DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1954
•23 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1954
File number(s): BRG 707 of 2017 Judgment of: JUDGE JARRETT Date of judgment: 23 August 2021 Catchwords: CITIZENSHIP AND MIGRATION – Migration – review of a decision of IAA – protection visa – whether decision was unreasonable – whether fact finding and credit determinations were illogical or irrational – whether failed to consider integer – dismissed with costs. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 46A, 473CB, 473GB, 477(1), 477(2) Cases cited: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2
DHX17 & Anor v Minister for Immigration & Anor [2018] FCCA 819
DHX17 and Anor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127
Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Number of paragraphs: 86 Date of last submission/s: 3 September 2020 Date of hearing: 3 September 2020 Place: Brisbane Counsel for the Applicants: Mr Jackson Solicitor for the Applicants: Oxford Law Group Solicitor for the Respondents: Sparke Helmore ORDERS
BRG 707 of 2017 BETWEEN: DHX17
First Applicant
DHY17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
23 AUGUST 2021
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The time limited for the commencement of an application for review of the decision of the second respondent made on 6 February, 2017 in respect of the applicants be extended to 24 July, 2017.
3.The applicants be granted leave to amend the application for review in the terms of “Attachment A” to the applicants’ written submissions filed on 1 September, 2020.
4.The application for review amended in the form of “Attachment A” to the applicants’ written submissions filed on 1 September, 2020 be dismissed.
5.The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,737.00
REASONS FOR JUDGMENT
JUDGE JARRETT:
By their application filed on 24 July, 2017 and amended on 25 January, 2018 the applicants seek an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) to apply for judicial review of a decision of the second respondent made on 6 February, 2017 which affirmed a decision of a delegate of the first respondent to refuse the grant of a Safe Haven Enterprise visa to the applicants.
The application was heard and dismissed by another judge of this Court on 28 February, 2018: DHX17 & Anor v Minister for Immigration & Anor [2018] FCCA 819. However, on 24 July, 2020 a Full Federal Court upheld an appeal against that decision and remitted the application to this court for further hearing and determination: DHX17 and Anor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127.
The applicants press the application for an extension of time, seek leave to rely upon an amended application for review and seek the determination in the amended application for review. They ask that all applications be dealt with in a single hearing.
The first respondent opposes the application for an extension of time, but in the event the extension is granted, he does not oppose the applicant relying upon the proposed amended application for review. The first respondent consents to all of the applications being dealt with together and there being a final determination of the amended application for review in the event that the necessary extension of time is granted.
Before considering the applications before the court it is necessary to set out some background. The background is conveniently summarised in the written submissions delivered on behalf the first respondent and with which, it seems, the applicant takes no issue.
BACKGROUND
The first applicant is a citizen of Vietnam. He arrived in Broome on 14 July, 2013 with his younger brother, the second applicant in these proceedings. The first applicant participated in an arrival interview on 19 July, 2013. For the purposes of the Migration Act 1958 (Cth) both were unlawful maritime arrivals.
On 24 October, 2015 the applicant was advised that the bar under s.46A of the Act had been lifted and he was invited to apply for a visa. On 7 April, 2016 the applicants applied for a Safe Haven Enterprise visa. The applicants received assistance through the Primary Application and Information Service to lodge his application.
The applicants were invited to attend an interview with a delegate of the first respondent on 5 October, 2016. Following the interview, the applicants’ migration agent provided written submissions and supporting documentation to the delegate.
The first applicant’s claims were outlined in the statement accompanying his visa application and expanded upon during his interview with the first respondent’s delegate. In summary he claimed that:
(a)he was a Catholic of Kinh ethnicity and Vietnamese nationality;
(b)he did not have the right to freely practice his religion in Vietnam. He witnessed the Vietnamese government suppressing Catholics, including members of his church. He claimed that when he was very young the Vietnamese police destroyed a different Catholic church of which he was a member;
(c)in 2012, he participated in a demonstration in Hanoi. He was arrested by the police, interviewed, and detained for three days before being released without charge;
(d)two months prior to leaving Vietnam, his family’s ancestral land was taken by the local government without payment or compensation. He tried to stop the land being confiscated but was attacked by the police who had been called by the developers. He suffered a broken tendon and a cut on his right hand. The second applicant’s left arm was broken. Whilst at the hospital they were advised that the police were looking for them. They took a bus to Vung Tau because they feared being arrested. They then stayed at the houses of different friends and relatives for six weeks to avoid being found by the police;
(e)both applicants fled by boat to Australia. They have been contacted by their mother who indicated that the police came to her house in search of the applicants. Since their arrival in Australia, the police have hired gangsters to look for them; and
(f)he also feared returning to Vietnam because:
(i)his personal information was released in the 2014 data breach. He also spoke to a Vietnamese delegation when he was in immigration detention and he fears that they will have his personal details;
(ii)he got a tattoo on his forearm which depicts a barcode with the word “Australia” and his boat identification number. The applicant claims that this tattoo will identify him as a person who unsuccessfully sought asylum in Australia; and
(iii)he lost his Vietnamese citizenship because of his illegal departure.
The second applicant did not advance any separate claims for protection but relied upon being a member of the first applicant’s family group.
On 15 November, 2016 the first respondent’s delegate refused to grant the visa to the applicants. On the same date, a different delegate of the first respondent issued a notification under s.473GB of the Act.
On 18 November, 2016 the decision was referred to the second respondent for review under Part 7AA of the Act. The applicant was notified of the referral by letter dated 21 November, 2016.
After conducting a review of the application, on 6 February, 2017 the second respondent affirmed the delegate’s decision to refuse the grant of the visas.
The second respondent’s reasons for decision record that it had regard to the material referred by the Secretary of the first respondent’s Department under s.473CB of the Act and noted that no further information was obtained or received from the applicants.
The second respondent noted that during the arrival interview, the first applicant had not raised any claims in relation to a land dispute or in relation to his family’s land being confiscated by the government. It considered why he might not have raised that at the initial interview but determined that it did not accept that the first applicant’s age, fear of the authorities, or lack of education explained why he had failed to raise the claim relating to the family’s land during the arrival interview. The second respondent accepted that the first applicant may not have been aware of the importance of providing all claims for protection during the arrival interview, but noted that in any event the first applicant’s account of this aspect of his claim had been inconsistent over time. The first applicant had given three different versions of his claim concerning the land acquisition, namely:
(a)in September, 2013 the first applicant told the first respondent delegate that he got into a fight with the Vietnamese authorities, his land was taken by the authorities, and his family applied to the court to receive compensation. While they were waiting for the court to decide the case he got into a fight with the authorities;
(b)in his written claims for protection, the first applicant stated that his family land was taken by a developer and that the developers contacted the police. He got into a fight with the developers and had a broken tendon and a cut to his arm and the second applicant suffered a broken arm. His mother told him that the police had been looking for him since his departure; and
(c)in his interview with the first respondent’s delegate, he said that the fight was with labourers who were digging up the land. He did not raise any claim regarding going to court to receive compensation. He was asked about whether police were present and he said they were present prior to the altercation commencing. He suffered a broken leg and a broken arm and the second applicant was pushed.
Additionally, the second respondent considered it to be material that the first applicant had claimed that police were present during the physical altercation yet they allowed him to leave the scene despite him claiming that they later went to his house to arrest him. The second respondent also noted that during the interview with the delegate, the first applicant had claimed to fear harm from gangsters who were hired by the authorities, yet he was unable to provide an explanation as to why this claim was not included in his written statement. Given the other inconsistencies in the first applicant’s evidence, the second respondent was not willing to give the first applicant the benefit of the doubt in relation to the claim about gangsters.
The second respondent did not accept that the first applicants’ family’s land was forcibly taken away nor did it accept that the applicants were involved in any physical altercation or conflict with any labourers or authorities in relation to the land.
In relation to the first applicant’s claimed involvement in a protest in Hanoi in 2013, the second respondent noted that the first applicant raised this claim in his arrival interview, but not in his visa application. During the interview with the first respondent’s delegate, the first applicant gave evidence that whilst he was detained for three days following the protest, he had not had any difficulties with the authorities on this basis subsequent to his release. Accordingly, the second respondent was not satisfied that the first applicant had a profile with the authorities by reason of his participation in this protest.
The second respondent accepted that the first applicant was a practising Catholic and was satisfied that both applicants, upon return to Vietnam, would continue to practise their faith. The second respondent’s assessment of country information led it to conclude Catholics were able to freely practise their religion in Vietnam provided that they were not perceived as opposing government policy, national security or were not political activists. It was not satisfied that the first applicant had demonstrated any behaviour that would be seen, or perceived to be seen as a threat to the government in relation to his religion, nor was there any evidence that the first applicant would participate in such conduct on his return to Vietnam. The second respondent was satisfied that the applicants were able to return to Vietnam and practise their religion as they had done previously and it was not satisfied that the applicants had modified their behaviour in the past to avoid harm.
The second respondent accepted that the applicants would be returning to Vietnam as failed asylum seekers who had departed Vietnam illegally and that the Vietnamese authorities were aware that the applicants departed illegally through the assistance of a people smuggler. However, it noted that there was no country information before it to support the first applicant’s claim that he would lose his Vietnamese citizenship on this basis and the second respondent did not consider this to be the case. With reference to country information, the second respondent found that the applicants would be viewed as victims of criminal activity and it was satisfied that they may be subject to a brief period of detention for questioning only and would not be required to pay a fine. The second respondent was not satisfied that these circumstances amounted to serious harm.
The second respondent accepted that the applicants were affected by the 2014 data breach and that the Vietnamese authorities may have accessed their personal information. It noted the first applicant’s evidence during the interview with the delegate that he had volunteered to speak with a Vietnamese delegation whilst he was in immigration detention and had told the authorities his name, age and parents’ names. The second respondent found that there was no indication that the information published in the data breach contained any details of the protection claims and that the first applicant had volunteered information to the Vietnamese delegation. The second respondent was thus not satisfied that the first applicant was of any interest to the Vietnamese authorities on the basis of the authorities having the applicants’ personal details.
Finally, the second respondent noted that in the applicants’ post visa interview submission, the first applicant had indicated that he had a tattoo of a barcode with certain identifying numbers and the word “Australia” and pointed out that this information had not been provided earlier. The second respondent accepted that the first applicant had such a tattoo. The second respondent considered that the Vietnamese authorities were already aware that the first applicant was in Australia and had sought asylum and was not satisfied that the first applicant would face serious harm on return as a result.
Accordingly, the second respondent found that the applicants did not meet the requirements of s.36(2)(a) of the Act. In relation to the complementary protection criterion, the second respondent relied on its anterior findings to be satisfied that the applicants would not face a real risk of significant harm in the event that they were returned to Vietnam and in that circumstance, s.36(2)(aa) of the Act was not engaged.
EXTENSION OF TIME
On 24 July, 2017 the applicants filed an application for an extension of time in this Court. The application for judicial review was made 133 days outside of the 35 day limit prescribed by s.477(1) of the Act. Subsection 477(2) of the Act permits the Court to extend time within which to file an application for judicial review if:
(a)an application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The first of these matters is satisfied here. The question is whether it is in the interests of the administration of justice to make the order extending time as sought by the applicants.
The discretion conferred by s.477(2) of the Act is unfettered, once enlivened, but must be exercised judicially. That requires an identification of the relevant factors that might bear upon the exercise of the discretion and weighing those factors. This is a different exercise to determining whether it is necessary in the interests of the administration of justice to make an order extending the time within which the application must be commenced, although the two are inextricably connected.
Ordinarily, the factors relevant to the exercise of the discretion to extend time within which proceedings for review of the second respondent’s decision might be commenced include:
(a)the extent of the delay;
(b)whether there is a reasonable and adequate explanation for the delay;
(c)whether the substantive application is sufficiently arguable to support the application for an extension of time; and
(d)whether there is any prejudice to the respondents.
The proposed substantive application for judicial review should have such prospects of success so as to not render the extension of time an exercise of futility. Those prospects should be assessed at a relatively impressionistic level.
The first respondent identifies no specific prejudice beyond the public interest in the finality of administrative decision making that may flow if an order granting the extension of time is made. On the other hand, in the event that the extension of time is refused, the applicants will be denied the opportunity to agitate the claims that the second respondent’s decision was affected by jurisdictional error. That denial will not work any prejudice to the applicants if the grounds that they wish to agitate have no merit.
Consideration – extension of time
The applicants’ application was filed on 24 July, 2017, nearly four and a half months after the expiry of the relevant time limit. The first applicant has explained that he had difficulty finding a lawyer prepared to assist him to take on his case. He says that he engaged a lawyer to assist with his application for judicial review, but that the lawyer did not answer his calls and did not return the applicant’s documents to him until June, 2017. The first applicant did not sit on his hands. He says that the steps were reasonable.
Be that as it may, there is no right to legal representation and that an applicant might choose not to commence proceedings within a time limit whilst looking for a lawyer to represent him does not explain let alone excuse the failure to observe the time limit. It might well be the applicants’ explanation for the delay but it is not satisfactory. That is especially so when one considers that on the first applicant’s own evidence he was advised by a departmental officer on 12 March, 2017 that if he wished to seek review of the decision, the time in which to do so would expire on 23 March, 2017. The first applicant’s explanation that he did not know that the delegate had refused his application and only received the second respondent’s refusal decision is not to the point. On his own evidence he knew that the second respondent had refused his application and that there was a time limit in respect of any review of that decision.
The first applicant’s explanation for the delay in commencing the application for review is unsatisfactory and unconvincing. It does not weigh in favour of the grant the extension of time.
Usually of central significance to an application to extend time is the merit of the grounds of review sought to be pursued if the extension is granted. In the present case, the applicants have filed an application and have already amended that application once. They now seek to abandon the amended application filed on 25 January, 2018 and rely upon a further amended application, in respect of which they now seek leave. The further amended application proposes to retain one ground from the amended application and abandons the remaining three. One new ground is added.
To determine whether to grant the applicants leave to rely upon the further amended application, it is necessary to form some impression about the grounds that the applicants wish to pursue. There is no point committing an applicant to amend an application for review to add a ground that has no prospect of success.
I have come to the conclusion that the grounds that the applicant now wishes to pursue have some merit at an impressionistic level. I do not intend to set out a more expansive recitation of my reasons for that view given that, having reached that conclusion, I am otherwise minded to grant the extension and accordingly, a more fulsome consideration of the grounds is required.
As to the extension of time, I am satisfied that it is in the interests of the administration of justice to grant the extension notwithstanding that there is no proper explanation for the delay in commencing the proceedings. I have identified the prejudice to each party above contingent upon the outcome of the extension application. The merits of the proposed grounds assessed at an impressionistic level, favour the grant of the extension.
Having regard to those matters I conclude that it is in the interests of the administration of justice to grant the application for the extension of time within which to commence these proceedings. There will be an order to that effect.
There will also be an order granting the applicant leave to file and rely upon a further amended application for review in the form of “Attachment A” to the applicants’ written submissions filed on 1 September, 2020.
THE FURTHER AMENDED APPLICATION FOR REVIEW
Ground 1
The first ground of the further amended application for review is in the following terms (errors in the original):
Ground one
The Decision of the Second Respondent is affected by jurisdictional error in that it waas unreasonable, irrational, or illogical
Particulars
1.1 The Second Respondents’s conclusions at [18] – [20] regarding purported inconsistencies in the first applicant’s evidence about the land dispute were not supported by probative evidence; there was no logical connection between the evidence and the inferences or conclusions drawn by the IAA.
Relying upon Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135], DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [56], counsel for the applicants submits that the second respondent’s rejection of the first applicant’s claims about his family’s land was unreasonable, irrational or illogical because the “inconsistencies” upon which the second respondent relied to reject this claim were illusory. He argued that there was “no logical connection between the evidence and the inferences or conclusions drawn by the IAA”.
The applicants’ submissions do not grapple with the distinction between the unreasonableness of a decision or a conclusion on the one hand and irrationality or illogicality in fact finding on the other. Leaving that to one side, however, the conclusion that is sought to be impeached by this ground is to be found at [20] of the second respondent’s decision. The paragraphs relevant to his ground of review are in the following terms:
18. During the SHEV interview, the applicant provided a different account. He stated the fight was with the labourers who were digging up his land. He did not raise any claims relating to his family appealing to the court or that the police were present which he had initially raised. The delegate asked him about whether police were present and he stated that they were present prior to the altercation commencing. His earlier evidence provided in his written claims indicated that it was the labourers who had contacted the police. He also stated he suffered from a broken arm and leg after the altercation and that the second applicant was pushed. In his written claims he stated that he had suffered a broken tendon and a cut on his hand and the second applicant had suffered from a broken arm.
19. In addition to these inconsistencies, I find it material that the first applicant claimed that the police were present during the physical altercation yet they allowed to him leave the scene despite him claiming that they later went to his house to arrest him. During the SHEV interview he stated he feared harm from gangsters who were hired by the authorities, however in his written claims for protection the first applicant did not raise to fear harm from any gangsters. When this was put to him during the SHEV interview he stated that he had provided this information to his migration agent and he is not sure why it was not included in his written statement. I am not satisfied this to be the case given he was represented by a registered migration agent who had included other detail such as the police searching for him. I do not accept they would have omitted such a vital aspect of the applicant's claims for protection. In her post interview submission, the applicant's migration agent also stated that while there is no proof of him providing this information, the benefit of the doubt should be provided to the first applicant. Given the other aspects of the applicants claims have been inconsistent, I am not willing to give the first applicant the benefit of the doubt in this instance.
20. I am not satisfied the applicants' family land was forcibly taken away and it follows that I am not satisfied the applicants were involved in any physical altercation or conflict with any labourers or the authorities on this basis. I am also not satisfied the applicants were forced to relocate to the south of Vietnam on this basis or that the police or any gangsters have been looking for the applicants since their departure from Vietnam.
The conclusion expressed by the second respondent at [20] is statement by the second respondent that it was not satisfied about the applicants’ claims. It is not a finding by the second respondent that those claims were not true simply an expression by the second respondent that it had failed to reach the state of satisfaction required for the purposes of the task is undertaking.
Nonetheless, in their submissions, the applicants focus attention upon four matters identified by the second respondent as inconsistencies in the first applicant’s claims. The applicants argue that it was illogical or irrational for the second respondent to consider those matters as inconsistencies and that those errors, or presumably any one of them, were material to the second respondent’s failure to be satisfied about the first applicant’s land claims and ultimately his claims for protection.
I will return to these four identified matters shortly, but before doing so it is necessary to understand the second respondent’s approach to the first applicant’s claims about his family’s land and how those four matters fit into the second respondent’s conclusions about the claim.
Paragraphs [6] – [26] of the second respondent’s reasons for decision are taken up with its factual findings. At [7] the second respondent recounted what the first applicant had said at his arrival interview on 19 July, 2013. At [8] the second respondent recorded that on 15 August, 2013 the first applicant had been advised that he would be removed from Australia as he did not appear to have raised any claims for protection. Afterwards, on 2 September, 2013 the first applicant for the first time raised a claim that his family land was forcibly taken by the Vietnamese government and his family had applied to the court to give their land back. It was at this point that he claimed that while waiting for the court to respond, the police came and his family got in a fight with the police. The first applicant claimed that he had defended himself, fled the scene and remained in hiding. He claimed the authorities had searched for him.
At [10] the second respondent records, accurately, the claims made by the first respondent in his written statement of claims dated 28 January, 2016. It was there claimed that the first applicant and his brother feared returning to Vietnam as their family land was taken away by a developer. The mother had requested compensation, however none was provided. When the applicants and their family went to the property they found out the developers had come with excavators to dig up the land. When the applicants and their family tried to stop them digging up the land the developers contacted the police and accused the applicants of interfering. There was a verbal argument and then a physical fight between all of them. The first applicant claimed that he broke his tendon and was cut on his right hand and the second applicant had been pushed to the ground and his arm was broken. While they were seeking medical treatment for the injuries the applicant’s grandfather had advised that that the police had been looking for them and so the applicants went into hiding for six weeks before organising their departure from Vietnam to Australia.
At [12] the second respondent recorded that in an interview on 5 October, 2016 with a delegate the first respondent who was considering the applicants’ visa application, the first applicant said in relation to the land confiscation claim:
(a)the government had taken away his family’s land without providing any compensation;
(b)the land was leased to a policeman who used to cultivate prawns and fish;
(c)he did not know who had told him and his family that they would not be receiving the land back;
(d)his family were approached in April or May, 2013;
(e)the first applicant saw some labourers digging up their land and he had tried to stop them and the labourers started assaulting him; and
(f)the first applicant suffered a broken leg and arm in the attack.
At [13] the second respondent recorded that the first respondent’s delegate put to the first applicant that in his written statement of claims he had stated that the police were present. The first applicant had told the delegate that there were some police officers present when the fight started but more arrived after some time. He claimed that his mother was also injured in the fight and his brother was pushed. The first applicant claimed that when he went to the medical clinic for medical treatment and the police went to his home to look for him as they wanted to arrest him because he had interfered with the labourers doing the work and it was a government project. Because he feared being arrested he and the second applicant went to South Vietnam to their father’s house but stayed with a friend. They both moved to other friends’ houses and then rented a room while they made arrangements to travel to Australia. The first applicant claimed that during the time they were renting the room the government hired some gangsters to look for him. He claimed that he knew this because his father saw a stranger who followed him and watched his house and wanted to arrest the first applicant.
At [14] the second respondent accurately recorded that upon arrival in Australia the first applicant did not raise any claims in relation to a land dispute or his family’s land being confiscated by the government. In a post-interview submission given by the applicants’ migration agent it was suggested that the delay in raising those claims could be explained on the basis of the first applicant’s young age, lack of education, fear of the Australian authorities and lack of understanding about the arrival interview process. However, the second respondent rejected that explanation on the basis that the first applicant raised those claims less than two months after his arrival interview. The second applicant did accept that the first applicant may not have been aware of the importance of providing all of his claims for protection during the arrival interview and that might explain why not all of his claims were raised initially.
From [15] the second respondent commences to discuss the inconsistencies in the first applicant’s account of the events concerning his family’s land over time.
In [16] and [17] the second respondent repeats the relevant claims made by the first applicant in August, 2013 and subsequently in January, 2016 and then in [18] records that during the visa interview the first applicant had provided a different account. The identity of the persons with whom the first applicant and his brother had a fight on the land was one point of difference. On one occasion the first applicant described those persons as the developers and subsequently as labourers. Another inconsistency identified in [18] was that the applicant had not raised any claims relating to his family appealing to court or that the police were present as he had initially raised. He had been asked of the delegate about whether the police were present and he had told the delegate he was present prior to the altercation commencing. His earlier evidence provided in his written claims indicated that it was the labourers who had contacted the police. The third inconsistency identified related to the injuries suffered by the first applicant and his brother. One occasion he claimed that he had suffered from a broken arm and leg after the altercation and that the second applicant had been pushed. On another occasion in his written claims he stated that he had suffered a broken tendon and a cut on his hand and the second applicant had suffered a broken arm.
I have set out [19] above but in that paragraph the second respondent identifies other matters beyond the inconsistencies that inform its state of satisfaction about this particular claim.
In [21] – [26] of its reasons the second respondent deals with the other claims made by the applicant which are not the subject of this review application. There is no need to consider them any further.
In [20] the second respondent recorded that it was not satisfied about the claims made by the first applicant and dealt with in that paragraph namely that his family’s land was forcibly taken away or that there was any physical altercation or conflict with any labourers or the authorities on that basis. The second respondent also records that it was not satisfied that the applicants were forced to relocate to the south of Vietnam on that basis or that the police or any gangsters had been looking for the applicant since their departure from Vietnam.
The applicant submits that close scrutiny of the second respondent’s decision demonstrates that the decision was based primarily on four inconsistencies in the first applicant’s account of the matter about or concerning the loss of his family’s land. I have identified five inconsistencies. And I will consider each one. As I have set out above, the second respondent did not rely upon the first applicant’s failure to mention the incident at his arrival interview. That was not one of the reasons why the second respondent rejected the first applicant’s claims about his family’s land: see [14] of the second respondent’s decision.
The first of the inconsistencies identified by the applicant as erroneous is what was described by the second respondent as the inconsistency between the first applicant’s claim at the visa interview that the fight that took place on his family’s land was with “the labourers” who were digging up his land rather than with “the developers”. In his written statement made on 28 January, 2016 what the first applicant had said was:
6. Two months before my brother [DHY17] and I left Vietnam, our ancestral land was taken away by a developer. My grandfather, who lived close to our property, called my mother to tell her that there were developers who were trying to take our land.
7. My mother, [DHY17] and I went to Hai Hau to sort it out. When she got there, she wrote letter to the local district of Hai Hau to request for a compensation but there was no response.
8. She was about to write another letter to a higher office but on that day, while we were at my grandfather's place, the neighbours told us that the developers came with an excavator to dig the land. When we heard that this news we all went to the property.
9. My grandparents were growing vegetables on the land. When we got there the developers were digging it out and we tried to stop them. The developers rang the local police and accused us of trying to stop them from doing their work. Then a verbal argument started and afterwards, there was a physical fight.
Subsequently in his interview on 5 October, 2016 the first applicant had referred to labourers being on the land. The applicants argue that the first applicant use the words “developer” and “labourer” interchangeably and that in fact there was no inconsistency.
There is in evidence a transcript of the interview with the first respondent’s delegate that was undertaken in October, 2016. The transcript is instructive:
CASE OFFICER: All right. And what happened when you got to the land? What was going on?
[DHX17]:I saw people start to erecting things, they start to digging all the land.
CASE OFFICER: And what happened next?
[DHX17]:Myself and my mum went and tried to stop them to do 20 anything on the land, to dig the land or erect anything.
CASE OFFICER: So who were you trying to stop? Who were these people?
[DHX17]:The people that were working on that land, on our land.
CASE OFFICER: Sorry, I don’t understand. Who was digging up the land?
[DHX17]:The government authority have sent some labouring people to come – to go and do some work, bringing all the machinery and the tools and do the digging and erecting.
CASE OFFICER: Okay. Was there anyone other than the labourers who were there?
[DHX17]:The officer – the government officer – that took my land, he was a present and in that – at that time with the labour people.
CASE OFFICER: Okay, all right. So what did you do next?
[DHX17]:I tried to stop and say, “You can’t do anything to our land,” tried to stop them and then he start to attack me.
CASE OFFICER: Who started to attack you?
[DHX17]:I stopped – I tried – I was trying to stop the worker, the labouring worker, and they attack me.
CASE OFFICER: Okay. How did they stop you?
[DHX17]:They hit me and then I hit 5 back. I was – they hit me and I fall on the floor and (indistinct) back.
CASE OFFICER: Okay. And what happened next?
[DHX17]:Because I was against their work, so four, five people they come to me and hit me – the workers were labourer – the labourer worker came and – four or five labour worker come and hit me.
It is clear from those passages that:
(a)there was a government officer present at the land at the time of the incident described by the first applicant;
(b)there were other people who were working on the land who the applicant described as labourers; and
(c)despite the delegate earlier referring to “the developer” (T10, L 35) the applicant never referred to the people with whom he had his altercation or who were working on the land as the developers.
The description of the relevant incident set out in the first applicant’s written statement and the description given by him in the interview with the first respondent’s delegate are quite different. The second respondent concluded that there was indeed an inconsistency between the use of the word “developers” by the first applicant in his first statement and the word “labourers” by the first applicant in his visa interview. Without more, one might consider that the inconsistency identified was illusory, but when seen in the context of the written statement as a whole and the relevant comments in the delegate’s interview as a whole, a conclusion of inconsistency between the use of the two words was plainly open to the second respondent. Others might not have reached the same conclusion but that is not the test. There is nothing illogical or irrational in the second respondent’s conclusion of inconsistency in this respect.
The second inconsistency identified by the second respondent was that the first applicant did not raise any claim relating to his family appealing to the court in the visa interview. However, the first applicant argues that in his visa interview he had said that his family had submitted a claim for compensation, but they did not get any compensation.
The claim made by the first applicant in September, 2013 (being further information he provided after he was told he was to be removed from Australia) was:
We apply to the court to ask the land back to my family. While waiting for the court the police came to my land. My family against this and got in a fight with the police.
In his written statement made in January, 2016 the first applicant referred to his mother writing a letter to the local district and that she was about to write another letter to a higher office when the altercation took place in the family’s land. I have set out paragraphs 7 and 8 of the relevant statement above at paragraph 56.
Finally, in his visa interview in October, 2016 first applicant said:
[DHX17]:The land is being confiscated by the local government and without any compensation. My family have submit a claim for compensation. There was a lot of different location, but it wasn’t – did not get any compensation of the loss of the land.
The second respondent was right to identify an inconsistency between what the first applicant said in October, 2016 and what he said in September, 2013. In September, 2013 there was a clear reference to an application to a court to have the land returned to the first applicant’s family. There is no reference to any application for a claim for compensation for the loss of the land. The statement in October, 2016 does not refer to the return of the land or any application to any body (court or otherwise) for the return of the land but rather that there had been a claim for compensation. These two matters, on their face are quite separate and distinct. Without more, the second respondent was entitled to conclude that the two statements were inconsistent and act on that basis. Again, that another decision-maker might not have come to that view does not establish illogicality or irrationality on the part of the second respondent.
The third inconsistency identified by the first applicant which it is said informed the second respondent’s decision was an apparent inconsistency between what the first applicant said at his visa interview about the police and what he had earlier said about the police presence at the altercation on his family’s land. However, when one reads the second respondent’s reasons for decision at [18] it is not at all apparent that the second respondent treated what the first applicant said in his written statement as inconsistent with what he said during the visa interview. The second respondent does record that “the delegate asking about whether the police whether police were present and he stated that they were present prior to the altercation commencing”. That statement is an error because the first applicant’s statement to the delegate was that there was an officer present which, in the context of the first applicant’s earlier statements to the delegate must be a reference to a “government officer” rather than a “police officer”.
The fourth inconsistency said to have been erroneously identified by the second respondent was that in the first applicant’s visa interview he stated that he suffered from a broken arm and leg after the altercation and that the second applicant was pushed. In his earlier written claims he stated that he had suffered a broken tendon and a cut on his hand and the second applicant suffered from a broken arm.
In his written statement made in January, 2018 the first applicant said:
10. A policeman pushed [DHY17] to the ground and broke his left arm. I was beaten with a hoe and suffered a broken tendon and a cut on my right hand.
11. The neighbours took us to the hospital. We both had to have surgery. I had surgery to re- connect my tendons together. [DHY17] had surgery to fix his arm and he was in a cast for a few weeks. We both have scars from our injuries.
In his visa interview he said:
[DHX17]:Because I was against their work, so four, five people they come to me and hit me – the workers were labourer – the labourer worker came and – four or five labour worker come and hit me.
CASE OFFICER: Okay. And what happened next?
[DHX17]:They hit me hard – very hard and broken limbs – I have broken leg, broken arm.
CASE OFFICER: You had a broken arm. Is that correct?
[DHX17]:I have a scar on my – like on top of my finger I have a scar.
CASE OFFICER: Okay. So you broke your finger. Is that correct?
[DHX17]:My thumb – my left thumb – my thumb on the left-hand side is injured and there is a big scar there.
…
[DHX17]:At the time when I was assaulted, I was injured on my thumb and my – and my foot – my left foot and I ended up on the – I ended up on the crutches for one month before I can walk and while they are assaulting me, my mother – my mother and my young brother was also on the scene witnessing the fighting between the two – the two sides. My mother also was injured because she had one tooth broken and my brother, they pushing my brother. They sort of pushing my mother and my brother in one side and not allowing them to come and save me while I was injured. They did not – not letting my mother and my brother to come and save me and protect me.
CASE OFFICER: Okay. And what happened next? Sorry.
[DHX17]:And my brother also have an injury on a (indistinct) on the hand.
CASE OFFICER: Okay. All right. And what happened now after these injuries? What happened next?
[DHX17]:And then these people saw I obviously in blood and they – these people witness these things, they come and rescue me, not allowing the officer to take me a way for an arrest.
The first applicant’s statements made in January, 2016 about the injuries to him and his brother are plainly inconsistent with the statements he made during his visa interview in October, 2016. In the first statement his brother broke his left arm and the first applicant suffered “a broken tendon” and a cut on his right hand. The second statement the first applicant suffered a broken leg and a broken arm. He talked about a scar on the top of his finger and then an injury to and a scar to his left thumb. The first respondent did not give any evidence to the delegate that his brother had suffered a broken arm as he had initially claimed but that he had an injury to his hand.
That these statements were inconsistent one with the other was plainly open to the second respondent. It was not bound to treat the statements as inconsistent but in the circumstances of this case, it chose to do so. In my view, there was no error on the part of the second respondent in so doing.
The fifth inconsistency said to have been erroneously identified by the second respondent in its reasons was its reference to an omission of the claim made at the visa interview that people hired by the authorities were searching for him as well as the police, whereas in his written claims, he had only mentioned the police searching for him. It is important to note that the second respondent used this omission to reject the claim that he feared harm from gangsters, not as the basis of its rejection of the primary claim; p323 [19], the effect of the last three sentences.
The inconsistencies were not illusory and the second respondent was entitled to treat as inconsistencies those matters identified by the first applicant in this ground of review.
Whilst there may have been an error on the part of the second respondent in respect of the first applicant’s claim about the police officer being present after the altercation (not before as the second respondent suggested) that matter was only one of a number identified by the second respondent as impacting upon the probity of the first applicant’s claims. That error was not material.
Ground two
This ground is in the following terms:
2.The Second Respondent failed to take into account an aspect or integer of the Applicants’ case.
2.1The First Applicant claimed that his cumulative profile, and his claims considered as a whole, gave rise to a real risk of persecution.
2.2The Second Respondent failed to consider the cumulative risk of persecution, as claimed by the Applicants and as it arose on the evidence, and facts found by the Second Respondent.
It is trite that the second respondent is obliged to consider the case as articulated by the applicant, or any unarticulated claim which is nevertheless raised clearly or squarely on the material before the second respondent. A failure to take into account an integer, or an aspect of a claim, which is made or which arises on the evidence will generally give rise to jurisdictional error.
The applicants argue that their claims were well articulated in their migration agent’s submissions delivered after the first applicant’s visa interview. It is true to say that in those submissions, it was asserted that the first applicant would continue to face serious and significant harm at the hands of the Vietnamese authorities and their agents due to his prior history of engaging in protests, his religion as a Catholic and because he was a failed asylum-seeker. The written submissions emphasised that the applicants’ claims needed to be considered both individually and cumulatively.
It is also true to say that the second respondent accepted a number of the claims made by the first applicant, and in particular the second respondent accepted that:
(a)the first applicant had been involved in a demonstration in Hanoi at the beginning of 2012 against the Vietnamese government, that he was arrested and detained for three days, but that he no longer feared harm because of that and did not have a profile for that reason alone;
(b)the applicants were affected by the release of their personal information which may have been accessed by the Vietnamese authorities;
(c)the first applicant was interviewed by a Vietnamese delegation;
(d)the first applicant had a tattoo on his arm with his boat identification, his barcode, and the word “Australia”;
(e)the applicants were practising Catholics;
(f)the government took away the church where the first applicant prayed when he was young and that some people from his Church were physically assaulted by the authorities;
(g)the applicants would be returning to Vietnam as failed asylum-seekers who departed Vietnam illegally, that the Vietnamese authorities would be aware that they were returning as failed asylum-seekers and would be aware that they did so illegally through the assistance of people-smugglers; and
(h)the applicants would be at risk of being detained upon return “for questioning”.
The applicants argue that the second respondent did not consider the cumulative profile of the applicants and risk of harm arising from that cumulative profile. It was argued that what arose on the evidence, based on what the second respondent accepted, was:
(a)that the first applicant would be detained and questioned upon return;
(b)that the first applicant was a Catholic who had been discriminated against in the past, because his Church had been demolished, the land resumed, and his fellow practitioners arrested and beaten;
(c)that he had been arrested and detained for three days after an anti-government protest in Hanoi which there was a real chance that either questioning or government records would reveal;
(d)that he had sought asylum in Australia and by implication had claimed to be persecuted in Vietnam; and
(e)that he had a clearly visible tattoo on his forearm with the word “Australia” on it.
The applicants submit that the second respondent needed to consider whether the cumulative effect of these matters was sufficient to give rise to a real chance of persecution, as specifically claimed by the applicants in their written submissions delivered following the visa interview. They argue that by failing to address that question, the second respondent failed to consider an integer of the applicants’ case, which amounted to a failure to take into account a relevant consideration and was an error going to jurisdiction.
It may be accepted that nowhere in its reasons did the second respondent expressly state that it had considered the claims cumulatively. However, as the applicants concede, that is not fatal. One must consider the second respondent’s reasons to see what was actually considered. The applicants further submit that a close analysis of the reasons demonstrates that the second respondent did not consider whether the combination of characteristics of the first applicant, rather than each aspect of his profile considered in isolation, would give rise to sufficient suspicion upon return that he would be imputed with an anti-government sentiment, would vigorously question him, and would punish him for that reason.
The second respondent’s reasons show that it was not satisfied that there was a real chance that the applicants would face any harm upon their return to Vietnam now in the foreseeable future by reason of:
(a)their religion (at [35] - [36] and [42] of the reasons); or
(b)being identified as failed asylum seekers for any one of a number of reasons (at [37] – [40] and [42] of the reasons).
The second respondent’s reasons show that it did consider, but rejected a real risk of harm, based upon each of the applicant’s claims individually.
Having expressed its lack of satisfaction about those matters in respect of each of the individual bases upon which the first applicant pressed his case, the second respondent was not obliged to then consider those matters cumulatively: Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [32] and [34]. Apart from the unsuccessful challenge to the conclusions reached by the second respondent about the land dispute claims, the other findings and conclusions reached by the second respondent, and in particular those relevant to this ground of review, were not subject to challenge by the applicants.
In those circumstances, this ground of review does not reveal jurisdictional error by the second respondent.
CONCLUSION
The application for the extension of time will be allowed and an order made accordingly. The applicants have leave to rely upon their further amended application for review. That further amended application for review will be dismissed. The applicants should pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,737.00.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 23 August, 2021. Associate:
Dated: 23 August 2021
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