CSZ20 v Minister for Immigration
[2020] FCCA 2208
•12 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CSZ20 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2208 |
| Catchwords: MIGRATION – Protection visa – decision of the Immigration Assessment Authority – multiple grounds of review alleging error – no jurisdictional error – application dismissed. |
| Legislation: Australian Citizenship Act 2007 (Cth) Migration Act 1958 (Cth), pt.7AA, div.3 ss.5AA, 36, 65, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 473GA, 473GB, 476, 499 Privacy Act 1988, s.93 |
| Cases cited: AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365 EVS17 v Minister for Immigration & Border Protection [2019] FCAFC 20 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 |
| First Applicant: | CSZ20 |
| Second Applicant: | CTA20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 171 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 15 June 2020 |
| Date of Last Submission: | 7 August 2020 |
| Delivered at: | Perth |
| Delivered on: | 12 August 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr K Bui |
| Solicitors for the Applicants: | Park Lane Legal |
| Counsel for the First Respondent: | Ms J Tran (16 June 2020) and Mr G Johnson (Written Submissions) |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 171 of 2020
| CSZ20 |
First Applicant
| CTA20 |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
The first applicant in these proceedings is a Vietnamese citizen. He arrived in Australia on 13 June 2013 as an unauthorised maritime arrival (Court Book (“CB”) 178). On 23 August 2016, the first respondent (the “Minister”) lifted the bar to enable the first applicant to apply for a Safe Haven Enterprise (subclass 790) visa (the “visa”) (CB 20-24).
On 27 June 2017, the first applicant applied for the visa (CB 35-123). His protection claims can be summarised as follows:
a)he is Catholic. He worked as a driver for his local church community. The government made the lives of Catholics difficult (and oppose the Catholic religion). The first applicant has always opposed the government and has an anti-government political view;
b)around July 2012, local communist police attacked his local church and he was beaten, arrested and detained. While he managed to escape, he was subsequently summoned to appear in court. He feared that if he appeared at court, he would be jailed and tortured. Therefore, he departed Vietnam;
c)if he returns to Vietnam he will be imprisoned and tortured because of his religion, his past involvement in a communist attack on his church and the escape from imprisonment and because he departed Vietnam illegally. He stated that the government could also harm him “economically” by preventing him from obtaining loans, securing employment and accessing services; and
d)subsequent to his arrival in Australia, he participated in various forums and has volunteered for organisations which oppose the Vietnamese Government and raise funds for activists in Vietnam. Because of these activities, he will have a profile that will see him be monitored by the authorities as they will believe he may cause an uprising and spread his anti-government political opinions and views.
On 16 September 2017, the first applicant married. On 11 August 2018, he and his wife had a son (CB 143 and 166). The son is the second applicant in these proceedings.
The first applicant attended interviews before Ministerial delegates on 4 April 2018 and 18 December 2018 (CB 146-154 and 171-172).
On 12 February 2019, the delegate refused to grant the applicants the visa (CB 174-193). The delegate was not satisfied that the applicants met the criterion to be granted the visa.
The applicants’ application was referred to the Immigration Assessment Authority (the “IAA”) on 15 February 2019 (CB 194-209). The applicants were advised that they needed to provide any documents and information to the IAA within 21 days.
On 20 March 2019, the IAA affirmed the delegate’s decision to not grant the applicants the visa.
IAA’s Decision
In relation to allegations of jurisdictional error in proceedings before the IAA, the Act limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Migration Act 1958 (Cth) (the “Act”) requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s.473DD of the Act. That section provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The IAA’s decision here is 17 pages long and spans 71 paragraphs.
The IAA began by setting out the factual background to the application, confirming that it had had regard to the materials referred by the Secretary pursuant to s.473CB of the Act and summarising the first applicant’s claims for protection (at [1]-[7]).
The IAA was satisfied that the second applicant was a Vietnamese national, that the first applicant had departed Vietnam illegally, that the applicants would be returning as failed asylum seekers and that the first applicant’s details were inadvertently released in a data breach (at [8]-[13]).
The IAA then detailed the evidence that the first applicant provided in relation to his involvement with political organisations since arriving in Australia. This included evidence from his visa application, the two interviews with the delegates and the photographs that were provided (at [14]-[18]).
The IAA accepted that the first applicant had some involvement with the Vietnamese Human Rights Forum, the Vietnamese Community and the Viet Tan in Australia and that he had participated in four political events about Vietnam since his arrival (at [19]). However, the IAA found:
20. The first applicant’s evidence about the Viet Tan and his involvement with the group was general and lacking in detail. In his first SHEV interview he said he wasn’t a member just a helper. However, in his second SHEV interview he said he had joined the group. Based on all the evidence before me, I am not satisfied the first applicant is a member of the Viet Tan, that he is an avid participant for the Vietnamese Human Rights Forum, the Vietnamese Community and the Viet Tan or that his attendance and support for the Vietnamese Human Rights Forum, the Vietnamese Community and the Viet Tan is on a regular basis.
The IAA then considered the first applicant’s claim that the Vietnamese police had visited his family as a result of his political action. It noted his evidence about this at the interview with a delegate (at [22]-[23]). The IAA referred to the fact that the first applicant had not provided evidence of his having posted information about his activities on his Facebook page. The IAA accepted that the first applicant had showed a photograph to the delegate of the Vietnamese police visiting a home, but did not accept that the photograph would be evidence of the Vietnamese police coming to see the first applicant’s mother to ask questions about the first applicant (at [24]).
The IAA was not satisfied that the Vietnamese police had ever visited the first applicant’s home in Vietnam or had asked his family questions about where he was or what he was doing.
Further, the IAA was not satisfied that the Vietnamese authorities had any knowledge of the first applicant’s political activities or his association/involvement with the Viet Tan and/or the Vietnamese Community in Australia or any other organisation that is, or could be perceived to be, against the Vietnamese Government (at [25]).
The IAA then considered the first applicant’s reasons for leaving Vietnam. The IAA set out at length the first applicant’s evidence in relation to this issue – including the evidence at his arrival interview, in his visa application, at the first interview with a delegate, at the second interview with a delegate and the photographs provided (at [26]-[40]). The IAA then referred to matters that were put to the first applicant in the course of the interviews and determined that the photographs provided were of limited probative value.
The IAA found that the first applicant’s evidence about opposing the Vietnamese Government and their actions and having to hide was general, vague and lacking in detail. The IAA did not accept that the first applicant ever opposed the Vietnamese Government or their actions when he lived in Vietnam or that he was ever in hiding from the Vietnamese Government (at [41]). The IAA also found aspects of the first applicant’s claim to have run away from the police to be “fanciful and far-fetched” and implausible. Overall, the IAA determined that the first applicant had fabricated the claims of breaking down a door and escaping custody in order to strengthen his claims for protection. As such, the IAA did not accept that this occurred (at [42]).
The IAA noted that the first applicant had given inconsistent evidence in relation to various aspects of his claim to have been working as a driver. It stated that the first applicant’s evidence about his activities in Vietnam was inconsistent, lacking in detail, implausible and/or general (at [43]-[44]). While the IAA accepted that the first applicant is a Catholic, it did not accept that he was ever arrested, beaten or detained by the Vietnamese police or that he was ever issued a summons to attend a police station or a court. Rather, the IAA found that the first applicant had fabricated these claims to strengthen his claims for protection and noted that this raised doubts about his credibility (at [44]).
The IAA found that the first applicant had become involved with the Viet Tan and the other organisations in order to strengthen his claims for protection. As such, the IAA was not satisfied that, if the first applicant returned to Vietnam, he had any interest or intention of participating in activities opposing the Vietnamese Government (at [46]-[47]). The IAA also found there to be no evidence to indicate that if the first applicant returned to Vietnam he could not work, that he would find it hard to get a job or that his life would “be controlled” (at [48]).
The IAA then detailed the country information concerning Catholics in Vietnam and political activism (at [51]).
The IAA referred to the findings it had made and, in light of the country information, did not accept that the first applicant or the second applicant would have any adverse profile that would give rise to any adverse interest by the Vietnamese Government/authorities because of their religion and/or because of the first applicant’s political activities now or in the foreseeable future (at [52]-[55]).
The IAA then summarised information indicating that claiming asylum is an offence in Vietnam. The IAA recorded that a Ministerial delegate had put to the first applicant information that he may be subject to questioning on return and the first applicant’s responses in this regard (at [56]).
The IAA then referred to country information concerning the treatment of failed asylum seekers and the ramifications of the data breach (at [57]-[58]).
The IAA then noted the first applicant’s claims about what would occur to him on return and assessed the country information concerning treatment of returnees (at [59]-[60]).
Ultimately, the IAA was not satisfied that the first applicant would be at risk of serious harm as a consequence of any routine investigation on return – now or in the foreseeable future. Having regard to the first applicant’s profile, the IAA was not satisfied that he would face a real chance of persecution, now or in the foreseeable future, if he returned to Vietnam (at [61]-[62]).
Overall, the IAA was not satisfied that the applicants met the criterion in s.36(2)(a) of the Act (at [63]).
In relation to the complementary protection criterion, the IAA stated as follows (at [66]):
I accept that, on return to Vietnam, the first applicant will be subject to a series of administrative processes (as outlined above) and identified as a person who departed Vietnam illegally. I have found the first applicant is not a person of any interest to the Vietnamese authorities and, upon his return, I am not satisfied he faces a real risk of being arbitrarily deprived of his life; of facing the death penalty or of being subjected to torture. I am not satisfied that the acts or omissions of the Vietnamese authorities during this administrative process are intended to cause pain or suffering, severe pain or suffering or to cause extreme humiliation so as to amount to cruel, inhumane or degrading treatment/punishment. I am therefore not satisfied that there is a real risk the first applicant will suffer significant harm within the meaning of s.5(1) and s.36(2A) upon his return to Vietnam. Likewise, I do not accept that questioning and having a fine imposed upon the applicant for his illegal departure amounts to suffering significant harm within the meaning of s.5(1) and s.36(2A).
The IAA was not satisfied that there was a real risk of significant harm to the applicants on return to Vietnam (at [67]-[68]).
As the first applicant did not satisfy the criterion of s.36(2)(a) or 36(2)(aa) of the Act, the second applicant could not meet the definition of s.36(2)(b) or 36(2)(c) of the Act.
Accordingly, the IAA affirmed the decision not to grant the applicants the visa.
Proceedings in this Court
The applicants’ judicial review application filed 17 April 2019 contains four grounds of review as follows:
1. I think the Decision maker did not consider all of the evidence or did not take into account relevant considerations.
2. I was not afforded procedural fairness.
3. I think the Decision is affected by bias.
4. I think the Decision maker misinterpreted the law.
(Without alteration)
The applicants were given an opportunity to file an amended application, any affidavit evidence and an outline of written submissions. The week prior to the hearing, the applicants obtained legal representation. Extensive written submissions were filed by their lawyer, Mr Bui, on 10 June 2020.
The Minister (represented by Ms Tran) raised concerns with the content of these written submissions. It is noted that the submissions were 50 pages in length. They also contained a number of “attachments” that included copies of the first applicant’s Medicare card, his driver’s licence, payslips and tax returns. The Minister contended that these attachments were largely irrelevant and not tied, in anyway whatsoever, to the grounds of review as stated (or, indeed, to the issue of jurisdictional error more broadly).
The Court indicated that it would receive the submissions as filed and that the Minister could make submissions as to weight. The Court addresses this issue further below.
At the hearing of this matter on 15 June 2020, both parties provided oral submissions. The Minister stressed that the applicants’ written submissions failed to address the grounds of review and did not indicate on what basis jurisdictional error was being pressed.
During the hearing, Mr Bui’s oral submissions appeared to be directed to the merits of the IAA’s decision. Mr Bui conceded in the course of his oral submissions that some of the matters he was raising went to the merits of the IAA’s decision but that it was, in any event, “wrong” for the IAA to make particular findings. When asked to explain “why”, Mr Bui’s submissions were to the effect that he disagreed with the IAA’s findings and that the IAA should have found the applicants met the criteria.
Overall, much of what Mr Bui advanced in court went to the merits of the IAA’s decision. It was explained to Mr Bui (who is legally trained) that the Court has no jurisdiction to engage in merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
At the hearing, Mr Bui also tendered Exhibit 2. It appeared that the purpose of Exhibit 2 was to raise a further ground of review (although that was not entirely clear). The Minister indicated that the new ground of review appeared to be alleging a breach of s.473CB of the Act. When the Court asked Mr Bui if this was the case, he confirmed that it was. When the Court asked Mr Bui if he knew what s.473CB of the Act referred to, he indicated that he was “going to read it”. After doing so, Mr Bui indicated that it was indeed s.473CB of the Act that he intended to rely on.
The Court allowed the parties additional time to file written submissions to address this “new issue” (the “Extra Ground”). The Court thanks Ms Tran for her cooperation in this regard.
Following the hearing, an affidavit of the first applicant affirmed 7 July 2020 was filed. It appears that the affidavit was intended to provide “context” for the photographs that were marked as Exhibit 2.
On 29 June 2020, Mr Bui filed additional submissions. Those submissions indicated that the applicants no longer pressed ground 3 (the bias ground) in the application for judicial review. These submissions did, however, purport to add two further grounds of review that had not previously been raised or foreshadowed – namely, that the IAA “identified a wrong issue” and “asked itself a wrong question.” Mr Bui, for his clients, did not formally seek leave to rely on these new grounds of review. He seemed to proceed on the basis that the Court would simply allow the applicants to rely on Mr Bui’s arguments as advanced post-hearing.
The Minister filed detailed submissions in response on 7 August 2020. While the Minister noted that the submissions filed 29 June 2020 had “expanded” the grounds of review, the Minister nonetheless addressed them. The Court will do the same in the reasons that follow and, again, thanks Ms Tran for her cooperation in this regard.
Before the Court is the judicial review application, a Court Book numbering 236 pages (marked as Exhibit 1), two photographs marked as Exhibit 2, an affidavit of Amy Coole affirmed 30 July 2019, an affidavit of the first applicant affirmed 9 July 2020, outlines of written submissions filed by the Minister on 4 June 2020 and 7 August 2020 and outlines of submissions filed by the applicants on 10 June 2020 and 29 June 2020.
In an attempt to clarify what proved to be a rather confusing approach to the litigation of this matter, the Court will first address the grounds articulated in the judicial review application dated 17 April 2019. The Court will then address the two additional grounds raised in the applicants’ submissions dated 29 June 2020. It will then address the applicants’ submissions dated 10 June 2020. Finally, it will address the Extra Ground as articulated by the Minister at the hearing dated 15 June 2020 (even though Mr Bui has not, at any stage, clearly addressed this additional ground of review).
Consideration
Ground 1
Ground 1 in the application for judicial review dated 17 April 2019 provides:
I think the Decision maker did not consider all of the evidence or did not take into account relevant considerations.
It is accepted that a failure to consider a “claim” or a relevant “integer” of a claim constitutes jurisdictional error: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244. Here, the Court has considered the materials in the Court Book and is satisfied that the IAA has addressed each of the applicants’ claims. The IAA’s summary of the applicants claims, while short, can be directly linked to the first applicant’s visa application, where he outlines what he believes will happen to him if returned to Vietnam (CB 78).
When analysing the IAA’s consideration of the first applicant’s claims, it is apparent that the IAA has not overlooked any claims. Indeed, the detail with which the IAA discusses the claims, and the evidence the applicants advanced in support of the claims, indicates substantial forensic engagement.
Relevantly:
a)the IAA addressed the first applicant’s claim to have been involved in political activities in Australia in great detail. The IAA undertook a detailed exposition of how the first applicant’s claims and the evidence in support of them (from the visa application, the interviews with the delegates and the supporting documents) had been advanced. Ultimately, the IAA was not satisfied that the first applicant was a member of the relevant organisations or an avid participant on a regular basis. However, the IAA did accept that the first applicant had had “some involvement”;
b)the IAA considered the first applicant’s claim that the Vietnamese authorities were aware of his participation in political activities in Australia. The IAA specifically referred to the first applicant’s evidence as provided to the delegates and his response to information put to him by the delegates. The IAA made reference to the absence of evidence and its findings as to a photograph that was shown to the delegate. Ultimately, the IAA was not satisfied that the authorities had any knowledge of the first applicant’s involvement. In any event, the IAA stated that, even if the Vietnamese Government did become aware of the first applicant’s political activities in Australia, his involvement was of an irregular low-level supporter and/or protestor and, in light of the country information, he would not be at risk or chance of harm;
c)the IAA considered the first applicant’s claims about being beaten and detained after a conflict between the Vietnamese communists and his church. The IAA set out in great detail the first applicant’s evidence from the arrival interview, the visa application, the interviews with the delegates and the photographs he provided in support of the incident. The IAA then detailed the inconsistencies in this evidence and noted that the evidence, at times, was far-fetched and implausible. Ultimately, the entire incident described by the first applicant was not accepted as the evidence about it as a whole was inconsistent, implausible, lacking in detail and general;
d)the IAA then considered whether the first applicant would engage in political activities on return. The IAA relied on its findings that the first applicant had engaged in the activities to strengthen his claims to determine that the first applicant would not engage in any future activities; and
e)the IAA made reference to the first applicant’s passing mention that he would be unable to be employed (and therefore earn a livelihood). The IAA considered that there was no evidence to support this claim and did not accept that the first applicant would face difficulty finding a job.
It is apparent from the above that the IAA’s assessment of the first applicant’s claims, and its findings of fact, were thoroughly and properly considered. The IAA’s analysis of whether the applicants (against the background of these findings) had a risk or chance of harm was based on country information which, in some circumstances, had been put to the first applicant by the delegate for comment.
The applicants’ submissions dated 29 June 2020 (at [17]-[30]) also allege that the IAA failed to take into account relevant material. The submissions provide:
17. That CSZ20 is from a particular region — Nghe An Province — in Vietnam. CI named 3 provicence with the highest concentration of Catholics in Vietnam and CSZ20 is from the first mentioned provice: CI 22 [3.32].
18. Department of Foreign Affairs and Trade (DFAT) assesses that Catholics like CSZ20 faces a moderate risk of harassment from authorities or their proxies, which may include arrest or violence: CI 23 [3.37].
Particulars
18.1. Moderate risk means “DFAT is aware of sufficient incidents to suggest a pattern of behaviour”: CI 6 under “Terms used in this report”.
19. CI stated that “[s]ince late 2017, there has been a significant rise in instances in which authorities have arrested and charged high-profile activists under the national security provisions. Many of those arrested have received lengthy sentences after highly publicised trials: CI 26 [3.53]. The last 2 examples in on page 26 were recent prosecutions of people affiliated with the Viet Tan organisation. Even dual citizens (Vietnamese-Australian) in Vietnam can still be sentenced to 12 years imprisonment.
20. If an activist is a dual citizen and survived prison then they may be lucky to be deported from Vietnam: CI 27 [3.54].
21. DFAT assesses that activists like CSZ20 may face a high risk of official sanctions. “This is is higher for those engaged in areas judged politically sensitive, or who have well-established links with outlawed political organisations”: CI 27 [3.56].
Particulars
21.1.The Secretary has provided the IAA with letters from Viet Tan recognising CSZ20 as an activist: CB 115, 117 and 119; and
21.2.The IAA is aware that CSZ20 has published many photos and videos on his FaceBook page in support of Viet Tan, including photos in CB 80-106.
22. Ministerial Direction Direction Number 84 of 24 June 2019 under s 499 of the Migration Act 1958 states that:
Where the Department of Foreign Affairs and Trade has prepared [a] country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country: CI 7 [1.3]
23. The second delegate had taken into account the 2010 US Department of State (DOS) report on Human Right Practices: CB 186 in the middle of the last paragraph. However, these reports are published annually and the 2010 report is rather out of date when making a decision on 12 February 2019: rights-and-labor/country-reports-on-human-rights-practices/
24. This is the current US DOS Vietnam 2019 Human Rights Report: uploads/2020/03/VIETNAM-2019-HUMAN-RIGHTS-REPORT.pdf
25. The IAA did not take into account Human Right Practices in Vietnam in its decision.
26. Authorities routinely subjected activists and suspected criminals to de facto house arrest without charge: US DOS Vietnam 2019 Human Rights Report p.6 at the top of the page. This is consistent with CSZ20’s claim that he was detained: CB 218 [30-31].
27. Officials also frequently detained human rights activists upon their return from overseas trips. Such detentions were most common around and during events that were likely to draw significant public attention: US DOS Vietnam 2019 Human Rights Report p.8 at the bottom of the page.
28. CSZ20 may fall in to the definition of Articles 120 and 121 of the Penal Code (Vietnam) which state that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is a criminal offence: CI 43 [5.28]. CSZ20 does not want to take this risk and he is genuinely in fear for his life as he has been enjoying freedom of speech and freedom of association during his time in Australia: CB 215 [14].
Particulars
28.1.The IAA’s information quoting DFAT at CB 223 [57] that the Vietnam Penal Code calling it “an offence” has been updated by DFAT to “a criminal offence”;
28.2.CSZ20’s fear of being charged by the Vietnamese authorities is still the same: CB 223 [59]; and
28.3. It appears that there is a new Penal Code in Vietnam: US DOS Vietnam 2019 Human Rights Report p.10 on the 5th line of the 2nd paragraph.
29. Similarly, there is also US DOS Travel.State.Gov for Vietnam: Country-Information-Pages/Vietnam.html. Under the heading of “Local Laws & Special Circumstances” it states that: –
Speech: The Government of Vietnam maintains strict control over all forms of political speech, particularly dissent or speech it deems as critical of the government and/or party. U.S. citizens have been detained, tried, and convicted for political activities (including criticizing the government or its domestic/foreign policies or advocating alternatives to Communist Party rule), possession of political material, and non-sanctioned religious activities (including proselytizing). Authorities have also detained U.S. citizens for posting messages on blogs or online chatrooms that are political or critical of the government. U.S. citizens of Vietnamese descent should be especially careful with their online postings.
30. Equivalent, Australian travel advice, under the heading of “Civil unrest and political tention”: Stated that: –
Although rare, protests sometimes happen.
Don't take photos of demonstrations, the military or the police. Authorities may not tolerate this.
Some localised violent clashes between protesters and police have resulted in casualties.
Public protests and events that draw large groups of people can turn violent.
More information:
• Demonstrations and civil unrest
(Without alteration. “CI” means “country information”)
Having assessed the above, it is clear that the applicants are simply disagreeing with the IAA’s findings and the use of country information. The applicants refer to particular sources of country information and statements and say that these statements are relevant. This is a request for merits review. The use and assessment of country information is a matter for the IAA: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
Further, many of the sources cited in the applicants’ submissions dated 29 June 2020 post-date the IAA’s decision (and, as such, are inadmissible). To the extent that the applicants refer to a Ministerial Direction dated 24 June 2019, this postdates the IAA’s decision and, further, the IAA is not a decision-maker under s.65 of the Act. As such s.499 of the Act, and the Direction, does not bind the IAA.
The applicants’ submissions dated 29 June 2020 at [31]-[32] further contend:
31. The IAA ignores relevant material that CTA20 is stateless: CB 215 [9-10].
Particulars
31.1. CTA20 was born in Australia.
31.2. CTA20 has no travel document.
31.3. The relevant material is that there is no evidence that Vietnam will receive CTA20.
31.4. There is an implication by the IAA that had CSZ20 did not include CTA20 in his SHEV application, then his assertion that CTA20 would, or could, hold an Australian passport.
32. The IAA ignored the relevance of s.21(8) of the Australian Citizenship Act 2007 (Cth) in relation to CTA20.
Particulars
32.1. CTA20 may be eligible to become an Australian citizen under Subdivision B if he is a stateless person: s.19G of the Australian Citizenship Act 2007 (Cth).
(Without alteration)
The IAA did not ignore, or fail to consider, the fact that the second applicant was stateless. It should be noted that no protection claims were advanced on behalf of the second applicant. In any event, the IAA clearly states (at [9]):
The second applicant was born in Australia and both of his parents are Vietnamese citizen. The first applicant asserted in his change of circumstances form the second applicant would, or could, hold an Australian passport. However, this assertion is inconsistent with the first applicant including his son in his SHEV application. I accept the second applicant was born in Australia to parents who are Vietnamese nationals. The delegate determined the second applicant was a Vietnamese citizen and his claims for protection were assessed against Vietnam. The first applicant has made no submissions to the IAA the second applicant is stateless or that he is not a national of Vietnam. Based on all the information before me, I am satisfied the second applicant is a national of Vietnam.
The IAA did not “ignore relevant material” as there was no material before it, including any claim made, to suggest that the second applicant was not a Vietnamese national.
In this regard, the Court refers to the decision in AZK18 v Minister for Immigration, Citizenship, & Migrant Services & Multicultural Affairs [2020] FCA 331 (“AZK18”).
In AZK18, the appellant sought to advance an argument that the IAA in that matter had failed to consider whether a child was stateless. The Federal Court held that, in circumstances where no claim had been made that the son in that matter was stateless until judicial review proceedings were commenced, there was no merit in an argument that the IAA had failed to consider whether the son was stateless.
Further, it was unnecessary for the IAA to consider the Australian Citizenship Act 2007 (Cth) because, as the IAA noted, the applicants never raised a claim that the second applicant was stateless and they did not take issue with the delegate’s express finding that the second applicant was a national of Vietnam.
There is nothing on the materials before the Court to suggest that the IAA did not consider all of the evidence before it or failed to take into account all relevant considerations.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 in the application for judicial review dated 17 April 2020 provides:
I was not afforded procedural fairness.
In this regard, the Court notes the applicants’ submissions dated 29 June 2020 as follows:
33.It is unclear in the IAA decision as to who is the first delegate and who is the second delegate. From the CB, it may be deduced that the first delegate is Therese Horan: CB 1 which may or may not be the person who signed as “U4769119” with the email address be [omitted]: CB 19. The interview dates were Part 1 completed on 5 July 2013: CB 1-2, 3-13; and, perhaps, Part 2 completed on 5 September 2013: CB 14-19.
34. Part 2 was not signed by CSZ20 nor by the interpreter and it was unclear whether the interpreting was done by phone or in person: CB 19.
35. The interpreter ID 2740 may have been entered in the system on the first page (CB 1) and automatically populated on the last page (CB 19). Given that the interviews were 2 months apart, it may not have been the same interpreter.
36. The second delegate may be [omitted] position number 60022632 who conducted 2 interviews on 04 April 2018 and 18 December 2018 with unknown interpreter(s): CB 180 last paragraph; and who made the primary decision on 12 February 2019: CB 178-190.
37. CB 3 under question 4, the first delegate has to select “No” to update the pre-populated biographical details. At question 13 Religion, the answer was “Catholic(NEC)”. CSZ20 does not know what “NEC” next to “Catholic” stands for.
38. CB 10 at question 36 the answer was “Yes” and the details stated that “The Religious group that goes against the Government. We don’t have a particular name, we just belong to the Church Community”. However, the second delegate and the IAA kept saying that CSZ20 did not memtion attending a Catholic Church in his arrival interview: CB 218 [33].
39. CSZ20 is from the North-Central region of Vietnam and they speak the regional Vietnamese dialect which is the most difficult to understand. The full Vietnamese language has 6 tones and the people in the North and Central regions only use 4 tones because they combined 3 tones into one. They also have regional variation in vocabulary so if you are not familiar with this regional dialect, it is hard to understand the speaker of this region: An analogy of the North-Central dialect is like a Scottish person with a thick Scottish accent speaking English.
41. Therefore, if the first and second delegates did not make an effort to make sure that CSZ20 can understand the interpreter, and vice versa, there is bound to be miscommunication between the parties. When CSZ20 corrected the miscommunication, it may appear that he was inconsistent in his answers. However, he has always corrected the error that he was not an employee of the Catholic church: CB 218 [33]; CB 181 at middle of first paragraph; CB 64 and 74.
42. Perhaps CSZ20’s migration agent was transferring the same information at the top of CB 10 to question 89 on CB 67 without checking with CSZ20. Similarly, from CB 9 question 29 given name copied over to CB 54 question 43; however, CB 55 question 45 was correctly spelled.
43. CSZ20 submits that he and the interpreter do not understand each other that is why the arrival interview has many spelling mistakes with names.
Particulars
43.1. CB 3 question 8 Huong Son is 2 words;
43.2. CB 3 question 9 Ha Tinh is 2 words;
43.3. CB 3 question 12 address be [omitted] Town should be be [omitted] 11 like in CB 62. There is no “w” in the Vietnamese alphabet;
43.4. CB 3 mother’s name should be [omitted] like in CB 6 question 26;
43.5. CB 5 question 22 mother’s name is wrong as above;
43.6. CB 9 question 29 given name should be be [omitted] like in CB 55 question 45; and
43.7. CB 10 question 32 first line Kun Cwong should be Con Cuong like in CB 181 first paragraph.
(Without alteration)
As noted above, the procedural fairness obligations owed to an applicant by the IAA are limited.
To clarify, the “first delegate” was the delegate at the interview on 4 April 2018. The “second delegate” was the delegate at the interview on 18 December 2018. The interviews in 2013 were the “arrival interviews”. When the IAA refers to a delegate, it is not referring to the arrival interview (something which the applicants appear to misunderstand). When the IAA refers to the 2013 interviews, it expressly references them as the “arrival interview” (see, IAA’s decision at [27], [32]-[34] and [39]). The applicants’ submissions dated 29 June 2020 (at [32]-[36]) also appear to misunderstand this distinction.
The applicants’ submissions dated 29 June 2020 (at [43]) further argue that the first applicant did not understand the interpreter at the arrival interview. The submissions provide information about the first applicant’s dialect (specifically, that his dialect is referred to as akin to a “thick Scottish accent”).
At its highest, the applicants’ submissions dated 29 June 2020 point to spelling errors.
On the materials before it, the Court does not accept that there were interpretive errors.
All of the information that the applicants refer to in their submissions dated 29 June 2020 (at [37], [38] and [43]) as potentially “miscommunicated” appear in “Part 1” of the arrival interview record. The first applicant signed a document indicating that he understood the interpreter who assisted him at the arrival interview on 5 July 2013 (CB 2). The fact that there were spelling errors in the interview record does not suggest interpretive errors. Rather, it suggests that the person “inputting” the information (being the interviewer (not the interpreter)) was transcribing phonetically. Spelling errors in this context are not indicative of interpretive errors.
Finally, no issue was raised with the interpretation provided at the arrival interview. This was so even when inconsistencies in the arrival interview and other evidence were expressly put to the first applicant by a delegate (noting [32]-[34] in the IAA’s decision).
Against this background, the Court does not accept that there were any interpretive errors in the arrival interview. The applicants have not raised any issue with the interpretation at the arrival interview (despite having the assistance of a migration agent) until judicial review proceedings in this Court commenced and there is simply no evidence to support the contention advanced.
Given that the Court is satisfied that there were no interpretive errors, it is unnecessary to consider whether any such errors could in fact involve a denial of procedural fairness on the part of the IAA: DVO16 v Minister for Immigration & Border Protection [2019] FCAFC 157 at [5]-[6] and [91]. In any event, as the Minister submits, the “errors” that the applicants identify in their submissions are not matters which could have had any material effect on the outcome of the IAA’s decision.
The applicants also submit (at [45] of their written submissions dated 29 June 2020):
45. Extra allowances should have been made to CTA20 given that he is still an infant or a minor. Even at common law, children had similar rights of self-determination as adults once they had sufficient understanding and intelligence to understand fully what is proposed : Gillick v West Norfolk Area Health Authority (1986) AC 12; Marion's Case (1991) 106 ALR 385.
Particulars
45.1.There has been no consideration for what is in the child’s best interest; and
45.2. CTA20 may require independent legal advice.
(Without alteration)
The applicants were represented by a lawyer before the delegate (CB 35). Hence, the applicants (including the second applicant) did have legal advice. Further, the interests of the child are not a relevant consideration for the grant of the visa, particularly in circumstances where no claims were ever advanced on behalf of the second applicant.
More generally in relation to procedural fairness, the IAA explained to the applicants that they could provide any submissions and further “new information” if they wished to do so within 21 days. It was explained that after that date, a decision could be made at any time. There was no obligation on the part of the IAA to so advise the applicants. Nevertheless, the applicants were given an opportunity to advance any argument or evidence if they so wished. They did not do so.
Here:
a)the IAA conducted the review on the papers as it was required to do and it was not necessary for the IAA to invite the applicants to comment prior to deciding the review: the Act, s.473DB;
b)the Court notes its findings above regarding a lack of any indication of potential interpreter error during any stage of the visa application process such that it cannot be said to have been unreasonable for the IAA not to consider obtaining “new information” as a result of interpretive errors: the Act, s.473DC(3);
c)the IAA acknowledged that it did not have a photograph that was shown to a delegate at the interview. It was not unreasonable for the IAA not to exercise the discretion to obtain this photograph as the IAA accepted that the first applicant had shown a photograph which reflected his claim of police attending a home with another person. In circumstances where the IAA accepted what the photograph could depict, obtaining the photograph cannot be said to have been necessary to complete the review: DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12 at [70]; the Act, s.473DC
d)the applicants did not provide any new material to the IAA so as to enliven the operation of s.473DD of the Act;
e)the only information before the IAA was the evidence from the first applicant and the country information, both of which are exempt under s.473DE from being put to the first applicant. There were also AUSTRAC records (Ms Coole’s affidavit) which the Court accepts were not a reason for, or part of the reason for, the IAA affirming the decision under review. As such, s.473DE did not apply; and
f)no certificates were among the materials that were provided to the IAA. In any event, the non-disclosure of a certificate does not amount to a denial of procedural fairness.
The applicants were afforded procedural fairness as owed to them under the Act.
Accordingly, ground 2 fails.
Ground 3
Ground 3 in the application for judicial review dated 17 April 2019 provides:
I think the Decision is affected by bias.
Mr Bui withdrew this ground of review. It is thus unnecessary for the Court to address it further.
Ground 4
Ground 4 in the application for judicial review dated 17 April 2019 provides:
I think the Decision maker misinterpreted the law.
In this regard, Mr Bui submitted as follows in submissions dated 29 June 2020:
46. The IAA had made its decision at the early part of its “Factual findings” before it considered the law: CB 215 [12]. Therefore, there is a stronger tendency to interpret the law more strictly rather than broadly.
(Without alteration)
It is uncontroversial that the IAA is required to make the necessary findings of fact. Any determination of whether a fear is well-founded requires the IAA to examine if there is a factual basis for the fear: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 412 and 419 (“Chan”).
Mr Bui’s submission in this regard thus fails.
Mr Bui’s submissions dated 29 June 2020 continued:
47. The IAA determinted that CSZ20 is a “low-level supporter” of Viet Tan and/or “low-level” protestor political activist against Vietnamese authorities or interests: CB 222 [54]. Therefore, there is every real chance or real risk that he will be subjected to degrading treatment or punishment; he maybe subjected to torture during such treatments and be arbitrarily deprived of his life by way of imprisonment: s.36(2A) of the Act.
48. Will the Vietnamese Communist Party take CTA20 into account when they deal with CSZ20? Not many countries will have the best interest of the child in mind when they have a reputation or face-saving to protect.
49. Who will protect CTA20 when no one is protecting CSZ20?
50. The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 at [56].
Particulars
50.1.The above Country Information from DFAT have showned that people associated with Viet Tan will be at risk; and
50.2. The Vietnamese police typically acted with impunity so there is no guarantee, no certainty and no protection once the applicants are outside the safe haven of Australia.
51. An analogy is whether it is beyond reasonable doubt that CSZ20 will be safe to return and that his proxies or family members will also be safe with him?
Particulars
51.1.With all the factual findings, the IAA have identified low risk or “low-level”. This is sufficient for the law to protect the weak from the strong.
51.2.However, the situation is not static and things are always changing and evolving. With a passage of time it may increase to medium or high.
51.3.New DFAT Country Information indicated that CSZ20 will face a high risk of official sanctions.
51.4.Even the Penal Code of Vietnam has changed and there is a possibility that a simple offence has been changed to a criminal offence.
51.5.Beyond reasonable doubt, in this sense, would mean no-risk.
(Without alteration)
These submissions rise no higher than a request for impermissible merits review. Mr Bui is suggesting that “beyond reasonable doubt” is akin to “real chance”. That is plainly not the case. Neither is it the case that the “real chance” test requires there to be “no-risk”. As has been made clear in Chan, a “real chance” is one that is neither remote nor insubstantial.
The IAA found that the first applicant was an “irregular and low level supporter and/or protester” and that he would not be perceived as challenging the Vietnamese authorities. The IAA was not satisfied that the first applicant faced a real risk or chance of harm as a result of any irregular and low-level political activity. It was open to the IAA to do so. The mere fact of involvement does not give rise to a real chance.
Here, the IAA extracted the legislative provisions relevant to the determination of the review. The IAA summarised the refugee and complementary protection criterion accurately within the decision itself. The IAA’s analysis and assessment of the applicants’ claims demonstrates a sound understanding of the legal principles relevant to the overall determination.
The IAA exercised caution throughout its findings. For example, even though it had found that the first applicant had not come to the adverse attention of the authorities because of his political activities in Australia, the IAA was, in any event, satisfied that, if the authorities were aware of this level of involvement, this was not sufficient to attract adverse attention and result in harm.
The applicants’ submissions are, again, taking issue with the IAA’s findings. What the country information now indicates or whether the situation has now changed is irrelevant on judicial review.
Ground 4 is dismissed.
New grounds of review
In his written submissions dated 29 June 2020, Mr Bui appears to have raised new grounds of review. These are addressed below.
“Identifying the wrong issue”
At [6]-[7] of the submissions dated 29 June 2020, Mr Bui submitted:
6. The IAA declared that CSZ20 was working as a driver for the local Catholic Church community: CB 218 at [28].
Particulars
6.1. CB 64 and 74, there was no mention by CSZ20 that he was working as a driver for the local Catholic Church.
6.2. There were some errors in his original protection visa claims and CSZ20 said that to the second delegate: CB 181 at 8th line of 1st paragraph; CB 218 [33-34].
7. The error from his arrival interview was continued in his application by his migration agent and this was clarified by CSZ20 at CB 219 [34].
(Without alteration)
The IAA did not declare that the first applicant was a driver for the local Catholic Church community. The IAA simply states (at [28]):
The first applicant’s written evidence was he was working as a driver for the local Catholic Church community…
The IAA was merely summarising the first applicant’s “written evidence”.
Further, it was entirely open for the IAA to note inconsistencies between the arrival interview, the written evidence and the first applicant’s statements in his interview with the first delegate. It is not a “wrong issue” for the IAA to identify and consider any inconsistencies in the first applicant’s evidence. That is an inherent part of the IAA’s duty to make findings of fact. The IAA did not identify a “wrong issue” in noting any discrepancies in this regard.
Mr Bui then submitted that the IAA “identified the wrong issue” by having regard to documents that “did not relate to the applicants”. Mr Bui states at [8]-[9] of the written submissions dated 29 June 2020 that:
8. The IAA have had regard to all the material given by the Secretary for the review: CB 214 at [5]. However, the review material included documents not belonging to either applicant.
Particulars
8.1. CB 120-122 is relating to another person who is neither CSZ20 nor CTA20; and
8.2. The one that is relevant to CSZ20 is already included at CB 26-28.
9. Therefore, there may have been confusion from the Secretary in accepting the materials for review before providing to the IAA: s.473CB of the Act.
(Without alteration)
It is clear that the documents at CB 120-122 relate to an unknown third person. It is also clear that these documents were entirely irrelevant.
The Minister’s submissions dated 7 August 2020 indicate that the documents were (the Court assumes erroneously) provided by the applicants’ migration agent. They were thus part of the “review material” and the delegate was required to provide them to the IAA (pursuant to s.473CB(1)(b)) notwithstanding that they were not relevant.
Simply put, these materials are of no bearing whatsoever to the IAA’s decision. They consist of an appointment of a migration representative for an unrelated third party. No confusion could have been caused by the inclusion of these documents. They were immaterial to the IAA’s consideration of the applicants’ protection claims and certainly could not have prejudiced the IAA or caused the IAA to consider a wrong issue.
Finally, Mr Bui submitted at [10]-[11] of the submissions dated 29 June 2020 as follows:
10. The IAA accepted the data breach over a period of about eight and a half days: CB 215 [13] and CB 223 [58]. However, it did not make any references to Part VIII—Obligations of confidence of the Privacy Act 1988 (Cth).
11. Under s.93(2) of the Privacy Act 1988 (Cth), CSZ20 and CTA20 may have further strenthened their rights to be protected by way of relief in respect of the breach. Otherwise, the respondents have not just exposed the applicants to potential perils but will also, physically, handing them over to their adversary
(Without alteration)
It is unclear how s.93(2) of the Privacy Act 1988 (Cth) is relevant to the consideration of the applicants’ claims. If the applicants are suggesting that s.93(2) of the Privacy Act 1988 (Cth) entitles them to relief by way of granting the visa, this cannot be accepted. All that the data breach required of the IAA was for it to consider if the applicants would face harm as a result of the breach. The IAA did that (at [58]-[59]) and concluded that no such risk or chance of harm arose. Nothing further was required in this regard.
The IAA did not identify a wrong issue. This “ground” is also dismissed.
“Asking the wrong question”
To some extent, this new ground of review overlaps with ground 4. Nonetheless, as different submissions were advanced in Mr Bui’s written submissions, the Court will address this ground of review accordingly.
In his written submissions dated 29 June 2020, Mr Bui first submits:
12. The IAA may have treated the data breach lightly because it had already decided to refuse CSZ20 the protection that he needs instead of asking what may happen to CSZ20 as a result of the data breach coupled with his activities with Viet Tan and human rights forum; or the respondents prefer to refuse the protection to overcome the data breach issue.
13. The first delegate undertook, at the first interview, that the information will not be made available to authorities in the country of CSZ20’s habitual residence: CB 1 at last paragraph. However, given the data breach, the IAA is saying that the breach is okay because the “Vietnamese authorities [will know all about CSZ20 anyway] by the manner of his return to Vietnam”: CB 223 [58].
14. The IAA asked itself, whether CSZ20, if returned to Vietnam, has any interest or intention of participating in activities opposing the Vietnamese government: CB 221 [47]. The right question to ask is: whether CSZ20 needs protection on the basis of religion and/or political opinion?
Particulars
14.1.CSZ20 did not have permission from the Vietnamese government to depart Vietnam: CB 215 [11];
14.2.CSZ20 did have some involvement with the Vietnamese Human Rights Forum, the Vietnamese Community and the Viet Tan in Australia: CB 216 [19];
14.3.Country information (CI) supports that some peoplel who are involved in political activities and/or are outspoken about the Vietnamese government do experience problems on return to Vietnam: CB 217 [23]; publications/Pages/country-information-reports; pdf p.23 [3.37];
14.4.Interrogations may lead to torture or death in custody depending on the authorities doing the interrogations: CI 37 [4.13] and CI 35 [4.4]; and
14.5.DFAT assesses that police have a limited ability to provide protection to civilians, particularly at the commune level, are vulnerable to corruption, and typically act with impunity: CI 40 [5.9].
(Without alteration)
Given that Mr Bui had abandoned the “bias ground”, [12] of his written submissions is confusing. Mr Bui does appear to be submitting that the IAA was biased (i.e., it had already decided to refuse the visa) or, alternatively, that the IAA was acting in bad faith (i.e., refusing the visa for an ulterior motive). Both allegations are quite serious and are rejected. There is simply no evidence that this is the case here. Mr Bui’s submissions are entirely inappropriate, particularly when advanced by a legal practitioner without evidence or a coherent argument.
As for the remaining matters, the IAA did “ask the question” that the applicants said the IAA should have asked (i.e., whether the first applicant needs protection on the basis of religion and/or political opinion). This is patently clear from [51]-[55] of the IAA’s decision.
Further, the anterior question of whether the first applicant has any interest or intention of participating in activities opposing the Vietnamese Government (which was considered at [46]-[47]) was relevant to the substantive question of whether the first applicant needed protection on the basis of religion and/or political opinion. The first applicant’s intentions or interest undoubtedly related to the “reasonably foreseeable future”.
No “wrong question” was asked as suggested by the applicants’ written submissions above.
The applicants’ written submissions dated 29 June 2020 continue:
15. The IAA was asking itself, whether CSZ20 or CTA20 had made a submission that CTA20 is stateless or that he is not a national of Vietnam: CB 215 [9]. There is an implication that had there been such submission, the same facts would have shown that CTA20 is stateless or that he is not a national of any country.
15.1. CTA20 is too young to make a submission; and
15.2.CTA20 should not be disadvantaged by any error or omissions made by CSZ20.
16. The IAA should have asked itself whether CTA20 has all the characteristics of being a stateless person?
Particulars
16.1. No country has accepted CTA20; and
16.2. The only countries that CTA20 may have a claim to be their citizen are Vietnam and Australia — but neither country has confirmed nor denied his claim.
(Without alteration)
For the reasons provided above, the Court finds that a claim that the second applicant was stateless was never made. The applicants never submitted that the second applicant was not a Vietnamese national. It is not open to the applicants to now seek to do so. The IAA considered the question of the second applicant’s nationality. It was under no duty to make any further inquiries in circumstances where the applicants had not taken issue with the delegate’s determination and, as submitted by the Minister, no claims were advanced by the second applicant or on his behalf. He was, by all accounts, a secondary applicant to his father.
To the extent that submissions are made about the second applicant’s age and any inability to make submissions, despite having the assistance of legal representatives, no submissions were made on behalf of the second applicant. Accordingly, there was no error in the way that the IAA approached the issue of the second applicant’s nationality.
The IAA did not ask itself “a wrong question”. As such, this argument also fails.
Applicants’ Submissions dated 10 June 2020
As noted above, Mr Bui filed submissions shortly prior to the hearing on 15 June 2020. Before turning to the substance of those submissions, the Court will briefly address the 16 attachments to these submissions.
With respect, the attachments are of no assistance in determining whether the IAA fell into jurisdictional error. They do no more than appeal to the merits of the applicants’ claims.
In some respects, the applicants’ submissions dated 10 June 2020 raise entirely new issues and grounds. As such, it is perhaps best to address each paragraph, or group of paragraphs, in turn.
Paragraphs [1]-[8.1] of the applicants’ submissions dated 10 June 2020 detail factual matters concerning the applicants’ personal information and the first applicant’s history prior to entering Australia. They provide background information. No jurisdictional error arises in this regard.
The applicants’ submissions dated 10 June 2020 continue:
After arriving in Australia
9. If the First Applicant did not need protection before arriving in Australia, as per refusals, he would certainly need protection now.
10. The Minister and the Department has many opportunities to send the First Applicant back to where he came from, like they have done in many instances, immediately; or place them in community detention to prevent interaction with the Australian community, and eventually return them.
11. However, there must have been some truth to the First Applicant’s claim so the Minister or Delegate/Case Manager (CM) had decided against community detention (CD) at either the first or second interview: CB 13 at question 58.
12.The documents showed that the first interview was on 05 July 2013 [CB 2] and the second interview was on 05 September 2013 [CB19].
13. Furthermore, the Minister/Delegate/CM had issued the First Applicant a bridging visa E and allowed him to interact with the Australian community at large: CB 13 at question 59.
14. The Respondents must take the responsibilities for allowing the First Applicant to form “Our Common Bond” with the Australian Community.
15.Under “Our Common Bond”: interview/our-common-bond, every individual in the community can obtain a driver’s licence, fall in love, have children, the right to work and freedom of association.
…
16. We all know that there is a difference between being a member of the RAC and being a member of a trade union or a political organisation.
(Without alteration)
It is unclear what the applicants are suggesting in these paragraphs.
If the applicants are arguing that the very fact that the first applicant was not kept in detention or sent back to Vietnam implies that the Minister accepted his claims, or that his claims were somehow valid, there is no foundation for this argument. Nor does it identify jurisdictional error.
If the applicants are submitting that, by allowing the applicants to remain in the community, the Australian Government and the Minister have somehow misled the applicants or allowed them to form a “common bond” with others in the community, again it is unclear how this amounts to jurisdictional error on the part of the IAA.
Further, it is unclear what the applicants are asserting in [16] of the written submissions and Mr Bui made no attempt to clarify the applicants’ position in this regard.
No error is identified in these paragraphs.
The applicants’ submissions dated 10 June 2020 continue as follows:
17. The Respondents cannot be certain, in criminal-jurisdictions-speak, as in, beyond reasonable doubt that the First Applicant will not be damaged mentally or physically if he was to be forced to return to Vietnam, now.
18. Although Vietnam is a one party State, that does not mean that all laws are one and all individuals are respected. There are still corruption with different laws for the rich and laws for the poor. For example, in Nghe An Province, the villagers paid weekly for the removal of rubbish but the authorities would only empty it after many weeks until it has blocked half the road: see Attachment M — photos. One week’s rubbish should be within the walls designed for its containment. If this location was at a UNESCO site, the people would not have to live in such conditions because there are eyes of the world watching.
19. No matter how much the Respondents have to say, it is an accepted fact that the First Applicant has engaged in political activities: CB 182.
(Without alteration)
This matter is not being adjudicated within “the criminal jurisdiction”. There is no “standard on proof” of “beyond a reasonable doubt” in matters of this sort in this Court. Here, the IAA was simply charged with determining whether the applicants would face a real chance or a real risk of significant harm if returned to Vietnam. The Court is satisfied that the IAA applied the correct legal tests in assessing the applicants’ claims and whether they would face harm (mental or physical) upon return in the reasonably foreseeable future.
Paragraph [18] is of no relevance. It again seeks merits review on the basis of new country information.
Paragraph [19] is uncontroversial. Both the delegate and the IAA had accepted that the first applicant had engaged in political activities. The IAA accepted that the first applicant had engaged in political activities. However, the IAA found that he had done so to strengthen his claims for protection, that the Vietnamese authorities would have no knowledge of his engagement in these activities in any event and that he would not engage in such activities on return (at [25] and [46]-[48]). It was entirely open to the IAA to determine as it did in light of its adverse credibility concerns.
No jurisdictional error arises in this regard.
The applicants’ written submissions dated 10 June 2020 continue:
20. In addition to the data breach, also admitted by the Respondents but they are refusing to take responsibilities: CB 182.
21. At least one media source had reported this data breach.
(Without alteration)
The IAA addressed the data breach and any implications that may have arisen from the breach at [8]-[13] and [57]-[58] in its reasons. It was not for the IAA to “take responsibility” for the data breach. The IAA correctly assessed whether there was any risk or chance of harm arising from the breach.
No error arises in this regard.
The applicants’ submissions dated 10 June 2020 continue:
22. An analogy can be said that there is a significant possibility that a good and healthy person has been refused by both Respondents because they choose to lower the risk of harm or refuse to provide the protection that the First Applicant needs: Pell v The Queen [2020] HCA 12 at [9].
23. For example, the Second Respondent chose to not recognise the First Applicant in the recent photos taken in Australia: CB 216 [17-19] but had accepted his political attendance and participation in Australia. However, the older photos taken in Vietnam were all recognised by the Second Respondent: CB 220 [40-41] but did not accept his attendance and participation in Vietnam.
24. The reality for the First Applicant is that he has spent almost 7 years continuously in Australia. To be eligible to apply for Australian citizenship, he would only need 4 continuous years.
25. He has been through 5 different Ministers and Prime Ministers during that time and none of them have sent him back. The first 2 Ministers were in the Labor governments and the last 3 were Liberal governments: Actions speak louder than words and if the different governments and their policies have not sent the Applicant home instead of inviting the First Applicant to apply for SHEV [CB 20] just to reject his application — is inconsistent to the spirit of things: Pell v The Queen [2020] HCA 12 at [119].
(Without alteration)
In relation to [22], it is irrelevant whether the applicants are “good and healthy”. This does not assist in relation to the visa criteria in issue. Further, the applicants have not explained how the IAA may have “lowered the risk or chance of harm”. Having reviewed the decision in detail, the Court is satisfied that the IAA accurately applied the real chance test.
Paragraph [23] of the applicants’ submissions is misconceived. The IAA did not “choose not to recognise the applicant” in the recent photos. Rather, the IAA could only identify him in at least 22 photos. Having recognised the first applicant in those 22 photos, it accepted that he attended political events (at [17]-[19]). Hence, the IAA accepted that the first applicant had participated in political activities as the IAA did recognise him in the photos provided. As for the reference to [40]-[41], the IAA accepted that the first applicant was in the photo but could not be satisfied when or where the photo was taken. Hence, it had little probative weight in establishing that he had participated in activities in Vietnam. The IAA’s assessment of the evidence and its findings were entirely logical in this regard.
Paragraphs [24]-[26] are of no bearing on the Court’s task on judicial review. It does not matter how many governments and policies the applicants have been exposed to since arriving in Australia. This does not raise any identifiable jurisdictional error. Further, the fact that something is “against the spirit of things” does not identify jurisdictional error.
No jurisdictional error arises in this regard.
The applicants’ submissions dated 10 June 2020 state further at [27]:
The Second Respondent had dealt with the same unchallenged evidence that the First Respondent had and refused to entertain a doubt as to the First Applicant’s continued political interests and development. This may be a jurisdictional error of the Second Respondent: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at at [12] per Gleeson CJ.
The passage the applicants refer to in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 (“S20/2002”)at [12] provides as follows:
It was contended that this passage shows that the Tribunal member adopted a flawed approach to her evaluation of the evidence, failing to assess the evidence of the applicant/appellant in the light of the corroborating evidence, and giving no weight to the evidence of the corroborating witness for reasons that had nothing to do with the quality of that evidence. The essence of the complaint is that the Tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the Tribunal’s reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant’s story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.
It is not entirely clear what the applicants are submitting here. The “corroboration” which the Court assumes the applicants to be referring to is found in the form of the photographs before the IAA. The IAA accepted that some of the photographs corroborated the first applicant’s claims (for example, in relation to political activities in Australia). The basis upon which the IAA rejected the alleged “corroborative” nature of the photos (or did not place weight on them) was entirely unrelated to its concerns about the first applicant’s evidence generally. It was based on the lack of any context accompanying the photographs or the inability to positively identify the first applicant in the photographs. Thus, no error of the kind in S20/2002 can be identified.
It is unclear what the applicants are saying when they submit that the IAA acted on the same “unchallenged evidence” as the delegate and refused to entertain a doubt about the first applicant’s continued political interests and development.
Here, the IAA and delegate arrived at generally the same conclusion (i.e., that the first applicant had engaged in political activities to strengthen his claims). The IAA arrived at that conclusion independently and after a thorough analysis and assessment of the evidence. That it did not “entertain a doubt” about its findings that the first applicant had no continued political interests was a matter entirely open to the IAA for the detailed reasons it gave.
The applicants’ submissions dated 10 June 2020 then turn to the second applicant and provide as follows:
28. The Second Applicant is an innocent party and deserve to have government protection. See Attachment P — photo of [omitted].
29. In Family Law terms, he does not deserve to be separated from his parents. There are enough broken homes without the help of the government to break them up.
30. He does not have a travel permit. Australia has not asked Vietnam whether they will accept him. He has not has a chance to be heard.
31. Vietnam does not have the same human rights standards as in Australia.
32. He has the rights to be maintained as in child support. This is more than just financial terms because there are also love, care, guidance and protection.
33. His parents are capable and working and are providing all that he needs.
34. People like the Second Applicant in France are Stateless and their parents are locked down to provide all the care and needs until the child turns 18 years of age, because the child would, therefore, be a French citizen and the foreign parents must stay in-country to raise this child: Children born in Australia whose parents are stateless and not entitled to any other country’s citizenship may in some circumstances apply for and be granted Australian citizenship: ‘Baby Ferouz’ was born to Rohingya Muslim parents who had fled from Myanmar which did not recognise them as citizens. His parents and siblings were being held at the Nauru Detention Centre, however the family was flown to Brisbane due to complications in pregnancy, with the result that while baby Ferouz was born in Australia, he was deemed to be an unauthorised maritime arrival and could not be given a protection visa.[20] In December 2014, he and his family were given a temporary protection visa which allowed them to be released from immigration detention.[21]
37. Since the Respondents have been notified about the Second Applicant: CB 163-167. All they have done is to write to him: CB 168-169, 208, 231.
(Without alteration)
In relation to the second applicant, the IAA stated:
2. On 3 July 2017 the first applicant lodged an application for a Safe Haven Enterprise Visa (SHEV). On 20 October 2017 he notified the Immigration Department of a change in his circumstances and included his wife in his SHEV application. On 25 September 2018 he notified the Immigration Department of a second change in his circumstances and included his wife and their son in his SHEV application. Based on the information before me, I am satisfied the first and second applicants fall within the definitions of unauthorised maritime arrivals and fast track applicants.
…
9. The second applicant was born in Australia and both of his parents are Vietnamese citizen. The first applicant asserted in his change of circumstances form the second applicant would, or could, hold an Australian passport. However, this assertion is inconsistent with the first applicant including his son in his SHEV application. I accept the second applicant was born in Australia to parents who are Vietnamese nationals. The delegate determined the second applicant was a Vietnamese citizen and his claims for protection were assessed against Vietnam. The first applicant has made no submissions to the IAA the second applicant is stateless or that he is not a national of Vietnam. Based on all the information before me, I am satisfied the second applicant is a national of Vietnam.
The Court is not unsympathetic to the situation. The second applicant is a young child. Unfortunately, what is contended here does not amount to jurisdictional error.
The applicants’ submissions are, overall, unclear. It appears they are addressing a claim that the second applicant will be “separated” from his parents. This was never raised as a claim before the IAA. The IAA appeared to proceed on the assumption, as it was entitled to do, that the second applicant would return to Vietnam with his father. There was no information about the second applicant’s mother before the IAA. Hence, there was nothing before the IAA that would allow it to make any findings in relation to any “separation” issue.
There was an opportunity for the second applicant to have any claim advanced on his behalf when the delegate interviewed the first applicant after the second applicant was born. Further, the IAA sent the second applicant a copy of its practice direction which advised that the second applicant could provide “any new information”. While the applicants were not represented, the second applicant nevertheless had the opportunity to be heard or to have claims made on his behalf by his father. No such claims were advanced.
As for the assertion that the second applicant does not have travel permits or Australia has not asked whether Vietnam will accept the second applicant, as the IAA noted, the applicants did not make any submissions that the second applicant was stateless or that he was not a national of Vietnam. While the applicants were not represented, it was open to the IAA, in light of the statutory regime of pt.7AA, to proceed on the basis that the delegate had correctly determined that the second applicant was a Vietnamese national. In the absence of the applicants having made any claim to the contrary (or a claim that the applicants were at risk or chance of harm because the second applicant would have to obtain a permit), it was not necessary for the IAA to consider whether the second applicant could obtain travel documents or whether there would be any harm in doing so.
Further, the Court cannot apply “French law” in relation to this matter. Section 5AA(1A) of the Act makes clear that the second applicant is an “unauthorised maritime arrival” like his father and does not obtain Australian nationality or citizenship by virtue of his birth. Nor does he have any right to reside in Australia.
Finally, in relation to the applicants’ submissions about statelessness, it is apparent that the second applicant’s parents are not stateless (which is what [35]-[36] of the applicants’ submissions seem to refer to). Nor was it claimed that the second applicant is stateless.
Nothing arises from the applicants’ submissions in this regard. No error of any sort is identified.
The “Extra Ground”
Exhibit 2 comprised of two photographs. Those photographs eventually became Annexure A and Annexure B of the first applicant’s affidavit affirmed 9 July 2020.
At the hearing, it emerged that Annexure A was a photograph that the first applicant had shown to the delegate during the course of the interview. The photograph was on his mobile telephone. Annexure A was not included in the materials in the Court Book.
At the hearing, the Minister identified that the circumstances surrounding Annexure A suggest that an issue relating to s.473CB may arise.
Section 473CB of the Act provides:
(1)The Secretary must give to the Immigration Assessment Authority the following material ( review material ) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
…
(b) material provided by the referred applicant to the person making the decision before the decision was made;
…
As noted, although initially unsure, Mr Bui indicated that he was advancing a ground of review based on the scope of s.473CB of the Act.
Mr Bui’s submissions in relation to the Extra Ground were incorporated into his submissions dated 29 June 2020 as they relate to “procedural fairness”. He explained:
44. The second delegate and/or the Secretary failed to collect the material given by CSZ20 and, therefore, did not include a photo as part of the review material for the IAA: s.473CB(1)(b) of the Act.
Particulars
44.1.The second delegate did not take possession of a photograph or photographs from CSZ20’s phone shown to the second delegate as material provided by CSZ20 to the person making the decision before the decision was made: CB 216-217 [22];
44.2.The second delegate failed to consider this material in his decision: CB 178-190; and
44.3.The IAA had incorrectly referred to the second delegate as the first delegate: CB 216- 217 [22-24].
(Without alteration)
Regrettably, the submissions do not address any breach of s.473CB(1)(b) of the Act in any meaningful way.
In relation to [44.2] and [44.3] of the applicants’ submissions, it is noted that:
a)whether or not the second delegate failed to consider Annexure A of the first applicant’s affidavit is immaterial. The Court has no jurisdiction to review the delegate’s decision: the Act, s.476(2) and (4); and
b)as explained above, it is Mr Bui who is incorrectly referring to the first delegate and the second delegate, not the IAA. In any event, this does not point to jurisdictional error on the part of the IAA.
The applicants’ submissions fail to identify any applicable legal authorities on the issues which, arguably, arise here.
Fortunately, in its role as a model litigant, the Minister referred the Court to two divergent Federal Court authorities on whether “showing” something to the delegate amounts to an applicant “providing” the material in question.
In AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365 (“AWV18”), it was explained that the word “material” (as used in s.473CB(1)(b)) appears to refer to “physical material”. In particular, it was held that showing a document did not amount to “providing” the material in the sense described in s.473CB(1)(b).
In contrast, in BVC20 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 565 (“BVC20”), it was held that showing a delegate a digital photograph did amount to “providing” material as per s.473CB(1)(b).
The Court also notes the decision in CVV16 v Minister for Home Affairs & Anor [2019] FCA 1890. There, the appellant showed the delegate particular documents. The delegate did not take a copy of the documents. The Court held that, as the applicant had shown the documents to the delegate, they were “before the Minister” and, as such, fell within the definition of “review material” under s.473CB(1)(b).
The Minister submits that the reasoning in AWV18 is the preferred approach. The Minister emphasises that “showing the delegate the digital photograph” here does not amount to “providing physical material”.
It is noted that in AWV18, Justice Derrington stated only that it “appeared” that the use of the word “material” was a reference to “physical material”. This was not a definitive statement (unlike the statement made in BVC20 by Justice Wigney at [67]). In BVC20 (at [76]), His Honour specifically found that the “appellant accordingly “provided” the digital image to the delegate when he showed the delegate the photograph on his mobile phone”. As such, the photograph was material that fell into s.473CB(1)(b) of the Act.
This is precisely what occurred in this matter.
In circumstances where BVC20 is directly analogous to the facts of this case, the Court is bound by that authority. Hence, the failure to provide the digital photographs to the IAA in the review material here resulted in non-compliance with s.473CB(1)(b).
Despite this, non-compliance will only result in jurisdictional error if the failure to provide the photograph to the IAA could have affected the outcome of the review. This is to be considered by reference to the applicants’ claims and the IAA’s reasons as a whole: EVS17 v Minister for Immigration & Border Protection [2019] FCAFC 20 at [42] (“EVS17”).
Mr Bui made no submissions as to the materiality of the failure to provide the digital photograph.
Here, it is apparent that the IAA was aware that it did not have Annexure A (the digital photograph). The IAA states at [22]:
…The recording of the first delegate’s interview appeared to indicate the first applicant showed the first delegate a photograph or photographs on his telephone. However, no photographs appearing to depict police officers were in the review material and the first delegate did not describe what the photograph or photographs she was shown depicted. In those circumstances, I accept the first applicant showed the first delegate a photograph or photographs of the Vietnamese police with another person or persons at a home. However, I do not accept that photograph or photographs is evidence of the Vietnamese police coming to see the first applicant’s mother to ask questions about the first applicant.
The Court accepts that the threshold of materiality is lower in pt.7AA reviews (EVS17 at [42]). However, taking into account the applicant’s claims and the IAA’s reasons as a whole, the Court is satisfied that the breach of s.473CB(1)(b) did not vitiate the IAA’s decision here. The IAA accepted that the photograph “depicted the police coming to a home”. That is all that the photograph (Annexure A) depicted. Accordingly, the Court is satisfied that the failure to provide the photograph (Annexure A) could not have affected the outcome of the review as a whole. The IAA accepted that the photograph that was shown to the delegate depicted exactly what is depicted in Annexure A.
Accordingly, the breach in s.473CB(1)(b) of the Act did not result in any jurisdictional error.
For finality, the Court notes that Annexure B (a screen shot of the first applicant’s Facebook page) was not before the IAA or the delegate. There is no evidence that the delegate accessed the first applicant’s Facebook page. The delegate does not indicate that he accessed the first applicant’s Facebook page. The fact that the first applicant believes that the Minister’s Department may have done so is simply not enough to establish this on review. The fact that the delegate may have asked for permission to do so is not enough. The delegate clearly stated that the first applicant did not provide “documentary evidence” to support the assertion that his Facebook page contains images of him engaging in political activities. On that basis, Annexure B is irrelevant on review.
The Extra Ground as articulated is, accordingly, dismissed.
Conclusion
The Court has endeavoured to address what were often confusing written and oral submissions and the numerous grounds that went well beyond anything raised in the application for judicial review. Overall, the Court is not satisfied that any jurisdictional error has been identified in any of the extensive materials filed by the applicants.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and eighty-one (181) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 16 September 2020
CORRECTIONS
Paragraph 147, line 5 – delete name.
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