Dtu18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1110
•29 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DTU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1110
File number(s): MLG 2123 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 29 November 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise (subclass 790) visa – where applicant claims to fear harm from Vietnamese authorities due to work transporting Catholic officials associated with the Viet Tan Party – consideration of whether Authority engaged in irrational or illogical reasoning and/or failed to properly consider integer of applicant’s claim and/or give active and full consideration to applicant’s claim – where Authority accepted that applicant may have been questioned by police but did not accept that he had been detained for two days or required to report to police bi-weekly – finding that there was no inconsistency in Authority’s reasoning – further finding that Authority did not expressly reject these claims but merely identified inconsistencies – where Authority was not required to make these findings to discharge statutory task – Authority’s findings reasonably open to it – no jurisdictional error established – application dismissed with costs. Cases cited: CGA15 v Minister for Home Affairs (2019) 268 FCR 362
Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Division: Division 2 General Federal Law Number of paragraphs: 93 Date of last submission/s: 24 August 2023 Date of hearing: 24 August 2023 Place: Melbourne Counsel for the Applicant: Ms K Chan Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Ms L Mills Solicitor for the First Respondent: Mills Oakley ORDERS
MLG 2123 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DTU18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
29 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The applicant’s application filed on 20 July 2018 be dismissed.
3.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) dated 28 June 2018 to affirm a decision of a delegate of the then Minister for Home Affairs (‘the Minister’) to refuse the applicant a Safe Haven Enterprise Visa (‘SHEV’) under section 65 of the Migration Act 1958 (Cth).
BACKGROUND
The applicant is a Vietnamese citizen.[1] On 13 June 2013, the applicant arrived in Australia by boat as an unauthorised maritime arrival.[2]
[1] Court book at page 171.
[2] Court book at page 171.
Irregular maritime arrival and induction interview on 6 July 2013
On 6 July 2013, the applicant attended an irregular maritime arrival and induction interview.[3] The record of interview sets out the following exchange:
[3] Court book at pages 1 to 21.
32. Why did you leave your country of nationality (country of residence)?
Applicant:Because life is difficult in Vietnam. Both economically and government’s oppression, oppression by the regime.Since I was old enough and able to travel I have spent very little time in Vietnam.
Interviewer:What do you mean by government’s oppression?
Applicant:As I mentioned before, I had a bus driver’s licence and I consider my family to be reasonably well off. Before my father passed away my family had a bus for commercial purposes. I couldn’t work because of government’s regulations. The law and regulations in Vietnam change all the time.
Interviewer: How did the change in the laws affect you?
Applicant: For example my family had two cars with reasonable monetary or financial value. All of a sudden government changed regulations that reduced value of two cars to less than that of a motorbike.
Interviewer: Are there any other reasons why you left your country?
Applicant:So after my family ran out of money I started to work for other people as a driver and again government imposing fees and other expenses. People are aware life in Vietnam involves a lot of corruption, sometimes what we earn is not enough to bribe government officials.[4]
[4] Court book at page 9.
In response to the section on the interview form requesting the ‘Principal Reason’ to leave, ‘Lack of economic opportunity’ was the response recorded.[5]
[5] Court book at page 9.
On 9 July 2013, the applicant also submitted further documentation to the Department of Home Affairs (‘the Department’).[6]
[6] Court book at pages 22 to 56.
On 8 October 2013, the applicant submitted further statements to the Department while detained at Yongah Hill Detention Centre.[7] In this statement, the applicant indicated that he ‘left [his] family to go to Australia to seek refuge … to go to find human rights and freedom which [he] did not have in Vietnam’.
[7] Court book at page 65.
Further, the applicant said that he:
… hid some details of the truth about the government. This was because I was afraid that the Communist regime would do something to me and my family later. But now the police come to my house, follow and control the business and movement of my family as we have to report to the government wherever we go.
The applicant then went on to say:
Now I would like to present one issue related to me that the Vietnamese police accused me of a crime with the sentence of imprisonment of joining hands with people who opposed the country. In my home town … at … church (Catholic), the government oppressed and attacked the Catholics who came to repair the church.
At that time, I was working as a transport business so the Catholic community hired me to transport people back and forth to the churches in Vinh continuously for 15 days. The government did not consider that was right or wrong and charged me with a sentence.
On 24 March 2014, the applicant submitted a further statement to the Department in which he gave information about adverse treatment that his family had received following his departure from Vietnam.[8]
[8] Court book at page 76.
Application for SHEV on 8 March 2017
On 8 March 2017, the applicant applied for a SHEV upon the statutory bar preventing boat arrivals from applying for protection visas had been lifted.[9] The applicant appointed a migration agent as his representative.[10] The applicant provided a number of identity documents alongside his SHEV application but did not provide any supporting material.[11]
[9] Court book at pages 77 to 78; pages 87 to 131.
[10] Court book at pages 88 to 90.
[11] Court book at pages 128 to 131.
On 4 April 2017, the applicant submitted a statutory declaration to the Department dated 15 March 2017 elaborating on his protection claims.[12] In this statutory declaration, the applicant claimed the following:
[12] Court book at page 152.
· between 2005 and 2013, the applicant worked for his father as a mini-bus driver;
· in 2012, the applicant was hired by the ‘Catholic group’ to transport them for a meeting with other Catholic groups;
· after this trip, the applicant was ordered to report to a police station, where he was detained and questioned for two days;
· the applicant was told that the Catholic group was involved in the political activities of the ‘Viet Tan Party’ that was against the Vietnamese government;
· the applicant was ordered to report to the local police station bi-weekly where he was to make a report of his activities since the previous report;
· the applicant was threatened with being sent to a ‘re-education camp’ and that he was so afraid of this that he escaped from his home town to another city within Vietnam;
· a letter was sent to the applicant’s home by the police ordering the applicant to report to a re‑education camp for two years;
· the applicant then moved several times within Vietnam before leaving the country;
· the police have come looking for the applicant often at his home and have told his mother that he would be sent to jail; and
· the applicant understands the Catholic churches in his hometown have been organising demonstrations against the Vietnamese government, with many people being arrested and jailed.
On 25 January 2018, the applicant was invited by the Department to an interview before the delegate to discuss his SHEV application, which the applicant attended on 8 February 2018.[13] The applicant represented himself at this interview.[14]
[13] Court book at pages 157 to 166.
[14] Court book at page 166.
At interview, the applicant raised further claims that, in addition to those outlined in his March 2017 statutory declaration, he has been followed by the authorities, he is not able to register in different places within Vietnam and he will not be protected as it is the authorities who will harm him.[15]
[15] Court book at page 173.
Delegate’s refusal of protection visa application on 9 March 2018
On 9 March 2018, the delegate notified the applicant by letter sent to the email of his representative that his application for a SHEV had been refused.[16]
[16] Court book at page 168.
Referral to the Authority on 23 March 2018
On 22 March 2018, the applicant’s application was referred to the Authority for review.[17] The applicant was notified that this had occurred on 23 March 2018.
[17] Court book at pages 184 to 185.
The applicant did not provide any new information to the Authority.[18]
[18] Authority decision record dated 28 June 2018 at paragraph [3].
On 28 June 2018, the Authority notified the applicant that it had determined to affirm the delegate’s decision and refuse to grant the applicant a SHEV.[19]
[19] Court book at pages 194 to 213.
AUTHORITY DECISION
The Authority’s reasons for its decision of 28 June 2018 is set out at pages 195 to 213 of the court book.
The Authority noted at paragraph [4] of its reasons that a statement dated 18 August 2013 was submitted as part of the review material but was not relied upon or had any weight placed upon it for the purposes of the review due to the Authority not considering this statement to relate ‘in any way’ to the review.
At paragraph [5], the Authority noted that the applicant has consistently claimed to be of Kinh ethnicity and to have been born in his stated home area in Vietnam. The Authority accepted these claims.[20]
[20] Authority decision record dated 28 June 2018 at paragraph [15].
At paragraph [6], the Authority further noted that the applicant had ‘made or given several statements to the Department in which his claims for protection have evolved or changed over time’.
At paragraphs [7] to [8], the Authority sets out the statements made by the applicant in his arrival interview conducted on 6 July 2013.
At paragraphs [9] to [11], the Authority sets out several statements made to the Department by the applicant outlining his claims. Relevantly, at paragraph [10], the Authority summarised the applicant’s claims made in his statement to the Department dated 8 October 2013 as follows:
10.…
•The Vietnamese police accused him of joining hands with people who opposed the country. The government oppressed and attacked the Catholics who came to repair … [the] Catholic church in his home town ... He was working in a transport business and members of the Catholic community had hired him to transport people back and forth to the churches … for 15 days. The government charged him with a crime and the applicant had to hide and wander for the last ten years.
•After his arrival in Australia, the police visited his home and have followed and controlled the business and movement of his family. The government has accused the applicant of being a reactionary against the country and has requested that his family to get him to return (sic). He faces investigation and imprisonment on return to Vietnam.
At paragraph [12], the Authority relevantly set out the applicant’s claims contained in his SHEV application as follows:
12.…
•His father had transport vehicles for hire and the applicant worked for his father as a mini-bus driver between 2005 and 2013. A Catholic group hired him … for their meetings with other Catholic organisations.
•After this trip he was ordered to report to the police station where he was detained for questioning for two days. He was told that the Catholic group for whom he had provided transport was involved in the political activities of the Viet Tan (the Vietnam Reform Party) and that they were against the government. From then, he was ordered to report to the police frequently, twice a week. The police threatened to send him to a re-education camp.
•[T]he applicant left his home town and went to stay [elsewhere in Vietnam]. Twenty days later the police sent a letter to his home ordering him to report for a two year re‑education camp. The applicant [relocated two further times within Vietnam] before departing Vietnam.
•The police have visited his family home often telling his mother they would send him to prison. Many Catholics in the local area have been arrested in demonstrations against the Vietnamese government.
At paragraph [13], the Authority noted that the applicant provided oral evidence to the Department in the SHEV interview, and that the applicant stated that ‘the Catholic group who hired the use of the mini-bus consisted of priests and officials from the Church, who were also members of the Viet Tan’.
At paragraph [18], the Authority considered the plausibility of the applicant’s claims arising from his transportation of the Catholic priests. The Authority noted the applicant’s claims for protection have ‘evolved over time’, and in particular, the Authority noted that at his initial arrival interview on 6 July 2013, the applicant did not state that he had been hired to drive the Catholic priests to Vinh city or that he had been charged with any offences related to that event.
The Authority did, however, observe that the applicant has been broadly consistent in his evidence regarding his family owning a transportation business and his work driving a mini-bus for the business. Moreover, the Authority noted that after the applicant made the claims about transporting the Catholic priests in his 8 October 2013 statement to the Department, the applicant was consistent in continuing this claim.
Further, the Authority noted that the applicant was able to elaborate on this claim at the SHEV interview, and was able to:
18.… provide additional details regarding this claim, including the number of people on the bus and their status within the Church. The applicant clarified at interview that this did not occur over a period of 15 days, but rather it required four trips. His evidence was presented in a manner suggestive of lived experience.[21]
[21] Authority decision record dated 28 June 2018 at paragraph [18].
The Authority ultimately accepted that the applicant was hired in 2012 to drive the Catholic priests to Vinh city and the found the applicant’s contentions that these priests were connected or affiliated with the Viet Tan to be plausible.[22]
[22] Authority decision record dated 28 June 2018 at paragraph [18].
At paragraphs [19] and [20], the Authority considered country information from DFAT regarding the rights to freedom of belief and religion in Vietnam, both as they exist legally under the Vietnamese Constitution and how they operated practically. In particular, the Authority noted that there was a difference between the constitutional protections for freedom of religion and how this operated in practice. At paragraph [20], the Authority noted that:
20.High profile political and human rights activists who openly criticise the Government, the CPV and its policies are at high risk of attracting adverse attention from authorities. The government … monitor the activities of some religious groups due to their real or perceived political activism, though information suggests this mainly in association with unregistered church groups in ethnic minority communities. …
The Authority therefore accepted as plausible that the applicant may have been questioned by the police in relation to the transporting of the Catholic priests.[23] However, the Authority went on say at paragraph [20] that ‘for the reasons that follow, I do not accept that the applicant was ever charged with an offence, or that has (sic) an adverse profile, related to these events as claimed’.
[23] Authority decision record dated 28 June 2018 at paragraph [18].
At paragraphs [20] to [27], the Authority gave detailed consideration to the applicant’s evidence regarding what happened after he drove the Catholic priests, noting various inconsistencies. Ultimately, the Authority was not satisfied that:
·the applicant was charged with an offence;[24]
·the applicant had an ‘adverse profile’;[25]
·the police controlled the applicant’s family business or the movements of his family;[26]
·the police demanded the applicant return to Vietnam;[27]
·the applicant or his family had been arrested, beaten or interrogated;[28] or
·the applicant would be of any interest to the authorities.[29]
[24] Authority decision record dated 28 June 2018 at paragraphs [20] and [27].
[25] Authority decision record dated 28 June 2018 at paragraph [20].
[26] Authority decision record dated 28 June 2018 at paragraph [27].
[27] Authority decision record dated 28 June 2018 at paragraph [27].
[28] Authority decision record dated 28 June 2018 at paragraphs [25] and [27].
[29] Authority decision record dated 28 June 2018 at paragraph [27].
At paragraphs [28] to [29], the Authority considered whether the applicant would face a real chance of any harm should he return to Vietnam due to his religious beliefs or political opinion.
The Authority accepted that the applicant ‘holds views opposed to the government and believes in freedom and human rights’, however, did not accept that the applicant had a political profile that would lead to adverse attention from the authorities.[30]
[30] Authority decision record dated 28 June 2018 at paragraph [28].
The Authority also noted that, on the applicant’s own evidence, the applicant is not a Catholic nor has he claimed that he would be perceived to be Catholic for any reason, including for driving the Catholic priests.[31]
[31] Authority decision record dated 28 June 2018 at paragraph [29].
At paragraph [30], the Authority concluded:
30.I am not satisfied on the evidence before me that the applicant would face a real chance of any harm if he returns to Vietnam now or in the reasonably foreseeable future for any reason associated with his role in transporting Catholic priests and officials who were also members of the Viet Tan to Vinh City in 2012; or for any reason associated with his religious beliefs or his actual or imputed political opinion.
At paragraph [31], the Authority considered the applicant’s claim that he feared harm returning to Vietnam as a failed asylum seeker, noting that the applicant’s information was inadvertently made available on the Department’s website for a brief period due to a data breach. The Authority found that while the chance the Vietnamese government accessed the applicant’s information due to the data breach was remote, the applicant would likely be identified as a failed asylum seeker due to the way he left Vietnam and in which he will be returned.[32]
[32] Authority decision record dated 28 June 2018 at paragraph [31].
At paragraphs [32] to [36], the Authority considered DFAT country information regarding the treatment of Vietnamese nationals who departed the country unlawfully and concluded that the applicant may be subject to a fine or brief detainment and interview upon return.[33] The Authority also concluded that as the applicant was not involved in organising people smuggling activities or inciting others to come to Australia, he was not likely to be subject to longer-term detention, investigation and arrest.[34]
[33] Authority decision record dated 28 June 2018 at paragraphs [35] and [36].
[34] Authority decision record dated 28 June 2018 at paragraph [36].
After considering other relevant matters, including the potential hardships that the applicant would face regarding his family’s business in Vietnam and his marriage to an Australian citizen,[35] the Authority ultimately concluded at paragraph [41] that the applicant did not meet the requirements for refugee status.
[35] See Authority decision record dated 28 June 2018 at paragraphs [38] and [39].
At paragraphs [42] to [49], the Authority considered Australia’s complementary protection obligations and for similar reasons discussed above, concluded at paragraph [48] that the applicant did not face a real risk of serious harm should he return to Vietnam.
For each of these reasons, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
PROCEEDINGS IN THIS COURT
On 20 July 2018, the applicant filed his originating application for judicial review in this court.[36] At the time of filing this application, the applicant was self-represented.
[36] Originating application filed on 20 July 2018.
The applicant subsequently filed an amended application on 10 August 2023, with the assistance of legal representation. The applicant was also legally represented at the final hearing before me.
The Minister sought an order to change the name of the first respondent to reflect current administrative arrangements. That order was not opposed by the applicant.
GROUND OF REVIEW
By his amended application filed on 10 August 2023, the applicant raises a single ground of review, namely:
1.The Authority’s decision is affected by jurisdictional error in that it engaged in irrational or illogical reasoning, and/or failed to properly consider an integer of the applicant’s claims, and/or failed to give active and full consideration to the merits of the applicant’s claim in purporting to conduct its review.
Particulars
a.At [20] and [27] of its reasons the Authority accepted that “the applicant may have been questioned by the police regarding his role in transporting these individuals to and from their meetings” and that “the applicant was questioned in the past”.
b.The Authority’s findings at [20] and [27] are internally inconsistent with and contradict its rejection of the applicant’s claims to have been detained and questioned for two days and further ordered to report for “bi-weekly” questioning by police.
c.The findings are irreconcilable and the error is material. Without the error, the Authority would (although it suffices that it could) have found the applicant had been detained and questioned for two days and further ordered to report for “bi-weekly” questioning by police, and might have formed a different conclusion as to the real risk or real chance of the applicant suffering harm if returned to Vietnam.
This ground relates to the Authority’s reasoning by which it did not accept that the applicant ‘was ever charged with an offence, or … has an adverse profile, related to these events’.[37] This was notwithstanding the fact that the Authority had accepted that the applicant:
·was hired to drive members of the Catholic Church to and from meetings in Vinh city and that these people were connected to, or affiliated with, a political organisation seeking to overcome dictatorship and reform Vietnam, the Viet Tan; and
·was questioned by the police regarding his role in transporting these people to and from these meetings.
[37] Authority decision record dated 28 June 2018 at paragraph [20].
It is therefore said by the applicant that the Authority’s reasoning in this regard was illogical or irrational.
It is not in dispute that a decision of the Authority may be affected by jurisdictional error if its reasoning is unreasonable, irrational or illogical.[38] Nor is any issue taken with the proposition that illogicality or irrationality does not only arise in relation to a decision maker’s final or ultimate decision but can also arise in respect of findings made or conclusions reached on the way to the ultimate decision.[39]
[38] Applicant’s Outline of Submissions filed on 10 August 2023 at paragraph [11]; Minister’s Outline of Submissions filed on 18 August 2023 at paragraph [37]; Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 (‘SZMDS’).
[39] CGA15 v Minister for Home Affairs (2019) 268 FCR 362 at [58] and cases referred to therein.
In SZMDS, Justices Crennan and Bell said:
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 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.
…
135.… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, … or if there is no logical connection between the evidence and the inferences or conclusions drawn. …
The applicant submits that there is an internal inconsistency in the Authority’s reasoning, in that at paragraph [20] of its decision record, the Authority said:
20.… I am prepared to accept as plausible that the applicant may have been questioned by the police regarding his role in transporting these individuals to and from their meetings. …
Moreover, at paragraph [27], the Authority also said, ‘I have accepted the applicant was questioned in the past …’.
It is submitted for the applicant that those findings are:
16.… completely at odds with the Authority’s findings at [21] and [23] disbelieving the applicant’s account “as to what occurred after he drove the Catholic officials to the meetings in Vinh City” (including that he had been questioned by police).[40]
[40] Applicant’s Outline of Submissions filed on 10 August 2023 at paragraph [16].
The applicant says that when consideration is given to the applicant’s statutory declaration made on 15 March 2017, the applicant relevantly said:
16. …
… I was ordered to report to the location police station (sic), where I was detained for questioning for two days. I was told that the Catholic Group, whom I had taken them, was involved in political activities of Viet Tan Party … that was against the Vietnamese government.
… From then on I was ordered to report to the local police station frequently (bi‑weekly). Each time they told me to make a report of what I had done since my last report. I told them I had not done any things wrong but they did not believe me. They threatened to send me to re-education camp.[41]
[41] Applicant’s Outline of Submissions filed on 10 August 2023 at paragraph [16]; Court book at page 152.
It was submitted by the applicant that:
18.Having accepted that the applicant was “questioned by the police regarding his role in transporting [the Catholic group] to and from their meetings”, it was not open for the Authority to simultaneously conclude that he had not been questioned for two days and that he had not been ordered to report for “bi-weekly” questioning as claimed (emphasis in original).[42]
[42] Applicant’s Outline of Submissions filed on 10 August 2023 at paragraph [18].
It is further submitted that these findings are irreconcilable and therefore evidence irrational or illogical reasoning and that this constitutes a jurisdictional error similar to the kind described in SZMDS.
Alternatively, it was submitted for the applicant that this reasoning evidences a failure to consider an integer of the applicant’s claim.[43] Otherwise, further in the alternative, the applicant submits that the reasoning demonstrates that the Authority failed to give active and full consideration to the applicant’s claims.[44] Both of these alternate claims, it is submitted for the applicant, constitute a jurisdictional error.
[43] Applicant’s Outline of Submissions filed on 10 August 2023 at paragraph [18].
[44] Applicant’s Outline of Submissions filed on 10 August 2023 at paragraph [18].
It was submitted for the Minister that there was no inconsistency in the Authority’s reasoning in the manner alleged or otherwise.[45] It is submitted for the Minister that it was entirely consistent for the Authority to accept that the applicant had been questioned by police about his involvement in the transport of the Catholic group, but not accept that he had either been detained for two days or that he had been required to report to the police bi-weekly.[46]
[45] Minister’s Outline of Submissions filed on 18 August 2023 at paragraphs [26] and following.
[46] Minister’s Outline of Submissions filed on 18 August 2023 at paragraph [27].
Moreover, it was further submitted for the Minister that in any event, the Authority did not expressly reject the applicant’s claims to have been detained for two days or to have been requested to report bi-weekly to police.[47]
[47] Minister’s Outline of Submissions filed on 18 August 2023 at paragraph [28].
The Minister points to paragraph [21] of the Authority’s decision record, in which the Authority did no more than identify inconsistencies in the applicant’s evidence about his interactions with the police.[48] It is submitted for the Minister that the Authority did not make any findings of fact in paragraph [21].[49]
[48] Minister’s Outline of Submissions filed on 18 August 2023 at paragraph [29].
[49] Minister’s Outline of Submissions filed on 18 August 2023 at paragraph [29].
Similarly, the Minister points to the Authority’s comments at paragraph [22], where it identified further inconsistencies in the applicant’s evidence.[50]
[50] Minister’s Outline of Submissions filed on 18 August 2023 at paragraph [30].
The Minister further observes that at paragraph [23], the Authority went on to consider that given the significance of these matters to the applicant’s claims, ‘he would have been able to provide a consistent account of these events, had they occurred has (sic) contended’.[51]
[51] Minister’s Outline of Submissions filed on 18 August 2023 at paragraph [31].
It was submitted for the Minister that all that the Authority did was to comment on the lack of consistency in the applicant’s evidence.[52]
[52] Minister’s Outline of Submissions filed on 18 August 2023 at paragraph [31].
Notwithstanding the significant credibility concerns the Authority had about the applicant’s evidence, and which the Authority detailed at paragraphs [21] to [26], the Authority accepted that the applicant was questioned by police, although it did not accept that he had either been charged with an offence or that he had an adverse profile. So much, it is submitted for the Minister, was open on the evidence before it.[53]
[53] Minister’s Outline of Submissions filed on 18 August 2023 at paragraphs [32] to [37].
It is further submitted for the Minister that the applicant also referred to further interactions with the police in his statement of 8 October 2013 and that it is therefore overly narrow to consider the Authority’s findings only by reference to the evidence given by the applicant in his statutory declaration of 15 March 2017.[54]
[54] Minister’s Outline of Submissions filed on 18 August 2023 at paragraph [34].
It is conceded for the Minister that the applicant did not expressly refer to questioning by the police in his October 2013 statement.[55] However, the Minister says that it is implicit in that statement that the applicant claimed to have been questioned by the police in so far as he claims that the police ‘accused [him] of a crime with the sentence of imprisonment of joining hands with people who opposed the country’.[56]
[55] Minister’s Outline of Submissions filed on 18 August 2023 at paragraph [34].
[56] Minister’s Outline of Submissions filed on 18 August 2023 at paragraph [34(a)]; Court book at page 65.
Similarly, the Minister points to further information that the applicant included in his SHEV application regarding his interactions with police.[57]
[57] Minister’s Outline of Submissions filed on 18 August 2023 at paragraph [34(b)]; Court book at page 122.
The Minister further says that all of this, when viewed as a whole, indicates that the applicant claimed to have had contact with the police about his involvement in driving the Catholic group and that this interaction included questioning.[58]
[58] Minister’s Outline of Submissions filed on 18 August 2023 at paragraph [35].
In the alternative, it is submitted for the Minister that if the Authority is taken to have concluded that the applicant was not detained for two days and was not required to report to the police bi-weekly, that such a finding was open on the evidence.[59]
[59] Minister’s Outline of Submissions filed on 18 August 2023 at paragraph [37].
The Minister submits that it was open to the Authority to have regard to the fact that he had not mentioned being detained or being required to report bi-weekly to the police until his statutory declaration in March 2017.[60] Further, it is submitted that it was open to the Authority to reject these late made claims, and that if the Authority is understood to have done so, that this does not evidence any illogicality or irrationality as described in SZMDS.[61]
[60] Minister’s Outline of Submissions filed on 18 August 2023 at paragraphs [34] to [37].
[61] Minister’s Outline of Submissions filed on 18 August 2023 at paragraph [37].
I agree with the Minister’s arguments outlined above.
It is well accepted that the reasons of a body such as the Authority ought not be read with a keen eye to error.[62] With respect, accepting the applicant’s submissions in this matter would offend against those principles.
[62] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
At the heart of the applicant’s claim was that he fears harm:
18.… from the authorities because he was hired to drive a group of Catholic priests and officials to meetings in Vinh city in 2012, who he later learned were affiliated with the ‘Viet Tan’, a political organisation opposed to the government.[63]
[63] Authority decision record dated 28 June 2018 at paragraph [18].
It is also apparent from paragraph [18] of the Authority’s reasons that it was of the view that his claims had ‘evolved over time’. Also at paragraph [18], the Authority noted that ‘[h]is evidence was presented in a manner suggestive of lived experience’. It was in this context that the Authority went on at paragraph [18] to also accept that:
18.… in 2012, the applicant was hired to drive a group of Catholic priests and officials to and from meetings in Vinh City. I am also prepared to accept as plausible the applicant’s contention that these people were connected to or affiliated with the ‘Viet Tan’, a group seeking to overcome dictatorship and reform Vietnam through non‑violent means.
At paragraphs [19] and [20], the Authority then considers the freedoms available to religious groups and their supporters as well as others who openly criticise the government. It is in this context that the Authority found at the end of paragraph [20] that:
20.… I am prepared to accept as plausible that the applicant may have been questioned by the police regarding his role in transporting these individuals to and from their meetings. However, for the reasons that follow, I do not accept that the applicant was ever charged with an offence, or that has an adverse profile, related to these events as claimed (sic).
It is in this context that the comments and findings made by the Authority at paragraphs [21] and [22] must be read, namely, they set out the reasons for the conclusion reached that the Authority did not accept that the applicant was ever charged with an offence, or that he had an adverse profile with regard to his role as a driver for the Catholic group.
The observations made by the Authority at paragraphs [21] and [22] identify inconsistencies in the applicant’s evidence about his contact with the police following him transporting the Catholic group, as well as inconsistencies in how the applicant said that he learned that the police wanted to send him to a re-education camp.
Therefore, when the Authority said at paragraph [23]:
23.Having regard to the significance of the above matters to the applicant’s life and protection claims, I consider that he would have been able to provide a consistent account of these events, had they occurred has (sic) contended…
this to be read as a reference to whether the applicant was charged with an offence or whether he had an adverse profile related to his transportation of the Catholic group.
The Authority then set out other concerns it had about other inconsistencies in the applicant’s evidence at paragraphs [24] to [25].
At paragraph [26], the Authority then referenced independent information about the different treatment meted out to active organisers and leaders of political, religious organisations, on the one hand, and low-level protesters and supporters who engage in protests or criticise the government, on the other. In the latter case, the Authority said that country information suggests that those people ‘may face some risk of police intimidation and harassment’.
The Authority then went on to note that:
26.… In the circumstances of this case, the applicant has not himself engaged in any protests or activism of any kind against the government, he did not claim to have attended the meeting to which he drove the officials, and his evidence was that he not a member of (sic) of the Viet Tan and nor is he religious. In this case, the applicant’s role in being hired to transport officials from the Catholic Church and members of the Viet Tan to meetings does not amount to being an active organiser or leader of a political opposition, and nor would it amount to supporting or engagement in a protests (sic) or open criticism of the government, such that he would have been attributed with any adverse religious, political opinion or anti‑government political profile, including being a member or supporter of the Viet Tan.[64]
[64] Authority decision record dated 28 June 2018 at paragraph [26].
Against these findings, the Authority then went on to say at paragraph [27]:
27. Cumulatively, the above matters lead me not to be satisfied that the applicant was charged with any offence, including being a reactionary against the government, or that he had an adverse profile relating to driving Catholic priests and officials who were also members of the Viet Tan to Vihn City (sic) in 2012. … I have accepted the applicant was questioned in the past, but noting his limited role in those events, my finding that he had no adverse profile of his own, and that it is now over 6 years since the events occurred, I consider he would not be of any interest to the authorities for his role in transporting those individuals to Vinh City on return to Vietnam, or any other reason. (emphasis added)
When regard is had to the Authority’s reasons as a whole and read fairly, it did not make a positive finding that the applicant was not detained for two days or that he was not required to frequently report to the police. Nor was such a finding necessary for the Authority to discharge its statutory task.
Rather, a fair reading of the Authority’s reasons disclose that it found that the applicant did not have an adverse profile due to his role in transporting the Catholic group. It was not necessary for the Authority to determine exactly what involvement the applicant had with the police, and in particular, whether he had been detained for two days or whether he was required to report to the police frequently.
It accepted that he did have some involvement with police and that he was questioned about his role in the transporting of the Catholic group, but the extent of that involvement was not relevant nor necessary for the Authority to determine, in circumstances where the Authority expressed concerns about the applicant’s credibility.
No irrationality or illogicality is disclosed by this reasoning.
Nor can it be said that the Authority failed to have regard to an integer of the applicant’s claim or that the Authority failed to give proper consideration to the applicant’s claims or an integer of such claims. The Authority understood the applicant’s claims and properly identified them in its reasons for decision. As stated above, this was summarised by the Authority at the commencement of paragraph [18] of its decision. The Authority also understood the applicant’s evidence and expressed some concerns about what it considered to be inconsistencies in that evidence.
The Authority ultimately concluded that the applicant did not have an adverse profile that would put him at risk if he were to return to Vietnam. That finding was reasonably open to the Authority. It was open to the Authority to accept, as it did, that the applicant had had some contact with the police without defining the nature and extent of that contact.
There is a logical and probative basis for the findings made by the Authority in this case. There is no illogicality or irrationality in the sense described in SZMDS.
Nor do I accept the applicant’s alternate claim that the Authority failed to discharge its statutory duty by failing to address or consider a claim made or a claim which could be said to squarely arise from the material before the Authority.
The claim made by the applicant was that he feared harm because of the role he had in transporting the Catholic group. To the extent that he referred to being detained by the police or being required to report to the police, this was a form of harm to which the applicant had already been exposed, according to him, and which he pointed to no doubt as evidence of the type of harm he would suffer again if he were to return.
It could also be said to have been put forward as evidence that the applicant had a profile which would result in him being harmed if returned. The Authority considered the claim which arose, namely that due to his transportation of the Catholic group, he had a profile which exposed him to a risk of harm on his return to Vietnam.
For the reasons explored above, the Authority rejected that claim. It cannot therefore be said that the Authority failed to consider a claim which reasonably arises on the material. It dealt with the applicant’s claims.
CONCLUSION
For each of these reasons, I make the orders as set out at the commencement of these reasons.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 29 November 2023
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