CLJ17 v Minister for Immigration & Anor and CLK17 v Minister for Immigration
[2018] FCCA 3621
•7 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLJ17 v MINISTER FOR IMMIGRATION & ANOR and CLK17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3621 |
| Catchwords: MIGRATION – Protection (class XA) visas – credibility – evidence – country information – in each case the tribunal’s findings were open to it – applicants failed to establish illogicality or irrationality – applications dismissed. |
| Legislation: Migration Act 1958, ss 36(2)(a), 36(2)(aa), 477, 499 |
| Cases cited: 1403659 [2015] RRTA 172 Abebe v Commonwealth of Australia (1999) 197 CLR 510 ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 Gupta v Minister for Immigration and Border Protection (2017) 255 FCR 486 Htun v Minister for Immigration and Border Protection (2001) 194 ALR 244 Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 63 SZOVB v Minister for Immigration and Citizenship [2011] FCA 1462 VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2014] FCAFC 117 |
| Applicant: | CLJ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 292 of 2017 |
| Applicant: | CLK17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 293 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 7 September 2018 |
| Date of Last Submission: | 7 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 7 December 2018 |
REPRESENTATION
PEG 292 of 2017
| Counsel for the Applicant: | Mr D Blades |
| Solicitors for the Applicant: | Putt Legal |
| Counsel for the First Respondent: | Mr C Tran |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
PEG 293 of 2017
| Counsel for the Applicant: | Mr D Blades |
| Solicitors for the Applicant: | Putt Legal |
| Counsel for the First Respondent: | Mr C Tran |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
PEG 292 of 2017
Pursuant to s 477(2) of the Migration Act, the time for the applicant to file an application in respect of the decision of the Administrative Appeals Tribunal dated 24 April 2017 is extended to 6 June 2017.
The application filed on 6 June 2017 as amended on 3 August 2018 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7 467.
PEG 293 of 2017
Pursuant to s 477(2) of the Migration Act, the time for the applicant to file an application in respect of the decision of the Administrative Appeals Tribunal dated 24 April 2017 is extended to 6 June 2017.
The application filed on 6 June 2017 as amended on 3 August 2018 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7 467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 292 of 2017
| CLJ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
PEG 293 of 2017
| CLK17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
While sitting in Perth on 31 July 2018, I made orders by consent vacating the hearing of this proceeding, fixed for 22 April 2021 before another judge of this court and listed it before me in Melbourne on 7 September 2018, almost three years earlier than would otherwise have been the hearing of this case.
The applicants are male citizens of Vietnam who arrived in Australia as irregular maritime arrivals on 8 April 2013. On 11 June 2014, each applied for a protection (class XA) visa. With the assistance of BMA Lawyers, each applicant set out his protection claims in a statutory declaration made on an unidentified date in the case of applicant CLK17 and declared on 8 June 2014 in the case of applicant CLJ17, each interpreted through a Vietnamese proficient interpreter.
In essence, applicant CLK17’s claims were as follows –
a)he was part of a Catholic church group that protested against government policies and was actively involved in organising a protest on 6 April 2011 against government policies and he claimed that the undercover police were at the demonstration and warned him to stop his anti-government activities;
b)in 2011 the applicant’s wife was running a wholesale business and black market dealers interfered and the applicant complained to the authorities but the applicant claimed the authorities did not assist as he was Catholic;
c)in May 2012 the applicant’s priest was killed and he attended a meeting to discuss the priest’s death which was stopped by authorities and the applicant had been summoned to the local police station then questioned on a number of occasions following which the meeting he began receiving threating phone calls regarding his church activities;
d)he fled to Bangladesh for approximately three months and upon returning to Vietnam he received another summons; and
e)he was imputed with a profile as his wife’s paternal grandfather was a member of the South Vietnamese government who had been accused of spying.
Applicant CLJ17’s claims were as follows –
a)he was part of a Catholic church group where he volunteered as a teacher, teaching young children in the church as well as a youth group leader and organise choir practise for mass and prayer sessions;
b)he would encourage children in the church to stand up against wrongdoing in the government as well as prepare banners containing anti-government slogans;
c)in 2010 his kiosk in a market was taken away from him without compensation;
d)in October 2011 he was taking the priest of the church by car to the Ngoc Long parish to attend a prayer meeting after which on the way home the car was attacked and he was beaten;
e)after the incident in October he claimed to have received many phone calls threatening him to stop working for the Catholic church and stop chauffeuring the priest, which he did;
f)in November 2011 his wife received a threatening phone call in which she was told the applicant’s life would be taken if he did not stop which caused the applicant to decrease his volunteer work; and
g)he was imputed with a profile because his wife’s grandfather was a member of the South Vietnamese government who had been accused of spying
The minister’s delegate refused to grant applicant CLK17 the protection visa he sought on 28 May 2015 and refused to grant applicant CLJ17 the protection visa he sought on 26 May 2015.
Applicant CLK17 applied for a merits review on 9 June 2015. Applicant CLJ17 applied for a merits review on 5 June 2018.
On 10 August 2016 the tribunal invited each of the applicants to attend a hearing before it scheduled for 14 October 2016 in the case of applicant CLK17[1] and 20 October 2016 in the case of applicant CLJ17.[2] Applicant CLK17’s representative provided written submissions to the tribunal on 13 October 2016[3] and applicant CLJ17’s representative provided written submissions to the tribunal on 19 October 2016. On 14 October 2016 applicant CLK17 attended a hearing before the tribunal to give evidence and present arguments[4] and on 20 October 2016 applicant CLJ17 attended a hearing before the tribunal to give evidence and present arguments.[5]
[1] Court book (filed on 16 October 2017) (“CLK17 court book”) 120-123
[2] Court book (filed on 12 October 2017) (“CLJ17 court book”) 150-153
[3] CLK17 court book, above n 1, 133-147
[4] Ibid 149
[5] CLJ17 court book, above n 2, 188
Following the hearing, each applicant’s representative provided further written submissions and evidence to the tribunal.[6]
[6] CLK17 court book, above n 1, 161-167; CLJ17 court book, above n 2, 195
On 24 April 2017 the tribunal affirmed each respective delegate’s decision to not grant the applicants the protection visas they sought.
The applicants then applied for judicial review to this court. The applicants were out of time but the minister, in reliance upon the decision of Mortimer J in MZABP v Minister for Immigration and Border Protection,[7] did not oppose the grant of an extension of time.
[7] (2015) 242 FCR 585
In those circumstances, with a view to hearing the substance of each applicant’s application to this court, I proceeded on the basis that it was appropriate to make an order extending time to commence this proceeding to the date on which the applicants filed their respective applications for judicial review, namely 6 June 2017 in each case.
With leave, the applicants respectively filed amended applications in which they relied on three grounds, all of which had multiple particulars subjoined to them. Variously, the applicants argued that the tribunal’s findings were not based on a consideration of the evidence, that the tribunal’s findings were irrational or illogical, that the tribunal made adverse credibility findings by relying on a conclusion without a probative basis and that the tribunal made a jurisdictional error by failing to consider a claim they made.
The minister in each case contended that the tribunal made no error. Against that backdrop, I heard this application for judicial review.
Synopsis
The applicant in CLJ17 is the brother of the applicant in CLK17. Counsel for the applicants contended that the point of differentiation between CLJ17 and CLK17 lay in the fact that the applicant in CLJ17 was not interviewed by police. The applicant in CLJ17 was represented by Mr Blades of counsel as was CLK17 in the related proceeding. It is not correct to say the cases were identical. However, the case of CLJ17 and in the case of CLK17 are relevantly indistinguishable. Therefore these reasons for judgment are apposite to both cases.
For the reasons that follow in my judgment, both applications for judicial review must be dismissed and in each case I order the applicant to pay the minister’s costs as taxed in default of agreement.
Relevant factual matters
It is convenient to address factual matters in the context of each ground of review. For present purposes, it is useful to commence with an examination of the tribunal’s treatment of the issues raised by the applicants.
CLJ17
Between paragraphs 4 and 21 of the tribunal’s reasons, it correctly encapsulated the claims applicant CLJ17 made.
Between paragraphs 22 and 26 of its reasons the tribunal recorded the matters the delegate accepted and those that the delegate rejected, although they were not necessarily relevant to the hearing of the merits review.
Between paragraphs 36 and 63 of its reasons the tribunal paraphrased the more important evidentiary issues that arose in the hearing before it.
Between paragraphs 64 and 78 the tribunal correctly paraphrased the elements of ss 36(2)(a) and 36(2)(aa) of the Migration Act (“Act”). It also recorded the essential elements of s 499, the ministerial direction made under that section and PAM3.
CLK17
In paragraph 4 of the tribunal’s reasons, it correctly encapsulated the claims applicant CLK17 made. The tribunal recorded the matters the delegate accepted and those the delegate rejected between paragraphs 5 to 9 of its reasons.
Between paragraphs 13 to 43 of its reasons the tribunal paraphrased the more important evidentiary issues that arose in the hearing before it.
Between paragraphs 44 and 58 the tribunal correctly paraphrased the elements of ss 36(2)(a) and 36(2)(aa) of the Act. It also recorded the essential elements of s 499, ministerial direction 46 made under that section and PAM3.
The tribunals’ findings
Let me now turn to the more important findings the tribunal made in each case.
In each case, the tribunal found that the applicants were not credible witnesses and made adverse findings in respect of the credibility of their claims and evidence.[8]
[8] CLK17 court book, above n 1, 182 [67]; CLJ17 court book, above n 2, 223 [93]
CLJ17
With respect to applicant CLJ17, the tribunal identified the following concerns with the applicant’s claims and evidence[9] –
a)the applicant provided inconsistent evidence on the use of a fake passport as between his entry interview and subsequent claims;
b)the applicant did not satisfactorily explain a significant delay between when he claimed his problems began in Vietnam and his departure for Australia, which undermined his claims to genuinely fear serious harm;
c)the applicant’s claim to fear harm by reason of his religious activities was inconsistent with his claim that the Vietnamese government had no reason to arrest him; and
d)the applicant’s claims lacked consistency and coherence and important aspects of his claims were not supported by the weight of relevant country information.
[9] CLJ17 court book, above n 2, 223 [93]
The tribunal found that important parts of the applicant’s evidence were not credible and the applicant was not a reliable witness.[10] The tribunal found the applicant’s claims lacked consistency and coherency and that important aspects of his claims were not supported by relevant country information.[11] The tribunal considered the applicant’s brother’s oral evidence but did not place significant weight on it as the tribunal found it lacked detail.[12]
[10] Ibid 223-224 [93]
[11] Ibid
[12] Ibid 224 [94]
The tribunal accepted that the applicant was Catholic and involved in church activities in Vietnam.[13] However, having regard to country information and to the applicant’s circumstances, the tribunal did not accept that he suffered serious harm in Vietnam in the past or that he faced a real chance of serious harm now or in the reasonably foreseeable future in Vietnam if he continued with such activities.[14]
[13] Ibid 224 [97], 224-225 [99]
[14] Ibid 224-225 [99]
The tribunal accepted the applicant attended a protest against family planning on 6 April 2011 with church members.[15] However, on the evidence and having regard to the tribunal’s finding that the applicant was not a reliable witness, the tribunal did not accept government authorities followed him or put him under surveillance or would target him for serious harm because he attended that event if he returned to Vietnam.[16] The tribunal found the applicant did not participate in any other significant events which would be regarded as antigovernment or label him as a person to be targeted by the Vietnamese government. The tribunal found the applicant exaggerated his anti‑government sentiment and his past anti‑government activities.[17]
[15] Ibid 225 [101]
[16] Ibid
[17] Ibid 225 [100]
The tribunal did not accept the applicant’s claim that he was attacked when driving a priest on 6 April 2011 or that he received threatening calls after this incident. Having regard to country information and the available evidence, the tribunal found the applicant had not developed a profile as an activist or dissident who was targeted for adverse attention by the Vietnamese authorities or anyone else.[18]
[18] Ibid 225-226 [102]-[103]
Having regard to the applicant’s circumstances and country information, the tribunal did not accept the applicant’s claim that he could not leave Vietnam during the two year period from 2011 to 2013 before leaving for Australia because he was being followed by the authorities or asked about his movements. The tribunal did not accept on the evidence that he could not live freely or undertake daily tasks.[19] The tribunal found that if the applicant had in fact faced a real chance of serious harm in Vietnam he would have departed sooner rather than waiting for two years.[20] On the evidence before it, the tribunal did not accept the applicant was prevented from worshiping in his religion in the past or that he would be prevented from doing so in Vietnam in the future.[21]
[19] Ibid 226 [106]
[20] Ibid 226 [104]
[21] Ibid 226 [104]‑[107]
Having regard to all the evidence, the Tribunal found the applicant did not face a real chance of serious harm or persecution by the Vietnamese authorities or anyone else because he was a Catholic or because of his opinion or activities as a Catholic in Vietnam now or in the reasonably foreseeable future.[22]
[22] Ibid 227 [109]
Having regard to all the evidence and country information, the tribunal did not accept the applicant was on a blacklist because of his wife’s grandfather’s political activities over 50 years ago or for any other reason or that he faced a real chance or serious harm for this reason.[23]
[23] Ibid 227 [112]
The tribunal accepted the applicant lost his market stall without receiving adequate compensation and that he was going to take legal action against officials but was let down by his lawyer. However, the tribunal did not accept on the evidence before it the applicant’s claim that the government was complicit with the lawyer in preventing any compensation claim or that losing the market stall without adequate compensation amounted to serious harm. The tribunal found there was no evidence to suggest the applicant would be denied the opportunity to find work within a reasonable time if he returned to Vietnam.[24]
[24] Ibid 228 [114]
The tribunal accepted that information about the applicant may have been available through the department’s data breach. However, the tribunal found there was not a real chance that the Vietnamese government or any individual had an adverse interest in the applicant such that it would access the information available to cause the applicant serious harm. The tribunal did not accept there was a real chance the applicant would face serious harm because of the data breach.[25]
[25] Ibid 228 [118]
The tribunal found on the evidence that A18 officials were not aware that the applicant was in detention at the time of their visit or subsequently. The tribunal did not accept that A18 officials knew the reasons for the applicant’s detention or his grounds for his protection claims. The tribunal found the visit by A18 officials to the detention centre at the time the applicant was detained there did not give rise to a real chance of serious harm if he returned to Vietnam.[26]
[26] Ibid 229 [120]-[123]
The tribunal did not accept the applicant’s claim that he departed Vietnam using a false passport.[27] Having regard to the evidence and country information, the tribunal found the applicant would not face a real risk of serious harm for the way he departed Vietnam.[28]
[27] Ibid 229 [125]
[28] Ibid 230 [127]-[131]
The tribunal considered the applicant’s claims individually and cumulatively and found the applicant would not face a real chance of serious harm amounting to persecution.[29]
[29] Ibid 231 [136]
The tribunal then turned to consider the applicant’s complementary protection claims.[30] Having regard to country information that most Catholics in Vietnam are able to worship and follow their religion without facing a chance of serious harm, the tribunal found the applicant would not face a real risk of humiliation, torture, inhuman or degrading treatment or punishment, or any other significant harm, in light of all his circumstances.[31] Based on its anterior findings in relation to the applicant’s refugee claims, the tribunal found there was not a real risk the applicant would face significant harm if he was removed to Vietnam.[32]
[30] Ibid 232 [137]
[31] Ibid 232 [142]
[32] Ibid 232 [143]
Accordingly, the tribunal concluded that the applicant did not satisfy s 36(2)(a) or s 36(2)(aa) of the Act.[33]
[33] Ibid 233 [144]-[145]
CLK17
With respect to applicant CLK17, the tribunal identified the following concerns with the applicant’s claims and evidence[34] –
a)the applicant was able to depart Vietnam and travel to Bangladesh, then return to Vietnam, using a passport issued in his own name, without being questioned or detained and the tribunal considered that this raised serious doubts about his claim to be a person of adverse interest to Vietnamese authorities;
b)the delay in leaving Vietnam after having returned from Bangladesh, during which time the applicant also returned to employment, did not suggest he was hiding or in fear of his wellbeing and furthermore the fact that the applicant continued his church activities during this period undermined his claim that he faced a real chance of serious harm in Vietnam; and
c)the applicant failed to mention the telephone threats he claimed to have received prior to departing Vietnam for Bangladesh, during his first interview with the department, which further undermined the credibility of the applicant’s evidence.
[34] CLK17 court book, above n 1, 182 [67]
The tribunal also found that the evidence provided by the applicant’s witness, his brother CLJ17, was vague and generalised.[35]
[35] CLK17 court book, above n 1, 183 [68]
The tribunal accepted that the applicant was a follower of the Catholic faith in Vietnam and was involved in a demonstration in 2011 protesting in respect of family planning and abortions.[36] The tribunal also accepted that the applicant may have been questioned by authorities in Vietnam, however the tribunal found that the applicant was allowed to continue with his activities without threat or serious harm.[37]
[36] Ibid 183 [69]
[37] Ibid
Having regard to relevant country information the tribunal noted that while the Vietnamese authorities restrained the use of the Catholic Church, and other religions for political purposes it found that the applicant had not suffered serious harm in Vietnam in the past and further that those restrictions did not amount to persecution of the applicant.[38]
[38] Ibid 184 [76]
The tribunal did not accept that the applicant was viewed by the authorities as a dissident or activist in Vietnam or that he was of any ongoing interest to them such that he faced a real chance of serious harm at the time of the decision or in the reasonably foreseeable future in Vietnam.[39] The tribunal also did not accept that the applicant was issued with a summons upon return to Vietnam from Bangladesh nor that there was an outstanding warrant for the applicant’s arrest in Vietnam.[40]
[39] Ibid 184 [77]
[40] Ibid 184 [79]
The tribunal considered the applicant’s evidence of his ongoing involvement with the church both in Vietnam and in Australia, and the applicant’s claim that prior to departing Vietnam he, along with his wife and children were threatened, but found that the applicant was not a person of adverse interest to the Vietnamese authorities and consequently did not accept that the applicant or his wife and children were threatened or that any of them faced a real chance of serious harm.[41]
[41] Ibid 185 [80]-[82]
In relation to the applicant’s claim that he would be targeted due to his wife’s paternal grandfather who had been a supporter of the old regime in South Vietnam, the tribunal found that based on the relevant country information there was not a real chance that the applicant or his wife and children would face serious harm.[42]
[42] Ibid 185 [83]
In relation to the applicant’s claim that the Vietnamese police had failed to act in respect of the alleged extortion on his wife’s business the tribunal found the applicant’s evidence to be unconvincing and did not accept that any adverse circumstance that might have been experienced in respect of his wife’s business were for reasons of religion, political opinion or any other Convention ground.[43]
[43] Ibid 185 [84]
In relation to the applicant’s claim that there had been two attempts to kill him prior to the applicant departing Vietnam for Australia the tribunal found that this evidence was not credible and did not accept that those incidents in fact occurred.[44]
[44] Ibid 185-186 [85]
The tribunal also found, based on the relevant country information that the applicant would not face a real chance of serious harm for reasons of his travel to Australia by way of people smuggler.[45]
[45] Ibid 187 [94]
The tribunal had regard to the applicant’s meeting with A18 and was satisfied that the purpose of the visit by the A18 was to assist the department to ascertain the identity and nationality of the applicant.[46] The tribunal found that there was no evidence that the relevant officials undertook the interview process for any other purpose than to assist with such identification.[47]
[46] Ibid 188 [97]
[47] Ibid
In relation to the data breach, the tribunal accepted that some of the applicant’s information had been released on the department’s website.[48] However, it found that the information did not include the applicant’s address, any former addresses, phone numbers, contact information, or any information about his protection claims or his health.[49] The tribunal did not accept that the Vietnamese government or any other government would access the applicant’s personal details to cause him serious harm.[50]
[48] Ibid 188 [98]
[49] Ibid 188 [100]
[50] Ibid 188 [101]
The tribunal ultimately found that the applicant did not face a real chance of suffering treatment that might amount to persecution involving serious harm on return to Vietnam. It concluded that the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act.[51]
[51] Ibid 188-189 [102]
Having regard to its anterior findings and the submissions made by the applicant’s representative the tribunal found that the applicant did not face significant harm based on his religion or being regarded a political dissident having fled Vietnam and having claimed asylum.[52] It was therefore not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.[53]
[52] Ibid 189 [107]
[53] Ibid 189 [109]
In this court
While lengthy, it is useful to record in full the way applicant CLK17 cast his case for judicial review in his amended application filed in this proceeding. It appeared in the following terms (with emphasis in the original) –
1.The Tribunal made a jurisdictional error in addressing the applicant’s claim that the Vietnamese authorities’ interest in him would have been amplified as a result of him fleeing the country to a western country as well as the fact that he had an interview with the A18 police which would have heightened his profile (CB 136).
Particulars
a.The Tribunal found that the applicant’s claim to fear persecution for a Convention ground is not well founded through relying on conclusions that (CB 188, [97]):
i. the purpose of the visit by the A18 was to assist the Department to identify the identity and nationality of certain applicants;
ii. there is no evidence that the relevant officials undertook the interview process for any other purpose than to assist with such identification; and
iii. details of the applicant’s protection claims were not disclosed or discussed with the A18 officials.
b.The evidence on this particular claim is that:
i. The applicant was interviewed on 21 August 2013 by a Vietnamese delegation member of A18;
ii. The purpose of the A18 interview conducted with the applicant was to “conduct nationality and identity verification for the purpose of issuing travel documents for Vietnamese nationals with no lawful right to remain in Australia”.
(Underlining emphasis added);
iii. The A18 Vietnamese delegation member asked the applicant a series of questions which did include questions on topics additional to the applicant's nationality and identity and which would identify him as a person who had sought protection in Australia.
c.The Tribunal’s findings in respect of the applicant’s A18 claim were not based on a consideration of the evidence as to the particular claim;
d.Alternatively, the Tribunal misconstrued the evidence concerning the applicant’s A18 claim with the result that its findings were irrational or illogical.
2.The Tribunal made a jurisdictional error in making a negative credibility finding concerning the applicant by relying on a conclusion without any logical or probative basis.
Particulars
a.The Tribunal stated at [67] (CB 182) that: “Further evidence in this case which the Tribunal finds weakens his claims and cast doubt on his credibility include his failure in his application to mention the receipt of telephone threats.”
b.The applicant's protection visa application included a statutory declaration in which the following was stated (CB 39): “After leaving the church I started receiving many threats from anonymous numbers. The calls were warning me to stop my church activities. I had no option but to flee the country .... ”
c.The Tribunal’s finding that the applicant did not mention the receipt of telephone threats in his application was repeated in its reasons for decision at [70] and [77].
d.The Tribunal’s finding that the applicant did not mention the receipt of telephone threats in his application was reached without any logical or probative basis.
3.The Tribunal made a jurisdictional error by failing to consider a claim made by the applicant to fear harm as a member of a particular social group comprised of members of a religious minority group, namely persons of the Catholic faith.
Particulars
a.The applicant claimed in his protection visa application statutory declaration declared on 9 June 2014 (page 3) that he believes he will suffer significant harm because he is a Catholic, and because he comes from a devoted Catholic family well known in the area.
b.Membership of a particular social group constitutes a separate ground of protection under the meaning of “well founded fear of persecution” in s 5J(1)(a) of the Act, and accordingly the Tribunal was obliged to consider the applicant's claims against that ground.
c.The Tribunal did not consider and make a finding on whether the applicant is owed protection for reason of membership of the particular social group of persons of the Catholic faith.
Applicant CLJ17’s case for judicial review in his amended application filed in this proceeding appeared in the following terms (with emphasis and errors in the original) –
1.The Tribunal made a jurisdictional error in addressing the applicant’s claim that the Vietnamese authorities know where the applicant is due to having spoken with his brother […] in immigration detention in August 2013, and that there is a real chance that the applicant would face serious and significant harm if returned to Vietnam (CB 124; 171-172).
Particulars
a.The Tribunal stated that it (CB 229, [122]):
i. had considered the country information cited in the delegate’s decision record;
ii. accepted that the purpose of the visit by the A18 was to assist the Department to identify the identity and nationality of certain applicants;
iii. was satisfied that there is no evidence that the relevant officials undertook the interview process for any other purpose than to assist with such identification;
iv. found that details of the applicant’s protection claims were not disclosed or discussed with the A18 officials;
v. found that on the evidence before it that the A18 officials were not aware that the applicant was in immigration detention at the time of their visit, or subsequently.
vi. did not accept that the A18 officials know the reasons for the applicant’s detention or the grounds for his protection claims in Australia.
b.The delegate’s decision record (CB 118-137) cites no country information concerning A18; nor does it cite any information on the purpose of the visit to the detention centre by A18 officials.
c.There was no evidence before the Tribunal to support its conclusions that:
i. the relevant officials undertook the interview process for no other purpose than to assist with identification;
ii. details of the applicant’s protection claims were not disclosed or discussed with the A18 officials;
iii. the Al 8 officials were not aware that the applicant was in immigration detention at the time of their visit, or subsequently;
iv. the A18 officials did not know the reasons for the applicant's detention or the grounds for his protection claims in Australia.
d.Accordingly, the Tribunal’s decision was made in excess of jurisdiction because there was no evidence to support its rejection of the applicant’s A18 claim; alternatively, the Tribunal's rejection of the claim was illogical or irrational.
2.The Tribunal made a jurisdictional error by making a negative credibility finding on the basis of oral evidence given by the applicant at the Tribunal hearing that the Tribunal had misconstrued.
Particulars
a.The Tribunal stated at [93]: “Furthermore, the Tribunal found the applicant's claims lacked consistency and coherency, for example where he claimed he feared harm for his religious activities but then said the government had no reason to arrest him and that it had no evidence against him.”
b.What the applicant actually said to the Tribunal (Transcript p 16) was that “they (the authorities) did not have a good reason to arrest me. I had not done anything wrong. I did not violate the law; the regulations at all so they could not come to my home and arrest me even if they wanted to.”
c.The applicant did not tell the Tribunal that the government had no reason to arrest him and that it had no evidence against him.
3.The Tribunal made a jurisdictional error by making a negative credibility finding on the basis of oral evidence given by the applicant's brother […] at the Tribunal hearing that the Tribunal had misconstrued.
Particulars
a.The Tribunal stated at [94] (emphasis added): “In relation to the oral evidence from the applicant’s brother, […], the Tribunal considered this evidence, however, it does not place significant weight on it as the Tribunal found it lacked detail. It also found the witness appeared to exaggerate the risk of harm to the applicant in claiming he would suffer serious harm for reasons of teaching religion. When it was put to him that country information indicates that teaching religion is not a crime in Vietnam, and that the country information indicated that a person would not be targeted for serious harm for teaching religion there, the witness agreed this was the case.
b.What the witness […] actually said to the Tribunal (Transcript p 17), in answer to the Tribunal's question: “The Roman Catholic Church which you claim you belong to is not prohibited in Vietnam, so why do you say it was a crime?” was:
“That is correct. Religious teaching or preaching is no prohibited in Vietnam, but the Vietnamese Government want the Vietnamese people to be ignorant; to have no knowledge about anything that way. They hate the people who teach religious.”
c.[…], contrary to the Tribunal’s finding in its statement of decision and reasons at [94] (CB 224), did not agree with the Tribunal's proposition that a person would not be targeted for serious harm for teaching religion in Vietnam.
4.The Tribunal made a jurisdictional error by ignoring relevant material.
Particulars
a.The applicant’s migration agent Ms Coffey told the Tribunal near the end of the hearing on 20 October 2016 that the applicant wished to send more articles to the Tribunal (Transcript p 31 );
b.The Tribunal agreed to receive further articles from the applicant and consider them (Transcript p 31-32);
c.On 2 November 2016 Ms Coffey emailed two further articles to the Tribunal (CB 200-201 ; CB 216, [63]; CB 231, [135]), one of which was entitled “Nghe An Police repudiated an agreement, brutally repressed people” and which referred to an incident that had occurred on 4 September 2013 involving the brutal repression of people by the authorities in Nghe An Province. (CB 204).
d.The Tribunal made a jurisdictional error by:
i. failing to refer to the article entitled “Nghe An Police repudiated an agreement, brutally repressed people” which contained relevant material; and
ii. failing to consider the information in the article that there had been brutal repression of Catholics in Nghe An in September 2013; and
iii. failing to consider whether the content of this article supported the applicant’s claims.
5.The IAA made a jurisdictional error by failing to consider a claim made by the Applicant to fear harm as a member of a particular social group comprised of members of a religious minority group, namely persons of the Catholic faith.
Particulars
a.The applicant claimed in his protection visa application statutory declaration declared on 8 June 2018 (CB 57‑60) that he believes he will be harmed because he is a Catholic and he was heavily involved with the church activities (CB 59).
b.Membership of a particular social group constitutes a separate ground of protection under the meaning of “well founded fear of persecution” in s 5J(l)(a) of the Act, and accordingly the Tribunal was obliged to consider the applicant's claims against that ground.
c.The Tribunal did not consider and make a finding on whether the applicant is owed protection for reason of membership of the particular social group of persons of the Catholic faith.
Affidavit material and objections – CLK17
In support of this application for judicial review, applicant CLK17 relied on affidavit material that was the subject of objection by the minister. It is necessary to identify that material and the basis of the objection.
First, the minister objected to my receiving exhibits YNJ‑1, YNJ‑2 and YNJ‑4 to the affidavit of Yovundhi Jayasekera on the basis that the material in those exhibits were not before the tribunal. Counsel for the minister did not complain about my reading of those exhibits for the purposes of my determining the evidentiary objection. Exhibits YNJ‑1 and YNJ‑2 were relevant to ground three of the applicant CLK17’s amended grounds in support of his application for judicial review. Exhibit YNJ‑4 was identified by applicant CLK17 as supporting ground one. Be that as it may, for the purpose of determining the evidentiary objection, I read exhibits YNJ‑1, YNJ‑2 and YNJ‑4.
Next, the minister objected to the affidavit of Nicholas Anderson (in fact, the affidavit was sworn by Nicholas Allen, not Anderson) sworn 11 May 2018, in which portions only of an audio file were transcribed. The minister objected on the basis that the whole of the audio recording should have been transcribed then adduced in evidence rather than only a segment of the transcript of that audio recording. Again, Mr Tran of counsel for the minister agreed that I should examine that affidavit and its exhibit to determine the question of admissibility. I did that. The transcript was incomplete. No explanation was given about why an incomplete transcript was adduced. On the basis that the incomplete transcript nevertheless conveyed so much of the material on which the applicant wished to rely, I received it. I do not necessarily agree that the entirety of a transcript must be put forward before it can be admitted in evidence. That is especially the case in a long running case, a case involving multiple witnesses only one or more of whom are relevant or a case where the relevant exchange can be found on a single sheet or a few pages of transcript. It seemed to me that so long as the authenticity of the transcript was beyond debate and it was possible to ascertain the identity of the persons whose evidence was purportedly recorded then transcribed, then a transcript or a portion of an entire transcript was admissible despite the entirety of the transcript not being adduced. At all events, the entire transcript was adduced as an exhibit to an affidavit of a different witness, Lisa Versace, in her affidavit sworn 24 May 2018. I have read that transcript and considered it in the course of considering all relevant propositions advanced in this case.
Third, the minister objected to the affidavit of Alisdair Edward Hawkins Putt sworn 24 August 2018 on the basis that an exhibit to Mr Putt’s affidavit concerning ministerial intervention being declined on 3 August 2018 was irrelevant. The fact of ministerial intervention being declined on 3 August 2018 was irrelevant to the grounds on which the applicants relied. Further, the minister’s declining of intervention significantly post‑dated the tribunal’s decision in these cases. In those circumstances, I did not receive in evidence the affidavit of Alisdair Edward Hawkins Putt sworn 24 August 2018 and the exhibits thereto.
With that lamentably long recital of certain background matters, it is necessary to next examine the grounds on which each applicant relied.
Ground one
Under this ground, each applicant focused on the manner the tribunal addressed one aspect of the applicant’s claim. The specific claim was that the interest shown in him by the authorities in Vietnam would have been amplified and his profile thereby heightened by reason of –
a)his fleeing to a western country; and
b)his interview with the A18 police.
In the first of the particulars subjoined to ground one, each applicant referred to the tribunal’s findings[54] to the effect that the applicant’s claim to fearing persecution on a Convention ground was not well founded. Respectively, in the second[55] and third[56] of the particulars subjoined to ground one of their amended applications, each applicant referred to his interview[57] by a Vietnamese delegate or delegation member of A18 whose questioning would identify the applicant as a person who had sought protection in Australia. In the third[58] and fourth[59] of the particulars subjoined to ground one, each applicant said the tribunal’s findings in respect of each applicant’s A18 claim were not based on a consideration of the evidence as to the particular claim. In the fourth of the particulars subjoined to ground one, applicant CLK17 said as an alternative that the tribunal misconstrued the evidence concerning the applicant’s A18 claim[60] and applicant CLJ17 said that there was no evidence to support the tribunal’s finding,[61] with the result that its findings were irrational and illogical.
[54] CLJ17 court book, above n 2, 228 [114]; CLK17 court book, above n 1, 188 [97]
[55] Amended application of applicant CLK17 (filed on 3 August 2018) (“CLK17 amended application”)
[56] Amended application of applicant CLJ17 (filed on 3 August 2018) (“CLJ17 amended application”)
[57] In the case of applicant CLK17 this interview was said to have taken place on 21 August 2013
[58] CLK17 amended application
[59] CLJ17 amended application
[60] CLK17 amended application
[61] CLJ17 amended application.
In written submissions filed in support of this application for judicial review, Mr Blades of counsel commenced his analysis of ground one with the findings recorded[62] in the tribunals’ reasons. Conversely, Mr Tran’s analysis commenced with an anterior issue of the tribunal’s assessment of each applicant’s credibility.[63] In essence, the tribunal stated that for the reasons given[64] it found that each applicant was not a credible witness. So far as applicant CLJ17 was concerned, the tribunal found that his evidence was vague, generalised and lacking convincing detail.[65]
[62] Above n 54
[63] CLJ17 court book, above n 2, 223 [93]; CLK17 court book, above n 1, 182 [67]
[64] Ibid
[65] CLK17 court book, above n 1, 183 [68]
In developing his clients’ contentions about ground one, Mr Blades identified material that he said the tribunal failed to consider, material the tribunal knew or ought to have known or information about which the tribunal could have made an obvious inquiry about a critical fact, the existence of which was easily ascertained. Mr Blades put the proposition that if the tribunal had in fact considered the declaration of interview questions completed on 21 August 2013 in respect of each applicant and the department’s written confirmation that the purpose of the interview was to conduct nationality and to identify verification, then no rational decision maker could have reached the conclusion that the tribunal reached.
In debate on 7 September 2018, Mr Blades elaborated on his contentions concerning ground one. His propositions emerged in several places, so it is necessary to set them out. The first was as follows[66] –
The point is, your Honour, that the tribunal did not have regard to the record of interview with the Vietnamese authorities and nor did it have regard to any of the information that was supplied by the department to the Australian Human Rights Commission, which culminated in the commission issuing a report in May of last year ‑ ‑ ‑
[66] Transcript of proceeding (P)PEG 293 of 2017 (7 September 2018) 8 ll 36‑40
The next was as follows[67] –
… All I wish to submit is that the delegate referred to internal departmental reports confirming that the applicant met with the A18 police on 21 August. So those internal departmental reports were not taken into consideration by the tribunal. So the jurisdictional error is ignoring evidence or ignoring relevant material.
[67] Ibid 10 ll 12‑16
Then, over two pages of transcript, the following emerged[68] –
[68] Ibid 11‑12
MR BLADES: Yes, your Honour. The claim was raised by the applicant to the tribunal that he feared harm as a result of the A18 visit and that the communist officials in Vietnam after that visit had visited his family and caused concern to his family in Vietnam and that his children had suffered some discrimination. So yes, you’re right in saying that the authorities delineate the tribunal’s role in terms of not having to speak to or address every single document that’s put before it but it does have to deal with documents that are material and significant to the applicant’s claims.
HIS HONOUR: Right.
MR BLADES: I mean, for example, there’s the case of – decision of Justice Robertson in the Federal Court where the tribunal hadn’t referred to a student visa – hadn’t referred to a transcript of an applicant’s course of study at a university in Pakistan and the tribunal didn’t refer to that document and Justice Robertson held that to be a jurisdictional error on the basis that the document was relevant to the case that the tribunal had to determine.
HIS HONOUR: That’s not SZRKT, is it?
MR BLADES: Yes, I believe that is the case.
HIS HONOUR: Okay. You keep going.
MR BLADES: So the other way we’ve put this omission by the tribunal to refer to the documents concerning the A18 visit is that the tribunal made findings that were illogical or irrational, and this is in paragraph D of the ‑ ‑ ‑
HIS HONOUR: You’ve got to go a bit further though. You’ve got to point to extreme illogicality or extreme irrationality, don’t you?
MR BLADES: That’s correct, your Honour. So in my submission, the fact that the tribunal concluded that there was no evidence that the visit was for any purpose other than identification, in my submission, is illogical in extreme because the applicant at that stage had been screened out from the protection visa process and it was the intent of the authorities, both the Australian authorities and the Vietnam authorities, to repatriate the applicant to Vietnam. So the tribunal’s conclusion that the interview process was not for any purpose other than to assist the identification, we say, is illogical in the extreme because the authorities were intent on repatriating him to Vietnam at a time when his protection visa claims had not been determined. He hadn’t even applied at that stage for the protection visa due to being screened out. Your Honour, I’ve also filed – the applicant has also filed an affidavit annexing a transcript of the tribunal hearing. Do you have that document?
Lastly, Mr Blades put the point in the following manner, then in reference to CLK17[69] –
So what I submit that the tribunal should have inferred from that is that his – the tribunal is being told by the agent that it’s difficult to know what the applicant was asked by the A18 team and what information that the A18 returned to the Communist Party officials in Vietnam that may have resulted in the applicant’s wife and children being subject to adverse consequences. So now, in my submission, your Honour, this is a clear claim that was put to the applicant and by the agent to the tribunal about the significance of the A18 visit, and the tribunal should have – if it didn’t have those documents before it, that is, the record of interview questions and the other information that was submitted to the Human Rights Commission, the tribunal should have taken steps to obtain that information before it give its decision.
[69] Ibid 14‑15
The minister contended that a large portion of the material on which the applicant relied in relation to the A18 claim was not before the tribunal. Mr Tran argued that the documents exhibited as YNJ‑1, YNJ‑2 and YNJ‑4 to the affidavit of Ms Jayasekere sworn 31 May 2018 did not form part of the tribunal’s file.
According to an affidavit of Ellen Lucy Goldsworthy Tattersall affirmed 31 August 2018, who reviewed the tribunal’s file in this proceeding, being file CLF 2014/85353, Ms Tattersall did not identify on that file any documents relating to the applicant’s complaint to the Australian Human Rights Commission (“AHRC”). Given that no documents relating to the applicant’s complaint to the AHRC were before the tribunal, it became necessary to assess whether the tribunal erred in not requesting such documents.
Counsel for the minister argued that any such contention was not raised in the amended grounds of review, but even if it had been, such a contention would fail. He said that was for the simple reason that the tribunal’s statutory duty under the Act was a statutory duty to review, not a statutory duty to investigate. Mr Tran relied on the High Court’s decision in Minister for Immigration and Citizenship v SZIAI[70] to that effect. He also relied on the High Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[71] to the effect that the tribunal is under no duty to investigate an applicant’s claims. The same was held by the Full Court of the Federal Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003.[72]
[70] (2009) 83 ALJR 1123
[71] (2004) 78 ALJR 992
[72] [2005] FCAFC 73
Mr Tran contended that this was not a case where it could be said that the tribunal failed to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained, as was held in SZIAI. Mr Tran supported that contention by pointing out –
a)the applicant was represented and it was for the applicant to make out his case, as was held in SGLB;
b)the applicant did not adduce evidence to the effect that he told the tribunal of the complaint he made to the AHRC;
c)no evidence emerged that the applicant requested the tribunal to inquire about the AHRC complaint;
d)no evidence was put before the tribunal to the effect that an inquiry by the tribunal would have yielded a useful outcome;
e)a considerable number of other issues needed acceptance by the tribunal before the applicant was entitled to the visa, citing Minister for Immigration and Border Protection v SZRTF.[73]
[73] [2013] FCA 1377
To my mind, there is considerable force in the minister’s contentions concerning ground one. The AHRC complaint was not before the tribunal. The tribunal was not under a duty to investigate for it. Its significance was a matter for the applicant, who was required to put before the tribunal such information as he wished the tribunal to consider in assessing his entitlement to the visa. Nor did the tribunal fail to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained.
There remained the question whether the tribunal’s conclusions in each case[74] were illogical or irrational. Applying the test propounded in Minister for Immigration and Citizenship v SZMDS,[75] in my view it could not be so said. The threshold for a conclusion about irrationality and illogicality is very high, as several Full Court decisions subsequent to SZMDS have held, including Gupta v Minister for Immigration and Border Protection[76] and DAO16 v Minister for Immigration and Border Protection.[77] It is not enough that the issue is one in respect of which reasonable minds might come to different conclusions, as was held in ARG15 v Minister for Immigration and Border Protection.[78] For that matter, even if a particular factual finding is irrational or illogical, jurisdictional error will not be established unless the reasoning or finding was critical to the ultimate conclusion, as was held in Minister for Immigration and Citizenship v SZOCT[79] and in Minister for Immigration and Border Protection v SZUXN.[80]
[74] Above n 54
[75] (2010) 240 CLR 611
[76] (2017) 255 FCR 486
[77] [2018] FCAFC 1
[78] (2016) 250 FCR 109
[79] (2010) 189 FCR 577
[80] [2016] FCA 516
I do not accept that in this case, on the grounds asserted in ground one, the tribunal fell into jurisdictional error, whether on the basis of irrationality, illogicality or on other bases alleged by the applicant. In my view, the conclusions[81] were open. Those conclusions were drawn against a backdrop where the tribunal found each applicant was otherwise than credible. It was also found against a backdrop where the applicants were required to put before the tribunal such material as the applicants considered appropriate to persuade the tribunal of the validity of their claims and therefore their entitlements to the visas they sought. The applicants failed to do so. I detected no error in the tribunal’s reasoning on the basis asserted in ground one. In my view, ground one failed.
[81] Above n 54
Ground two
Under this ground, each applicant focused on of the tribunal’s credibility considerations,[82] contending that the negative credibility findings were reached without a logical or probative basis. The applicants called in aid the Full Court’s decision in CQG15 v Minister for Immigration and Border Protection,[83] where it was held that credibility findings can be challenged on certain grounds. Robertson J adverted to such a challenge in Minister for Immigration and Citizenship v SZRKT.[84] Applicant CLK17 in written submissions said he mentioned his receipt of telephone threats in his protection visa application and that applicant CLK17 told the delegate as much at the protection visa interview. Applicant CLK17 said the following at paragraph 65 of his written submissions –
The Tribunal’s finding that the applicant had not mentioned in his application the receipt of telephone threats was reached without any logical or probative basis. Accordingly, the Tribunal made a jurisdictional error in light of the above authorities.
[82] CLJ17 court book, above n 2, 223 [93]; CLK17 court book, above n 1, 182 [67]
[83] (2016) 253 FCR 496
[84] (2013) 212 FCR 99
In his verbal submissions before me, Mr Blades said he was content to rely on his written submissions.[85]
[85] Above n 66, 16 ll 4-5
The minister said that the reference to applicant CLK17’s failure to mention the receipt of threatening telephone calls in “his application”[86] should be read as a failure to mention the receipt of threatening phone calls in “his entry interview”. When so understood, so the minister said, there was no want of logic or probative basis. The same propositions were advanced for each applicant.
[86] CLK17 court book, above n 1, 182 [67]
Mr Tran cited the decision in SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs[87] to support his proposition that the tribunal did not fail to exercise its power of review. In that case, Greenwood J spoke of errors in the decision record, but in that case, his Honour held that the errors were not mere typographical errors and went to the centrality of the applicant’s claims. Mr Tran submitted that the same could not be said in this case as it was readily apparent that reference to “his application”[88] can only seriously be construed as a typographical error that should have read “his entry interview”. In support, Mr Tran said that when read as a whole, the tribunal –
a)referred to applicant CLK17’s claims, as raised in the statement accompanying his visa application that he received threatening telephone calls after leaving the church;[89]
b)asked applicant CLK17 at hearing why he did not mention the threatening phone calls when first interviewed by the department;[90]
c)referred to applicant CLK17’s oral evidence that he did not mention the telephone threat when interviewed in Darwin because he was scared;[91]
d)referred to the representative’s submissions that, on arrival to Australia, the applicant CLK17 lacked familiarity with the immigration procedures;[92]
e)did not accept the explanation as to why the applicant failed to refer “in his claims to the Department” to the threatening phone calls as distinct from stating the claims were not mentioned in his application;[93] and
f)referred to the “late addition of his claim to having received threats”.[94]
[87] [2007] FCA 63
[88] Above n 86
[89] CLK17 court book, above n 1, 173 [4(m)]
[90] Ibid 175 [21]
[91] Ibid 177 [34]
[92] Ibid 177-178 [39]‑[40]
[93] Ibid 183 [70]
[94] Ibid 184 [77]
There is considerable force in those propositions. Further, on a line of authority of unimpeachable prominence, federal courts across the country have long held that the tribunal’s reasons should not be read with an eye keenly attuned to the presence of error. Further, any such construction of paragraph 67 of the tribunal’s reasons does not deny applicant CLK17 the possibility of a successful outcome in the manner addressed by the High Court in Minister for Immigration and Border Protection v WZARH.[95] It seemed to me that the reference in paragraph 67 to applicant CLK17’s failure to mention telephone threats in his “application” in all the circumstances ought fairly and properly to be understood as his failure to mention telephone threats in their “entry interview”.
[95] (2015) 256 CLR 326
Insofar as applicant CLJ17 was concerned, the tribunal considered the applicant’s claims in light of the evidence he provided and in light of the country information. As was held in ARG15 and SZKRT, the question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry. In this case those findings were open to the tribunal. Applicant CLJ17 bore the onus of make out his case to the tribunal in sufficient detail to enable it to establish the relevant facts.[96] He failed to do so. In the circumstances, the tribunal’s conclusions at paragraph 93 of its reasons were open to it.[97]
[96] Abebe v Commonwealth of Australia (1999) 197 CLR 510; VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2014] FCAFC 117; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
[97] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 [25]
Ground two failed in my view.
Ground three
Under this ground, each applicant contended that the tribunal failed to consider a claim made by each applicant, namely that they claimed to fear harm as a member of the Catholic faith.
Mr Blades of counsel submitted that each applicant raised in his protection visa statutory declaration that he believed the applicant will suffer significant harm because he is Catholic and he comes from a devoted Catholic family well known in the area. Mr Blades said that the tribunal made no finding on whether the applicant was owed protection by reason of his membership of that particular social group.
Mr Blades raised a curious argument about the way a differently constituted tribunal dealt with the claim in what Mr Blades said were indistinguishable circumstances. Mr Blades said Refugee Review Tribunal proceeding 1403659[98] involved a Vietnamese asylum seeker of the Catholic faith with claims similar to the claims made by each applicant in this case. Mr Blades argued that in the RRT case, the tribunal rejected that applicant’s claims for protection, thereafter leading to an application for judicial review, conducted by the same solicitors who represented the applicant in this case. Mr Blades said that in the RRT judicial review application that came before a judge of this court, consent orders were made quashing the RRT decision. Mr Blades said that the consent orders incorporated a notation to the effect that, in that case, the minister accepted that the tribunal failed to consider a claim made by the applicant in that case to fear harm as Catholic. Mr Blades said that the notation in the RRT case was important to the question of whether the tribunal considered the claim that the applicant raised in that case that he feared persecution as a Catholic in Vietnam.
[98] [2015] RRTA 172
Let me say at once that I reject that argument for several reasons. First, every claim to protection is fact intensive. Whether the facts of this case were paralleled in any way, especially in the way urged by Mr Blades, could not be gainsaid. Second, orders were made by consent without an adjudication on the merits of the application for judicial review. Third, whatever may be said of the practice of judges of this court and others, recording notations as the basis of their orders (I personally do not approve of that practice) that notation was formulated by the parties in the RRT case and the judge simply approved the notation as well as the orders agreed between the parties. Fourth, any such notation does not bind me. Fifth, it could not possibly be said that the notation in that case represented some doctrinal precedent binding me to the effect that, by reason of the wording of that notation, in this case the same outcome followed.
At the risk of repetition, in that case, no adjudication on the merits was conducted. The notation was by consent. Of itself, that separated this case from that case. In any event, Mr Blades did not explain to me how a procedural order in some other case (or, strictly speaking, a notation to a procedural order in some other case) somehow is binding on me or even influential in any shape or form in my decision making.
So far as the more important issue of this ground was concerned, the real question was whether the claim agitated was actually raised in the material before the tribunal. In several previous authorities I have drawn together the key authorities on point. In BCF15 v Minister for Immigration and Border Protection,[99] I put the point in the following terms –
[99] (2016) 314 FLR 291
35.It seems to me that the proper approach in any consideration of the applicant’s contentions in this case is to commence by ascertaining the metes and bounds of the matters the tribunal was required by law to consider. Dissected, the tribunal was required to deal with –
a.a substantial clearly articulated argument relying upon established facts;[[100]]
[100] See Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
b.a claim or claims and its or their component integers;[101]
c.evidence and material that the tribunal accepts to raise a case not articulated;[[102]]
d.an unarticulated claim that is raised squarely on the material available to the tribunal;[[103]] and
e.not an application or claim never made.[[104]]
36.As Robertson J held in Minister for Immigration and Citizenship v SZRKT,[[105]] “[a]lthough ultimately it is the claim which the Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim”.[[106]]
37.Once the ‘claim’ that the tribunal had to consider was identified, it fell to the tribunal to give that claim or those claims “proper, genuine and realistic consideration”, as was canvassed by the High Court in Minister for Immigration and Citizenship v SZJSS.[[107]]
38.In a protection visa case, it remains good law that it is for the applicant to advance whatever argument or evidence he or she wishes to advance in support of his or her contention that the applicant has a well-founded fear of persecution for a Convention reason, and that the tribunal must then decide whether that claim is made out. That proposition emanated from the decision of the High Court in Abebe v Commonwealth of Australia[[108]] and was recently restated by the Full Court of the Federal Court of Australia (Kenny, Griffiths and Mortimer JJ) in Minister for Immigration and Border Protection v MZYTS.[[109]]
39.More recently, a differently constituted Full Court (Gordon, Robertson and Griffiths JJ) in Minister for Immigration and Border Protection v SZSWB held that “[m]oreover, the claim must emerge clearly from the materials”.[[110]]
[101] See Htun v Minister for Immigration and Border Protection (2001) 194 ALR 244
[102] See Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287
[103] See SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 and NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
[104] See NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
[105] (2013) 212 FCR 99
[106] (2013) 212 FCR 99 [98]
[107] (2010) 243 CLR 164 [7]
[108] (1999) 197 CLR 510 [187]
[109] (2013) 230 FCR 431, 444 [38]
[110] [2014] FCAFC 106 [33]
On behalf of the minister, Mr Tran analysed the point by commencing with each applicant’s entry interview. In it, each applicant asserted –
a)he was a member of the Phan Sinh religious group;
b)the authorities “are afraid that I am going somewhere or doing something for my religious group”; and
c)he decided to come to Australia as he was “an active Catholic”.
In the statement of claim he lodged in connection with his visa application, each applicant made different claims. They were as follows with respect to applicant CLK17[111] –
[111] CLK17 court book, above n 1, 38‑41
a)he came from a very strict catholic family and used to help the youth in his church;
b)on 6 April 2011 he helped to organise a protest against “the government actions” and was subsequently summonsed to the police station and warned to cease anti-government activities;
c)in 2011 the authorities refused to help him and his wife in relation to a dispute with “black‑market dealers” as a result of their Catholic religion;
d)in May 2012 the church’s priest was killed and a meeting was conducted to discuss the death to which undercover officers were sent to “interfere with us and stop the meeting” and thereafter the applicant was subsequently summoned to the local police station where he was questioned about the meeting; and
e)he received numerous threats after leaving the church,
and as follows with respect to applicant CLJ17[112] –
f)he was a devout Catholic and heavily involved with the church including teaching small children, singing in the choir and driving the priest around;
g)the communist regime disliked and supressed the Catholic church and he encouraged the kids at the church to stand up against the government and prepare banners;
h)in 2010 his kiosk in the market was taken away without compensation and he believed this occurred as a result of his religion;
i)on 6 April 2011 he accompanied the priest and a group of other church members to a meeting with a minister from the Vietnamese government after which he was put under surveillance;
j)on 25 October 2011 he and the priest were on their way to a prayer meeting when the car was stopped and attacked by a group of people and following the incident he received threatening telephone calls; and
k)his wife’s grandfather was a member of the previous regime and had been accused of spying against the current Vietnamese government.
[112] CLJ17 court book, above n 2, 57‑60
On the applicants’ behalf, pre‑hearing submissions and post‑hearing submissions included contentions that each applicant faced harm as a result of his religion and imputed political reasons.
The minister contended that each applicant did not claim that he faced harm as a result of being Catholic. When each applicant’s claims were closely examined in reference to his religion as a Catholic, they amounted to the following –
a)the authorities were afraid of his doing something for his religious group;
b)he decided to come to Australia as he was an active Catholic;
c)he came from a strict Catholic family; and
d)the authorities refused to assist him in his dispute with black market dealers as a result of his being a Catholic.
None of those matters amounted to his claiming a fear to harm as a result of his Catholic faith.
The claim each applicant asserted in this ground was not raised before the tribunal.
Yet the tribunal accepted that each applicant was a follower of the Catholic faith.[113] It found that any questioning of the applicant by the relevant authorities would not have led to the threat or to serious harm. Further, the tribunal –
a)referred to, and recounted the claims advanced in his statement;[114]
b)referred to the content of each applicant’s pre‑hearing and post‑hearing submissions;[115]
c)accepted that each applicant was a follower of the Catholic faith in Vietnam, may have provided help to his youth group and was involved in a demonstration in 2011 protesting about family planning and abortions and the tribunal further accepted that the applicant may have been questioned by the relevant authorities although found that he had been allowed to continue his activities without threat or serious harm;[116]
d)accepted each applicant’s evidence that he had attended a meeting with a group of people who sought to demand an inquiry into the death of Father Phuong, that the authorities stopped the meeting and that he had later been questioned by the relevant authorities;[117]
e)had regard to country information in relation to Catholics in Vietnam;[118]
f)found that, whilst each applicant had faced some restrictions, he had not faced serious harm in the past and did not accept that the restrictions that existed amounted to persecution of the applicant;[119]
g)did not accept that each applicant was viewed by the authorities as a dissident or activist in Vietnam or that he was of ongoing interest to them such that he faced a real chance of serious harm now or in the reasonably foreseeable future;[120] and
h)did not accept that each applicant’s ongoing association with the Catholic church in Vietnam or Australia would give rise to the applicant being perceived as a religious or political dissident and a real chance of serious harm in Vietnam.[121]
[113] CLK17 court book, above n 1, 183 [69]; CLJ17 court book, above n 2, 224 [97]
[114] Ibid 172 [4]; 224 [96]-[135]
[115] Ibid 178 [40]-[43]; 226 [108] 232 [140]
[116] Ibid 183 [69]; 224 [99]-[101]
[117] Ibid 183 [70]; cf 225 [101]-[102]
[118] Ibid 183-184, [72]-[74]; 226 [104]-[107]
[119] Ibid 184 [76]; 226 [107]
[120] Ibid 184 [77]; 227 [111]
[121] Ibid 185 [80]; 227 [109]
I agree with the minister’s submissions that the tribunal was fully aware of each applicant’s propositions connected with his religion. Each applicant did not raise a claim that he feared harm by reason of his Catholic religion, as the authorities surveyed above contemplated.
Additional grounds – CLJ17
Ground four
From the recital of the grounds set out in paragraph 56 above, it will be apparent that applicant CLJ17 relied on grounds four and five that went beyond the three grounds common to both applicants. In the passages that follow, I have canvassed those additional grounds.
Under ground four applicant CLJ17 asserted that the tribunal ignored relevant material. He said the relevant material was in the form of newspaper articles that contained the effect that police brutally repressed people. Applicant CLJ17 argued that the tribunal was required to consider that material and that it failed to do so. Mr Blades called in aid the decision of Katzmann J in SZOVB v Minister for Immigration and Citizenship[122] to the effect that a failure to refer to evidence may not vitiate a decision of a tribunal but afraid to consider relevant material may. Applicant CLJ17 said the tribunal failed to consider an article about police brutality repressing people and thereby fell into jurisdictional error.
[122] [2011] FCA 1462
The minister submitted that the tribunal was not required to refer to every piece of evidence, citing the High Court decision in Minister for Immigration and Citizenship v SZGUR.[123] The minister also said that the tribunal was required to identify such material as it found relevant and to give that material appropriate weight, citing the decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs.[124]
[123] (2011) 241 CLR 594
[124] (2003) 236 FCR 593
I do not accept the premise against which this ground was constructed. The article about repression of people was evidence and used in support of the applicant’s claim. Having regard to the observations in SZGUR, the tribunal was not required to state in its reasons that the article said what it did. That article was but one piece of evidence on which the applicant relied. The tribunal otherwise considered the claim made by applicant CLJ17.
Ground four was devoid of merit.
Ground five
Under this ground applicant CLJ17 asserted that he claimed to fear persecution by reason of his membership of a particular social group, namely, Catholics in Vietnam, raised in his entry interview at question four. He contended that the same claim was raised in his protection visa statutory declaration. He said the tribunal made no finding on the point and that another judge of this court made orders by consent in a similar case quashing a tribunal decision but making a notation about the way the tribunal in that other case, proceeding 1403659, acknowledged that a certain claim was not considered.
In the passages above I have already written about the lack of significance of a notation in an order made by consent. The same observations apply here. This ground was to void of merit.
Conclusion
In my view, all grounds for review failed. I dismiss both proceedings and order each applicant to pay the minister’s costs in that proceeding.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 7 December 2018
28
2