Dia18 v Minister for Immigration and Anor and Dib18 and Ors v Minister for Immigration and Anor
[2020] FCCA 3049
•11 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIA18 v MINISTER FOR IMMIGRATION & ANOR and DIB18 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3049 |
| Catchwords: MIGRATION – Protection visas – whether failure to consider relevant material – whether decision legally unreasonable – whether Tribunal asked itself the wrong question – whether failure to consider integer of claims – no error demonstrated – applications dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 |
| Applicant: | DIA18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS’ |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 253 of 2018 |
| First Applicant: | DIB18 |
| Second Applicant: | DIC18 |
| Third Applicant: | DID18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS’ |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 254 of 2018 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 19 October 2020 |
| Date of Last Submission: | 19 October 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 11 November 2020 |
REPRESENTATION
| The Applicants: | In person with an interpreter |
| Solicitors for the Respondent in proceedings ADG 253/2018 and ADG 254/2018: | Ms Milutinovic for Sparke Helmore Lawyers |
ORDERS
The application filed 24 October 2018 in ADG 253/2018 is dismissed.
The application filed 24 October 2018 in ADG 254/2018 is dismissed.
The applicant is to pay the costs of the first respondent in the amount of THREE THOUSAND DOLLARS ($3,000) in action number ADG 253/2018.
The first applicant is to pay the costs of the first respondent in the amount of THREE THOUSAND DOLLARS ($3,000) in action number ADG 254/2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 253 of 2018
| DIA18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS’ |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
ADG 254 of 2018
| DIB18 |
First Applicant
| DIC18 |
Second Applicant
| DID18 |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS’ |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Applicants DIB18, DIC18 and DID18
The applicants in this matter seek judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 31 May 2018. That decision affirmed an earlier decision of a delegate of the first respondent not to grant the applicant’s Safe Haven Enterprise (Class XE) (Subclass 790) visas (‘the visas’). The first applicant is the mother of the second and third applicants who are infants and an order was made appointing her their litigation guardian. The applicants appeared unrepresented before me with the assistance of a Vietnamese interpreter. The hearing took place in conjunction with the hearing in the matter of ADG 254 of 2018 - DIA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The applicant in that matter is the husband of the first applicant in this matter and the father of the second and third applicants.
The application of the three applicants in this matter was subject to a different Tribunal hearing and separate determination to that of the husband.
By their Amended Application filed 24 October 2018, the applicants raised the following grounds:
1.The decision of the second respondent in relation to the applicant’s claims for protection was affected by jurisdictional error in that the second respondent erred in failing to consider the relevance of the summons notice dated 11 August 2014 in the context of the applicant's claims and corroborating evidence which was legally unreasonable.
Particulars
1.1A Data Breach occurred on 21 February 2014 in relation to disclosure of the applicant’s name on the Departments website such that her name could potentially be accessed by third parties due to the breach (at [122] and [127]).
1.2A translated ‘Summons notice’ dated 11 August 2014 was before the second respondent (at [83]).
1.3The second respondent stated that it accepted that the Summons notice was not relevant to the applicant’s claims, a statement purported to be made by the applicant (at [84]).
1.4The second respondent erred in failing to consider the Summons notice in the context of the applicant’s claims in circumstances where the document referred to her brother and her husband and was signed by the Chief of Police and was issued relatively shortly after the Breach on 21 February 2014.
1.5The Tribunal failed to consider the corroborating evidence of the Summons notice dated 11 August 2014 provided by the applicant to the second respondent, dated just 6 months after the Data Breach.
2.The decision of the second respondent was affected by jurisdictional error in the sense that it was legally unreasonable in relation to the complementary protection claims of the applicant arising from the Data Breach because:
2.1The Tribunal failed to consider that release of the applicant’s name, without more, could form a proper basis for a sur place claim for protection (at [127]).
2.2The second respondent failed to review or consider whether disclosure of the personal information of the applicant on 21 February 2014 by the Data Breach and the subsequent issue of a Summons notice on 11 August 2014 to the applicant’s husband and brother could form a basis for protection in its consideration of complementary protection (at [153]-[160]).
3.The decision of the second respondent was affected by jurisdictional error in relation to the complementary protection claims of the applicant because the Tribunal failed to consider:
3.1The corroborating evidence of the Data Breach on 21 February 2014 when considering evidence that the Vietnamese police found out in August 2014 that she fled Vietnam illegally which was legally unreasonable: and
3.2The corroborating evidence given by her husband that his mother received a Summons notice on 11 August 2014 (at p 21 -24 of Transcript of Hearing of Mr Phan on 21 March 2018).
4.The decision of the second respondent was legally unreasonable because:
4.1The Arrival Interview dated 23 March 2011 correctly stated the applicant’s name, nationality, gender, details about detention (CB]);
4.2The Department admits by letter dated 5 September 2014 that the applicant was affected by the data breach and that it was possible to access the applicant’s name, nationality, gender, details about detention was accessible online from the Department’s website in February 2014 (p 16 of exhibit to Affidavit of Ngoc Tran dated 23 October 2018);
4.3The applicant’s Statement of Claims provided that the data breach was a basis for her claims (CB264);
4.4The AAT found that personal information about the applicant was disclosed during the data breach (CB466);
4.5During its reasoning under the heading 'Data Breach' the AAT failed to consider whether the release of the applicant’s name, nationality, gender and details about detention could found a basis for protection (at [124]) which was legally unreasonable.
5.The AAT asked itself the wrong question which was whether the provision of false information about date of birth and family background disclosed the applicant’s current claims instead of the right question which was whether the provision of correct information about the applicant’s name, nationality, gender and details about detention could found a basis for protection.
5.1The applicant refers to and repeats the particulars at paragraph 4.
6.The AAT failed to consider an integer of the applicant’s claims:
6.1The applicant refers to and repeats the particulars at paragraph 4.
6.2The applicant refers to the submission on behalf of the applicant in relation to the data breach (p 18 of Exhibit to Affidavit of Ngoc Tran dated 23 October 2018).”
The applicants relied on the materials in the Court Book (‘CB’), the first applicant’s affidavit dated 23 October 2018, and the affidavit of Ms Nguyen dated 22 October 2018 which annexes an informally prepared transcript of the proceedings in the Tribunal on 19 March 2018. No objection was taken to me receiving the informal transcript for the purpose of this hearing. The first applicant made no reference to any of those materials during the course of her brief oral submissions. On 26 July 2018, a registrar of this Court ordered the applicants to file and serve any outline of submissions 14 business days prior to the hearing. No outline was filed. Instead, the first applicant filed a document which was received as an ‘additional document’ on 30 September 2020. That document is headed ‘Statement to the Federal Circuit Court’ and is signed by both the first applicant and the applicant in DIA18 as a joint document on behalf of them and their children. I received that document as an outline of submissions with the exception of the reference to two internet links intended to draw the Court’s attention to information which was not before the Tribunal at the date of the decision. I excluded that information from my consideration because it could have had no bearing on the decision made by the Tribunal as it was not before it.
Background
The first applicant is a Vietnamese citizen and arrived in this country as an unauthorised maritime arrival in March 2011. She was interviewed upon entry on 21 March 2011. Whilst in immigration detention, she met her husband and they became married on 16 February 2014. Two children have been born of their relationship - the second and third applicants in these proceedings - a daughter who is approximately 7 years of age and a son who is 5 years of age.
The subject application for a protection visa is the second application for protection made by the first applicant. She initially applied for protection in July 2011 on the basis that she would face harm in Vietnam because she was a homeless orphan child. A protection obligations determination was made to the effect that the first applicant was not a refugee. That decision was referred to the independent protection assessment process for review. The outcome of that process was that the applicant was found not to meet the refugee criteria or the complimentary protection criteria and that she not be acknowledged as a person to whom Australia owed protection obligations. The first applicant appealed that decision to the Federal Court but subsequently withdrew the application.
The first applicant applied for a Safe Haven Enterprise visa with her husband and two children in December 2015. It is that application which is the subject of these proceedings. The first applicant and her husband made individual claims for protection.[1] The first applicant’s application was made on the basis that she admitted having made false claims on her entry interview to Australia when she applied previously for a protection visa. She claims that the information provided with respect to the subject application, whilst different to previously made claims, is the correct position.
[1] Court Book (CB), 466 [19].
In October 2016, a delegate of the first respondent refused the application and the applicants applied to the Administrative Appeals Tribunal ‘the Tribunal’ for a merits review. The Tribunal conducted a hearing with the three applicant’s in this matter on 19 March 2018. A separate hearing was conducted in relation to the husband.
The claims for protection made by the first applicant were contained in a statement filed contemporaneously with the application.[2] She stated that when she arrived in Australia she did not tell the truth in her entry interview and had only told the authorities that she was an orphan because she was scared and confused, fearing for the safety of her family in Vietnam. Her new claims were that she left Vietnam because of a fear of persecution due to being a Catholic, having been involved in religious protests and meetings and being imputed with an anti-state political opinion. She also claimed to be a vulnerable women who had been abused and finally that she feared harm as a failed asylum seeker whose personal details had been inadvertently disclosed as a result of a data breach. She claims that there was nowhere in Vietnam where she could feel safe. In addition, she was worried about what would happen to her children in the event that she and her husband were forced to return to Vietnam because it would be necessary for both of them to work.
[2] CB, 261-266.
When the delegate considered the application, she did not separately assess the claims made by the first applicant noting that her application and that of the children were dependent upon the claims made by the husband.[3] The delegate was not satisfied that the husband’s claim met the relevant criteria for the grant of the visa and as a corollary of rejecting the husband’s claim, rejected the claims of the first applicant.
[3] CB, 310.
The applicants applied to the Tribunal for a review and were invited to attend at a Tribunal hearing on 19 March 2018. It was at this point that the claims of the wife and the husband were separated for the purpose of determination by the Tribunal.
The first applicant’s representative provided written submissions and further information to the Tribunal prior to the hearing. Amongst the materials provided were a statutory declaration from the first applicant,[4] a letter from her mother intended to corroborate her version of events,[5] and what was apparently a copy of a summons dated 11 August 2014.[6] The first applicant attended at the hearing, gave evidence, and was represented by a migration agent. After the hearing, the Tribunal invited the first applicant to comment or respond to information relating to what it perceived to be inconsistencies in her evidence. Her representative submitted further statutory declarations from both her and the husband. The Tribunal affirmed the decision of the delegate with respect to the applicants on 31 May 2018.
[4] CB, 398-400.
[5] CB, 401-402.
[6] CB, 403-404.
Tribunal decision
The Tribunal made significant adverse credit findings against the first applicant. The overall effect of these was that the Tribunal disbelieved her as to the majority of her claims as to how she had been treated in Vietnam, her activities there, why and in what circumstances she had left, and her claimed fears if she were to be required to return there.[7] In particular, the Tribunal placed weight on the inconsistencies between the basis of her claims as expressed in her entry interview and on several occasions thereafter and with the claims ultimately presented at the Tribunal hearing.[8] It raised those inconsistencies with the first applicant. The Tribunal rejected her explanation for the significant inconsistencies between the claims as originally advanced and those made before it.[9] It concluded that the claims advanced before it were a concoction.[10] That conclusion was based on a consideration of all of the details of her claimed activism and persecution as a Catholic.[11] The Tribunal rejected the contents of the ‘confirmation letter’ which had apparently been written by her mother.[12] It was not satisfied that as a Catholic person with no particular profile, she would have been summonsed by police in 2009 for the reasons she asserted. It concluded that she was not a person of interest to the authorities because of her religious beliefs or her imputed political opinions. On the basis of its own factual findings, and drawing on country information, it was not satisfied that she, her children, or her husband faced a real chance of significant harm on the basis of her imputed political opinions or political beliefs.
[7] CB, 473 at [90].
[8] CB, 473 at [92]-[94], 474 at [102].
[9] CB, 474 at [97].
[10] CB, 475 at [104].
[11] CB, 105-107.
[12] CB, 475 at [109].
In dealing with the question of any risk posed because of the 2014 data breach, the Tribunal gave consideration to the first applicant’s claim that her personal information would have become known to Vietnamese authorities as a result.[13] In doing so, the Tribunal had regard to the nature of the information that was inadvertently released and noted that it was limited to names, dates of birth, nationality, gender and detention details, but did not include any substantive information about claims for protection. The Tribunal did not doubt that the first applicant had been affected by the data breach but placed weight on the fact that the breach had occurred prior to her lodging the subject visa application, which it concluded meant that there was no possibility that her current claims could have been disclosed in that breach.[14]
[13] CB, 477 at [121]-[123].
[14] CB, 477 at [127].
The first applicant raised for the first time at the hearing a claim based on the Vietnamese government seizing people’s land and persecuting them. The Tribunal rejected that claim as lacking credibility and ultimately concluded that the first applicant would not face persecution due to authorities having knowledge of her refugee claims in Australia. It concluded that whilst she may come to the attention of the authorities if she were to return to Vietnam, there was only a remote chance of her being targeted for having left Vietnam illegally.
There was a further new claim raised at the hearing relating to the wife’s cousin who she said had been attacked by police in 2013. The Tribunal had significant doubts about the provenance of the information presented in that regard, the fact that the claim had not been raised at an earlier stage, either by the first applicant or her mother in the ‘confirmation letter’, and concluded that the photographs of an injured man presented by the first applicant were not of her cousin.
One of the items presented by the first applicant to the Tribunal was a ‘Summon Notice’, however, the first applicant herself stated that it did not relate to her claim.[15]
[15] CB, 472 at [83].
The Tribunal also gave consideration to the position of the children in the event that they were required to return to Vietnam with their parents.[16] It was not satisfied that they would face a real chance of persecution by virtue of having been born in this country and not having Vietnamese identity documents. Nor was the Tribunal satisfied that it had been demonstrated that all young girls faced a real chance of sexual assault in Vietnam. It concluded, drawing on country information, that it was not satisfied that there was a real chance that either the first applicant or her daughter would be subjected to sexual assault in Vietnam.
[16] CB, 480.
The Tribunal also considered the claims in light of the complimentary protection obligations and concluded that the first applicant and the children did not face a risk of significant harm on the basis of any of the claims advanced. That consideration took into account the claim with respect to returning to Vietnam as a failed asylum seeker.
Submissions
The majority of the written document headed ‘Statement to the Federal Circuit Court’ and signed by both the first applicant and her husband amounts to a request for the Court to consider the merits of their visa application. The document informs the Court that they have two major fears, firstly for the future of their children and their ability to adapt to life in Vietnam, and secondly, their fear for their own prospects should they be required to return after a 9 year absence given the difficulties they may encounter in finding work. It reiterates that they fear violence from the police and victimisation because they left the country illegally. They claim that they will be kept under surveillance by the police. Further, they are worried that they could be charged with offences of disloyalty for leaving Vietnam illegally in 2011 and they worry about the potential impact this might have upon their children. Some of the matters raised were issues raised before the Tribunal. In any event, the document does not address the substance of the grounds of application. I invited the first applicant to make oral submissions but in doing so, did not deal with the grounds of application. She told the Court of how distressing the application process had been and of her ardent desire that the children be given an opportunity to grow up in Australia. When asked to tell the Court in what way she believed the Tribunal had fallen into error, she said that she was not in a position to know if the Tribunal made the right or the wrong decision. It was apparent that it was the decision itself that she was unhappy with.
Counsel for the first respondent made brief oral submissions but in large part relied upon the detailed written submissions which were filed in advance of the hearing. Suffice to say, the first respondent submits that no jurisdictional error has been demonstrated and the application should be dismissed with costs.
Consideration
Ground 1
I accept the submission of the first respondent that ground one is fundamentally misconceived. Firstly, a fair reading of the decision record does not support the asserted error that the Tribunal failed to consider the relevance of the ‘Summon Notice’ dated 11 August 2014 in the context of the first applicant’s claims and corroborating evidence. The Tribunal dealt with that issue in the following way:
‘The agent provided a summary of the applicant’s claim in submissions dated 10 March 2018. At paragraph 3.21 the agent stated that the applicant’s mother has also been harassed and summonsed to appear before the police. The agent provided the Tribunal with a translated document entitled “Summon Notice” (sic) dated 11 August 2014 (attachment 4). The Tribunal questioned the applicant about the summons at the hearing. The applicant said she knows nothing about the summons (attachment 4) and that it was addressed to her husband’s mother and is not relevant to her claims …’[17]
[17] CB, 472 [83]
The Tribunal found that the summons did not relate to the first applicant. That finding was clearly open to it. It was open to the Tribunal to find that the ‘Summon Notice’ was irrelevant to the first applicant’s claims. Further, I accept the submission of the first respondent that the applicant’s written submissions to the Tribunal appeared to misconstrue the relevance of the ‘Summon Notice’. It was submitted that the first applicant’s mother had been harassed and summonsed to appear before the police.[18] The document cited in support of that proposition was the ‘Summon Notice’. The name on the notice is not the name of the first applicant’s mother, it is apparently the name of the husband’s mother.[19] The persons with respect to whom police apparently wished to ask questions were the husband and his brother.[20] A separate hearing and a separate determination was made with respect to the husband.
[18] CB 368 at 3.21
[19] CB 401-403, 161
[20] CB 187
Jurisdictional error has not been demonstrated with respect to ground one.
Ground two
The Tribunal dealt with the issue of the 2014 data breach at some length.[21] It accepted that the first applicant was in community detention at the time of the data breach and that some of her personal information could potentially be accessed by third parties due to that breach. It found that the information released in the data breach was limited to names, dates of birth, nationality, gender and details about an applicant’s detention, for example when they were detained. It also found that the information released in the data breach did not include any information about protection claims.[22] It raised the question of the data breach with the first applicant and considered her submission that her profile would be known to the authorities in Vietnam because of the fact that she had taken part in protest activity in the past. It should be noted that the claim to having taken part in protest activity was rejected by the Tribunal. As I have noted above, the Tribunal placed weight on the fact that the first applicant had initially given a false account of her family background and date of birth when she arrived in this country. The claims for protection which were before the Tribunal had not been made by the first applicant at the time of the data breach. It was for that reason that the Tribunal concluded that there was no possibility that her current claims could have been disclosed as a result of the breach. In its consideration of complimentary protection obligations the Tribunal made the following finding:
‘For the reasons above, the Tribunal finds that the applicant does not face a real risk of significant harm from the authorities if she returns to Vietnam because of her religious beliefs, her involvement in religious marches/vigils or because she will be returning as a failed asylum seeker (including the privacy breach).’[23]
[21] CB 477-478
[22] CB 477, [124]
[23] CB, 482 [155].
As submitted by the first respondent, the Tribunal had earlier noted that the ‘real risk’ test imposed the same standard as ‘real chance’.[24] In my view, there was no error in the approach taken by the Tribunal to the data breach. The basis of the first applicant’s claim with respect to the data breach was that her profile would become known to the authorities in Vietnam. Not only did the Tribunal reject the first applicant’s claims as to her activism and activities as a Catholic in Vietnam, those claims were not made until after the data breach occurred. Further, the Tribunal did take into account the fact and accepted that if the first applicant was to return to Vietnam it would be apparent to the authorities that she had left that country illegally. It accepted that it was possible that Vietnamese authorities would infer that the first applicant was in Australia seeking protection and was returning as a failed asylum seeker.[25] It dealt with that issue comprehensively and considered it both in terms of her potential status as a refugee and as part of the complimentary protection obligations. There was no error of the Tribunal in the approach it took to that matter, which had an obvious relevance to the first applicant’s claim with respect to the data breach. Finally, the ‘Summon Notice’ had no relevance to complimentary protection considerations because of the finding made by the Tribunal, which was open to it, that the ‘Summon Notice’ was not relevant to her claims.
[24] CB, 482 [154].
[25] CB, 478 [130].
Jurisdictional error has not been demonstrated with respect to ground two.
Ground three
This ground amounts to an attack on factual findings made by the Tribunal and to that extent the merits of her application. For the reasons I have already indicated, the Tribunal was not bound to consider the ‘Summon Notice’ in the context of her complimentary protection claims given that it had already found that the document was irrelevant to her claims as a whole. Further, and as I have noted above, the Tribunal did consider the implications of the data breach in the context of complimentary protection obligations. Jurisdictional error has not been demonstrated with respect to this ground.
Grounds four, five and six
I accept the submission of the first respondent that whilst this ground is expressed in terms of unreasonableness, as particularised, it is more properly understood to be a complaint of irrationality or illogicality as it attacks the fact-finding process rather than the exercise of discretion itself. The test for whether a decision is irrational or illogical has been considered on many occasions. It has been held that an irrational or illogical decision is one not based on findings or inferences of fact supported by logical grounds,[26] or where findings or inferences of fact were not supported by some probative material or logical grounds.[27] In Minister for Immigration and Citizenship v SZMDS[28] Crennan and Bell JJ had this to say:
‘[130] In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from (2010) 115 ALD 248 at 277 that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.’
[26] Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12, [38].
[27] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, [147].
[28] (2009) 115 ALD 248.
The practical application of the above test was addressed in DOA16 v Minister for Immigration and Border Protection[29] where it was explained that in order to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, extreme illogicality must be established ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’.
[29] (2018) 353 ALR 641, [30].
The difficulty the first applicant faces with ground four is that the Tribunal did consider the claim with respect to the data breach. It is apparent that it did so having regard to the nature of the information disclosed in the breach and significantly, the timing of the breach which came before the ultimate claims for protection were articulated. It rejected the claim on the basis that it was not satisfied that there was a real chance that the applicant would face persecution in Vietnam because of the authorities having knowledge of her refugee claims made in Australia. To the extent that the first applicant complains that the Tribunal failed to consider whether the release of the first applicant’s name, nationality, gender and details of detention could of itself be found a basis for protection, that was addressed as a separate issue when the Tribunal considered the claim as to being a failed asylum seeker returning from a Western country. As I have already noted, that assessment was made with the Tribunal acknowledging that the authorities may well infer that the first applicant had made a failed claim for protection. It found that the first applicant’s claimed fear of persecution as a failed asylum seeker, for having departed Vietnam illegally, or because of imputed political opinion was not well founded. I am not satisfied that it has been demonstrated that the Tribunal asked itself the wrong question. Nor has it been demonstrated that the Tribunal failed to consider an integer of the first applicant’s claims. Jurisdictional error has not been demonstrated with respect to grounds four, five and six.
I dismiss the application of applicants DIB18, DIC18 and DID18. I make the orders to be found at the beginning of these reasons.
Applicant DIA18
The applicant is the husband and father of the applicants in the above matter. He also seeks judicial review of a decision of the Tribunal dated 31 May 2018. That decision affirmed an earlier decision of a delegate of the first respondent not to grant him a protection visa. The applicant was self-represented and appeared before me with the assistance of the same interpreter who assisted the applicants in the above matter. By his Amended Application filed on 24 October 2018 the applicant raised the following grounds for the consideration of the court:
“1.The decision of the second respondent was affected by jurisdictional error in that the second respondent failed to consider an integer of the applicant’s claim or failed to ask itself the right question in relation to the claim to complementary protection by the applicant by reason of the Data Breach.
Particulars
1.1The second respondent stated as a ‘new issue’ that the applicant’s personal information was disclosed by the Department (at [20]).
1.2The second respondent concluded that the decision under review should be affirmed (at [22]).
1.3The second respondent failed to consider whether disclosure of the personal information of the applicant on 21 February 2014 (Data Breach) could form a basis for protection in its consideration of complementary protection (at [152]-[160])
2.The decision of the second respondent in relation to the claim to protection under refugee criterion was affected by jurisdictional error because the second respondent filed to consider corroborative evidence of the applicant’s claim which was provided by the applicant’s wife Mrs Hoa Thi Tran.
Particulars
2.1The second respondent conducted a joint hearing into the claims for protection of the applicant with the claims of the applicant's wife in relation to case no. 1617666 (at [19] of the reasons for decision under review in this appeal and also at [22] of the reasons for decision of the AAT in relation to Mrs Tran, Miss Phan and Master Phan dated 31 May 2018).
2.2The second respondent failed to consider the corroborating evidence given by his wife that her mother wrote a letter dated 18 February 2018 stating that her mother felt frightened because the police kept coming to her house and gave her a summons for her daughter (at [71]-[72] of the reasons for decision of the AAP in relation to Mrs Tran, Miss Phan and Master Phan dated 31 May 2018).
2.3This was a jurisdictional error in circumstances where the second respondent had before it evidence of the Data Breach on 21 February 2014 and a Summons Notice dated 11 August 2014.
3.The decision of the second respondent was affected by jurisdictional error in relation to the complementary protection claims of the applicant because the Tribunal failed to consider:
3.1The corroborating evidence of the Data Breach on 21 February 2014 when considering evidence that the Vietnamese police found out in August 2014 that he had fled Vietnam illegally (at [88]) which was legally unreasonable; and
3.2The corroborating evidence given by his wife that her mother wrote a letter dated 18 February 2018 stating that mother felt frightened because the police kept coming to her house and gave her a summons for her daughter (at [71]-[72] of the reasons for decision of the AAT in relation to Mrs Tran, Miss Phan and Master Phan dated 31 May 2018): and
3.3The corroborating evidence given by his wife about a Summons Notice dated 11 August 2014 which related to her husband’s application (at Exhibit TTPN-1 p 21 -32. Transcript of Hearing of Ms Tran on 21 March 2018).
4.The decision of the second respondent was legally unreasonable because:
4.1The Arrival Interview dated 23 March 2011 correctly stated the applicant’s name, nationality, gender, details about detention (CB2);
4.2The Department admits by letter dated 13 March 2014 that the applicant was affected by the data breach (CB263) and that it was possible to access the applicant’s name, nationality, gender, details about detention was accessible online from the Department’s website in February 2014;
4.3The applicant Statement of Claims provided that the data breach was a basis for his claims (CB157 - 158);
4.4The Summons Notice provided to the AAT was dated 11 August 2014 (CB317);
4.5The AAT found that personal information about the applicant was disclosed during the data breach (CB391);
4.6During its reasoning under the heading ‘Data Breach’, the AAT failed to consider whether the release of the applicant’s name, nationality, gender and details about detention could found a basis for protection (at [131]) which was legally unreasonable.
5.The AAT asked itself the wrong question which was whether the provision of false information about date of birth and family background disclosed the applicant’s current claims instead of the right question which was whether the provision of correct information about the applicant’s name, nationality, gender and details about detention could found a basis for protection.
5.1The applicant refers to and repeats the particulars at paragraph 4.
6.The AAT failed to consider an integer of the applicant’s claims:
6.1The applicant refers to and repeats the particulars at paragraph 4.
7.The decision of the AAT was legally unreasonable:
7.1The applicant refers to and repeats the particulars at paragraph 4.
7.2During its reasoning under the heading ‘Data Breach’, it was legally unreasonable for the AAT to conclude that there was no connection between the data breach and the Summons Notice which was purportedly served on the applicant’s mother on 11 August 2014 (at [131]).”
As can be seen from the above, the applicant’s grounds are similar but not identical to those raised by his wife and children.
Background
The applicant is a Vietnamese citizen who arrived at Christmas Island in March 2011. I have already noted the circumstances of him meeting his wife and the advent of their children. As with the first applicant in the above matter, his claims for protection, which were made in a statement prepared in December 2015, advised that he had provided false information at his entry interview because of his fear and confusion. He claimed to have left his country of origin because of his fear of harm by reason of being a Catholic and having been involved in religious protests and meetings. He claimed to be imputed with anti-government political opinion and also that he will be persecuted as a failed asylum seeker whose private information had been released as a result of the 2014 data breach. As with his wife, he claimed fear that they would be present and that his children who do not have Vietnamese identity papers would become orphans and not receive an education.
The applicant’s Tribunal hearing took place on 21 March 2018, a few days after that of his wife and children. He was represented by a migration agent on that occasion who had lodged submissions and further information on his behalf prior to the hearing. After the Tribunal hearing he was invited to respond to information with respect to perceived inconsistencies in his evidence. The further information provided on his behalf included statutory declarations from both himself and his wife.
The Tribunal made numerous credibility findings against the applicant and rejected his evidence as to his activities as a Catholic and his reasons for leaving Vietnam and his claimed fear about returning to that country. Specifically, it did not accept his explanation as to how he came to lose his passport. The Tribunal placed weight on the fact that the ‘Confirmation letter’ made no reference to claimed significant incidents in 2009 or 2010. The Tribunal expressed concern as to whether or not that letter was genuine.
With respect to the ‘Summon Notice’, the Tribunal rejected his explanation as to the circumstances of his mother being summonsed, finding it to be inconsistent. It rejected the document as a forgery[30] and also rejected that the applicant’s mother had ever been summonsed by police. The Tribunal further rejected that the applicant had ever identified himself as a leader within the Catholic Church when questioned by police[31] and placed little weight on photographs which apparently corroborated his activities.[32]
[30] CB, 397 [89].
[31] CB, 397 [93].
[32] CB, 398 [99]-[100].
The Tribunal accepted that the applicant had provided false information about his identity in the circumstances of his passage to Australia when he took part in his entry into view. It placed weight on the fact that his denials in the entry interview to ever having taken part in protest activities, and that he had never been impacted on by the state authorities or arrested, and that his reason for travelling to Australia was because he did not like life in Vietnam and had no prospects there, were completely inconsistent with the basis of his protection claims.[33] The Tribunal rejected his explanation for these inconsistencies.
[33] CB, 395 [66]-[72].
As to the question of his Catholicism, the Tribunal accepted that he and his family were Catholic and that they were likely to practice their faith on return to Vietnam. It rejected that he held any significant role within his local parish, that he had been involved in any activism or that he had come to the attention of the authorities as a result. It rejected that he had been assaulted and interrogated for those reasons. He did not accept that he had moved to Saigon to avoid the attention of the authorities.
The Tribunal concluded that the applicant was not of interest to the authorities for any of the claimed reasons and that he did not face a real chance of serious harm if he were to return to Vietnam. It was satisfied that he would be able to practice his faith safely in Vietnam. It was not satisfied that he faced a risk of serious harm by virtue of his Catholicism.
The Tribunal considered separately the question of whether there were any implications for the applicant as a result of the data breach in 2014. It accepted that he been affected by the breach but found that his claims for protection could not possibly have been disclosed in that breach. Further, and consistent with it having found that the Summon Notice was not a genuine document, it concluded that there was no link between the data breach and that notice. The Tribunal was not satisfied that he would face a risk of persecution in Vietnam as a consequence of the data breach. It reached the conclusion that the applicant faced only a remote chance of being targeted in Vietnam by virtue of the fact that he had left there illegally. The Tribunal indicated that it had considered the claims of the applicant both individually and cumulatively and concluded that he did not face a real chance persecution for any of the claimed reasons.
The Tribunal considered all of the applicant’s claims against the complimentary protection criteria and for the reasons and findings it made with respect to the protection criteria it concluded that he did not face a real risk of significant harm.
Submissions
The husband made brief oral submissions, the effect of which was that he and his wife were perplexed at the fact that their application for visas had been rejected. He said that they had nothing to return to in Vietnam and no prospects for the future. He did not appear to understand fully why it was that they did not meet the criteria for the visas. It was apparent that he too was deeply saddened by the Tribunal decision.
The first respondent submitted that the applicant had not established any jurisdictional error and that his claim should be dismissed with costs.
Consideration
Ground one
I am not satisfied that it has been demonstrated that the Tribunal failed to consider an integer of the applicant’s claims or that it failed to ask itself the right question with respect to the claim for complementary protection by virtue of the data breach. As submitted by the first respondent, the Tribunal did consider whether or not the applicant’s personal information might become known to the authorities in Vietnam. The Tribunal relied on information available to it that suggested that none of the data disclosed in the data breach had been accessed in Vietnam. Further, it placed weight on the fact that he had given false information to the Department about his family and his date of birth when he first arrived in Australia which had obvious implications for the practical effect of any breach with respect to the information. As with his wife, the Tribunal placed weight on the fact that his claims for protection were made after the time of the data breach and could not become known to the authorities in Vietnam by virtue of the breach. Further, having rejected the notion that the applicant would face any risk of harm as a result of the data breach because of the limited nature of the information disclosed and that it could not have disclosed his protection claims, the Tribunal was not required to separately consider that matter on the basis of complimentary protection obligations. The finding made by the Tribunal with respect to the complimentary protection obligations was expressed to be “on the basis of the evidence before it”. There is no reason to conclude that in considering the complementary protection obligations the Tribunal did not avert to the possibility that the data breach could enliven such obligations. Rather, it had made an anterior finding in the course of its consideration of the refugee criteria that no risk arose.
I dismiss ground one.
Ground two
Contrary to the assertion contained in this ground, the Tribunal did not conduct a joint hearing with respect to the applicant and his wife and children. The confirmation letter made no reference to the applicant and did not logically relate to his claims. As the first respondent submitted, the applicant did not claim to have met his wife until they were in immigration detention in Australia. The contents of the letter did not contain any material directly probative or corroborative of the claims advanced by the applicant on review. It was not an error to fail to accord it such weight.[34]
[34] Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 [6]-[56].
I dismiss this ground.
Ground three
As to ground 3.1 and 3.3, they are based on the erroneous premise that the Tribunal accepted that the police had found out in August 2014 that he had fled Vietnam illegally and that the ‘Summon Notice’ was genuine. The Tribunal rejected that evidence.[35] It did so in the context of rejecting his evidence about the summons and his mother’s dealings with police in Vietnam which it regarded as inconsistent and lacking in credibility.[36] It specifically noted that the applicant had no evidence supporting his belief that the police had discovered his illegal departure.[37] Having made those anterior findings there was no corroborative evidence as asserted against which to consider either the summons or the data breach in the context of the complimentary protection obligations.
[35] CB, 396 -397.
[36] CB, 397 [89].
[37] CB, 397 [88].
With respect to ground 3.2 this contention has been dealt with in the reasoning at paragraph 48 above.
I dismiss ground three.
Ground four
I accept the submission of the first respondent that ground four, considered as a whole, amounts to an emphatic disagreement with the findings of the Tribunal. To that extent it is an attack on the merits of the Tribunal decision. No jurisdictional error is disclosed and I dismiss ground four.
Ground five
I reject the contention in ground five that the Tribunal failed to consider whether the information about the applicant’s nationality, gender and details of his detention which were subject to the data breach could found a basis for protection. The Tribunal gave thorough and considered attention to the data breach issue.[38] It specifically did so in the context of considering the claims for protection and it accepted that his personal information could potentially have been accessed by third parties due to the breach. It placed weight on the limited nature of the information released and its findings that the applicant did not have a profile of interest to the Vietnamese authorities. In my view, to contend, as the applicant does, that the Tribunal did not consider whether disclosure of certain information about the applicant could in itself form a basis for protection is to read the decision of the Tribunal with an eye keenly attuned to the perception of error.[39] I dismiss ground five. In any event, having noted that his claims for protection were not disclosed in the breach, the Tribunal went on to find that even if the authorities in Vietnam inferred that he had made a failed claim for protection, he would not be at risk of harm on his return to that country by virtue of being a failed asylum seeker.
Ground six
[38] CB 402-403
[39] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Ground six is essentially a reformulation of ground four expressed in slightly different terms. It has not been demonstrated that the Tribunal failed to consider an integer of the applicant’s claims. I dismiss ground six.
Ground seven
Whilst this ground is couched in terms of unreasonableness, it is in substance a complaint about the Tribunal’s finding with respect to the ‘Summon Notice’. The ground is expressed in terms of a failure to draw a link between the data breach and the notice, which the Tribunal rejected as not being genuine. This ground amounts to a request for an impermissible merits review and I dismiss it.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 11 November 2020
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