Dvo18 v Minister for Home Affairs
[2019] FCCA 3293
•6 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DVO18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3293 |
| Catchwords: MIGRATION – Visa – protection visa – review of decision of Immigration Assessment Authority – contentions of illogicality, irrationality and unreasonableness – decision consistent with previous findings and reasons – findings wholly based on evidence put before it by Applicants – decision open on that evidence – Amended Application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1); 5J |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; 92 ALJR 780; 359 ALR 1 |
| First Applicant: | DVO18 |
| Second Applicant: | DVN18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | CAG 56 of 2018 |
| Judgment of: | Judge Neville |
| Hearing date: | 15 March 2019 |
| Date of Last Submission: | 15 March 2019 |
| Delivered at: | Canberra |
| Delivered on: | 6 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov of Counsel |
| Solicitors for the Applicant: | TranQuill Legal |
| Solicitors for the Respondent: | Clayton Utz, Canberra |
ORDERS
The Amended Application filed on 18th January 2019 be dismissed.
The Applicants pay the Respondents’ costs in the sum of $7,467 as per Schedule 1 part 3 of the Federal Circuit Court Rules 2001.
All extant Applications be dismissed, the matter finalised and removed immediately from the docket.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 56 of 2018
| DVO18 |
First Applicant
| DVN18 |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicants are citizens of Vietnam. They are cousins by blood, but regard each other as siblings. The First Applicant was 15 years old when he came to Australia in 2013. He claimed to be a fisherman and to have worked for about 2 years before coming to Australia. He also said that, in or around 2011, he had been on a fishing boat in the Spratly Islands, in Vietnamese territorial waters, when he saw 32 Chinese vessels, one of which rammed the fishing boat on which he was working.[1]
[1] These basic details, which are not essentially disputed, are taken from the reasons of the Immigration Assessment Authority (“the IAA”), which are located at Court Book (“CB”) pp.311 – 333. See especially pars.13 – 19.
The First Applicant also said that he relied upon his older, female cousin, the Second Applicant, for emotional and financial support.
The Second Applicant is currently aged 29. She is tertiary educated.
According to the IAA (par.10), both Applicants fear harm from the Vietnamese communist police, government and authorities. They fear harm:
… on the basis of their religion as Catholics, actual or imputed political opinion (being anti-Communist and anti-Vietnamese government), on the basis of their asylum claims and illegal departure, and an adverse profile arising from an incident involving a Chinese shipping vessel in 2011.
Only one ground of the Applicant’s Amended Application, filed 18th January 2019, was ultimately pressed. That Ground of Review was in the following terms:
The decision of the IAA was affected by illogicality, irrationality, unreasonableness or some other unspecified error.
Particulars
The reasons given at [77] – [84] do not make sense, justifying an inference that the Tribunal [sic – Authority] did not have any lawful reason for rejecting the claim that the Applicants may engage in a higher level of political activity against the Vietnamese government if returned to Vietnam.
For the reasons that follow, no relevant error was committed by the IAA. Accordingly, the Amended Application must be dismissed and an Order for costs in the Minister’s favour must also follow, as per Schedule 1 Part 3 of this Court’s Rules.
The Tribunal’s Decision
The delegate for the First Respondent Minister (“the Delegate”) determined not to grant the Applicants’ protection visas on 11th May 2017. On 29th June 2018 the Independent Assessment Authority (“IAA”) affirmed the Delegate’s decision for the following reasons.
Although the Applicants now only contend error in pars.77 – 84 of the IAA’s reasons, for context and much more, I summarise the IAA’s reasons as follows.
After noting, at pars.11 and 12 of its reasons the terms of ss. 5H(1) and 5J of the Migration Act 1958 (Cth) (“the Act”), pars.13 – 15 outline the identities of the Applicants. Having already noted such matters earlier in these reasons, I need not do so again.
Pars.16 – 19 provide what is described as “background to [the] claims.” The First Applicant said that he went to sea when he was about 13 years old to work for his Uncle, Mr Hoan. He did so for about 2 years. The First Applicant confirmed that no one in his family had been involved in any anti-government activities, or any social or religious group. Nor had he been arrested or detained by police, security or intelligence agencies.
The Second Applicant said she left Vietnam because of the conflict between her country and China. She said there was no particular reason she left Vietnam, other than her dislike of the Vietnamese regime. Like her cousin, neither she nor her family had ever been involved in anti-government activities, nor a member of any social or religious group.
Both Applicants confirmed that there was no catalyst for them leaving Vietnam.
Pars.20 – 41 outline, at obvious length, details regarding an incident involving a Chinese vessel. Because there is no claim made against the IAA’s treatment and consideration of this incident, I can be particularly brief.
Both Applicants expressed some fear arising from this incident, which they say occurred around 2011. They say that it may have led them to receiving, formally or otherwise, some adverse profile. This is also in circumstances where the First Applicant made no claim at his arrival interview of having experienced any harm or arrest.
In a statement made in 2014, the First Applicant stated that his Uncle’s fishing boat was rammed by a Chinese vessel. He claimed that the Chinese used a water gun to shoot at him and his Uncle. Upon sailing to one of the Spratly Islands to ask for assistance, the First Applicant claimed that they received no help, which led to them criticising the Navy and the Sea Police for not doing so. He claimed that this led to him being arrested and beaten, following which he lost consciousness. Upon getting to the mainland, local police questioned the First Applicant and his Uncle, beat them and cautioned them not to reveal anything about “the incident.”
The IAA noted, at par.26, that the First Applicant’s account of this incident “shifted significantly” at the visa interview. This included him confirming to the Delegate (recorded at par.29) that he had never been stopped by authorities.
The IAA said, at par.31, it accepted that the First Applicant and his Uncle may have had some sort of adverse encounter with the Vietnamese Navy. The IAA noted, however, that the First Applicant did not particularise what kind of harassment he had faced. The IAA formed the view that such difficulty the First Applicant had faced in Vietnam was at a low level, that he did not face difficulty directly, and that it would (in any event) not amount to significant or serious harm.
The IAA noted a range of general concerns (at pars.32 – 37) regarding the First Applicant’s account of events regarding the encounter with a Chinese vessel, which I need not recount further, save to note that, at par.35, the IAA stated:
… I am not satisfied those factors [earlier recorded] adequately explain what I consider to be a significant shift in his claims at the visa interview. I accept he may err in aspects like the dates, and details of the specific incidents, but I do not accept that he would contradict whole aspects of his earlier claims …
In general terms, at pars.38 – 41, the IAA dealt primarily with concerns regarding the Second Applicant’s claims, noting (e.g. at par.40) that her evidence was inconsistent and vague.
Pars.42 – 61 outlined the IAA’s consideration of the Applicants’ claims relating to their Catholicism.
Put shortly, both Applicants confirmed in their arrival interviews that they had not encountered any difficulties regarding the practice of their faith.
The IAA accepted that the First Applicant had not experienced any difficulties with the practice of his faith, and noted that he could not state the name of the priest at the Church he said he attended regularly.
The Second Applicant, however, claimed that she regularly experienced difficulties in the practice of her faith in Vietnam. She said that she had seen fellow Catholics beaten.
In Australia, the Second Applicant claimed to attend Mass daily and on weekends, but she could not name any particular Church she attended. In general terms, at par.56, the IAA said that it found the Second Applicant’s account to be evasive, and that her knowledge of Catholicism was quite general. Her evidence led the IAA to conclude that it had “serious concerns about the level of her Catholic faith.” While accepting that she is a Catholic, the IAA doubted that she attended Mass as frequently as she claimed.
The IAA concluded (par.60) that it was not satisfied that the Applicants ever faced any relevant harm, such as discrimination, harassment or mistreatment, or other barriers to them attending Church. Conversely, it held (par.61) that the Applicants would be able to practice their religion freely upon returning to Vietnam.
Pars.62 – 71, relate to the Applicants’ claims regarding their political activity in Vietnam.
At their arrival interviews, the Applicants did not claim to have been politically active in Vietnam.
At a few different places in its reasons, the IAA noted how the Second Applicant shifted in her accounts of activity when she was still in Vietnam. In the result, the IAA found (par.71) that neither of the Applicants were politically active in Vietnam and would not face a real chance of being seriously harmed due to their political opinion or past political activities in Vietnam should they return there.
Pars.72 – 85 outline the claims, evidence and findings relating to the Applicant’s “political activities in Australia.”
In their Visa Application statements, the Applicants claimed to have attended an anti-Vietnam protest outside Parliament House, Canberra, in March 2015. Their intentions were to protest against the Communist Government and their “defection” from the Vietnamese regime.
They claimed that a video of them attending and participating in the protest is available on YouTube. They fear that Vietnamese intelligence agencies will see and recognise them, ultimately leading to their torture if they are returned to Vietnam.
The First Applicant said that he was a member of the “Vietnamese Freedom Community” and that he joins in every protest. He said that he did nothing else. He confirmed that he has attended two protests in Australia, one in 2015 and another in 2017.
The Second Applicant gave evidence similar to that of her younger cousin.
The IAA accepted (par.77) that the Applicants attended two protests, one in March 2015, the other in May 2017. It accepted too that the Applicants attend Church but otherwise they provided no evidence of political activity with political groups, engagement with the Vietnamese community, or “even political activity on social media.” The IAA concluded that:
… their attendance at these protests was superficial, likely designed to strengthen their claims to be owed protection. Were it otherwise, I consider they would have shown a more significant or frequent engagement with political or community activities in Australia. While I accept they do not support the current Vietnamese government, I consider their political views are likely low level. … I am not satisfied they are genuinely politically active or outspoken about these issues, or that they would be politically active or outspoken on return to their country.
The IAA accepted (pars.78 – 80) that the video on YouTube earlier referred to has been viewed approximately 16,000 times. However, the IAA determined that the Applicants have no past adverse political profile and that they are not known to Vietnamese authorities. The likelihood of the Vietnamese authorities viewing the video and the Applicants being targeted as a result would be remote, the IAA said.
Further, the IAA alternatively held (pars.81 – 83) that the political activity of the Applicants was relevantly “low level.”
The IAA also held (pars.84 and 85) that if they returned to Vietnam, the Applicants would not be involved in political protests or “other politically charged activities.” In short, the Applicants would not be modifying their behaviour but, rather, their activity would genuinely reflect the “low level nature of any political views they hold.”
Pars.86 – 96 outlined the IAA’s consideration of the Applicants’ claims regarding “illegal departure, data breach and time in Australia, while pars.97 – 100 set out the IAA’s discussion of matters relating to the impact on the Applicants’ family in Vietnam, including a contention of the authorities visiting the family of the First Applicant, while the Second Applicant said that her family was suffering because she had left the country.
For reasons given earlier in the light of the very limited scope of the Application before the Court, I need not canvass further the IAA’s reasons.
Grounds of Review
The Applicants’ Application is based on the following grounds, as outlined in their Amended Application filed on 18th January 2019, noting that, as earlier recorded, the Applicants now only press Ground 4:
4. The decision of the IAA is affected by illogicality, irrationality, unreasonableness or some other unspecified error.
Particulars
The reasons given at [77]-[84] do not make sense, justifying an inference that the Tribunal did not have any lawful reason for rejecting the claim that the applicants may engage in a higher level of political activity against the Vietnamese government if returned to Vietnam.
5. The IAA failed to make findings about the applicants’ supposed “low level” political activities with sufficient confidence to exclude the possibility that the applicants may engage in a higher level of political activity, which possibility had to be considered by the IAA.
Submissions on behalf of the Applicant
The Applicant’s submissions, filed on 4th March 2019, were as follows:
1.This is an application to quash a decision of the IAA affirming a decision of a delegate of the Minister not to grant the applicants protection visas.
2.The applicants are cousins and are citizens of Vietnam. Their claims in some respects overlapped and in other respects differed. Their overlapping claims were based on their Catholic faith and their political activities. The first applicant also claimed that he was involved in an incident where he was on a fishing boat (his family being fisherman) that was rammed by a Chinese vessel whilst they were fishing in waters that are disputed between China and Vietnam. The second applicant also claimed that she had been involved in a political protest in Vietnam.
3.The case upon judicial review focusses on one ground, set out in paragraph 4 of the amended application. The applicants abandon the argument in relation to paragraph 5 of the amended application.
4.At paragraphs 72-85 of its reasons (CB 323-324), the IAA turns its attention to the claims made by the applicants that they had involved themselves in activities opposing the Vietnamese government whilst in Australia, having attended two rallies to that effect. They had been filmed whilst so attending, and that footage was published on YouTube. The IAA accepted these facts.
5.The IAA reasoned in paragraph 77 that because the applicants had been in Australia for quite a while and had only involved themselves in two anti-government rallies, their political views were “low level”. Having accepted this to be so, the remained of the reasoning in paragraph 77 does not make sense.
i.The IAA found that “their attendance at these protects was superficial, likely designed to strengthen their claims to be owed protection”, yet it did not apply s 5J(6). Given the terms of s 5J(6), the only basis on which the IAA could have determined not to apply s 5J(6) was if the applicants satisfied it that they “engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee”.
ii.That might be thought to be reconcilable – perhaps one might think that the IAA was saying, albeit clumsily, that it found that the applicants had engaged in the conduct for two purposes, as an expression of genuine political activity (albeit at a low level) and to strengthen their claims.
iii.But that cannot be so – the IAA expressly stated that it was “not satisfied they are genuinely politically active”.
iv.Indeed, if the IAA had lawfully reached a finding that they are not genuinely politically active, in the context of this case the IAA would have to have applied s 5J(6).
v.This reveals a confusion of thought, that amounts to legal error.
6.The view that there existed a confusion of thought is fortified by another matter. In paragraphs 83-84 of the reasons, the IAA finds that the applicants would not engage in political activity upon return to Vietnam. The reasoning underlying this conclusion was that because the applicants had not engaged in much political activity in Australia, their political opinions were at a low level, and in turn, people with a low level of political opinion such as the applicants would not engage in protests or other political activity in Vietnam.
7.This is bootstraps reasoning; and it is not logical or rational.
8.Whatever adjective is affixed to the “level” of the applicants’ political activity in Australia, if it be assumed that s 5J(6) did not apply, they had demonstrated their commitment to political causes by attending two political rallies whilst here. Even if that be a “low” level, their conduct in Australia – not to be disregarded by dint of s 5J(6) – was highly probative of the prospect that they might engage in similar such conduct in Vietnam. If the IAA had engaged with this matter in the required sense, this evidence of political activity in Australia was something that required the IAA to have stated some intelligible reason why it was not probative of their possible engagement in similar such activity in Vietnam. To say that it indicated a low level of political activism may be accepted, but then to reason that this low level of political activism indicated that they would not engage in any political activism in Vietnam is simply to ignore this evidence, or to sidestep the application of s 5J(6).
9.This confusion of thought justifies an inference that the IAA did not reason within the bounds of logic or reason, understood in a legal sense, or that the decision of the IAA is affect by some other legal error which cannot be identified with precision.
Disposition
10.The decision of the IAA should be quashed and the matter remitted for considerations, with costs.
Submissions filed on behalf of the Respondent
The Respondent’s submissions, filed on 8th March 2019, were as follows:
A. Background and introduction
1. By an application filed on 25 July 2018 (and more recently, an amended application filed on 18 January 2019), the Applicants seek judicial review of a decision made by the Second Respondent, the Immigration Assessment Authority (IAA) on 29 June 2018. By that decision, the IAA affirmed a decision made by a delegate on 28 September 2017, to refuse the Applicants' application for a Safe Haven Enterprise Visa (SHEV) pursuant to section 65 of the Migration Act 1958 (Cth) (the Act) which they had applied for by application received on 1 May 2017.
2. The Applicants are Vietnamese nationals and cousins who arrived in Australia on 25 July 2013.
3. On 5 June 2017, a delegate of the Minister (delegate) advised the Applicants that he had lifted the bar under s 46A of the Act, and invited the Applicants to apply for a SHEV.
4. On 12 July 2017, the Applicants attended an interview with the Department to discuss their claims. On 27 July 2017, the Applicant's representative provided post-interview submissions.
5. On 2 October 2017, the IAA wrote to the Applicants to notify them that their SHEV applications had been referred to the IAA for consideration under Part 7AA of the Act. On 31 October 2017, the Applicants' representative provided written submissions to the IAA.
B. Statutory framework
6. The Fast Track Assessment Process (FTAP) was introduced by item 21 of Sch 4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), which enacted Part 7AA of the Act. It commenced on 18 April 2015.
7. The purpose of the FTAP, as explained in s 473BA of the Act, is to provide “a limited form of review of certain decisions … to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country.” Such applicants are known as fast track review applicants. A decision to refuse to grant a protection visa to such an applicant is known as a fast track reviewable decision.
8. Section 473JA establishes the IAA within the Migration and Refugee Division of the Administrative Appeals Tribunal.
9. Division 2 of Part 7AA sets out the procedure for referring a fast track reviewable decision to the IAA. Section 473CA imposes a duty on the Minister to refer such a decision to the Authority “as soon as reasonably practicable after the decision is made”.
10. Section 473CC(1) requires the IAA to “review” “a fast track reviewable decision” referred to it under s 473CA. In the present statutory context, the nature of the powers conferred on the IAA indicates that it must, subject to Part 7AA, conduct a review of the delegate’s decision (as opposed to his or her reasons for decision), with a view to reaching the “correct or preferable decision”, without conducting an interview (s 473DB(1)(b)) and without accepting or requesting new information (s 473DB(1)(a)).
C. IAA decision
11. On 29 June 2018, the IAA affirmed the delegate's decision. The IAA had regard to the material referred to by the Secretary under s 473CB of the Act.
12. The IAA correctly identified that the criteria for the Visa are set out in s 36 of the Act. In considering the refugee criterion, the IAA identified the correct legal test for whether the Applicant was a refugee (pursuant to the statutory definition in s 5H(1) of the Act), which necessarily depended on the Applicant having a well-founded fear of persecution (pursuant to the statutory definition in s 5J of the Act).
13. The First Respondent relevantly notes that a fear of harm for the purposes of the Act will only be "well-founded" in circumstances where there is a "real substantial basis for it", which rests on more than mere assumption, speculation or the Applicant's professed belief in such a fear. The definition of "well-founded" requires that there be a "real chance" that the person will be persecuted in the future if returned, being "more than remote or far-fetched". Importantly, it is the Applicant's responsibility to demonstrate to the decision maker that their fears were well-founded. In applying that test, the decision maker is not required to accept the Applicant's claims uncritically.
14. The Applicants claim to have a well-founded fear of persecution upon return to Vietnam on the basis of their Catholic religion, an incident involving a Chinese fishing vessel (in the case of Applicant 1), their political opinion and perceived political opinion and their membership of particular social groups (failed asylum seekers from Vietnam and failed asylum seekers who were subject to the Department's 2014 data breach).
15. The IAA was not satisfied that the Applicants would face a real chance of serious harm or a real risk of significant harm for the following reasons:
a. Catholic religion: On the basis of the evidence the Applicants provided of their religious practices in Vietnam and Australia, the IAA found that the Applicants were "low level Catholics" who had not previously suffered harm in connection with their religion. Having regard to country information which indicated that low level Catholics could freely practice their religion in Vietnam at both registered and unregistered churches, the IAA concluded that the Applicants' would be able to freely practice their religion on return and would not face harm for this reason.
b. Family profile: Applicant 1 claimed that, while he was working as a fisherman in Vietnam, he and his family were involved in an incident with a Chinese fishing vessel in which that vessel hit and damaged their fishing boat. Applicant 2 claimed to have been detained and beaten by the Vietnamese Navy following this incident because the Navy considered he was associated with the Chinese. Applicant 1 also claimed at the visa interview that the Vietnamese Navy would ask for his family's papers and would caution them about fishing in particular areas.
The IAA accepted that Applicant and his family may have faced some harassment from the Vietnamese Navy in the form of the requests for papers and warnings. The IAA raised significant concerns in relation to Applicant 1's credibility as his account of the Chinese fishing vessel incident shifted significantly throughout the SHEV application process. Nonetheless, the IAA was prepared to accept that the fishing boat had been rammed as this was consistent with the country information (at [36]) and noted it was plausible that Applicant 1 and his family were detained. The IAA noted that Applicant 1 and his family did not face any further interference on their return to the mainland. In relation to the evidence of Applicant 2, who claimed to be at risk of harm through association to Applicant 1 as her cousin, the IAA found her evidence about the impact of the fishing incident upon her to be inconsistent and lacking in credibility.
Ultimately, the IAA concluded that it was not satisfied that the Applicants, or members of their family, were or remain persons of interest to Navy or Vietnamese authorities because of the Chinese fishing vessel incident nor was the IAA satisfied that the Applicants faced an ongoing threat of harm or otherwise had a profile that would put them at risk of harm.
c. Status as failed asylum seekers, persons subject to the Department's 2014 data breach and illegal departees: The IAA accepted that the Applicants' personal details were disclosed during a breach of departmental systems in 2014 and was prepared to accept the possibility that the Vietnamese government accessed this information (at [87]). However, the IAA was not satisfied that the Applicants would have an adverse political profile on return to Vietnam on this basis as there was no indication that any information about the Applicants' substantive claims had been released and their political activities pre-dated the breach.
In relation to the failed asylum seeker claim, while the IAA noted that fleeing abroad or defecting with a view to oppose the Vietnamese government is an offence, the country information indicated that this provision had not been enforced against returning asylum seekers such that the Applicants would not be at risk of serious or significant harm for this reason (at [91] to [93]).
In relation to the illegal departure claim, while the IAA accepted that the Applicants may be detained, interviewed and possibly fined by Vietnamese authorities on return due to the fact of their illegal departure (at [90] and [95], CB39, 326-7), the IAA formed the view that the Applicants low level profile indicated that any adverse attention they may face would not amount to serious or significant harm.
16. The IAA also found that it was not satisfied that the Applicants would be at risk of harm on return to Vietnam on the basis of their political opinion or perceived political opinion. The IAA's findings in relation to this claim are set out in detail below.
17. In light of its findings, the IAA concluded that the Applicants did not meet the refugee criterion in section 36(2)(a) or the complementary protection criterion in section 36(2)(aa) and affirmed the Delegate's decision not to grant the Applicants SHEVs.
D. Application for judicial review
18. The Applicants seek to rely on an amended application filed on 18 January 2019, with supporting submissions filed on 4 March 2019. The Applicants now only press ground 4 to the amended application.
19. By ground 4 to the amended application, the Applicants assert that the decision of the IAA is affected by "illogicality, irrationality, unreasonableness or some other unspecified error". The Applicants assert that the reasons given at paragraphs [77] to [84] of the IAA's reasons do not "make sense" and that this justifies "an inference that the Tribunal did not have any lawful reason for rejecting the claim that the applicants may engage in a higher level of political activity against the Vietnamese government if returned to Vietnam".
20. In essence, the Applicants are seeking, by this ground, to impermissibly take issue with the IAA's conclusions as to the merits of their applications.
21. The First Respondent respectfully submits that no error is established by the applicant's ground of review for the reasons that follow. However, it the Court is satisfied that the IAA erred (which is denied), the Respondent submits that any error did not amount to a jurisdictional error as the Applicant has not demonstrated the error was material to the IAA's task in the sense that it could have affected the outcome of the review.
E. Submissions
(i) Relevant test
22. At the outset, the First Respondent submits that unreasonableness sufficient to constitute jurisdictional error will only be found where, following a consideration of the subject matter, scope and purpose of a provision, and in light of the reasons given for the decision, a finding is “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, or “obviously disproportionate". Similarly, “illogicality” or “irrationality” sufficient to constitute jurisdictional error requires a finding be one which no rational or logical decision-maker could arrive at on the same evidence. These are stringent tests, and findings of legal unreasonableness and illogicality are "fairly rare and would only occur in relatively clear cases".
23. It is against this legal standard that the Applicants' ground of review ought to be assessed.
(ii) The IAA's findings
24. The Respondent submits that Applicant's characterisation of the IAA's findings is inaccurate. The below summary of the Applicants' claims, evidence and the IAA's findings should be preferred.
25. The Applicants claimed to fear harm on the basis of their political opinion or perceived political opinion on return to Vietnam on the basis of their claimed political activity in Vietnam and in Australia.
26. The IAA was not satisfied that either of the Applicants were politically involved in Vietnam and therefore did not accept that they would face a real risk or real chance of harm on return to Vietnam for this reason. The IAA found that Applicant 2 was not a credible witness in relation to her claims to have participated in political activity in Vietnam (at [70]) on the basis of various matters including her inability to provide a consistent account as to the purpose of the protest and inability to name the protest group or main organiser of the protests. Applicant 2's claims also shifted throughout the SHEV application process. The IAA found that Applicant 1 was not politically active in Vietnam and noted that "this was unsurprising given he was quite young when he left" (at [68]).
27. The IAA then proceeded to assess the Applicants' claims and evidence in relation to their claimed political activity in Australia. As summarised by the IAA at [72] - [73], the Applicants' claimed that:
a. they attended an anti-Vietnam protest outside Parliament House in Canberra in March 2015 which they attended for the purpose of demonstrating against the Communist Party and its treatment of Vietnamese People (and to show their defection from the Communist Vietnamese regime);
b. a video of them attending and participating in the protest is available on YouTube and the Vietnamese intelligence agency will recognise them and torture them on return.
28. The IAA accepted that:
a. the Applicants attended an anti-Vietnam protest in March 2015 at Parliament House in Canberra;
b. the Applicants attended a protest at the Vietnam Embassy in Canberra in May 2017 and that Applicant 1 was interviewed on video with that video being later posted to YouTube. The IAA commented that "the video from 2017 appears to be of Applicant 1";
c. Applicant 1 was a member of the Vietnamese Freedom Community and attended protests as a participant, not an organiser (at [74]);
d. Applicant 2 was not a member of any political group in Australia (at [75]);
e. the Applicants attend church in Canberra but noted that the Applicants provided "no other evidence of political activity, engagement with political groups, engagement with the Vietnamese community, or even political activity on social media" (at [77]).
29. Having accepted the fact that the Applicants were involved in some particular instances of political activity, the IAA then proceeded to assess the level of the Applicant's political activity for the purpose of assessing whether the Applicants were at risk of serious or significant harm on the basis of this activity on return to Vietnam.
30. As it was required to do on the facts of this case, the IAA first considered whether the conduct referred to at paragraph 28 should be disregarded in its determination as to whether the Applicants possessed a well-founded fear of persecution pursuant to s 5J(6) of the Act which provides:
(6) In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
31. The IAA's conclusions were set out as follows (paragraph [77] in full):
The evidence before me indicates that the applicants attended one protest in March 2015 and another protest in May 2017. The Applicants have attended two protests during their entire time in Australia. They have provided evidence that they attend church in Canberra, but provided no other evidence of political activity, engagement with political groups, engagement with the Vietnamese community, or even political activity on social media. The limited nature of their evidence indicates that the applicants have not otherwise been politically active. This leads me to conclude that their attendance at these protests was superficial, likely designed to strengthen their claims to be owed protection. Were it otherwise, I consider they would have shown more significant or frequent engagement with political or community activities. While I accept they do not support the current Vietnamese government, I consider their political views are likely low level. For this reason, I have not disregarded their conduct entirely under s. 5J(6). However, having regard to all of the above, I am not satisfied they are genuinely politically active or outspoken about these issues, or that they would be politically active of outspoken on return to their country.
32. The Applicant asserts that the error in the IAA's reasoning lies in the asserted contradiction between the IAA's findings that it was not satisfied the Applicants were "genuinely politically active or outspoken about these issues, or that they would be politically active or outspoken on return" notwithstanding that it was satisfied the Applicants held "likely low level" political views (at paragraph [77]).
33. The First Respondent submits that there is no contradiction in the IAA's findings set out in paragraph [77]. One finding related to the motivation for the Applicants' limited political conduct for the purposes of considering the application of s 5J(6) and the other concerned an assessment of the Applicants' likely level of political activity based on the evidence. Specifically:
a. the IAA's conclusion that the Applicants likely held "low level" political views was a finding as to what, in part, may have motivated the Applicants to attend protests for the purposes of the IAA's consideration of s 5J(6). The IAA was not making a finding in relation to the Applicants' profiles and the level of risk, it was simply commenting on the reasons that particular conduct had been engaged in. It was open to the IAA not to apply 5J(6) as it was satisfied the Applicants' held low-level political views and therefore the IAA was satisfied the conduct was not engaged in solely for the purpose of strengthening their protection claims albeit that it considered that this was also a likely purpose;
b. the IAA's conclusion that it was not satisfied the Applicants were "genuinely politically active or outspoken about these issues, or that they would be politically active or outspoken on return" went to its overall assessment of the political profile of the Applicants. This finding was based on the fact that the Applicants had attended limited activities and had not otherwise been politically active in Australia.
34. There is no error, and certainly no illogicality or unreasonableness, in the IAA accepting that the Applicants may have had multiple motivations to attend protests but then concluding that the fact of attending two protests did not sufficiently demonstrate that the Applicants were, more generally, politically "active or outspoken".
35. In any event, the IAA did not proceed to resolve the application before it on the basis that the Applicants were not genuinely politically active, rather it proceeded to assess the level of risk on return to Vietnam on the basis that the Applicants did hold low level political views (at [80]-[81]). For this reason, in the First Respondent's submission, the Applicants have not demonstrated that the error (which is denied) was capable of affecting the IAA's jurisdiction as the impugned finding at [77] was not capable of affecting the outcome. In SZMTA, per Bell, Gageler and Keane JJ, their Honours observed at [2]-[4]:
The Full Court was correct to take the view that the fact of notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.
The Full Court was also correct to take the view that an incorrect notification results in jurisdictional error if, and only if, the incorrect notification is material, again in the sense that it operates to deprive the applicant of the possibility of a successful outcome.
Where materiality is put in issue in an application for judicial review of a decision of the Tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof…
36. The Respondent submits that any error did not amount to a jurisdictional error as the Applicant has not demonstrated the error was material to the IAA's task in the sense that it could have affected the outcome of the review.
F Disposition
37. The First Respondent submits that the Tribunal’s decision does not reveal any jurisdictional error. The amended application for judicial review filed on 18 January 2019 should be dismissed with costs awarded in the amount of $7,467.
Consideration & Disposition
The first, necessary observation relates to evidence. The IAA determined that there was simply insufficient evidence to support the claims made by the Applicants regarding their “political activity” in Australia. Indeed, there were consistent findings throughout its reasons where the IAA found that the Applicants’ evidence more generally regarding each of their claims was:
a)Lacking in relevant detail;
b)Changed from time to time;
c)Led to doubts about the credibility in particular of the Second Applicant; and or
d)Led to the conclusion that the concerns expressed about possible “risk” if they returned to Vietnam, were at a relevantly “low level” as likely not to attract the attention of authorities in Vietnam.[2]
[2] Among a number of places, see pars.31, 32, 35, 36, 40, 41, 46, 48, 51, 56, 58, 60, 61, 64, 68, 71, 77, 81, 83, 91, 93, 94, 96, 98, & 101.
In the light of the minimal, changeable, and or inconclusive evidence provided by the Applicants to the IAA, in my view, it is very difficult for this Court to challenge such consistent findings.
Secondly, related to this is the obvious further problem that, for this Court to inquire into the evidence before the IAA and its evaluation of it, on its face, is fundamentally an exercise by this Court undertaking impermissible merits review.[3]
[3] See the often-cited comments by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36.
Thirdly, the only ground formally pressed by the Applicants relates to the contention that the IAA’s determination of issues set out in pars.77 – 84 of its reasons are “illogical, irrational and unreasonable.” A convenient and important outline of principle for such mattes is the judgment of Allsop CJ (with which the other members of the Full Court – Griffiths and Wigney JJ – agreed) in Stretton.[4]
[4] Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1. This judgment of the Full Federal Court discussed at length, among other cases, the High Court’s decision in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 61.
In Stretton, at [4] – [12], Allsop CJ said (Griffiths and Wigney JJ agreeing):
[4] In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, the High Court made clear that legal reasonableness or an absence of legal unreasonableness was an essential element in the lawfulness of decision-making; Parliament is taken to intend that statutory power will be exercised reasonably: see Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J).
[5] These statements of general principle in the three judgments (French CJ, and Hayne, Kiefel and Bell JJ, and Gageler J) variously drew upon and drew together a number of well-known expressions and bodies of principle including, and without repeating all citations: the Constitutional necessity for legal control of discretion (power): Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613 at 629-630; the necessary confinement, explicit or implicit, of any statutory discretion or power by the subject matter, scope and purpose of the legislation: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505; the implied legislative intention to condition statutory discretionary power by a requirement that it be exercised reasonably: Kruger v The Commonwealth [1997] HCA 27; 190 CLR 1 at 36; Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510 at 554 [116]; Shrimpton at 620; South Australian Commissioner for Prices and Consumer Affairs v Charles Moore (Aust) Limited [1977] HCA 38; 139 CLR 449 at 466; and Minister for Aboriginal Affairs v PekoWallsend Limited [1986] HCA 40; 162 CLR 24 at 41-42; the necessity that a discretion be exercised according to the rules of reason and justice, not private opinion, according to law, and not humour, and within the limits that an honest and competent person would confine herself that is “legal and regular, not arbitrary, vague and fanciful”: Sharp v Wakefield [1891] AC 173 at 179; Shrimpton at 620; R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; 113 CLR 177 at 189; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 62 [9]; the illegitimacy of the exercise of a discretion in reaching a conclusion that no reasonable person could ever come to: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 229, or where no sensible decision-maker acting with due appreciation of his or her responsibilities would so decide: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014 at 1064; the requirement that the satisfaction or opinion of a decision-maker about the existence of a matter, in particular a jurisdictional fact, be reasonably formed: Council of the Municipality of Bankstown v Fripp [1919] HCA 41; 26 CLR 385 at 403; R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430; Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118119, (though not referred to in Li, Starke J in Boucaut Bay Company Limited (in liq) v The Commonwealth [1927] HCA 59; 40 CLR 98 at 101, approved by Windeyer J in Commissioner of Taxation of the Commonwealth of Australia v Brian Hatch Timber Co (Sales) Pty Ltd [1972] HCA 73; 128 CLR 28 at 57, said that reasonableness here meant not dishonestly, capriciously or arbitrarily and upon a rational ground for the belief); the settled principles of appellate review of judicial discretion in House v The King [1936] HCA 40; 55 CLR 499, and the guidance found therein in the analogy with judicial review of administrative action: Minister for Aboriginal Affairs v Peko-Wallsend Limited 162 CLR at 42; the principle that it is open to infer legal error if the result of the decision appears unreasonable assuming the correct question was addressed and the law was followed in the making of the decision: Avon Downs Proprietary Limited v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360; the principle concerned with unreasonableness in the exercise of delegated lawmaking power – if such laws were partial and unequal or manifestly unjust, or by operation they involved oppressive or gratuitous interference with rights that could not be reasonably justified: Kruse v Johnson [1898] 2 QB 91 at 99-100; and the fact that the conditioning of a power to be exercised reasonably has an analogy with the conditioning of the power with the obligation to afford procedural fairness: Gageler J in Li at [92].
[6] Each of the judgments in Li sought to give explanatory content to the concept of legal unreasonableness. As was discussed in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, the judgments in Li identified two different contexts in which the concept of legal unreasonableness was employed: a conclusion after the identification of jurisdictional error for a recognised species of error, and an “outcomefocused” conclusion without any specific jurisdictional error being identified: Singh at [44].
[7] It is in relation to the second context, the “outcomefocused” application of the concept, that precise definition, beyond explanation of the operative notion and of the legal technique by which to make the assessment, becomes productive of complexity and confusion. There is “an area of decisional freedom” of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness. The boundaries can be expressed by the descriptions and explanatory phrases of the kind set out in [5] above.
[8] The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].
[9] The conclusion that a decision is legally unreasonable by reference to the outcome, whether or not there are reasons therefor, is assisted by reference to expressions taken from cases such as those mentioned in [5] above. Any criticism that these explanations are circular and vague is to be met by attending to the terms, scope and policy of the statute and the values drawn from the statute and the common law that fall to be considered in assessing the decision. The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power – a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual – will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.
[10] This concept of legal unreasonableness is not amenable to minute and rigidly defined categorisation or a precise textual formulary. For instance, in argument, the submission was put that [76] of Li in the judgment of Hayne, Kiefel and Bell JJ contained two (different) “tests”: (1) if upon the facts the result is unreasonable or plainly unjust and (2) if the decision lacks an evident and intelligible justification. The submission reflected the dangers of overly emphasising the words of judicial decisions concerning the nature of abuse of power, and of unnecessary and inappropriate categorisation. The plurality’s discussion of unreasonableness at [63][76] in Li should be read as a whole – as a discussion of the sources and lineage of the concept: [64][65], of the limits of the concept of reasonableness given the supervisory role of the courts: [66], of the fundamental necessity to look to the scope and purpose of the statute conferring the power to find its limits: [67], of the various ways the concept has been described: [68][71], of the relationship between unreasonableness derived from specific error and unreasonableness from illogical or irrational reasoning: [72], of the place of proportionality or disproportion in the evaluation: [73]-[74] (as to which see also French CJ at [30] and see also McCloy v New South Wales [2015] HCA 34; 325 ALR 15 at [3] (French CJ, Kiefel, Bell and Keane JJ)), of the guidance capable of being obtained from recognising the close analogy between judicial review of administrative action and appellate review of judicial discretion: [75]-[76].
[11] The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
[12] Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
Then at [21], his Honour said (emphasis added):
… It is not a correct approach for the Court on judicial review to assess the lawfulness of the decision under s 501 by asking whether the exercise of discretion was necessary for the purpose. That an assessment whether the decision-maker’s conclusion was legally unreasonable may involve some consideration of disproportionality does not authorise the Court to decide for itself what is necessary for the relevant purpose and to declare a decision beyond that assessment as unreasonable. The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion…
On the facts as found by the IAA, and in the light of the outline of principle by Allsop CJ in Stretton, in my view it cannot be said that the finding that the Applicant’s political activity was “low-level” (par.81), based on the Applicants’ own evidence of attending [only] two protests in Australia in 2015 and 2017, was or is contradicted by (or inconsistent with, or illogical or unreasonable compared to) later findings by the IAA. Further, in my view, in the light of the outline of principle in Stretton, the further finding, at par.84, that the Applicants would not be involved in political activity upon their return to Vietnam precisely because of their historically low level of political activity was not inconsistent, illogical or unreasonable with the IAA’s earlier findings, throughout its reasons, and particularly at pars.72 – 85.
In fact, the findings by the IAA at the paragraphs noted are entirely consistent and logical based on the evidence put before the IAA by the Applicants.
In addition to these comments, again in the light of the discussion in Stretton, in my view, given the evidence before the IAA, the conclusion it reached was almost inevitable. There was nothing unreasonable about the IAA coming to the conclusion it did.
Finally, should it need to be recorded, I accept the submissions on behalf of the Minister regarding the “materiality” of the claim made by the Applicants. This is to say that, having regard to comments by the High Court in SZMTA and also in Hossain, in my view, not only were the findings of the IAA regarding the relevant “risk” to the Applicants upon their return to Vietnam in the light of their historical political activities open to the IAA, relevantly they fell within the terms of principle outlined in SZMTA set out below.[5] At [2] and [4] in SZMTA, Bell, Gageler and Keane JJ said:[6]
[5] Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780.
[6] See the further discussion in SZMTA regarding “materiality” at [45] – [50].
[2] The Full Court was correct to take the view that the fact of notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.
…
[4] Where materiality is put in issue in an application for judicial review of a decision of the Tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof. The Full Court was correct to hold in CQZ15 that evidence of the content of notified information can be relevant to the determination of materiality and can on that basis be admissible in such an application. The Full Court was also correct to find on the evidence adduced in BEG15 that the undisclosed and incorrect notification in that case was immaterial. The undisclosed and incorrect notification in SZMTA was similarly immaterial and did not result in jurisdictional error.
For current purposes, it is sufficient to note the comments of Edelman J in Hossain at [72] (Nettle J generally agreeing; internal citations omitted):[7]
In summary, although the issue will always be one of construction of the express or implied terms of the statute, an error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome. There may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome. One circumstance, for reasons that could include respect for the dignity of the individual, may be an extreme case of denial of procedural fairness. Another may be the circumstance discussed by Nettle J, where a decision maker fails to exercise jurisdiction to decide a question according to the applicable criterion. No such circumstances arise on this appeal.
[7] See also the comments of Kiefel CJ, Gageler & Keane JJ at [29] and [31], where their Honours said that, ordinarily, a breach of a condition cannot be material unless compliance with it could have resulted in the making of a different decision.
The reasons in the current matter, at pars.72 – 85, in my view, cannot and must not be treated in isolation from the other reasons given by the IAA. Even if they were treated in isolation (which in my view would be an error), they do not amount to either (a) an illogical or unreasonable conclusion, (b) findings that were not open to it on the evidence provided by the Applicants, or (c) in the totality of the reasons, the findings would have made any material difference to the result.
For these reasons, the Amended Application, filed 18th January 2019, must be dismissed. There must also follow an Order for costs against the Applicants in accordance with Schedule 1 Part 3 of this Court’s Rules.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 6 December 2019
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