CVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1990
•19 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1990
File number(s): PEG 181 of 2020 Judgment of: JUDGE VASTA Date of judgment: 19 July 2021 Catchwords: MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed Legislation: Migration Act 1958 (Cth): s 473DD Cases cited: BEL16 v the Minister for Home Affairs [2019] FCA 1678 Number of paragraphs: 46 Date of last submission/s: 19 July 2021 Date of hearing: 19 July 2021 Place: Brisbane Counsel for the Applicants: Mr Jones Counsel for the Respondents: Ms Oliver ORDERS
PEG 181 of 2020 BETWEEN: CVT20
First Applicant
CVU20
Second Applicant
CVW20
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
19 JULY 2021
THE COURT ORDERS:
1.That the Applications filed 12 June 2020 and amended on 15 June 2021 are dismissed.
2.That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.
IT IS NOTED:
A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
REASONS FOR JUDGMENT
(Ex tempore)JUDGE VASTA
On 18 May 2020, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicants, CVT20, CVU20 and CVW20, protection visas. On 12 June 2020, the Applicants asked this Court to review that decision.
The main Applicant, CVT20, is a citizen of Vietnam. She arrived in Australia on 13 July 2013 as an unauthorised maritime arrival. She had travelled to Australia with her brother and their niece. Their niece is CVU20. On 31 August 2013, the Applicant gave birth to a son, meaning that she was seven to eight months pregnant at the time of her arrival. That son is CVW20. The second and third Applicants have no true claims of their own, but rely upon the claims of CVT20; therefore, when talking about the Applicant in this matter, I will be talking about CVT20.
The chronology of the matter is as follows. The Applicant was interviewed soon after her arrival in this country. The Applicant ended up making a claim for protection in 2017. The Delegate heard the matter and made a decision not to grant the protection visas. That decision was then reviewed by the IAA. That authority affirmed the decision of the Delegate. The Applicant asked this Court to review the matter.
On 9 April 2020, I remitted the matter back to the IAA, differently constituted, so that a proper review could be made. The remittal was made by consent because, as I will touch on, the first IAA reviewer had regard to material which was the entry interview of the brother. That entry interview was not before the Delegate when the Delegate's decision was made. Therefore, the IAA needed to consider the requirements of s 473DD of the Migration Act 1958 (Cth) (“the Act”), and because the IAA had not undertaken such consideration, a jurisdictional error had occurred and so Writs were issued.
In this review, the IAA ensured that the Applicant was cognisant of all the material that it had, and also had regard to further submissions that were made. In summary, the IAA said that the Applicant’s claims were as follows :
·She is a citizen of Vietnam of Kinh ethnicity and of the Catholic religion;
·She has suffered mental health issues, particularly depression as a result of the harm she experienced in Vietnam;
·She was married in January 2013 and had been in a relationship with her eventual husband for about two to three years before that;
·That before they were married, the husband worked as a welder and he would gamble and drink;
·Once they were married, the Applicant and the husband moved into his parents' house and he stopped working. He was drinking, gambling and socialising with gangsters every day; that he lost his money, because of his gambling addiction and that he would often come home drunk, asking the Applicant for money and she would refuse;
·That, a few days after their wedding day, the husband lost all of his money gambling. The Applicant refused to give him money and the husband became violent; that he pushed her into a bedroom, held her by the throat, held a knife to her throat and threatened to kill her. She then gave him money and he went out to gamble;
·That she then returned to her parents' home, but he came to take her away, and he smashed objects in the house and harassed and threatened to kill her parents. That, over a period of six months, he was violent to her, returning home, assaulting her, demanding money from her, threatening her, sexually abusing her, and raping her.;
·That his family were also physically and emotionally abusive towards her; that his family would force her to serve them from morning to night, and if they were not pleased with her work, then they would beat her; that they would often lock her in a room and would regularly swear and yell at her;
·That, after two months, she moved back with her parents. The husband was still physically and verbally abusive during that time. That, on an occasion, the Applicant received a note to attend the local police station because of her involvement in a protest.
·Her husband had persons over to his house that were drinking alcohol and that the husband treated the Applicant like an animal and allowed his friends to rape her. She escaped to her mother's house in a lot of pain and that she was about six or seven months pregnant at this time.
·She has not had any contact with her husband since she left Vietnam, but that he knows that she is in Australia because the police alerted him;
·The police attended his parents' homes a few time and that the first time they arrived, they asked about her location. The second time they attended, they advised the husband that they believed that the Applicant had left for Australia and they wanted her to report to the police station. She said that she was not sure why the police were looking for her, and that the police attended her parents' home and asked about her location, but her parents told the police they did not know;
·Her husband would be furious because she had taken the child, the unborn child – that child being now nearly eight, to Australia;
·That after the data breach in 2014, the Vietnamese police were notified that the Applicant had arrived in Australia, and the police went to the husband's family home on several occasions requesting that the husband attend the local police station. The Applicant believes that the police wanted to speak with her to discuss the fact that she was in Australia;
·She is not sure whether the husband ever attended the police station, but she does know that her husband became angry over this because he went to her parents' home with some of his gangster friends, and they smashed objects and beat her father.
·The husband held a knife and threatened to kill the parents, and specifically threatened that if the Applicant were to return to Vietnam that they would kill her and her son. The mother called the Vietnamese police and they left, and her father had a number of injuries and experienced pain;
·The Applicant claims that if she returns to Vietnam, the husband will find her and kill both her and the son and that the husband's family will harm her, and that they would search for if she would return;
·The husband is close friends with people in the Vietnamese police service and that it is very easy to bribe government authorities in Vietnam, and that the husband would be prepared to bribe current government authorities if it meant locating her;
·After the data breach occurred, Vietnamese authorities attended Darwin Detention Centre looking to speak with those who had left with Vietnam, but did not speak with her because she said she was afraid to meet them;
·She was politically active in Vietnam, that she participated in a protest which was against the Chinese Government, who prohibited the local Vietnamese fishermen from fishing in Vietnamese waters, and that this protest occurred in June 2013. She participated in the organisation of the protest by reaching out and asking local fishermen to join in the protest. The Vietnamese police were alerted to the protest and arrested people who were protesting on the day, and that many of the local fishermen told the police that the Applicant was involved in the organisation of the protest;
·The police then sent her an unofficial small note to attend the police station and she did not attend the police station because she was scared of being arrested and beaten because of her involvement;
·That if she goes back to Vietnam, she would not be able to support herself and her child because she is a single mother, and that the only way for her to survive and look after her son would be to live with her family. She would not be able to work and look after her child at the same time. She believes she will be arrested and beaten because of her involvement in the protest and for leaving Vietnam. She would be accused of betraying the country by the police and government officials, and she would not be treated the same as other Vietnamese citizens. She would be looked down upon by her community for having left Vietnam in the first place and would struggle to find work;
·She is unable to rely on the police for protection. She did report to the police the physical and emotional abuse of her husband. She did this when she was two to three months pregnant. The police told her that it was a family matter and that she had to resolve it herself. That particular police officer was friends with her husband, and that police officer told her husband that she had reported him. Her husband paid him money not to do anything in the future and the report to the police made the husband very angry to the point that the husband then beat the Applicant so severely that she began bleeding;
·She went to the hospital, and the doctors said that there was internal bleeding inside her uterus. They gave her medication and then released her from hospital, advising her to go home and rest. Her husband was still violent towards her and continued to abuse her both physically and verbally.
·She cannot relocate due to village registration requirements and that it would be very easy for her husband, his family, Vietnamese police, and government officials to locate her via the local village registries. Her husband also has relatives located throughout Vietnam in several villages who would notify him of her whereabouts.
The IAA did assess the claims. The IAA looked at the arrival interview of the Applicant. The IAA said that they were conscious that reliance on arrival interviews should be approached with caution, given the particular context of these interviews, their proximity to a person's journey to Australia by boat, and the need to weigh them reasonably, particularly in relation to inconsistencies and omissions. The Applicant, though, the IAA noted, had been told and advised of the importance of answering questions and providing true and correct answers to the questions asked, and that if the information she gave at any future interview was different from the information provided that it could raise doubts about the reliability of her evidence.
The IAA noted that there were three sources of information; firstly, the arrival interview; secondly, a statutory declaration that was part of her visa application; and, thirdly, the interview that the Delegate had with the Applicant.
The IAA noted that the Applicant was asked specific questions during the arrival interview about the family and herself, and what sort of political profile they had in Vietnam. She did not make any claim of any sort that there was any problem with her and the government. Instead, when asked why it was that she came to Australia, she simply said that she and her mother-in-law did not get on and that her mother-in-law was continually verbally abusing her, and that this was because the mother-in-law did not ever want her to marry her husband.
The IAA looked at the aspect with regard to the Applicant’s political activity in Vietnam and ultimately said at paragraph 45:
[45]…Considering the totality of evidence before me, I am not satisfied and do not accept the Applicant, her brothers, or any other family members were involved in the political protests in June 2013, or at any other time. I am not satisfied and do not accept the Applicant's brothers were beaten, detained, or bailed, or that one of her brothers was killed in connection with the protests. It follows I do not accept that the police sent her an informal note to attend the station. I am not satisfied do not accept the police have made any inquiries about the Applicant, her brothers, or her family in connection with the protests, whether during the time they were in Vietnam, or subsequent to their departure. I am left with no uncertainty that these claims are fabrications, designed to suggest the Applicant has a political profile and would be at a chance or risk of harm on return. In view of the assessment above, this is a profile I am satisfied she does not have.
The IAA then looked at the claims related to her husband and his family. Again, the IAA looked at what the Applicant had said about the mother-in-law during the arrival interview, but noted that, in the statutory declaration that was the basis of her visa application, she claimed to have faced a six-month period of serious verbal, emotional, physical, and sexual abuse at the hands of her husband; and that she had been abused, threatened and detained at the home of her in-laws and forced into servitude.
The IAA noted that the main claim was that she was hospitalised from an attack on her husband, and that there was a violent attack and gang rape committed upon her at the direction of the husband.
The IAA looked at a number of factors - firstly, the entry interview; secondly, the timing of the attack upon her relating to the notice from the police, though the IAA had already found that there was no note from the police; thirdly, that the timeline does not seem to fit; and finally, other aspects of her evidence about her husband and the relationship she had with him.
The IAA said at paragraphs 59 and 60:
[59]…However, I also identified a number of serious issues within her evidence across time. I do not consider these considerations and sensitivities explain or outweigh what I consider to be significant omissions, inconsistencies, and variances in her evidence across the duration of this application. When all of these factors are considered together, I am satisfied they reveal an account that is not credible or genuine.
[60] I do consider there is likely a through line or some truth to her claims. I consider that her life at her husband's family home may have been as she initially described in the arrival interview, and that she faced emotional and verbal abuse from her mother-in-law, who did not approve of the Applicant, or the fact that she became pregnant prior to the marriage. I consider it plausible the Applicant left the household as she contends a couple of months after the marriage. I do not discount the seriousness of that abuse, but I am not satisfied it was serious harm, nor do I consider the Applicant had any intention to return to her husband’s family home, or that she was at any risk or chance of serious harm once she left that home.
The IAA looked at a number of other aspects of her returning to Vietnam and accepted that there would be challenges on her return, but was not satisfied that she, her niece, or her son would be vulnerable to stigma, discrimination, or harm on return to Vietnam. The IAA then looked at the claims related to the political activity in Australia and also looked at a number of aspects of country information. The IAA said, at paragraph 80:
[80] At most, I believe she will be active in her community, supporting refugees and other members of Vietnamese civil society. While I am satisfied she holds some progressive views, the Applicant has not satisfied me she would express her views in protests or in any other politically activist way, or at least not in a way I consider would give rise to an adverse profile that would put her at risk from Vietnamese authorities…
The IAA looked at the Applicant’s religion, ethnicity, and departure and was satisfied that the Applicant had no fears on return to Vietnam on those bases. The IAA looked at the data breach, her departure, being an illegal departure and other related matters, and found that they were not satisfied that this, or any repercussions from this, would in any way amount to serious harm.
For those reasons, the IAA, having assessed the refugee criteria, found that the Applicant did not satisfy the IAA of meeting the criteria.
The IAA then went through the complementary protection criteria and found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Vietnam, that there was a real risk that the Applicants would suffer significant harm.
There are two grounds to this application. They are:
1.The IAA acted in a legally unreasonable way in failing to consider whether to interview the Applicant in relation to her allegations of assault, pursuant to its powers in s. 473DC(3) of the Act. This constituted a jurisdictional error.
2.The IAA acted in a legally unreasonable way and/or irrationally and/or illogically in concluding that the Applicant's claims to have been subject [sic] to physical and sexual assault at the hands of her husband should be rejected. This constituted jurisdictional error.
Ground two was the ground that was concentrated upon during the hearing of this matter, and it is the ground that I will deal with first. The claim of the Applicant is really contained in the statutory declaration that the Applicant made.
In that document, she said that she was married to the husband in January 2013 and that he had started becoming violent to her a few days after the wedding day; that she had run away to her parents’ home after the first episode of violence and that he came to her parents' home, took her away and smashed objects in her parents' house; and that, when they arrived home, he assaulted her again.
She then detailed that there were other occasions when he would come home drunk and wanted to have sex, and if she refused, he would hit her; that he wanted to do specific sexual things and threatened to hit her again if she did not do them; that she said that she had been living with his parents for two months after they married, and then she moved back to her parents' home for the remaining four months.
She said at paragraph 19 of her statutory declaration:
[19] Another specific incident includes one that occurred a few days after I had received a note from the Police to attend the Police station because of my involvement in the organisation of the protest (which is detailed below). My husband organised a party and invited his friends over to his family's home. They were all drinking alcohol. My husband treated me like an animal and allowed his friends to rape me. I can't remember how many people did this to me. After a while, I managed to escape to my mum's house. I was in a lot of pain. I was also approximately 6/7 months pregnant by this stage.
[20] I have not had any contact with him since I left Vietnam. He knows that I am in Australia because the police had alerted him. The police had attended his parents' home a few times and the first time they arrived, they asked about my location.
She then said later in her statutory declaration, “I do know that my husband became very angry over this…” - the fact that the police had told him that she was in Australia, and then:
[22] … as he had gone to my parents’ home with some of his gangster friends. They smashed objects in their home, beat my father and my husband held a knife and threatened to kill my parents. They also specifically threatened that if I were to return to Vietnam that they would kill both myself and my son. My mother called the Vietnamese police and that is when my husband and his gangster friends left. My father received several bruises on his face and experienced severe pain across his body.
I lived with my husband’s family for 2 months after I married [name redacted]. His family were both physically and emotionally abusive towards me. His family would force me to serve them from morning to night and if they were not pleased with my work then they would beat me. They would often lock me in a room and would regularly swear and yell at me. On a few occasions, I would escape my husband's family’s home and would run away to my parents’ home. At times, they would find me and they would force me to return to their home.
A specific example of their abusive nature includes when my husband's family found out that the Police had sent me a note requesting to attend the police station because of my involvement in the organisation of the protest. I went to stay at my parents' home and his family forced me to return to their home. When I did, they then beat me and locked me in the room.
I believe that if I return to Vietnam that my husband’s family will look for me and seek revenge because I had moved to Australia and taken their grandchild with me. I have not had any contact with any of his family since I left Vietnam…
[23] I am unable to rely on the Vietnamese government for protection from my physically and emotionally abusive husband and family. Also, I am unable to rely on the Vietnamese government for protection from the Vietnamese Police on account of my participation in the organisation of the protest against the Chinese government prohibiting local fisherman from fishing in Vietnamese waters.
When I was about 2 or 3 months pregnant, I tried to seek help from the Police and reported that my husband had been physically and emotionally abusive towards me. I gave examples of the times where he had beat me and locked me in a room. The police officer told me that it was a family matter and that I had to resolve it myself. The police officer did not do anything to help me because he was friends with my husband. The police officer told my husband that I had reported him and my husband paid him money to not do anything in the future. The fact that I had reported my husband made him very angry. He beat so severely that I began bleeding. I was about 2 or 3 months pregnant at this stage. I went to hospital to make sure everything was okay with the baby. The doctors told me there was internal bleeding inside the uterus and they gave me some medication. They then released me from hospital and advised that I go home and rest. My husband was still violent towards me and continued to abuse me both physically and verbally.
As can be seen from my recitation, the statutory declaration did not coordinate and tabulate the claims she was making against her husband, and that they were scattered well and truly throughout the statutory declaration. The Applicant complains that there were a number of areas in which the IAA said that they had concerns about the state of what it is that the Applicant had said. The Applicant’s main contention here is that if one goes to each and every one of those matters, that they, in themselves, could not support the conclusion that the IAA came to, which was in effect, that they were not satisfied that these claims were credible.
At paragraph 50 of the reasons, the IAA said:
[50] These are not easy claims to assess…
Significantly, the Applicant says that by making this admission, the IAA are saying that there must be doubts about these claims, and if they had doubts they should have looked at what the alternative was. That is, if they had doubts about whether these matters had in fact occurred, they should have looked at the alternative as being, “well, let us suppose that those matters did occur as they say”, and this would have led to the criteria for refugee status as having been satisfied. But the IAA did not do that, and so therefore, this is the first jurisdictional error of that they have made.
The second jurisdictional error is that the IAA said this at paragraph 51:
[51] Firstly, I again give weight to the Applicant's failure to specifically raise these claims in her entry interview. I accept the subject matter of these claims would potentially be difficult to discuss, however, she did not detail claims to have faced violence or abuse from her husband in any respect. What she did detail was the emotional and verbal abuse from her mother-in-law and explained the catalyst for her animosity towards the Applicant. I find the fact that she did not specifically mention her husband in this context, or refer generally to facing abuse from him, or even refer to his claimed gambling and drinking, raises serious questions about the genuineness of these claims.
The Applicant says that reliance upon the arrival interview could never have been sufficient to reject the Applicant's claims. The Applicant says that the IAA had earlier spoken of the need to exercise caution when looking at matters that were said, or omissions made, in entry interviews. However, the Applicant says that one need only look at paragraph 51 to see that the IAA has, in fact, ignored their own caveat.
The second matter is in paragraph 52, where the IAA said:
[52] Second, in terms her claim that she was raped by the Applicant and his friends in June 2013, I note that I have not accepted she was involved in any political protests, in June 2013 or otherwise. It follows that I do not accept she received any notice from the police, or that her husband was visited by the police about her involvement, therefore I do not accept that this was a catalyst for her husband to detain her, and subject her to gang rape with his friends sometime in June 2013 (after the protest).
The Applicant points to the evidence in the statutory declaration in that it does not link the notice from the police to that attack, other than providing a temporal particular so that one could give some context as to when this happened. There was nothing in the statutory declaration that talked about the husband being visited by police about her involvement. It is true that those things are not in the statutory declaration. All that is said in the statutory declaration is that the family, once they had heard that the Applicant had been given a note, forced her to return from her family's home to their home, and they beat her and locked her in the room.
The problem that I have with this is that there is obviously, or has obviously, been some discussion of this incident in the interview with the Delegate. Having a look at the Delegate’s decision gives the Court nothing by which to understand how the Delegate dealt with this matter. All the Delegate’s decision does, is note that the gang rape was an allegation that the Applicant had made and that the Delegate made a finding that the Applicant had not been subjected to domestic violence, such that she came to Australia to escape it. There is a dearth of information with regard to this aspect, to what else was said at the interview, but given the thoroughness with which the IAA reviewer has looked at these matters, it would seem strange that the IAA reviewer would say as they have said, that her husband was visited by the police and that this was a catalyst for her husband to detain her unless there was something that was said.
The Applicant has not put anything before me to indicate that there was nothing of this nature said during the interview, but has said that I should simply infer that if it is not in the statutory declaration and therefore, I should infer that it was not said at the interview.
I cannot accept this because the IAA’s reasons are littered with other instances; maybe not involving this particular subject, where the Applicant has said something quite different or expanded upon what she has said in her statutory declaration during the interview. As I said, it is for the Applicant to show to me that there was no evidence at all adduced for the IAA to have been able to say that her claim was that her husband was visited by the police about her involvement and therefore, this was the catalyst for the husband to detain her.
In any event, that is another issue that the Applicant has raised about this finding, or finding of non-satisfaction.
At paragraph 53, the IAA had said:
[53] Thirdly, putting to one side any notice or visit from the police, I also consider her timeline of the specific claims relating to the gang rape is at odds with her other evidence. In her written statement, she claims she left her husband's family household around two months after the wedding (circa March 2013), after which she started to live with her own family. The Applicant had given quite clear evidence that she was not living with her husband and in-laws at that time. In any event, I would find it difficult to accept that she would have returned to their household after the attack she claimed hospitalised her in early 2013…
That last statement that the IAA “would find it difficult to accept that the Applicant would have returned to the household after her husband had hospitalised her”, is a matter where the Applicant says that such a finding has no logical basis. The Applicant submits that this is a set of circumstances that is certainly within the realms of common experience as to how persons who are subjected to domestic violence do end up acting. On this basis, the Applicant claims that illogicality is something that strikes at the heart of the finding of non-satisfaction.
The next matter is that the IAA spoke of the inconsistencies that the Applicant spoke of as far as her husband was concerned. From paragraphs 55, the IAA said this:
[55] The Applicant’s evidence in this visa interview about her husband, the inception of their relationship and marriage, her husband’s family and friendship circles was limited and superficial. When the delegate asked her to tell him about her husband, she could not answer and suggested the delegate ask her more specific questions. She confirmed at the time she married him she loved him, but when asked why she loved him, she could not elaborate. When asked where he studied, she could not remember. She provided only very superficial details about his family and friends stating she did not pay much attention to those things. It appears the Applicant was only in Vietnam for around six months after her marriage. Given that short duration, it is perhaps understandable that her knowledge of her husband would be limited. However, it was also her evidence that they had been in a relationship for around two years previously. In that context, I found her evidence about her husband lacked convincing detail.
[56] Further to this, her evidence about her communications with her husband since her departure were also inconsistent in key respects. In her written statement, the Applicant said she had not had any contact with her husband since she left Vietnam. She claimed that after the breach of Departmental systems, her husband was contacted by the police. She claims her husband went to her parents' house with some gangster friends. She claimed they smashed objects, beat her father and threatened them and that they would harm the Applicant and her child.
[57] At the interview, she was asked whether her husband had contacted her family. She paused for some time before confirming that he had not. The delegate then put to the Applicant that she was friends with her husband on Facebook. She initially claimed they were not friends, but later revised that evidence. In the post interview submission, her evidence shifted. She claimed that she had been Facebook friends with her husband since before she was married, and that she stayed Facebook friends with him. She claimed he had threatened her in messages and phone calls through Messenger, throughout the duration of her stay in Australia, since around August 2013. She claimed for the first time that he had stated that if she does not keep in contact with him, he will harm her parents. He has also demanded she post photos of her son. This is why she has remained friends with him.
[58] On one level, I am concerned that the Applicant would remain in any form of contact with her husband, given her claims of past violence and sexual violence, and his threats to harm and kill her and her son. However, I also understand that persons can remain in communication in such relationships out of fear of further harm. What I find more concerning are the shifts in her evidence. She gave clear evidence that she had not been contacted by her husband since she arrived in Australia. In her claim, she did not detail ongoing threats made against her by her husband or indicate the threats continued since she had been here. When asked at the interview, she initially denied they were friends on Facebook. I am not satisfied of her explanations of variations in her evidence.
[59] I acknowledge that aspects of her accounts are broadly consistent with country information about the barriers faced by victims of domestic violence in Vietnam. Also at the forefront of my mind in this assessment are the difficulties faced by victims in raising claims such as this, and the stigma they fear they may prevent them from putting forward their experiences. However, I have also identified a number of serious issues within her evidence across time. I do not consider these considerations and sensitivities explain or outweigh what I consider to be significant omissions, inconsistencies, and variances in her evidence across the duration of this application. When all of these factors are considered together, I am satisfied they reveal an account that is not credible or genuine.
The Applicant claimed that this was something that was different to the decision that the Delegate had made. The Applicant said the fundamental difficulty with this finding is that the IAA did not explain why the absence of these details was relevant to its assessment of the Applicant's credibility. The Applicant submitted that the IAA did not appear to have concluded that the Applicant had not been married, or she had not been married to her husband and therefore, there was no explanation as to why this lack of detail was relevant. The Applicant referred to BEL16 v the Minister for Home Affairs [2019] FCA 1678 and spoke of what Beach J said at paragraph 20 regarding identifying supposed “inconsistencies or discrepancies in the evidence” without regard to the “peripherality” of those matters to the core issues in dispute.
The next aspect was that the Applicant and her husband remained Facebook friends and that this was likely an indication that they were not in conflict. The Applicant submitted that this was a bizarre statement and that there was no proper basis for it, and that many people can become Facebook friends with those they are in conflict; therefore, that particular statement was an unreasonable conclusion.
So therefore, in looking at all of these particular aspects, the Applicant submits that none of them could support the finding that the IAA had made, that they were not satisfied that these claims regarding the husband and his family were genuine claims.
To my mind, the problem with the approach of the Applicant here is that it has concentrated on each of these aspects seriatim, and looked at whether they, themselves, would be sufficient to support the conclusion. The manner in which the IAA has properly looked at this is in the same way that juries are told to look at circumstantial evidence. That is, if one imagines a rope, a strand may not be sufficient to hold a weight, but many strands together can combine and, when twisted into twine, are sufficient to carry the weight.
When I look at these aspects, it is clear to me that firstly, the IAA’s statement at paragraph 50 of their reasons is not a statement that they have any doubt. The IAA has said in that same paragraph, that they consider that a full analysis of the evidence before the IAA strongly undermines any confidence the IAA could have in the truth of these claims. That does not display any doubt, simply that the task undertaken by the IAA was not an easy one.
The corollary of that is that there are many tasks that Judges are asked to complete, and judgments that are made that are not easy, but that does not mean that there is any doubt by the particular Judge in the conclusion that the Judge has reached simply because they have remarked that the process was not easy.
The arrival interview is a matter where one does have to be very careful and use caution in relying upon the omissions. But it is not solely that the Applicant omitted to make any reference to the abuse by the husband. It is that the concentration by the Applicant was on the relationship she had with the mother-in-law; no other member of the family, and certainly not the husband. That is not an unreasonable matter for the IAA to look at when assessing the claim itself. It is a matter that can assume some weight when one looks at it with the other matters.
The next matter, as I have already said, is that the IAA has identified that the evidence was that the Applicant was claiming that her husband was visited by the police about her involvement in a protest, and that this somehow was a catalyst for her husband to detain her. Whilst that may not be in the statutory declaration, it has not been shown to me that I can safely infer that it simply was not mentioned at all during the interview with the Delegate, such that the very thorough IAA reviewer has simply got it totally wrong and, in fact, created some evidence where there is simply no evidence.
If it is that there was such evidence that this somehow was some form of catalyst, or even retaliation, for her being involved in a protest, and it is that the IAA finds that she was not involved in a protest, that is something that certainly also can undermine the credibility. It is also instructive that the Applicant had said in her statutory declaration that there was retaliation for the Applicant coming to the notice of police, in that she was forcibly removed from her parents' house and taken to her husband's house where she was beaten and locked in a room.
The next matter is the timeline. The timeline is difficult to reconcile because the Applicant does talk about, in the first two months, leaving the husband and going to her family (the first time being some days after the wedding), and her husband forcibly bringing her back to the house. But she then says that she left after two months and lived with her parents from that time on. The IAA has said that the Applicant gave quite clear evidence that she was not living with her husband and in-laws at that time, that is, after March 2013, when she left the husband's family household. Yet, the Applicant talks of her husband taking her from her house and returning her to the husband's house. None of that seems to make sense within a chronological structure. It is a matter that the IAA certainly could take into account.
The matters where the IAA had spoken of the fact that the wife knew very little of the husband, notwithstanding they had been going out for some two or three years before they were married, and that they had been married for six months, is certainly something that can be taken into consideration, given that the Applicant is speaking of, in effect, a regime of terror that she undertook for six months, two of which she lived with the husband and the other four where she was living at her home. But this person, who is in effect terrorising her, she knows very little about. It is certainly something that the IAA can take into consideration. It does not mean that it is totally irrelevant, but the degree of relevance, or the amount of weight is certainly something that the IAA can take into consideration.
The Facebook aspect can be used exactly the same way. Whilst it may be that there are plenty of people who do remain Facebook friends with someone with whom they are in conflict, one looks at what it is that the Applicant has said. She has said that she had not had contact with the husband, and she was then specifically asked whether her husband had contacted her family, and then she said that he had not. The Delegate asked the Applicant whether she was friends with her husband on Facebook and she said they were not. After the interview had happened, but before the Delegate gave the decision, there was a submission sent saying that the Applicant had been Facebook friends with her husband since before she was married. There may be a number of reasons as to why they remained Facebook friends, but the fact that there had been inconsistencies and/or untruths about the status of communication, and of whether they were actually even Facebook friends, is a matter that the IAA can take into account.
So when it is that the IAA end up coming to the conclusion that they are satisfied that the Applicant has given an account that is not credible or genuine, it is not just because of the arrival interview. It is not just because of what has happened with regard to the information given by the police to the husband, or the receiving of the note. It is not just because of the timeline. It is not just because the Applicant has no real knowledge of details of her husband, it is not just because she told fibs about Facebook, or fibs about the contact that they had had.
It is, when one looks at all of those matters together, that they do form the rope that has allowed the IAA to come to the conclusion that they made in the last sentence of paragraph 59 of their reasons. That conclusion is a conclusion that is open to them and therefore, it is not unreasonable. For those reasons, ground 2 fails.
Ground one revolves around the decision that the Applicant says the IAA made to at least consider whether the Applicant should be interviewed before her claims were rejected. There is no doubt that the IAA has power pursuant to s 473DC of the Act to get new information with regard to matters that are before it. The IAA should, in particular circumstances, do that, and there are those very rare occasions where, if the IAA does not even consider whether the Applicant should be interviewed, that such a decision could be considered unreasonable and therefore in turn, lead to a jurisdictional error; but this is not such a matter.
The Applicant submits that the findings that the IAA ended up coming to may have been able to be explained by the Applicant, but the IAA should have given thought to the extent that she may have been a vulnerable person. She was pregnant at the time she was interviewed during the arrival interview; that during the arrival interview, there may well have been very good reasons why she did not want to make disclosures; that when she was being interviewed by the Delegate, that the Delegate is a man and therefore, the Applicant may have felt somewhat uncomfortable in talking to a man about these matters; that the Vietnamese interpreter may have been a man as well, we simply do not know, but that is something that should have been looked at by the IAA in deciding whether or not the Applicant should be interviewed, and any of the other inconsistencies could have been at least explained by the Applicant if it were that she had been given a chance to be interviewed.
This argument falls flat when one looks at the history of the matter. As I noted before, I had made the decision to remit the matter back to the IAA because the previous IAA had considered the interview of the brother, without having first turned their mind to whether or not, pursuant to s 473DD of the Act, they should have received that as new information because it was not before the Delegate. Given that matter, the IAA was very cognizant of ensuring that the Applicant knew exactly what matters were before the IAA.
From paragraph 14, the IAA stated:
[14] I note that the basis of the remittal (by consent) of this matter to the IAA by the Federal Circuit Court was the previous IAA's consideration of a record of arrival interview for the first named Applicant's brother [redacted], which it appears, was not before the delegate when the delegate's decision was made. The error lay in the IAA's consideration of that information about first considering the requirements of s.473DD of the Act.
[15] In reviewing the information for the IAA, I consider the information in the first named Applicant's arrival interview, and the arrival interview of her brother [redacted], were material to this assessment.
[16] Despite the basis of the remittal, I note that the submissions received on 6 April 2020 did not specifically refer to these matters. Accordingly, on 6 April 2020, I wrote to the Applicants and invited their comment in relation to information arising in the records of those two arrival interviews. To avoid any further uncertainty, I invited comment in relation to both her brother's arrival interview as well as her own.
The actual letter that was sent is reproduced at Court Book 776. The matter of her own arrival interview, the IAA noted that:
In an interview before the officer of the Department, on 19 July 2013, you [name redacted] provided some background and your reasons for leaving Vietnam.
Relevantly to this matter, you stated that you left Vietnam because of emotional/verbal abuse from your mother-in-law. You did not state any other reasons for leaving Vietnam.
The letter goes on and talks about the political aspects and also the political aspects in the brother's arrival interview, and then the IAA said that:
…You are invited to give comments on the above information in writing. Your comments must be received by the IAA by 14 May 2020…
If we do not receive your comments by 14 May 2020, we may make a decision on the review about taking any further action to obtain your views on the information.
As the IAA noted at paragraph 17, no specific response was received in relation to that invitation and the IAA went about its decision.
The Applicant submits that the only way to read that particular invitation is that it pertained to the political aspects of the claim of political activity, and concentrated on those aspects of the interview of the Applicant and her brother. However, that is clearly not the case. The invitation clearly spoke about the fact that the Applicant only spoke of the verbal and emotional abuse of the mother-in-law as being the reason that she left Vietnam and nothing else.
Given that this was one of the planks upon which the IAA looked at the circumstantial aspect as to whether to accept or reject this claim, it was clear that the Applicant had been given that that invitation. I do not have to look at whether the IAA should have considered it because it obviously did consider it, and the Applicant declined to respond to that invitation.
It seems to me on the factual matrix that pertains in this matter this ground cannot be sustained. There is no jurisdictional error illustrated, and therefore, this ground also fails.
As these were the only two grounds, the application is dismissed with costs in the sum of $7,467.00.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 3 September 2021
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