DVS18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 611
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DVS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 611
File number(s): SYG 2064 of 2018 Judgment of: JUDGE LAING Date of judgment: 18 July 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether centrally relevant parts of the IAA’s reasoning were logically open to it – whether the IAA adequately engaged with the evidence before it – application succeeds Legislation: Migration Act 1958 (Cth) Cases cited: BQQ15 v Minister for Home Affairs [2019] FCAFC 218
BZD17 v Minister for Immigration & Border Protection [2018] FCAFC 94; (2018) 263 FCR 292
DHQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 178
EVI19 v Minister for Immigration [2022] FCA 518
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464
SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589; 165 ALD 463
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of hearing: 5 July 2023 Place: Sydney Counsel for the Applicant: Mr C Honnery Solicitor for the Applicant: Human Rights for All Pty Ltd Counsel for the First Respondent: Mr G Johnson Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
SYG 2064 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DVS18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
18 JULY 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue bringing the decision of the second respondent dated 7 June 2018 into this Court and quashing it.
2.A writ of mandamus issue directing the second respondent to re-determine the review according to law.
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
JUDGE LAING:
Before the Court is an application for judicial review of a decision made by the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).
BACKGROUND
The applicant is a citizen of Vietnam. He arrived in Australia in 2013 as an unauthorised maritime arrival.
On 19 September 2017, the applicant applied for a protection visa.
On 14 December 2017, the Delegate refused the application. The matter was then referred to the IAA for review.
On 7 June 2018, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA accepted that the applicant and his family were Catholics, that they were members of their local Church and that the applicant was involved with a Church youth group. The IAA also accepted that the applicant’s mother had been voted to represent Catholic members of the community in a local government forum and meetings (at [10]).
However, the IAA had greater difficulty with the applicant’s claims to have attended a protest in 2012 and to have subsequently been harassed, assaulted and arrested, prompting him to leave Vietnam. In this regard, the IAA considered at [12]-[13] (footnotes omitted):
12. The applicant stated that he was one of a group of 5,000 participants in the protest of June 2012. In this context, even taking into account his evidence that he was at the front of the group holding a banner and shouting slogans and that his mother was known to authorities due to her representation of the local community, I consider it implausible that the applicant would be personally identified and singled out by the authorities as a participant among such a large number of people. This is particularly so in light of information, discussed further below, that those of interest to police for such activities were high profile activists, not merely participants such as the applicant.5 Further, I consider implausible that the police would not have arrested the applicant when they had the opportunity either at the protest itself, at the hospital, or the following day when the applicant states they visited his home, if he had been of any interest to them as claimed. The applicant’s statements that he returned to his family home after hiding at his grandparents’ home for three months because he felt it was safe to do so, is also somewhat at odds with his evidence that he was aware the police had regularly visited his parent’s home searching for him and cannot be reconciled with his statements that he knew the police had informed his parents they would ‘never forgive’ the applicant for the offence he had committed. In these circumstances, it is implausible the applicant would believe it was safe to return. Even noting the applicant’s evidence that there is only one main road into town and having regard to his mother’s position as a community representative, I consider it is implausible that the police would have become aware that the applicant returned to town as quickly as he claimed within an hour of his arrival. I have taken into account submissions that ‘capture and release’ is a tactic used by the police, but in the context of the applicant’s claims that the police will imprison him on return to Vietnam for his involvement in the protest, I consider it implausible the applicant would be arrested twice and then released without long term imprisonment if he was indeed of interest as contended.
13.Moreover, independent information is that in and around the time of the claimed June 2012 protest, the authorities were targeting high profile activists, leaders of political protests, high profile bloggers, those protesting the confiscation of Church land, and those engaged in private study or worshiping in unregistered locations such as private homes.6 In this case the applicant was not a high profile activists or blogger, he was not the organiser or leader of the protest, and nor was he protesting the confiscation of Church property. He stated that his youth group activities were not sanctioned by the government, but did not indicate that he was a member of a private or unregistered house Church. Indeed his evidence was that the government had approved some repairs to their church, suggesting it was in fact a registered Church. On the evidence before me, I am not satisfied that he was a member of a private or house church or an unregistered organisation. I also note that independent information suggests that at that time the Catholic Church had been permitted to expanded clerical training and charitable activities, which suggests that the activities of the applicant’s youth group would not have drawn the adverse attention contended by the applicant.7 Moreover, information is that the government was largely focused on unauthorised activity in [certain] districts of [the applicant’s] province.8 The applicant did not suggest that the protest in which he claimed to be involved had anything to do with activities and protests occurring in those areas.
The IAA considered it significant that the applicant had departed Vietnam legally through the airport using his own passport. The IAA considered that this suggested that the applicant was not of adverse interest to the authorities (at [14]). The IAA was also concerned by the fact that the applicant had made no mention in an early interview with the Department (arrival interview) that he had participated in a protest, was of interest to the police for doing so, or that he had been harassed, arrested or detained. The applicant had stated in the arrival interview that he had no involvement in political groups or organisations and that he was not involved in any protests against the government (at [15]).
When the above was “considered cumulatively”, the IAA was not satisfied that the applicant had attended a protest in 2012 or that he had an adverse profile with the authorities for any reason. The IAA was not satisfied that the applicant was wanted by the police, that he was ever detained, threatened or harmed, that he had gone into hiding, or that the police had harmed the applicant’s family due to his participation in the protest (at [16]).
The IAA accepted that the applicant would continue to practice his faith on return to Vietnam. Having regard to country information, the IAA accepted that the applicant may have experienced some instances of harassment as a Catholic including whilst fixing Church property and through police attempts to disturb Mass. However, on the applicant’s account, no one was harmed on those occasions. The IAA accepted that the government had attempted to force his mother to renounce her faith, but that she had refused to do so. However, on the applicant’s evidence, his parents continued to reside in the family home and his mother had not been harmed by the authorities. This was considered to suggest that she was not of interest to the authorities or anyone else for this reason or due to her role in representing the community. The IAA also considered that more recent country information indicated that the situation for Catholics in Vietnam continued to improve (at [17]).
At [18] to [19] of its decision, the IAA stated (footnotes omitted):
18. DFAT advises that approximately 7 per cent of the population are Roman Catholics and this one of the religions that has full government recognition and registration. DFAT assess that Catholics in remote areas who practise at unregistered churches can be subject to periodic incidents of harassment and intimidation and they are aware of more serious incidents of violence, such as local authorities beating citizens; however, this generally appears to be related to other activities such as protesting against land confiscation and anti-government activities rather than due to a person’s religion alone and those targeted by the authorities are high profile activists and bloggers rather than low level participants in such activities.11 In [the applicant’s] province specifically, DFAT states that the increasing strength of the Catholic community and leadership has resulted in improvement in the treatment of Catholics compared to previous years.12 Local and provincial authorities reportedly continued to harass and forcibly close known house churches; however, overall, with the exception of a few in ethnic minority dominated areas, there was an increase in registered churches.13
19.In this case, I have found above that the applicant is not a member of an unregistered house Church and is not a member of an ethnic minority. Further, as noted above, I am not satisfied the applicant participated in the June 2012 protest as claimed, he has not engaged in any protest activity here in Australia and I am not satisfied that he would be interested in engaged in any protests against the government on return to Vietnam. In his written claims, the applicant gave evidence relating to the treatment of Catholics in his home area and his parish, proving examples of named individuals who have been imprisoned, harassed and denounced by the government as traitors. However, firstly I note that these cases relate to incidents occurring over five years ago (from 2009 and 2013), and as discussed above, independent information is that the situation for Catholics has improved, including in the applicant’s home area. Further, in the examples cited by the applicant, the individuals who were arrested and imprisoned or otherwise targeted were largely high profile activists or individuals such as priests who were outspoken and had high profiles within the Catholic Church. The applicant does not have the profile of these individuals and would not have such a profile on return to Vietnam, including in his parish and home area.
The IAA considered that the evidence before it did not indicate that the applicant would be unable to access information relating to his faith, or that he would be otherwise unable to practise his faith upon return to Vietnam. The IAA accepted that the applicant would not renounce his religion, that he had no intention of joining the Communist Party and that his ability to obtain employment with the government would be limited. However, the IAA considered that there was nothing in the independent information suggesting that Catholics were currently discriminated against in obtaining employment more broadly. Noting this and the applicant’s circumstances, the IAA was not satisfied that the applicant would be unable to find accommodation or employment due to his religion or for any other reason. The IAA was not satisfied that the applicant faced a real chance of harm on this basis in Vietnam (at [20] to [21]).
The IAA was not satisfied that the applicant faced a real chance of harm in Vietnam including due to his religion, participation in a protest, ability to gain employment, access to information, or practice of his faith in Vietnam, or due to his mother’s situation or for any other reason (at [22]). As the applicant appeared to have departed Vietnam legally, the IAA did not consider that he faced a real chance of harm for any reason associated with illegal departure (at [23]).
The IAA accepted that the applicant would be identifiable as an asylum seeker on return to Vietnam. However, the IAA considered that overall the country information suggested that those who were harmed upon return were not harmed due to being failed asylum seekers but because they were high-profile political or religious dissidents, members of ethnic minorities, or because they had committed criminal offences such as people smuggling or inciting others to flee the country. Considering the applicant’s circumstances, the IAA was not satisfied that the applicant faced a real chance of harm for any reason associated with his having sought asylum in Australia (at [24] to [25]).
The IAA accepted that the applicant resided with his partner in Australia and that they had a child together born in 2016. However, the IAA observed that the applicant had not claimed to fear harm for any reason associated with being separated from his partner and child, although he had stated that he wished to remain in Australia to see his child grow and develop. Whilst the IAA stated that it was sympathetic to this matter, it did not consider that it gave rise to the type of harm contemplated under the Migration Act 1958 (Cth) (at [26] and [32]).
Having regard to the above, the IAA concluded that the applicant was not a person to whom protection obligations were owed. Accordingly, the IAA affirmed the Delegate’s decision (at [27] to [34]).
THE CURRENT PROCEEDINGS
The applicant commenced the current proceedings by application filed on 25 July 2018. He ultimately relied upon an amended application filed on 21 June 2023 containing the following grounds:
1.The IAA’s decision was materially affected by reasoning that was unsupported by the evidence, illogical and/or legally unreasonable.
Particulars
a.In rejecting the applicant’s claim to have attended a protest against the Vietnamese government’s repression of Catholics, and his adverse profile with the authorities, the IAA found five aspects of the claim to be implausible (at CB p 163 at [12]):
i. That the applicant would be personally identified and singled out by the authorities as a participant among such a large number of people;
ii. That that the police would not have arrested the applicant when they had the opportunity either at the protest itself, at the hospital, or the following day when the applicant states they visited his home, if he had been of any interest to them as claimed;
iii. That the applicant would believe it was safe to return after hiding at his grandparents’ home for three months;
iv. That the police would have become aware that the applicant returned to town as quickly as he claimed within an hour of his arrival;
v. That the applicant would be arrested twice and then released without long term imprisonment if he was indeed of interest as contended.
b.These findings were based on speculation, unfounded assumptions, were not open on the evidence, or were the result of a failure to meaningfully consider the review material.
c. To the extent that the IAA purported to base its rejection of the ‘identification’ claim upon country information at [13], the IAA misconstrued or failed to properly assess the country information, which in actuality supported the applicant’s claims.
d. The IAA’s errors affected its conclusion to reject the majority of applicant’s claims at CB 165 at [16] and deprived the applicant of a realistic possibility of a different outcome.
2.The IAA failed to properly consider, or engaged in illogical or irrational reasoning in respect of, the applicant’s claims to have been assaulted in separate incidents following the protest.
Particulars
a.The applicant claimed to have been assaulted in separate incidents after the protest, namely that:
i. He and his friends were approached by men on motorcycles, who he had never seen before, abused them for being Catholic and beat him with an electric rod: CB p 56 at [24] – [25]; and
ii. A few weeks later, the applicant was with a friend at a café when he was approached by men, who threw a foul-smelling liquid on him, kicked him and threatened him: CB p 56 at [26]. (Collectively, the “assault claims”.)
b.The applicant claimed police subsequently mentioned these incidents to him, so he thought “police either knew about these incidents and consciously made a decision to do nothing, or they had actually organised the attacks themselves”: (CB p 56 at [28].
c.This issue was unresolved in the IAA’s decision.
d.The IAA rejected the assault claims in cursory fashion at CB 165 at [16] after:
i) Finding the applicant’s claim to have been involved in a protest, and to have been subsequently arrested by police, to have been implausible in five respects: CB 163 at [12]
ii) Referring to country information that the IAA characterised as indicating police were targeting high profile activists, leaders of political protests, high profile bloggers those protesting the confiscation of Church land, and those engaged in private study or worshiping in unregistered locations such as private homes: CB 163-164 at [13]
iii) Considering it “significant that the applicant departed Vietnam legally through the airport using his own passport”, which suggested he was not of adverse interest to the authorities: CB 164 at [14].
iv) Noting that the written record of the arrival interview did not mention that he had been harassed, arrested or detained by the police in Vietnam CB 164 at [15].
c.These factors did not logically dispose of the applicant’s claims to have been assaulted by men using electric rods, and by a group of men at a café a few weeks later CB 56 at [24].
d. To the extent that the IAA based its rejection of the protest claim upon country information at [13], the IAA misconstrued or failed to properly assess the country information, which in actuality supported the applicant’s claims.
e. In lieu of any genuine independent engagement with the assault claims, it was not open for the IAA to rely upon its reasoning in respect of the protest claim to dispose of the assault claims.
f. The IAA engaged in unreasonable, illogical or irrational reasoning by conflating its consideration of separate claimed incidents of harm.
Ground 1
Ground 1 contended that the IAA’s decision was materially affected by reasoning that was unsupported by the evidence, illogical and/or legally unreasonable. Specifically, the applicant contended that it was not open to the IAA to have relied upon the five matters that it relied upon at [12] of its decision in impugning the applicant’s claim to have attended a protest in June 2012 and experienced consequent issues in Vietnam. The applicant also contended that the IAA at [12] and [13] of its decision reasoned in a manner that was not open in relation to the country information that was before it.
Relevant principles
In EVI19 v Minister for Immigration [2022] FCA 518 (EVI19), Stewart J stated at [36]:
36.It is well-established that credibility findings are not immune from judicial review: CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [37]- [38] per McKerracher, Griffiths and Rangiah JJ. Credibility findings, like all findings, must be rationally made and based upon facts having logical and probative weight, and be articulated properly; minor inconsistencies and trivial errors do not constitute a valid ground upon which an adverse credibility finding may be made: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. See also DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30] per Kenny, Kerr and Perry JJ and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11] per Allsop CJ.
In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS), it was stated (per Crennan and Bell JJ):
132.Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal's conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error…
133.However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it…
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 the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
In relation to unwarranted assumptions, the Full Court stated as follows in BZD17 v Minister for Immigration & Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 at [36] (per Perram, Perry and O’Callaghan J):
36.… Similarly, “[u]nwarranted assumptions by a Tribunal… may constitute a failure duly to consider the question raised by the material put before it”: SZVAP v Minister for Immigration & Border Protection (2015) [2015] FCA 1089; 233 FCR 451 (SZVAP) at [22] (Flick J) (citing WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 676 at [54] (Lee and Nicholson JJ)); see also eg SZLGP v Minister for Immigration & Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [34] –[37] (Logan J). Unwarranted assumptions may also establish that a finding is illogical, irrational or not founded on any probative evidence: see eg DAO16 at [45] (the Court).
The country information
It is appropriate to deal with the applicant’s complaint in relation to the country information first, as its resolution is potentially capable of bearing upon the resolution of other aspects of this ground.
At [12], the IAA stated:
12.… I consider it implausible that the applicant would be personally identified and singled out by the authorities as a participant among such a large number of people. This is particularly so in light of information, discussed further below, that those of interest to police for such activities were high profile activists, not merely participants such as the applicant.5
At [13], the IAA further stated:
13.Moreover, independent information is that in and around the time of the claimed June 2012 protest, the authorities were targeting high profile activists, leaders of political protests, high profile bloggers, those protesting the confiscation of Church land, and those engaged in private study or worshiping in unregistered locations such as private homes.6
The footnotes to these extracts relied, collectively, upon the following country information reports:
(a)USCIRF, "United States Commission on International Religious Freedom Annual Report 2013", 1 April 2013, CIS25580;
(b)Human Rights Watch, "Australia-Vietnam Human Rights Dialogue. Human Rights Watch Submission", 24 July 2014, CX324696; and
(c)United Kingdom Home Office, “Vietnam Country of Origin Information Report”, 9 August 2013 OGC0D145417.
That material is in evidence before the Court. I was taken by the applicant’s Counsel to numerous parts of the material, as well as to other reports before the IAA, which the applicant contended provided no support for the IAA’s findings at [12]-[13] and were actually to the contrary. This included parts of the reports indicating that “protestors” and “activists” had faced adverse treatment from the authorities (including harm or arrest at certain types of protests). I was also taken to parts of the materials indicating that religious activity had in some instances resulted in adverse treatment, particularly by reference to property disputes and independent or “unregistered” forms of religious practice.
Based upon the above, I would have been inclined to have accepted that the manner in which the IAA dealt with the country information was illogical had I considered that the IAA reasoned that the country information demonstrated that the only people of any interest to the police were “high profile activists”, or that mere participants in protests were necessarily of no interest to the police. However, I am not persuaded that this is how the IAA reasoned at [12]-[13]. Whilst the IAA’s reasoning may have been more clearly expressed, I accept the Minister’s submission that what the IAA sought to express at [12] was that the country information before it indicated that those of particular ongoing interest or targeting by the police, such as had claimed by the applicant, appeared to be those with higher profiles to the applicant. This was in a context where the applicant had not claimed to be an activist, beyond his attendance at one protest and practice of faith as a Catholic (which the IAA considered had been undertaken through a registered Church).
This interpretation of the IAA’s reasoning at [12] is supported by its related reasoning at [13], to which the IAA had referred in the impugned part of [12]. At [13], the IAA considered that the country information indicated that around the time of the claimed 2012 protest the authorities were targeting particular categories of people, of which the applicant did not form part. The country reports referred to above arguably supported that persons with such profiles had been targeted. I accept, as the applicant submitted, that the country information did not indicate that only those categories of people had experienced adverse attention or treatment. However, that information did arguably support the IAA’s impression that people amongst those categories had faced particular levels of adverse interest and action from the authorities. I was not taken to any part of the materials that directly contradicted the IAA’s understanding of the country information as indicating that a person with the applicant’s profile would not have been targeted in the manner claimed.
Having regard to the above, I am not persuaded that it was closed to the IAA to have interpreted the country information in the manner that I have found that it did. I accept that another decision maker may well have interpreted that information differently, or chosen to highlight different parts of it in their reasoning. However, this is insufficient to meet the high thresholds associated with grounds such as illogicality: SZMDS at [135].
Particular (i): the IAA’s finding that it was implausible that the applicant would be personally identified and singled out from a protest
Under the first particular of ground (1)(a), the applicant challenged the IAA’s finding at [12] of its decision that it was implausible that the applicant would be personally identified and singled out by the authorities as a participant amongst a protest of 5000 participants.
I have some concerns regarding this finding. This is in circumstances where, as was acknowledged by the IAA, the applicant claimed to have been at the front of the group holding a banner and shouting slogans. The applicant had also claimed that his family were known to the authorities and that many people had been arrested, beaten and/or gone into hiding after the protest. As was submitted by the applicant, being amongst a large number of people did not logically preclude the applicant being identified.
However, I accept the Minister’s submission that the IAA does not appear to have used the word “implausible” in the sense of it being logically precluded but rather in the sense of it being “inherently unlikely to have occurred”: BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [56]. Whilst the IAA did not reject that others were targeted or arrested, as a matter of human experience the likelihood of a person being identified or singled out may be reduced by the number of people they are amongst. This is so notwithstanding the various factors that the applicant had raised at CB 128 that may have influenced his identification, such as his contention that he was known within his home village. I am therefore not persuaded that the IAA failed to consider the submissions at CB 128, simply because they were not set out in full in the IAA’s decision.
The IAA further considered that its findings in this regard were supported by country information before it. It understood that information to indicate that those of interest to the police would have been high profile activists rather than mere participants. The applicant contends that this finding was not open, by reference to the DFAT Report which indicated that those who protested against the government were likely to attract adverse attention (with low level protestors sometimes being detained and released the same day): [3.28]-[3.29]. However, as was submitted by the Minister, this report concerned a state of affairs some years later. The passages relied upon also did not indicate that low-level protesters would be of particular adverse interest beyond the day of a protest. For these and the reasons that I have given above, I am not persuaded that it was closed to the IAA to have relied upon this country information in the manner that it did.
The applicant additionally submitted that there was no logical foundation for the IAA’s finding that he had been “singled out” from the protest, in circumstances where he had claimed that others had also been assaulted and arrested. However, by “singled out” I do not understand the IAA to have been suggesting that the applicant had claimed to have been the only one harmed or arrested due to the protest. Rather, the IAA’s concern appears to have been with what it regarded as the unlikelihood that the applicant would have been identified from such a large number of people and then targeted to the extent that he claimed to have been targeted after the protest.
Having regard to the above, I accept the Minister’s submission that this part of the IAA’s reasoning was not logically closed to the IAA.
Particular (ii): the IAA’s finding that it was implausible that the applicant was not arrested by police on earlier occasions
The next part of the IAA’s reasoning at [12] with which issue was taken concerned the IAA’s consideration that it was “implausible that the police would not have arrested the applicant when they had the opportunity either at the protest itself, at the hospital, or the following day when the applicant state[ed] they visited his home, if he had been of any interest to them as claimed”.
In this regard, the applicant relied upon SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589; 165 ALD 463 (SZHYH). In that case, the Tribunal had stated that it was “difficult to accept” that the government “would have waited for over two weeks before arresting” the applicant after a protest “if the government had wanted to stop him from organising protests” (see [32]). At [48], Allsop CJ considered that the above reasoning had involved unwarranted assumptions:
48.It was critical to finding that the central event of his story did not take place that it was not credible that SZHYH would be arrested two weeks after a protest. There was no foundation in logic, or experience, or material for that assumption to be made. There was no country information to support it. One cannot say, one way or the other, without some foundation, that the PSB would or would not take one week, two weeks or three weeks to arrest someone. Why, one asks, is it difficult to accept? Again this is a personal assumption made without any apparent connection with country information, material or common experience of Chinese authorities.
This and other features of the Tribunal’s reasoning in SZHYH resulted in a conclusion that the decision under review in that case was legally unreasonable (at [53]-[55]).
The analogy between the reasoning in SZHYH and the present case appears to be a fairly strong one. Both applicants claimed that they had attended protests. Critical to the reasoning in both cases was a finding that it was not credible that the police would delay making an arrest after the protests (in SZHYH the delay was 2 weeks; in the present case the IAA appears to have regarded a delay of less than a day, or a day, to be implausible). In neither case does there appear to have been objective material before the decision maker capable of directly establishing the authorities’ assumed practices in this regard. Whilst in the present case, country information indicated that people were sometimes arrested on the day of a protest, it did not state or even indicate that all arrests associated with protests occurred in this manner or that an attendee of ongoing interest would have been expected to have been arrested with the speed contemplated.
The Minister sought to distinguish SZHYH by reference to the IAA’s consideration that country information before it indicated that people with the applicant’s profile were not of particular interest to the police. However, I am not persuaded that this provides a strongly distinguishing feature in the Minister’s favour. One would not necessarily expect that the police would be more likely to arrest someone rapidly on account of their being of less interest to the police.
I accept that the IAA did, additionally, doubt the plausibility of the applicant’s account due to (inter alia) its consideration that the country information indicated that those of interest to the police were high profile activists, rather than mere participants such as the applicant. However, this was another one of the reasons that the IAA gave at [12]-[14] of its decision for rejecting the credibility of the applicant’s account. The IAA additionally relied upon what it regarded as the implausibility of the police not arresting the applicant at the protest, at the hospital or on the following day. The question raised under this part of ground 1 is whether such reliance was reasonably or logically open, or whether it was instead based upon unwarranted or unsupported assumptions.
Following SZHYH, I consider that I am obliged to find that it was the latter. It is not apparent from the materials why, for example, it was implausible for the applicant not to have been arrested at the protest. Whilst the applicant had claimed that others at the protest had been arrested, he had also claimed that there were 5000 people there (a number from which the IAA had considered it implausible that the applicant had been singled out). The applicant claimed that he had been knocked unconscious and so badly injured that he was transported to the hospital. It is not apparent from the materials why it was inherently unlikely that the police would not have arrested him in these circumstances (presumably whilst he was unconscious, badly injured and/or being transported whilst amongst the thousands of other people who attended the protest).
It is also not apparent why it was considered implausible for the police then not to have pursued the applicant to the hospital and arrested him there, rather than attending his house the next day and directing him to attend the police station the day following. This is notwithstanding the rather limited interest in someone such as the applicant that the IAA appears to have regarded as being indicated on the country information.
Considering the above, I accept the applicant’s submission that the IAA relied upon unwarranted or illogical assumptions regarding the practices of the Vietnamese police and therefore fell into the species of error considered in SZHYH.
The question then becomes the significance of the error within the context of the IAA’s overall decision: see Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464 at [42]-[46] (Plaintiff S183). In the present case, I conclude that the impugned findings were sufficiently critical and significant within the context of the IAA’s reasoning to result in a finding of jurisdictional error. Whilst the IAA did rely upon other matters at [12]-[14] in impugning the applicant’s credibility, it expressly stated at [16] that its adverse determination was only made after they and the impugned findings under this particular to the ground were “considered cumulatively”.
Particular (iii): the IAA’s finding that it was implausible that the applicant would believe it was safe to return after hiding at his grandparents’ home for three months
Particular (iii) took issue with various aspects of the IAA’s sentence at [12]:
12. …The applicant’s statements that he returned to his family home after hiding at his grandparents’ home for three months because he felt it was safe to do so, is also somewhat at odds with his evidence that he was aware the police had regularly visited his parent’s home searching for him and cannot be reconciled with his statements that he knew the police had informed his parents they would ‘never forgive’ the applicant for the offence he had committed.
The applicant observed that he had stated at CB 55 that he had thought that it “might” be safe to return home after three months. This, he submitted, was not evidence that “he felt it was safe to do so” as was stated at [12] of the IAA’s decision. However, the applicant’s evidence was that he in fact returned home, apparently because he felt that it was sufficiently safe for him to do so. I am not persuaded that the IAA misunderstood this evidence, simply because it omitted the words “sufficiently” or “might” from its summary at [12].
The applicant next submitted that the IAA’s characterisation of his evidence was inaccurate where it referred to the police “regularly” visiting his parents’ home searching for him. The applicant submitted that he had only claimed the police had visited the family home once after he had fled to his grandparents’ house. However, the IAA did not limit its finding to that period. The applicant had also claimed that the police had visited his family home in search of him before he left. Whilst another decision maker may not have characterised two police visits in the space of a few months as “regular”, I am not persuaded that it was closed to the IAA to have done so or that this reflected a misunderstanding of the applicant’s evidence.
The applicant next submitted that being aware that the police had visited his parents did not “logically foreclose” the possibility that after 3 months he may have believed that it was safe to return or decided to take a calculated risk. However, the IAA did not find that this was “logically foreclosed”. The IAA found that it was “implausible”, in the sense of being inherently unlikely. The applicant has not demonstrated that this reasoning was closed to the IAA.
The applicant relatedly contended that the “equivocal observation” that his feeling safe to return was “somewhat at odds” with his other evidence was an insufficient basis upon which to find implausibility. However, the applicant has not demonstrated why it was closed to the IAA to have weighed his evidence in this manner. It is apparent that the IAA found it inherently unlikely that the applicant would have felt sufficiently “safe” to return to a place within months of the police twice pursuing him there and stating that they would “never forgive” his offence. I am not persuaded that this reasoning was closed to the IAA.
The applicant observed that he had claimed that the “never forgive” statement by the police was in response to the applicant’s father telling them that he “had gone away to work with friends”. He submitted that in this context, it was plausible for him to have considered that after 3 months away the police had accepted that he had gone away. However, even if this evidence were capable of being regarded as plausible, this does not demonstrate that it was closed to the IAA to have regarded it as “implausible”: SZMDS at [130]-[135].
For the above reasons, I am not persuaded that particular (iii) demonstrates relevant error.
Particular (iv): the IAA’s finding that it was implausible that the police would have become aware of the applicant’s return as quickly as he had claimed
Particular (iv) took issue with the IAA’s finding at [12] that it was “implausible that the police would have become aware that the applicant returned to town as quickly as he claimed within an hour of his arrival”.
The applicant contended that this finding was predicated on mere speculation and conjecture, rather than genuine consideration of all relevant circumstances: EVI19 at [81] and SZHYH at [48].
The applicant observed that he had stated, “I believe they knew I was home because our village is quite small and someone must have seen me. There is only one road in our village, so this is very possible”: CB 55. His representative had also stated that, “maps of the applicant’s home area show that the area is small with one main road, it is easy for people in that area to know who the applicant is, and as part of Vietnam’s hamlet system there will be government staff and police posted within his village”: CB 138.
The applicant submitted that the IAA’s approach depended on “unstated assumptions, made without any apparent basis, about the level of commitment of… authorities to apprehend [the applicant], as well as their competence and the resources available to them in successfully achieving that outcome”: EVI19 at [92].
Read in isolation, there is some force to the applicant’s contentions regarding the IAA’s reasoning in this regard. As in EVI19 at [66]-[87], whether or not the police would have as swiftly identified and responded to the applicant’s return may have been implausible or entirely plausible, depending upon a number of factors. In the present case, such factors included the size of the area, how visible the applicant’s return may have been, the propensity of those who may have seen him to report his return to the police and the motivations of the police in responding to such a report.
However, I accept the Minister’s submission that this finding must be seen within the context of the IAA’s reasoning in relation to what it regarded as the applicant’s lack of profile and the lack of adverse interest in the applicant more generally. Having regard to this context, I am not persuaded that it was relevantly closed to the IAA to have found it unlikely that the police would have known about and responded to his return with such vigour, within about an hour of his arrival at the family home and following the months that he had spent away.
Particular (v): the IAA’s finding that it was implausible that the applicant would have been arrested twice and then released without long term imprisonment
Particular (v) took issue with the IAA’s reasoning at [12] as follows:
I have taken into account submissions that ‘capture and release’ is a tactic used by the police, but in the context of the applicant’s claims that the police will imprison him on return to Vietnam for his involvement in the protest, I consider it implausible the applicant would be arrested twice and then released without long term imprisonment if he was indeed of interest as contended.
In this regard, the applicant’s representative had submitted prior to the Delegate’s decision (at CB 136):
… continued police detention and release is a common terrorising mechanism used by Communist officials, with the aim to exercise individual personal control and to ensure that the government controls the individual, in both a systematic and random manner.
The applicant contended that this had support in the DFAT Report at [3.29], where it was stated:
3.29DFAT assesses low-level protesters and supporters often feel intimidated by police presence, and are sometimes detained and released the same day by authorities…
I am not convinced that the above extract from the DFAT Report provides the level of support for the “capture and release” submission that the applicant contends. Whilst it referred to release following arrest, it did not refer to the repeated or continued practice of this occurring that seemed to have been contemplated in the representative’s submissions. Regardless, the IAA did not reject at [12] that this practice existed. Given this, it is not apparent why the IAA then found at [12] that it was “implausible the applicant would be arrested twice and then released without long term imprisonment if he was indeed of interest as contended”.
The interest that the applicant had contended was as a person who had attended a protest, failed to report at a police station and had been periodically harassed, detained and assaulted in order to persecute him for and make him renounce his Catholic faith. The “capture and release” strategy, which was not rejected by the IAA, was objectively consistent with these claims. It is therefore not apparent why the IAA rejected as “implausible” the applicant’s claims to have been arrested twice and released without long term imprisonment, simply because he also claimed that the police may imprison him again on return. No explanation for this is provided in the IAA’s reasoning.
I accept, as the Minister submitted, the IAA was not required to have positive evidence in order to have not accepted the applicant’s claims. However, it does need to be apparent from the IAA’s reasoning why it reasoned in the manner that it did. If the IAA makes a finding that a contention is “implausible”, there needs to be some logically coherent basis for this. It is difficult to reconcile the IAA’s non-rejection of the “capture and release” submission with its finding of implausibility.
Given the above, I am inclined to accept the applicant’s submission that the IAA’s finding in this regard was based upon unsupported assumptions regarding the practices of the authorities: see SZHYH at [48] and DHQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 178 at [106].
The significance of the error is as reasoned in relation to particular (ii) above. This is a case in which the IAA expressly stated at [16] that its adverse credibility findings had only been reached after each of the matters it had identified as counting against the applicant’s credibility at [12]-[14] had been “considered cumulatively”. In these circumstances, each of those matters appears to have been critical to the IAA’s reasoning in coming to its decision (which was the test that was urged by the Minister in this matter). The result is that this particular itself, as well as in combination with what has been found in relation to particular (ii) and below, is capable of demonstrating that the illogicality that has been found infected the IAA’s overall decision. I accept that this resulted in jurisdictional error.
Ground 2
Ground 2 contended that the IAA failed to consider properly, or engaged in illogical or irrational reasoning in respect of, the applicant’s claims to have been assaulted in separate incidents following the protest. The applicant contended that the IAA failed to resolve these claims, which were not logically disposed of by reference to his claims to have been harassed and harmed by the authorities.
As was submitted by the Minister, the applicant’s claims regarding police harassment were interlinked, by the applicant, with the applicant’s claims to have faced harm from non-state actors. In his statutory declaration, the applicant had stated that he thought that the men claimed to have attacked him on motorcycles “had contacts with the police” due to their use of electric rods issued to police. He also claimed that one of the men involved in the subsequent assault at a café was “wearing a police uniform” and that what was subsequently said to him by the police indicated that “the police either knew about these incidents and consciously made a decision to do nothing, or they had actually organised the attacks themselves”. At interview, the applicant further claimed that the police had “hired”, or told him they had “hired”, the people who had attacked him.
The IAA’s credibility reasoning at [12]-[14] is set out in some detail above. At [16], the IAA stated:
16. When considered cumulatively the above matters lead me not to be satisfied that the applicant attended the June 2012 protest or that he had an adverse profile with the police or Vietnamese government or the authorities for any reason, including his attendance in the protest, his Catholic faith, as a Catholic from [an area in the] Nghe An Province; being a Catholic from his parish; or his mother’s role as a representative of the local Catholic community. I am not satisfied that: the applicant was ever wanted by the police; he went into hiding with his grandparents; he was ever detained, beaten or arrested by police; he was threatened by seven men on motorbikes; he was threatened by undercover police in a café; that police searched for the applicant after he departed Vietnam; or that the police have harmed the applicants family due to his participation in the protest.
The applicant described this reasoning as “cursory”. He observed that it relied upon the IAA’s reasoning at [12]-[14] which was directed towards the credibility of the applicant’s claims to have faced harm from the authorities, rather than non-state actors. This meant, it was submitted, that the IAA’s reasoning in relation to the claimed assaults by non-state actors was premised upon a proposition that did not logically follow i.e. that if his claims to have faced harassment from the authorities were not true, then his claims to have been assaulted by non-state actors were not true.
However, I am not persuaded that it was relevantly closed to the IAA to have rejected the applicant’s claims of assault by non-state actors by reference to the credibility concerns it had identified in relation to his primary and related claims. The applicant had claimed that the police had hired the people who attacked him (at CB 137). If the applicant were not of adverse interest to the police, then this was capable of informing the credibility of the applicant’s claims that this had occurred.
In any event, the assessment of credibility is not necessarily a linear process. Concerns regarding the credibility of an applicant’s evidence in relation to some claims may, in appropriate cases, be capable of informing the assessment of other claims that have been made. If the applicant’s primary claims were untruthful or non-credible, then this was logically capable of informing the credibility of other, related, claims that he had made that were similarly dependent upon the IAA’s acceptance of his credibility as a witness.
The applicant additionally contended in relation to ground 2 that the IAA’s reasoning at [14] was illogical. This was by reference to the IAA’s reasoning that it was “significant that the applicant departed Vietnam legally through the airport using his own passport” in impugning the credibility of his claims.
There is substance to this complaint. Again, this case bears some similarity to SZHYH. A further basis upon which the decision in that case was found to have been legally unreasonable concerned the Tribunal’s difficulty in believing the applicant’s account of how he was able to leave China. At [46], Allsop CJ stated:
46.Related to these matters concerned with his leaving China was the assumption made that if the appellant had been on bail the authorities would have required him to surrender his passport. There was no basis in the country information or any other material from that assumption. The Tribunal was bringing (without any apparent basis in expressed expertise, country information on material before it) an apparent personal assumption forward as a critical factor in a finding of disbelief.
In the present case, the IAA did rely upon country information that it appears to have considered provided a basis for its reasoning. This was to the effect that limitations on movement such as passport confiscation were imposed on “high profile political activists” (footnote omitted):
14. In this case I consider it significant that the applicant departed Vietnam legally through the airport using his own passport. This suggests he was not on any ‘black list’ or of adverse interest to the authorities as he has claimed. The applicant suggested that he was able to do so because he had changed his appearance and he was not officially wanted so the airport officials may not have known about his profile. However, this is not consistent with information that the Vietnamese government imposes limits on the movement of high profile political activists and that authorities often confiscate passports or deny issuance of passports for people who are deemed a threat to national interests.9 Nor is it consistent with his own contention that he was well known to authorities generally due to his own activities and mother’s role as community representative.
The difficulty with the above is that the IAA had rejected, at [12]-[13], that the applicant was a high profile activist on his claims. This was an important part of the IAA’s reasoning at [12]-[13] for rejecting the applicant’s claims to have been of interest to the authorities, in circumstances where it considered that country information indicated that it was “high profile activists”, amongst other specific groups, that were relevantly of interest to and targeted by the police.
The Minister submitted that the IAA’s reasoning at [14] was based upon the profile that had been claimed by the applicant. I am unable to accept this. I was not taken to anywhere in the materials at which the applicant had claimed to have been a “high profile activist”. Rather, the applicant’s claims appear to have centred around harassment by police in his local area following his attendance at one protest. This did not amount to a claim that the applicant was of such national interest that his passport would have been confiscated and he would have been prevented by airport officials from departing the country.
In any event, the IAA had expressly rejected at [13] that the applicant was, on his claims, a “high profile activist”. I accept the applicant’s submission that it was logically inconsistent for the IAA to have then relied at [14] upon country information applicable to “high profile political activists” in rejecting the credibility of his claims.
In assessing the significance of the error, I repeat what I have said above regarding the IAA’s express reliance upon the “cumulative” matters that it identified at [12]-[14]. Additionally, as was submitted by the applicant, the IAA expressly identified this issue at [14] of its decision as “significant” to its reasoning. In these circumstances, I have little difficulty in finding that the logical error in the IAA’s process of reasoning was sufficiently central that it infected the reasonableness or logicality of the IAA’s decision. I therefore accept the applicant’s submission that jurisdictional error has also been demonstrated under ground 2.
CONCLUSION
For the above reasons, the application before this Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 18 July 2023
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