Cel17 v Minister for Immigration
[2021] FCCA 1064
•20 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CEL17 v MINISTER FOR IMMIGRATION & ANOR | [2021] FCCA 1064 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the IAA’s decision affected by jurisdictional error by reason that the IAA failed to consider an integer of the applicant’s case, made findings that were irrational, illogical, or unreasonable and failed to have regard to a relevant consideration. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 473BB, 473CA, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB, 474 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 Federal Circuit Court Rules 2001, r.13.03C |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 ANR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 155 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 |
| Applicant: | CEL17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1571 of 2017 |
| Judgment of: | Judge Cameron |
| Hearing date: | 9 March 2021 |
| Date of Last Submission: | 9 March 2021 |
| Delivered at: | Sydney |
| Delivered on: | 20 May 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr C. Jackson |
| Solicitors for the Applicant: | Oxford Law Group |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1571 of 2017
| CEL17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Vietnam who arrived by boat at Christmas Island on 28 October 2012 without a visa permitting him to enter and stay in Australia. On 2 September 2016 he lodged an application for a Safe Haven Protection Visa (“SHEV”) with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Vietnam because of his religion, a political opinion imputed to him because of the arrest and detention of his father and/or his lack of identity documentation, his status as a failed asylum seeker returning from a Western Country and his illegal departure from Vietnam. He later expanded his claim. On 9 January 2017 a delegate (“Delegate”) of the first respondent (“Minister”) refused the applicant’s application and referred his matter to the second respondent (“IAA”) for review. The applicant was unsuccessful before the IAA and has sought judicial review of the IAA’s decision.
On 30 January 2020, the matter was listed for callover. There was no appearance by the applicant and on the application of the Minister the proceeding was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“Rules”). That order was set aside on 13 March 2020.
In this judicial review proceeding the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
FAST TRACK REVIEW LEGISLATIVE FRAMEWORK
On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
Definitions
Section 5(1) of the Act relevantly defines a “fast track applicant” as a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii)who has made a valid application for a protection visa in accordance with the determination;
The applicant is a fast track applicant.
Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant was such an applicant.
Fast Track Process and Procedures
Part 7AA of the Act sets out the IAA fast track process and procedures.
Section 473CA is found in pt.7AA and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review.
Division 3 of pt.7AA of the Act sets out the manner in which fast track reviews are conducted. Section 473DA provides that that division and ss.473GA and 473GB are to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews. The presently material sections in div.3 relevantly provide:
473BB Definitions
In this Part
…
new information has the meaning given by subsection 473DC(1).
…
473DB Immigration Assessment Authority to review decisions on the papers
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
…
473DC Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
…
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA
Since 18 April 2015, the criteria for the grant of a protection visa have been found in s.36 of the Act, supported by the definitions of “refugee” and “well-founded fear of persecution” set out in ss.5H and 5J respectively.
BACKGROUND FACTS
Protection visa claims
The facts alleged in support of the applicant’s claim for a protection visa were summarised by the IAA in its decision record as follows:
a)the applicant was born in Vietnam and was persecuted as a Roman Catholic and prevented by the authorities from practising his religion;
b)due to his father’s involvement in protests against the confiscation of local parish land, the authorities considered the applicant and his family to be anti-government;
c)the applicant was unable to continue his education or find stable employment and accommodation because his religion, his father’s imputed political opinion and the inclusion of his family on a blacklist denied him the ability to obtain new identity documents from the Vietnamese authorities; and
d)the applicant’s sister in Vietnam has been visited by the police who told her that the applicant was considered a traitor and a protester against the regime. This was because the applicant had participated in protests in Australia seeking freedom of speech and religion in Vietnam. The applicant had also created a Facebook account where he shared his views on the Vietnamese government; and
e)he had departed Vietnam illegally and, if returned, would be a failed asylum seeker.
The IAA’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36 of the Act. The IAA’s decision was based on the following findings and reasons.
Information before the IAA
On 7 February 2017 the applicant provided the IAA with a submission addressing the delegate’s findings together with additional documents including new claims that were not made to the delegate namely, that he feared harm in Vietnam, were he to return because:
a)his profile was of a Roman Catholic orphan of a known individual who had actively opposed the government and who was without the protection of his parents which had led to him being discriminated against and unable to obtain new identity documents; and
b)he had spent time in Australia, which affected his presentation and opinions, and the Vietnamese authorities would interpret Western speech and mannerisms as emblematic of a pro-democratic, anti-government opinion.
The applicant also supplied the IAA with a document written by an identified individual, stating that the applicant had attended protests in Canberra, and country information: “United States Commission on International Religious Freedom, USCIRF Annual Report 2014 – Countries of Particular Concern: Vietnam”. The IAA was not satisfied that the latter document could not have been provided prior to the delegate’s decision or that there were exceptional circumstances under s.473DD of the Act to justify them being considered. However, the former document post-dated the Delegate’s decision and the IAA considered it proper to consider it.
On 12 April 2017, the applicant attended an IAA interview and provided details and reasons for his involvement in protests as well as information about his Facebook activities while in Australia. The IAA found that although this was new information, the applicant had not had the opportunity to present the Delegate with specific information in relation to his claims regarding his activities since his arrival in Australia and was satisfied there were exceptional circumstances to justify consideration of it.
Findings and reasoning
The IAA accepted that the applicant was born in Vietnam and that in approximately 1998 his father was involved in an anti-government protest in response to the authorities taking the parish’s land. However it did not accept the applicant’s claims that, due to his father’s activities, he and his family were considered by the authorities to be anti-government.The IAA referred to reports that suggested that harassment from the Vietnamese Government towards religious or political activists was aimed at those engaged in activities such as blogging, promotion of human rights and democracy as well as those who held prominent religious positions. There was no evidence to suggest that the applicant’s father had been engaged in any other activities which might been perceived to be anti-government. The IAA was not satisfied that the applicant’s father’s past activities, including his position as an administrator, would result in the Vietnamese authorities identifying the applicant or his family as religious activists or as being anti-government.
The IAA did not accept that the applicant had been unable to obtain a new birth certificate because the authorities considered his father to be anti-government or that the family’s names had been placed on a blacklist.
The IAA did not accept that the applicant was involved in protests in Australia and considered his evidence inconsistent. At the interview with the Delegate the applicant stated he attended protests in both Canberra and Sydney while at the IAA interview he stated he attended protests in Canberra only, even after being asked whether he had undertaken any activities other than the Canberra protests. The IAA also considered the letter that the applicant had provided in support of his participation in the Canberra protests was brief and vague and did not provide any specific details of when or where the protests had been held.
The IAA was not satisfied that since his arrival in Australia the applicant had shared his views on the communist regime with friends, including those in Vietnam, through Facebook. The IAA found the applicant was unable to provide any evidence of such Facebook articles and his post-interview submissions in November 2016 and February 2017 provided no reference to the Facebook claims.
The IAA did not accept that the applicant had been of interest to the Vietnamese authorities prior to his departure for Australia or that there was any credible basis to the claim that they visited his sister since his arrival in Australia. It found the applicant’s explanation that he had not made this claim in his protection visa application because he was unaware of where to put the information, unsatisfactory.
While the IAA accepted that the applicant is a Roman Catholic and that he regularly attended mass, it was not satisfied that the Vietnamese authorities would identify him as a religious or political activist or someone of interest. The Department of Foreign Affairs and Trade’s assessment was that as long as religious practice was exercised within state-sanctioned boundaries and did not challenge the interests or authority of the Government of Vietnam, religious adherence was tolerated.
The IAA found the applicant had not participated in any religious activities which would be perceived to be anti-government or pose a threat to the state. The IAA did not accept that the applicant was politically active in Australia, or that he would be imputed with a political opinion and was not satisfied he would participate in any conduct which would be perceived to be religious or political activism by the state if he returned to Vietnam.
The IAA was satisfied that the applicant’s level of participation in the church would not be perceived by the state to be the acts of a religious activist and the manner in which the applicant practised his faith did not require modification in order to avoid harm.
The IAA did not accept that the applicant would be prevented from obtaining identity documents when he returned because country information indicated that a person would not be prevented from obtaining identity documents on religious grounds.
While the IAA accepted, that as a Roman Catholic, the applicant might in the past have experienced a level of disadvantage at school or when seeking employment, it was not satisfied that the discrimination or disadvantage feared would threaten his capacity to subsist or otherwise constitute serious harm. The IAA noted that country information indicated that membership of a religious group generally did not seriously disadvantage individuals in non-governmental civil, economic, and secular life.
The IAA did not accept that the applicant would be prevented from obtaining identity documents on return to Vietnam or that the lack of them would result in serious harm to him.
The IAA accepted that the applicant left Vietnam unlawfully. Country information indicated that some returnees may face brief detention but investigation and arrest only affected those suspected of involvement in organising people smuggling. The report suggested that people who used people smugglers were seen as victims of crime and the IAA was satisfied on the information before it that the applicant would not be suspected of any involvement in people smuggling.
The IAA was not satisfied that on return to Vietnam the applicant would be considered a traitor. Country information did not indicate that the applicant would be imputed with an adverse opinion or profile by reason of having sought asylum.
The IAA was also not satisfied that the applicant would face a real risk of significant harm because of his religion, his actual or imputed political opinion or his status as a returning asylum seeker. Although the IAA accepted that the applicant might be detained briefly because of his unlawful departure, this did not amount to a real risk of significant harm. It was also a law of general application that was not enforced in a discriminatory or selective manner.
PROCEEDING IN THIS COURT
In his further amended application the applicant alleged:
Ground one
1.The Second Respondent failed to consider an integer of the Applicant's case, being that the Applicant was a member of a particular social group being “failed asylumseekers from a Western country”, with Westernised attributes, which would cause the government to attribute pro-democratic, anti-government opinions to him.
Particulars
1.1The Second Respondent expressly did not consider this claim because it wrongly identified it as “new information” as defined in ss 473DC of the Migration Act (“the Act”), and found that there were no “exceptional circumstances”.
1.2The claim was not “new information”, rather, it was a submission based on information which was already before the Minister, which was that the Applicant was a Westernised asylum-seeker who had lived in Australia for several years, and presented with those attributes.
Ground two
2.The Second Respondent’s finding that the authorities, including the police, did not visit the Applicant’s sister and tell her that the Applicant was a traitor and protestor against the regime and will be arrested if he returns was not logically or rationally supported.
2.1The basis of the finding was that the Applicant did not make his claim in his written application for protection, but made it at the protection visa interview.
2.2Raising that information at the protection visa application rather than in the written application was not a logical or rational basis to find that the claim was untrue.
Ground three
3.The Second Respondent’s finding that the state would not consider that the Applicant’s father was anti-government (and hence would not attribute such qualities to the Applicant) because he was released without charge was unreasonable, irrational, and illogical, and beyond jurisdiction given the Second Respondent accepted:
(i)The applicant’s father was arrested, detained, and beaten as a result of his participation in a protest against the confiscation of the local Church’s land;
(ii)That prior to the arrest the authorities had threatened him with arrest if he participated in any more protests;
(iii)And did not address the fact that he was beaten so severely that he died soon after his arrest and detention by police.
Ground four
4In the alternative to ground three, the Second Respondent failed to make a finding on a critical aspect or integer of the Applicant’s case, and thus sidestepped (SZQMT v Minister for Immigration and Citizenship [2012] FCA 840, at [30]) a central plank of the Applicant’s case, and thus failed to take into account a relevant consideration, or failed to perform its statutory task of review, and the Second Respondent’s failure was material, giving rise to jurisdictional error.
4.1The Second Respondent failed to determine whether the Applicant’s father was beaten so severely that he died soon after his arrest and detention by police.
4.2The failure to address this aspect of the claim was both critical and material, because it potentially explained why the father was released without charge, and not subsequently arrested or charged with any offence. The finding that the father was not attributed with an anti-government belief was based upon the fact he was released without charge, and the finding that the Applicant was not attributed with an anti-government belief was, in turn based upon the finding with respect to his father.
Ground 1
The applicant’s first allegation relates to the following passage in the IAA’s reasons for decision concerning the written submissions provided to it by the applicant’s representatives:
The submission referred to the applicant having a cumulative profile as a “Catholic orphan of a known individual who actively opposed the government and is without the protection of his parents” are the reasons why the applicant has been discriminated against and unable to obtain new identity documents. The submission also referred to [the] delegate’s failure to consider the “applicant's time spent in Australia” and this has “impacted on their speech, language dress style, mannerisms and social opinions” and the “Vietnamese authorities would conflate Western speech and mannerisms with a pro-democratic anti-government opinion”. These claims were not made to the delegate and I consider them to be new information. The claims substantially change and add to the basis on which the applicant’s claims were initially made before the delegate. The applicant has not made any claims regarding his position as an orphan and/or a person without the protection of his parents as a reason for his inability to obtain identity documents. Nor has he previously made claims about his western speech and mannerisms. The applicant has not claimed to have a fear of harm on return for these reasons. The applicant was represented before the Department and was given the opportunity to set out his claims. Having regard to all the circumstances, I am not satisfied that there are exceptional circumstances to justify the consideration of this new information. (emphasis added)
The applicant’s argument in relation to that passage was the IAA had wrongly understood his submissions to it to raise a new matter of fact rather than a new claim. The statutory provisions quoted earlier in these reasons make it clear that the IAA may consider “new information” only in limited circumstances but the common law also makes it clear that the IAA will not have discharged its duty to review if it fails to consider a contention which, if accepted, might establish that the applicant is entitled to be granted a protection visa: ANR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 155 at [20] and [21].
The applicant submitted that one of the integers of claim articulated in his submissions to the Delegate was a fear of persecution by reason of his membership of the particular social group “returned asylum-seekers from a Western country”. He argued that inherent in that claim was a further claim that any attributes which would help to identify him as a member of that particular social group were relevant to an assessment of risk associated with membership of that group. He contended that the factual matters underpinning this particular claim, his “speech, language dress style, mannerisms and social opinions” and the length of time he had spent in Australia
would have been manifest at the Departmental Interview
and therefore not “new information” under the Act.
However, the fact that the applicant would be returning to Vietnam from Australia does not necessarily mean that he had or would have “Western speech and mannerisms”. A claim to that effect was not inherent in or a necessary inference from his claim to membership of the particular social group “returned asylum-seekers from a Western country”. It is not apparent that the claim made to the Delegate was concerned with anything more than the applicant having been exposed to Western society. Indeed the only elaboration on the claim in question in the applicant’s written submissions to the Delegate was the statement:
… there is a real chance that he will face serious harm if forced to return to Vietnam on account of his … membership of a social group of failed asylum seekers forcibly returned to Vietnam.
It is far from apparent that the claim in question involved reliance on the personal attributes now identified by the applicant.
Given those matters, I conclude that the applicant’s allegation that he had “Western speech and mannerisms” was made for the first time in his representatives’ written submissions to the IAA. As a consequence, it was “new information” as that concept is defined in s.473DC(1) of the Act and the IAA did not err by treating it as such.
Ground 2
The applicant’s second allegation concerns the IAA’s rejection of his allegation that Vietnamese authorities had visited his sister after his arrival in Australia and told her that they considered him to be a traitor and a protester against the regime. He alleges that that finding was neither logical nor rational.
The relevant reasoning of the IAA is found in para.48 of its decision record:
I have considered … the timing of these claims. The claims were not part of the applicant’s protection visa application. The applicant provided the claims at his protection visa interview. The applicant said he was informed of the visit by the authorities by his sister approximately eight months prior. The applicant explained that these claims had not been included in his protection visa application because he was unaware where to put the information. I am not satisfied this explanation sufficiently explains the omission of any details regarding a visit of the authorities from his protection visa application. The protection visa application specifically asks whether the applicant thinks the authorities of the home country can and will protect him on return, and if not to provide details. The applicant provided a general response of “I cannot seek the protection of the authorities since it is the authorities from whom I fear”. A registered migration agent assisted the applicant to complete the protection visa application. Given this, and the significance of these claims to his application, that being the Vietnamese authorities being aware of the applicant’s activities in Australia, I do not accept the applicant’s explanation for omitting mention of these claims in his application. I do not accept the claimed visits occurred.
The interview with the Delegate occurred on 21 October 2016, which puts the authorities’ visit to the applicant’s sister in about February 2016. The applicant’s visa application was dated 30 May 2016 and his statement also bore that date. The visa application form contained no detailed claims but, instead, in various of the questions in the section of the (Part C) form headed “Your reasons for claiming protection” stated “See statement of claims”, which was a reference to the accompanying statement of 30 May 2016. The statement was a catalogue of various matters ostensibly relevant to the visa application. It was in that statement that the applicant said:
I cannot seek the protection of the authorities since it is the authorities from whom I fear.
It would not be unreasonable to conclude, if the applicant held that fear and the authorities had visited his sister only three months earlier and made the statements he attributes to them, that he would have mentioned the fact somewhere in his statement. However, he did not. Given that the detail of the applicant’s claims were made in the statement rather than in the visa application form, his assertion in his interview with the Delegate that he had not included this claim in his visa application because he was unaware where to put the information is nonsensical.
In those circumstances, it was far from illogical or irrational of the IAA to conclude that that event had not occurred: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 [131].
In reaching this conclusion I have not overlooked the applicant’s reliance on the first paragraph of his statement of 30 May 2016 which said:
The following is only a summary of my claims for protection. It is not an exhaustive statement of the reasons why I cannot return to my country of origin. I will provide further information in relation to my protection claims during my interview with the Australian Department of Immigration and Border Protection.
The weight that should be accorded to a qualification such as that is questionable given that contemporaneously the applicant signed a statutory declaration on his visa application form which, relevantly, stated:
The information I have supplied or caused to be supplied on or with this Part C of the form 790 is complete, correct and up-to-date in every detail
As already noted, in that Part C, the applicant more than once answered a question by referring to his statement of 30 May 2016.
Given the statutory declaration in the visa application form, whatever significance might be accorded to the first paragraph of the applicant’s statement is not such as to make the IAA’s conclusion concerning the applicant’s initial silence on the subject of the Vietnamese authorities’ visit to his sister illogical or irrational in the relevant sense.
Ground 3
In the third ground of his further amended application the applicant alleged that it was unreasonable, irrational and illogical of the IAA to have concluded, by reason that his father had been released without charge following his arrest, that the Vietnamese authorities had not considered his father to have held anti-government views, which they then imputed to him, the applicant.
The reasoning of the IAA that the applicant challenged was set out in para.22 of its reasons:
I do not accept the applicant's father was considered to be anti-government by the authorities and nor do I not accept the applicant or his family is considered to be anti-government as a result of his father’s activities. I am not satisfied the applicant's father’s past activities including his position as an administrator would result in the Vietnamese authorities identifying the applicant, or any other member of his family, as … political or religious activists or anti- government. The applicant’s own statements are that neither he nor any of his family members had any political involvement in Vietnam. There is an absence of any evidence to indicate the applicant’s father had been engaged in any other activities which may have been perceived to be anti-government. After the applicant’s father arrest and detention for a short period of time, the applicant’s evidence is that his father was released without being charged with any offences.
The applicant submitted that an important fact associated with his father’s arrest was that he died not long after being released.
In his statement of 30 May 2016 the applicant had stated:
My father died when I was about six or seven years old. My sister told me that my father was detained because he protested against the government. The government took land, which was owned by the Catholic church, in order to build a road. My father protested against this along with other members of the church. My father was arrested and detained. He was beaten in detention. He died a few days after his return from detention as a result of the mistreatment he received. I am not sure of the exact cause of death.
The applicant submitted in that connection that:
The Authority’s conclusion that because the Applicant’s father was released “after a few days without charge”, he was not of interest to the authorities, while ignoring the fact that he was beaten and released to die from his injuries is unreasonable, irrational, and not a proper basis upon which to make the finding [that he was not of interest to the authorities].
The applicant submitted that his father may have been released without charge because he had been beaten so badly he was going to die and he was released to die.
It is apparent from the following passage in its decision record that the IAA was aware of the applicant’s allegation concerning the circumstances of his father’s death:
The applicant claimed when he was six or seven years old (1998) his father died. His sister told him that his father died soon after his arrest and detention by the police. His father had been arrested and detained as a result of his participation in a protest against the local authority’s confiscation of the local parish’s land.
That passage is plainly a selective summary of the portion of the applicant’s 30 May 2016 statement that I have just quoted. That being so, I am not persuaded that the IAA was unaware of the circumstances of the applicant’s father’s death and, specifically, the allegation that he had been beaten while in detention.
I find that the IAA did not mention the father’s injuries suffered in detention because they were not material to its reasoning, which was based on what the applicant’s father had done before his arrest, relevantly one protest, and whether that would have justified the Vietnamese government concluding that he opposed it. The IAA also relied on the applicant’s evidence to the Delegate that neither he nor any of his family had had any political involvement in Vietnam. It was not unreasonable, irrational or illogical of the IAA to rely on the evidence it had, rather than to speculate on the significance of, or the reasons for, the injuries alleged to have been inflicted on the applicant’s father when under arrest, particularly in light of the way the applicant’s claims were presented, a matter that will be considered in more detail in relation to the fourth ground of the further amended application.
As a result I conclude that the IAA’s rejection of the applicant’s claim that he was attributed with anti-government opinions as a member of his father’s family unit was not affected by jurisdictional error for being based on a factual finding that was unreasonable, irrational and illogical.
Ground 4
The burden of the fourth ground of the further amended application was that the IAA should have turned its mind to why and how severely the applicant’s father had been beaten in custody as that might have shed light on whether the Vietnamese authorities had considered him to have harboured anti-government sentiments.
The written submissions made on the applicant’s behalf to the Delegate did not refer to the death of the applicant’s father beyond the comment that:
His father apparently died shortly after he returned from being jailed for his catholic activism.
While the Delegate accepted that the applicant’s father had died as a result of the injuries he had received in custody, she also found:
While I acknowledge the death of the applicant’s father to be an unfortunate incident, I do not consider that the applicant’s father had any significant political or criminal profile at the time of his death or was of any ongoing interest to the Vietnamese authorities for any actual or imputed anti-government political opinion.
In their written submissions to the IAA, the applicant’s advisers submitted that:
· Whilst in detention his father was subjected to severe physical assault, so brutal that his father subsequently died shortly after release as a result of his injuries.
However, the applicant did not argue that the violence his father suffered was a matter relevant to perceptions of the family’s politics. His written submissions to the IAA said:
As the applicants [sic] father died shortly after release we submit that it is unreasonable for the delegate to support her finding on this matter on the lack of knowledge of a formal charge being issued to his father before his release. Also due to his death shortly after release there is no way of ascertaining what charges or consequences could have been bought to him subsequently. …
We submit that evidentiary issues about levels of political activities [that] were and were not engaged in by his father are secondary considerations. The primary consideration, and one that was accepted by the delegate, is that his father was identified as participating in activities and from this visible activity [CEL17] could be imputed with anti-regime political opinion. The relevant legal test turns on the perception of these activities by the Vietnamese authorities or alternately – how these activities and the family are viewed in the eye of the persecutor.
Neither before the Delegate nor before the IAA did the applicant argue that his father’s treatment while in custody was relevant to his own claims to fear harm on return to Vietnam. The fact that his father had been detained was said to be the relevant issue. It is therefore hardly surprising that the IAA did not canvass the treatment of the applicant’s father while in detention, even if it did record that the applicant’s father had died “soon after his arrest and detention by the police”.
The argument for which the applicant now contends was not advanced by him either to the Delegate or to the IAA and it can be inferred that that was not an oversight. In the circumstances, there was no error in the IAA not considering a claim which is now propounded for the first time in this proceeding: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at 479 [1]; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at 35 [37]; SZRPA v Minister for Immigration and Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration and Citizenship [2013] FCA 574 at [57]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at 513, 514 [30], [31].
CONCLUSION
Jurisdictional error on the part of the IAA has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 20 May 2021
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