CPR17 v Minister for Immigration

[2019] FCCA 3767

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPR17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3767

Catchwords:
MIGRATION – Judicial review – where protection visas were refused by the Immigration Assessment Authority – where jurisdictional error alleged – where procedural unfairness alleged – where inconsistent and unreasonable conclusions alleged – where section from which power derived misdescribed by Authority – where grounds of review are not made out – application dismissed with costs.

Legislation:

Migration Act 1958 (Cth).

Cases cited:

BMV16 v Minister for Home Affairs [2018] 261 FCR 476

BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196

First Applicant: CPR17

Second Applicant: CPR18

Third Applicant: CPR19

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG229 of 2017

Judgment of: Judge Young

Hearing date: 6 December 2019

Date of Last Submission: 6 December 2019

Delivered at: Darwin

Delivered on: 6 December 2019

REPRESENTATION

Counsel for the First Applicant: Mr Jacobi

Solicitors for the First Applicant: Camatta Lempens Pty Ltd

Counsel for the Second Applicant: Mr Jacobi

Solicitors for the Second Applicant: Camatta Lempens Pty Ltd

Counsel for the Third Applicant: Mr Jacobi

Solicitors for the Third Applicant: Camatta Lempens Pty Ltd

Counsel for the First Respondent: Ms Hooper

Solicitors for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: Ms Hooper

Solicitors for the Second Respondent: Sparke Helmore

ORDERS

1. The application filed 14 June 2017 is dismissed.

2. The applicants to pay the first respondent’s costs as agreed, or if not agreed, as taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 229 of 2017

CPR17

First Applicant

CPR18

Second Applicant

CPR19

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(As corrected)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 17 May 2017 to affirm a decision of the Minister's delegate made on 12 January 2017 to refuse protection visas to the first applicant and his wife and child, who are the second and third applicants respectively.

2. The applicants are citizens of Vietnam.

3. The refugee claims made by the first and second applicants are that the first applicant is a child of a former soldier in the army of South Vietnam and that as such he is discriminated against in Vietnam; that the first applicant was involved in a peaceful protest in Ho Chi Minh City/Saigon in 2012; that since their arrival in Australia the first and second applicants have participated in protests, prayer masses and something described as the “30 April event”. The date 30 April commemorates the fall of Saigon in 1975 and the reunification of the country. For many overseas Vietnamese it is commemorated in a day of protest.

4. The applicants also made claims that if they are returned to Vietnam they will be harmed because they are Catholics; because of the third applicant's birth in Australia; the so-called “data breach”; the first and second applicants’ illegal departure from Vietnam; as returning failed asylum seekers and because they will be unable to pray at the gravesite of a son who died in Australia.

5. The claim of the first applicant about the protest in Vietnam is that in 2012 he joined a protest in relation to a territorial dispute between Vietnam and China about certain islands, (omitting diacritical marks) Hoang Sa (the Paracels) and Truong Sa (the Spratlys). The first applicant said that as a result he received a summons from the police but did not attend.  Further, the first applicant said that in May 2013 he was working as a truck driver and had his driver’s licence confiscated by police to extract a bribe so he decided to leave Vietnam.

6. At the first applicant's arrival interview on 19 July 2013 he claimed that he had joined a protest and police threatened him and kept sending him notices to go for questioning “every day”. He also claimed that his driver’s licence had been confiscated in consequence of a demand by police for a bribe.

7. In the case of the second applicant she said at her arrival interview on 21 July 2013 that neither she nor any family member had participated in protests against the government.

8. At his protection visa interview, the first applicant said he had joined a protest in Ho Chi Minh City/Saigon about the Paracel Islands. He joined the protest for about 15 minutes because he was coincidentally in the area. He said people took photographs. He said the second applicant had told him of the summons or summonses.  He said no reason for the summons appeared on the face of the summons and they did not have copies.  In relation to his lost licence the applicant said he had obtained another Vietnamese driver’s licence after he had arrived in Australia through an agent. 

9. The Authority accepted that the first applicant was involved in a protest about the Truong Sa and Hoang Sa islands which had occurred in major cities in Vietnam over the "last nine years." The Authority also accepted that the first applicant's driver’s licence had been confiscated after a bribe request.

10. The Authority did not accept that the Vietnamese government was likely to be interested in the first applicant in relation to the protest about the islands. The Authority noted that the first applicant's presence was coincidental, brief (10 to 15 minutes), and did not accept that he had been photographed. The Authority noted that the Vietnamese government had tolerated protests about the islands prior to 2014.

11. In relation to the applicants’ activities in Australia the Authority noted that the applicants’ feared identification as being involved in the “Viet Tan”, apparently an anti-government movement involving overseas Vietnamese.

12. The Authority noted that the applicant had not provided information about his involvement in protests in Australia in his protection visa application.  He first raised these claims in his protection visa interview but the delegate had sought only brief details in response.

13. The Authority was satisfied that the applicant provided new information at an interview with it about the "details and reasons for his involvement in protests, prayer masses and a 30 April event since his arrival in Australia".  The Authority accepted that the applicants had participated in protests in front of the South Australian parliament in May and December 2016 and had attended two prayer masses where a Catholic group had prayed about particular issues. The Authority accepted that at one of the protests the first applicant held a sign saying "think twice before you travel to Vietnam" and yelled statements led by the protest organisers.  He had stayed at the protest for about one hour. The applicant provided photographs evidencing his participation in the protests and prayer masses during the interview with the Authority.

14. The applicant had also claimed that he had given a speech at a 30 April event in Adelaide in 2016. The applicant had made no mention of making this speech in his protection visa interview. He did not provide any visual record of making the speech during the interview with the Authority.

15. The Authority did not accept that the applicant gave a speech at the 30 April event. The Authority pointed out that the event was held before the applicant's protection visa interview and he had not mentioned it in that interview. There were no photographs or other visual record of his attendance.  When asked by the Authority why he had not provided this information previously the first applicant stated he had no "advice or instruction and did not know what to disclose." He was asked whether he had any evidence of his participation in the 30 April event. The Authority recorded that "He stated he did not take any photographs at the 30 April event, but that he believes there was a person taking photographs but the is not sure where the photographs are".

16. The Authority observed in response, "I am not satisfied that the first applicant's explanation for the absence and lack of supporting evidence sufficiently address my concerns.  I am not satisfied he attended and gave a speech at the 30 April event as claimed".

17. The Authority accepted that the first applicant had protested about the islands in Vietnam, that his driver’s licence had been confiscated, that he attended two protests in Australia and two prayer masses and that the second applicant and the child had attended one protest with the first applicant.  The Authority accepted that there were credible risks for those who are outspoken and critical of the government of Vietnam.  However, the Authority did not accept that the first applicant's activities in Vietnam and Australia would bring him to the adverse attention of the authorities on his return to Vietnam. It found that his participation in the protest in Vietnam was incidental and for a brief period.  In relation to the two protests in Australia it found that the applicant had held a sign and yelled statements but he did not have any role in the organisation of the protests.  It found that the applicant's activities were "low level in nature."  The Authority was not satisfied that the first applicant's activities, in aggregate, with the country information, could be equated with that of an activist or that he would be perceived as such by the Vietnamese authorities.  It was not satisfied that he would face a real risk of harm on this basis on his return to Vietnam in the foreseeable future.

    The grounds of review

18. The applicants’ grounds of review are as follows.

    1.Jurisdictional error in the treatment of his attendance and speaking at the 30 April 2016 protest

    1.1.The Immigration Assessment Authority (“the Authority”) found that for the purposes of s473DE of the Migration Act 1958 (“the Act”) that information (being information about a protest in Adelaide on 30 April (“the 30 April event/protest”) was new information, and that the applicant had not previously been provided with the opportunity to present to the delegate of the Minister (“the Delegate”) specific information in relation to his claims regarding his activities since his arrival in Australia, and he referred to photographs in support: p2-3.

    1.2.The Authority subsequently rejected the account given by the applicant that “he attended or gave a speech at the 30 April event as claimed” on the basis that he “made no mention of his participation” at the protection visa interview: p8.

    1.3.The decision is unreasonable and/or illogical by reason that the decision to reject his explanation by reference to the failure to mention a matter, in circumstances when it had been accepted he had not previously been provided with the opportunity to do so, and thereby the decision is affected by jurisdictional error.

    1.4.As to ‘materiality’ and relief it is relevant to that application that there is now available direct and independent evidence that:

    1.4.1.the applicant did attend the 30 April event, and did speak at that event, and that matter would, if it had been considered with the other events that the Authority considered, have had a relevant bearing on his application.

    1.4.2.the rejection of that account relevantly bore on the acceptance of other matters advanced by the applicant (such as whether he would engage in protests if returned to Vietnam).

    2.    Jurisdictional error in the finding of fact about the evidence in support and the basis for disbelief

    2.1.1.1 and 1.2 are repeated.

    2.2.The Authority was told in the interview by the applicant that at the 30 April event, “there was a kind of camera man at that event recording but I’m not sure who has the tape”.

    2.3.The Authority answered “okay”, and then addressed a different issue.

    2.4.The Authority found in relation to this evidence that “he believes there was a person taking photographs but he is not sure where the photographs are” and further finds that she is “not satisfied” of the explanations for the absence, and lack, of supporting evidence of his attendance: p8.

    2.5.In the absence of any question on that issue and its apparent acceptance in the interview, and given that it was not inherently implausible:

    2.5.1.there was a denial of procedural fairness in the interview by assenting in the course of the interview to the applicant’s answer, and later rejecting his account without allowing him to explain why he did not have the recording; or

    2.5.2.it was unreasonable in the circumstances to reject the explanation the applicant had provided as a basis for concluding he had not given the speech.

    2.6.As to ‘materiality’ and relief it is relevant to that application that there is now available direct and independent evidence that:

    2.7.the applicant did attend the 30 April event, and did speak at that event, and that matter would if it had been considered with the other events that the Authority considered, have had a relevant bearing on his application.

    2.7.1.the rejection of that account relevantly bore on the acceptance of other matters advanced by the applicant (such as whether he would engage in protests if returned to Vietnam).

    3.    Jurisdictional error in the treatment of the future Vietnam protests evidence

    3.1.The Authority found that that for the purposes of s473DE that information (being information about “protests”) was new information, and that the applicant had not previously been provided with the opportunity to present to the delegate specific information in relation to his claims regarding his activities since his arrival in Australia and he referred to photographs in support.

    3.2.A letter sent to the applicant inviting and requiring his attendance (“the invitation letter”) at an interview with the Authority (“the IAA Interview) specified the purpose of that interview as being to provide “information relating to [his] claims that [he has] participated in a protest since [his] arrival in Australia. The letter did not refer to whether would engage in protests if returned to Vietnam.

    3.3.At the IAA interview after dealing with that topic, the Authority raised for the first time whether the applicant would engage in protests on his return to Vietnam.

    3.4.The applicant first said that he did not understand the question, attempted to answer, and is then suggested by the Authority not to have answered the question when it is apparent he did not ever understand the substance of what he was being asked.

    3.5.In relation to that answer the Authority found by way of criticism that “the applicant had difficulties answering why he would engage in protest activities on return” and that the answers were “vague and without conviction” before rejecting that he would do either that or engage in prayer masses in Vietnam. 

    3.6.The conclusion of the Authority with respect to that matter was affected by jurisdictional error by reason that:

    3.6.1.     there was a failure to in accordance with s473DE(1)(b) of the Act to explain to the applicant why the new information being his intention to protest in Vietnam was relevant to the interview;

    3.6.2.     there was a denial of procedural fairness arising from the combined failure to advise the applicant of the issue in advance of the interview, the raising of that new topic at the interview, the question on that topic not being understood by the applicant and the subsequent reaching of an adverse conclusion concerning his credit on that topic;

    3.6.3.     regard was had to an irrelevant consideration being the “conviction” with which an answer was given when the applicant undertook his interview through an interpreter and did not understand the question.

    3.6.4.     the decision was unreasonable by combination of:

    3.6.4.1.the failure to advise the applicant of the issue in advance;

    3.6.4.2.to raise a new topic at the interview;

    3.6.4.3.to then reach an adverse conclusion to his credit where he did not understand the question he was asked; and

    3.6.4.4.to make a finding of credit based on demeanour (“conviction”) when he undertook his interview through an interpreter and did not understand the question.

    3.7.As to ‘materiality’ and relief it is relevant that:

    3.7.1.the applicant can explain his future intentions if he has notice, and that is relevant to his claim; and,

    3.7.2.the rejection of his account relevantly bore on the acceptance of other matters advanced by the applicant (such as whether he engaged in the 30 April protest).

    Ground one

19. The nub of the complaint in Ground one is that there is a logical inconsistency between the Authority accepting that there was "new information", being the "details and reasons for his involvement in protest, prayer, masses and a 30 April event since his arrival in Australia" and the conclusion said to be expressed at paragraph 45 of the Authority's reasons that it did not accept that the first applicant had participated in the 30 April event because of his failure to mention that participation in the protection visa interview or previously.

20. The inconsistency was said to be that if a condition of acceptance of the new information was as expressed in section 473DD(b)(i) that the information "was not, and could not have been, provided to the Minister before the Minister made the decision under section 65" then it was irrational to base an adverse credibility finding on the applicant's failure to provide the information to the Minister.

21. The Minister submitted that on a closer examination of the material there was no inconsistency.  The Minister said that the new information as described by the Authority was "details and reasons for his involvement in protest, prayer masses and a 30 April event since his arrival in Australia." (paragraph [7] Reasons).  The Minister said that the adverse credibility finding by the Authority was in relation to the applicant's claim to have attended and participated in the 30 April event by making a speech. The Minister submitted that the adverse credibility finding in relation to that was based on the applicant's failure to provide corroborative or independent evidence to the Authority for the claim in relation to the 30 April event.  It said that the Authority accepted that the first applicant had attended the protests and prayer masses as claimed but rejected his claim to have attended and made a speech at the 30 April event because he did not provide corroborative material to the Authority for that claim. It was submitted that there was no inconsistency between those two positions.

22. I accept that submission.  A fair reading of paragraph 45, in my view, indicates that the doubt expressed about the first applicant's credibility related only to his attendance and speech at the 30 April event. Further, while the Authority observed, correctly, that the first applicant did not mention the 30 April event in his protection visa interview the gravamen of the Authority’s criticism is that the first applicant did not provide the Authority with supporting evidence, such as photographs, of his participation in the 30 April event when it might be expected that the first applicant would bring such evidence forward if it existed and when he had provided such photographic evidence of his attendance at the protests and masses. In my view, acceptance that the first applicant had not had an opportunity to provide details and reasons for his involvement in protests, prayer masses and the 30 April event to the delegate and disbelief that he had attended and made a speech at the 30 April event because he did not provide corroborative evidence to the Authority is not inconsistent.

1. It has transpired that there was corroborative evidence in existence but the first applicant had not obtained it or had not sought it prior to the interview with the Authority or, despite being given an opportunity to provide it by “the end of the week” or “soon as possible”, immediately after the interview (see affidavit of Emily Grace Rutherford, annexure EGR1, p 17). The fact that the conclusion of the Authority was incorrect does not mean it is illogical or unreasonable. In my view the first applicant’s failure to provide the evidence to the Authority in the circumstances constituted an evident and intelligible basis for its conclusion.

2. This ground is not made out.

   Ground two

3. The nub of the complaint in this ground is that the interview was conducted in a procedurally unfair way so as to constitute an unreasonable exercise of the Authority’s power.

4. The transcript of the interview between the first applicant and the Authority reveals that the Authority asked the applicant if he had “any pictures of [himself] speaking at [the 30 April event].” The first applicant replied “… not in that event I don’t have any photo however there was a kind of camera man at that event recording but I’m not sure who has that tape”. The Authority then said “Okay. Is (sic) there any other activities you’ve been involved in?”

5. It was submitted that the use of the word “Okay” by the Authority constituted and communicated acceptance of or assent to the immediately preceding proposition, that is, that there was some visual record of the first applicant’s presence and speech at the 30 April event. It was claimed that the Authority’s subsequent finding about the absence of corroborative evidence, such as photographs, of the first applicant’s attendance and speech at the event, resulting in it not being satisfied of that claim, was procedurally unfair. It was asserted that the Authority should not have rejected his account without giving the first applicant an opportunity to explain why he did not have the photographs or visual record.  It was asserted that it was legally unreasonable in the circumstances to reject the applicant's explanation and to conclude that he had not given a speech at the 30 April event. 

6. The relevant passage of the transcript is as follows:

   Authority:  How many people attended the event? 

   First applicant.  There was (sic) many people at that event. 

   Authority:  How many is many? 

   First applicant: Around hundred.

   Authority: Okay. And why did you decide to give a speech? 

   First applicant: I, the reason I want to speak (sic) because I want to inform the Vietnamese people who have been here for a very long time for them to be aware about what the reality is in Vietnam.

   Authority.  Do you have pictures of you speaking at this event? 

   First applicant:  I not in that event I don't have any photo however there was a kind of camera man at that event recording but I'm not sure who has that tape.

   Authority: Okay. Is (sic) there any other activities you’ve been involved in?

7. The Authority then went on to say that it was about to conclude the interview.  The member said to the first applicant she had "serious concerns about the information you've given me today" and emphasised the necessity of providing information in support of the claims.  She then asked the applicant whether he had any further comments.  He referred to a newspaper article but it was not directly about him.  The member said that if he had any further evidence in support of his claims it should be provided as soon as possible.  The applicant then asked, "Can I just ask a question about the photo and the information that I want to say that to you does it have a deadline?"  The member replied "No you need to get it to me as soon as possible”.  After some discussion she repeated that advice.  I understood it to be the agreed position of the parties that some further photographs were provided to the Authority after the interview but not documents supporting the applicant's claim that he had given a speech at the 30 April event.

8. At the hearing in this court it was accepted that a video of the first applicant giving a speech at the 30 April event has since been obtained by the first applicant.

9. In my view, there was neither procedural unfairness nor unreasonableness in the way the member spoke to or interviewed the first applicant.  I do not accept that the passage shows the member accepting the applicant's claim that there was a photographic record of him speaking at the 30 April event.  The use of the word "Okay" appears to be merely a conventional utterance or phatic expression rather than one carrying any particular meaning.  The member used the word elsewhere in the interview in a similar way (see affidavit of Emily Grace Rutherford, annexure EGR1). The subsequent discussion between the member and the first applicant can have left him in no doubt that it was important to provide photographic or other corroborative evidence if it was available. His question about any deadline indicates he was aware of this.

10. Read as a whole I do not accept that the applicant was denied procedural fairness or that the conduct of the interview was unreasonable.

    Ground three

11. Ground three alleges that the Authority committed jurisdictional error by raising for the first time in the interview, there being no mention of the matter in the letter inviting the applicant to the interview with the Authority, a question about whether the first applicant would engage in protests if he were to return to Vietnam.  It was asserted that the Authority failed to comply with the requirement of section 473DD(1)(b) to explain to the first applicant why that "new information" was relevant to the interview and that, combined with what was said to be the first applicant's evident confusion about the question in the interview, constituted procedural unfairness and was unreasonable. More particularly it was asserted that the applicant did not understand the question and the Authority relied on an irrelevant consideration said to be the applicant’s “demeanour” in answering the question, namely the Authority’s conclusion that the first applicant’s answer was “vague (sic) without conviction”. The applicant relied on the decision of the Full Court of the Federal Court in BMV16 v Minister for Home Affairs [2018] 261 FCR 476, a case where an applicant had been invited to an interview with the Immigration Assessment Authority pursuant to section 473DE and required to immediately comment on an audio recording made three years earlier. The unrepresented applicant was not provided with the recording or a transcript. The Court held that the Authority had exercised its power in a way that was legally unreasonable.

12. The Minister had two preliminary responses to this submission.  The first was that it was evident from the context of the matter, including the invitation letter from the Authority to the first applicant dated 11 April 2017 (Court Book 236) that the Authority had mistaken the section from which it derived its power to ask for new information. At paragraph 6 of its reasons the Authority said that its invitation to the applicant was pursuant to section 473DE of the Act.  The Minister submitted that it was evident that the Authority was inviting the applicant to give new information at an interview pursuant to section 473DC(3)(b) rather than giving the applicant new information under section 473DE(1)(a).  The Minister submitted that if the repository of a power exercises a power properly it is irrelevant that it misdescribed the nature of the power.

13. The Minister further submitted that even if section 473DE was the basis for the Authority's invitation the requirements of that section did not apply to new information provided by the applicant himself which is excluded (“prescribed”) by section 473DE(3)(c). Migration Regulation 4.41 states:

    For paragraph 473DE(3)(c) of the Act, new information given to the Immigration Assessment Authority by a referred applicant for the purposes of the Authority's review of a fast track reviewable decision in relation to the referred applicant is prescribed.

14. I accept both submissions.

15. The first applicant went on to submit that even if the Authority had exercised the power under section 473DC it was required to act reasonably in the conduct of its interview with the applicant, relying by analogy or extension on the decision of the High Court in BVD17 v Minister (2019) 373 ALR 196.

16. I accept that there is a requirement that when the Authority exercises its power under section 473DC to invite an applicant to give new information at an interview that the power must be exercised reasonably, including in the conduct of the interview. However, I am not satisfied that the Authority proceeded unreasonably.  The first applicant said that he had participated in a protest in Vietnam and had been targeted by the authorities as a result. The extent and nature, including motivation, of his involvement in that protest was an important matter for the Authority to consider. He had participated in protests against the Vietnamese government in Australia and the extent and nature, including motivation, of his participation in those protests was also an important matter for the Authority to consider. The question of whether or not he would continue to protest if he returned to Vietnam arose from those claims, although tangentially in my view. The applicant did not at any point prior to the interview advance a claim that he would continue to protest if he were to return to Vietnam. Nevertheless, the question was not irrelevant to an assessment of whether there was a real chance of serious harm to the first applicant should he return to Vietnam.

17. The relevant part of the transcript is as follows:

    Authority: Okay.  Alright, talking about the two protests that you were involved in, do you believe you could be engaged in such conduct or be engaged in such protest on your return to Vietnam? 

    First applicant: My apology.  I don't understand the question. 

    Authority: Sure no that's alright.  Okay so here you've told me that in Australia you participated or engaged in these protests. If you were to return to Vietnam, would you also continue to engage in such activities?

    Interpreter: Can I clarify that? 

    Authority: Sure.

    First applicant: If I was returning to Vietnam and was to be able to be alive then I would still continue to be involved in such similar activity to (sic) of the protest to against the government so in general to hope that the communist party to be gone. 

    Authority: Okay, are you aware of any laws that would prohibit you from being involved in such protest in Vietnam? 

    First applicant:  No, no, totally not aware.

    Authority: And what do you think the Vietnamese government, if you continue to engage in conduct that you have here in Australia, how do you think that would be viewed by the Vietnamese government if you were to engage in the same conduct in Vietnam? 

    First applicant: ah, imprisonment, in prison it is what actually would happened, that nearly happened. 

    Authority: So just to confirm if you undertook the same conduct you did here in Australia you believe you will be imprisoned in Vietnam.

    Authority:  Okay, so if you believe if you did what you did here in Australia, you would be imprisoned in Vietnam, why then would you do it? 

    First applicant: If my family got sent back to Vietnam we wouldn't have any opportunity to be survive. Because you know we’ll be sooner or later we’ll be facing the death so we’d rather choose that at what I've told you.

18. The Authority then said to the applicant that she did not believe the applicant had answered the question and repeated the question. 

    First applicant: I will give you an example in order for you to understand.

    Authority: Sure.

    First applicant:  In my case to leave everything behind together with all my family to come to Australia in order to find freedom. And then, even when we arrive here and then still the Australian government still send us back to Vietnam.  Therefore, I have to find the way in order to expect all the [inaudible] so that won't happen to us. 

    Interpreter: You seem that you don't understand [Counsel for the applicants submitted that this was addressed to the first applicant but as the statement was in English I think it more likely it was addressed to the member]. 

    Authority: Um, so the last bit, so you’ve found freedom and even if you’re sent back to Vietnam you have to find another way to escape?

    First applicant: So all the solution that I could think of is you know it would have to be to flee the country again. 

19. The Authority repeated that it did not consider the first applicant had answered the question but the first applicant's answers continued in a similar vein.

20. In my view, the applicant's answers to the question about whether he would protest against the government were he to return to Vietnam were unresponsive after the Authority asked him why he would protest if he knew he might be imprisoned. Taking the exchange between the Authority and the first applicant as a whole I consider that it was fair to describe the content of his answers on this issue as vague and without conviction.  In my view the Authority’s remarks were not about the first applicant’s demeanour but the nature of the answers themselves. The first applicant appeared to understand the member’s questions and was unable to satisfactorily answer the questions about why he would protest in Vietnam if he faced imprisonment. There was nothing unfair or confusing in the questioning. I am not satisfied the interview was conducted in a procedurally unfair or, to the extent there is overlap, in a legally unreasonable manner.

21. The grounds of review are not made out and the application will be dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 20 December 2019

Corrections – 14.02.2020

• Paragraph 5, Line 7 – delete “license”, insert “licence”

• Spacing between end of paragraph 17 and heading “The grounds of review” – delete extra blank line