet breaks enabled the Applicant to recover and refresh his memory.
In my opinion, on the face of the transcript, the Tribunal Member was over-bearing in placing the Applicant in the position where he had no capacity to take notes. However, I am not satisfied that the mere fact of this conduct by the Tribunal Member constituted a failure to provide the Applicant with a meaningful opportunity to participate in the review.
I am not satisfied this ground is made out.
Conclusion
I am satisfied that it is necessary, in the interests of the administration of justice, that pursuant to s.477(2) of the Act, I should make an Order granting an extension of time, as sought by the Applicant. I have already concluded that the decision of the Tribunal was affected by jurisdictional error. I am also satisfied that the Applicant’s delay in making the application has been satisfactorily explained. Further, the Minister has suffered no prejudice by reason of the delay, which has occurred.
As I found that the Tribunal’s decision is affected by jurisdictional error, I shall make an Order quashing the Tribunal’s decision and remitting the matter to the Tribunal to be heard according to law.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 19 February 2016
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