DZAFE v Minister for Immigration

[2016] FCCA 3058

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZAFE v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3058

Catchwords:
MIGRATION – Protection (Class XA) visa – claim for refugee protection and complementary protection – whether tribunal undertook task of review – whether tribunal engaged in evaluative assessment of claims and evidence – whether tribunal misapplied the real chance test – data breach – where tribunal relied upon earlier findings of fact in respect of Convention-nexus claims – whether tribunal was entitled to do so – whether tribunal’s reasons adequate.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 91R(1)(c)

Cases cited:
ATP15 v Minister for Immigration and Border Protection [2016] FCAFC 53
DZADQ v Minister for Immigration and Border Protection [2014] FCA 754
Minister for Immigration and Multicultural Affairs v Rajalingham & Ors (1999) 93 FCR 2209
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
N1202/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 94
NAHI v MIMIA [2004] FCAFC 10
SZRLO v Minister for Immigration and Citizenship [2013] FCA 825
SZSFF v Minister for Immigration and Border Protection [2013] FCCA 1884
SZTFZ v Minister for Immigration [2014] FCCA 1861
SZTFZ v Minister for Immigration and Border Protection [2015] FCA 1347
SZTFZ v Minister for Immigration and Border Protection & Anor [2016] HCASL 34
SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26
SZWAJ v Minister for Immigration and Border Protection [2016] FCA 1173
Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182

Applicant: DZAFE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: DNG 57 of 2014

Judgment of: Judge Jarrett

Hearing date: 15 April 2015

Date of Last Submission: 15 April 2015

Delivered at: Brisbane

Delivered on: 28 November 2016

REPRESENTATION

Counsel for the Applicant: Ms Nguyen directly instructed

Counsel for the Respondents: Ms Newman

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the second respondent be substituted with the name “Administrative Appeals Tribunal”.

2. The amended application filed on 2 April, 2015 be dismissed.

3. The applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG57 of 2014

DZAFE

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By this application for judicial review the applicant seeks that a decision of a refugee review tribunal that affirmed a decision of a delegate of the first respondent to refuse the applicant a protection visa be set aside. 

Background

1. The applicant is a national of Vietnam who arrived in Darwin on 23 March, 2013.  She participated in an ‘Irregular Maritime Arrival Entry Interview’ at Darwin on 3 April, 2013.  On 12 August, 2013 the applicant participated in another interview, this time with a delegate of the first respondent. 

2. On 2 September, 2013 the applicant applied for a Protection (class XA) visa and provided a further statement to the first respondent’s Department.  On that day she also signed an ‘Authority to Seek Personal Information in relation to Effective (Prior) Protection’, in which she gave permission for the first respondent’s Department to disclose any personal information supplied by her in relation to her application for a Protection Visa to the government authorities of any country except Vietnam.

3. It is uncontroversial that between 10 and 19 February, 2014 the first respondent’s Department unintentionally published the personal information of approximately 9,250 asylum seekers on its website as part of its ‘Immigration Detention and Community Statistics Summary’.  This enabled others outside of the first respondent’s Department to have unfettered access to access personal information about people who were in immigration detention on 31 January, 2014.  It is also uncontroversial that the applicant was one of those people affected by the Department’s actions.

4. On 13 March, 2014 an officer of the first respondent’s Department wrote to the applicant regarding the publication of the applicant’s data.

5. On 24 September, 2014 the first respondent’s Department notified the applicant that her application for a protection visa had been refused.

6. The following day, an officer of the first respondent’s Department wrote to the applicant seeking additional information for her protection visa application relating to the publication of the applicant’s data. An organisation called “Playfair”, representing the applicant at the time, responded to the Department’s letter setting out details of a refugee sur place claim resulting from the publication of the applicant’s data.

7. On 21 October, 2014 the applicant made an application for review by a refugee review tribunal of the decision of the first respondent’s delegate to refuse the applicant’s protection visa application.

8. On 19 November, 2014 a refugee review tribunal decided to affirm the refusal decision of the first respondent’s delegate.

9. On 24 December, 2014 the applicant wrote to the first respondent’s Department in the following terms:

   I remain in fear that the risk of harm upon return to my home country has been greatly heightened by the placing of my name on the internet and I respectfully submit that I am a refugee “sur place” and cannot return to my country of origin.

10. In summary, the applicant’s reasons for seeking protection in Australia were relatively confined.  She claimed protection on the basis that she is Catholic and participated in a youth group in the town where she was undertaking tertiary studies.  According to her claims the group met regularly in the evenings at a house rented by the group’s leader and they all prayed together.  In early 2013, Vietnamese authorities came to the house where the group prayed, arrested the leader of the group and, eventually, the applicant, because the group had been praying for Catholics in another area who had been in conflict with the authorities. In fear of further harm from the authorities the applicant, after she was released from custody, returned to her native village and, at the urging of her parents, she left Vietnam illegally by boat in March, 2013.

The tribunal’s decision

1. The tribunal determined to reject the applicant’s review on the basis that it did not accept the applicant’s claims.  It did not find her to be credible.  The tribunal was concerned about significant differences between the account that she gave the first respondent’s delegate about the arrest of her prayer group’s leader and her own involvement with the police.  There were inconsistencies that concerned the tribunal about the applicant’s actions following her arrest by the police and the timing and means of her return to her native village.  The applicant explained to the tribunal, when taxed with the inconsistencies in her claims, that she was confused, worried and did not think clearly at the time of her interview with the delegate.

2. The tribunal did not believe that any nervousness at the interview with the delegate would cause the applicant to give incorrect evidence as she claimed she had done.  The events on which her protection claims were based were fresh in that they occurred less than a year before the relevant interviews.  The tribunal pointed out that the applicant’s conflict with the authorities concerned only one incident which was the group praying for Catholics in another area in early 2013.  The tribunal recorded that the applicant attempted to reconcile her accounts to the delegate and the tribunal by claiming that she had given the same account on both occasions and that her responses to questions to the delegate were misunderstood by the tribunal.  The tribunal found that the applicant’s accounts were inconsistent and she had not provided a satisfactory explanation for the inconsistency.

3. Despite that, the tribunal accepted that the applicant and her family were Catholics.  It accepted that they regularly attended church in the area in which they lived.  The tribunal accepted that in 2012 the applicant moved from her native village to another town to undertake tertiary study.  The tribunal accepted that the applicant had documents that demonstrated those matters.

4. However, the tribunal rejected all of her other claims based upon its assessment of her credibility.  The tribunal found that the claims about belonging to a Catholic youth or student group, that the group conducted prayer sessions which were raided by the police and following which a group leader and the applicant herself were arrested and detained were false.  The tribunal did not believe that the applicant was ever detained by the police as she had claimed.  The tribunal did not think that there was any credible evidence to suggest that the applicant was of interest to the Vietnamese authorities.  There were some other ancillary claims made by the applicant.  Of those claims, the tribunal said:

   19.    … The tribunal also does not believe her claim that in July 2013 police confiscated her father’s vehicle and only gave it back to  him after he paid some money to them. The tribunal also disbelieves a claim the applicant made in her application form that after she came to Australia her mother told her on the   phone that Catholics were being mistreated. There is no credible evidence that the applicant and her family had any difficulties with Vietnamese authorities for any reason including because of their religion. The applicant told the tribunal that the only difficulties that they had because of their religion were her arrest and the police confiscating the father’s vehicle in July 2013; claims the tribunal does not believe.

5. The tribunal recorded that available country information indicated that the Vietnamese Constitution and other laws and policies provided for religious freedom, but in practice that was restricted by the government.  In particular, it paid attention to the information that suggested that unregistered and unrecognised religious groups were often subject to harassment and punitive actions and the activities of certain religious groups were monitored because of their political activism.  The tribunal recorded that in some parts of the country, local authorities acquiesced in the activities of unregistered groups whereas, in other areas, officials restricted those same activities.

6. The tribunal recorded that the delegate had referred to information that supported a claim made by the applicant that in July, 2013 two men who attended a church which the applicant’s family also attended in their home province were arrested and detained until December that year due to conflict with the authorities over a shrine.  A prayer vigil held for the men in September, 2013 resulted in the detention of a number of people after conflict with the police.

7. Notwithstanding those matters, the tribunal did not consider that there was a real risk of harm to the applicant because there was no credible evidence that she or her family had suffered harm because of their religious faith.  Further, whilst the tribunal accepted that the Vietnamese government was keen to arrest people it perceived as opponents, the tribunal considered that the information available to it demonstrated that those people targeted by the government were not targeted on the basis of their religion alone.  They were “activists” who were openly agitating opposition to the government.  The tribunal did not consider that the applicant was in the same category as those people.

8. The tribunal considered the applicant’s sur place claim.  It recorded that according to March, 2012 advice from the Department of Foreign Affairs and Trade, the Vietnamese Ministry of Justice claimed that returnees who are failed asylum seekers “are not harassed or discriminated against by authorities on their return to Vietnam”.  The Department reported that post in Hanoi was not aware of any information that contradicts that claim.

9. The tribunal recorded that the United States Department of State reported that the Vietnamese government generally cooperated with the United Nations High Commissioner for Refugees and other humanitarian organisations in providing assistance to returning refugees.  In addition, noted the tribunal, the Department of Foreign Affairs and Trade advised in 2007 that it was unlikely that a person who left Vietnam illegally would suffer punitive action from Vietnamese authorities if sent back to Vietnam.  The tribunal recorded that in its Country of Origin Information Report: Vietnam dated 9 August, 2013 the United Kingdom Home Office COI Service discussed restrictions imposed on the movement in and out of Vietnam of certain individuals, namely, political dissidents, but made no mention of failed asylum seekers being punished on return to Vietnam for leaving the country illegally.

10. The tribunal used that information to conclude that even if the Vietnamese authorities were aware, from the temporary access to the Department’s records on 31 January, 2014 that the applicant was in detention in Australia and had even applied for protection, the risk of her suffering serious harm was remote.

11. The tribunal considered the applicant’s claims for complementary protection.  On the basis of the findings that the tribunal made concerning the applicant’s claim for primary protection, the tribunal concluded that there was not a real risk she would suffer significant harm if she was returned to Vietnam.

12. The tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention and that she did not satisfy the criterion set out in s.36(2)(a) of the Migration Act 1958. Further, it concluded that the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act.

The grounds of review

1. The applicant’s amended application for review contains eleven grounds of review.  I will deal with those grounds in the same order as the applicant addressed them in her submission to the Court.

Grounds 1 and 5

1. The submissions for the applicant grouped grounds 1 and 5 together.  They are as follows:

   GROUND 1: The tribunal failed to undertake its task of review pursuant to section 414 of the Migration Act as it made findings without engaging in any evaluative assessment of the evidence, as it related to:

   (a) Its finding that ill-treatment of Catholics was not taking place on a scale demonstrative of a real chance of persecution; and

   (b) Its finding that the applicant was not in the same category of people arrested by the Vietnamese government because of their perceived political opposition to the government.

   GROUND 5: The tribunal erred in its conclusions about a jurisdictional fact, being the determination that the applicant “does not hold a well founded fear of persecution based on any convention ground”, as the tribunal failed to take into account and/or give adequate weight to a relevant consideration, being the very serious political imputation from religion activity as perceived by the Vietnamese government.

2. According to the applicant’s submissions, the gravamen of this ground is that the tribunal did not engage “in any evaluative assessment of the evidence, as it related to” the two findings made by the tribunal specified in the grounds of review.

3. In paragraph 22 of the tribunal’s reasons for decision, the tribunal said (footnotes omitted, my emphasis):

   22.    While these incidents have taken place in Nghe An province where the applicant and her family live and while the Vietnamese government restricts religious freedom in practice, as stated above, there is no credible evidence that the applicant and her family have suffered harm in Vietnam because of their religion and that they were unable to practice their religion. At the hearing the tribunal discussed this issue and the country information referred to with the applicant. The tribunal put to her that it appeared the risk of her suffering serious harm in Vietnam because she was catholic was remote. In response, the applicant said that many conflicts occurred in her area and many others had been beaten and ill treated. She referred to 14 catholic students being arrested and said that they were apprehended in different places; such as the street or at home and that meant the authorities could arrest people anywhere they liked.  The tribunal acknowledges the applicant’s claims that there have been difficulties between the authorities and some Catholics in certain parts of the province, but, the tribunal does not accept that this is taking place on a scale that would demonstrate there is a real chance the applicant will suffer serious harm in Vietnam for being Catholic. There is no credible evidence that the applicant and her family have ever suffered serious harm on that ground or been unable to practice their religion.

4. It is apparent from that passage that the tribunal did not make the finding contended for by the applicant.  Rather, the tribunal was expressing that it did not accept that aspect of the applicant’s claims.  There is a difference. In Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 the High Court considered the effect of changes to the then legislative and regulatory scheme by reason of which a previous determination of refugee status was replaced with a requirement that the decision maker be “satisfied” of refugee status before a determination was made. At [264] it was said that:

   It is enough to indicate here that a decision which determines that “refugee status” exists differs in nature and quality from one recording the satisfaction of the decision-maker that this is the case.

5. Further, the majority in Wu Shan Liang discussed the “true nature of the Minister’s decision-making function”, and said as follows:

   37. The grafting of what might be seen as the Chan test onto the new statutory power to make refugee status determinations reveals the true nature of the Minister’s decision-making function in the present case.  This is, that if the Minister is satisfied that a person has a genuine fear founded upon a real risk of persecution, then the Minister may determine in writing that the person is a refugee. A condition of determination is the Minister’s satisfaction. Accordingly, it is inappropriate to describe a decision refusing refugee status as a decision not to determine that the person is a refugee. Rather, it is a decision that the Minister is not satisfied that the person has a genuine fear founded upon a real risk of persecution.

6. The statement by the tribunal that it “does not accept that this is taking place on a scale that would demonstrate there is a real chance the applicant will suffer serious harm in Vietnam for being Catholic” is an expression by the tribunal that it was not satisfied of the matters set out in that passage.  It was not a positive finding of fact, jurisdictional or otherwise: N1202/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 94 at [53].

7. Moreover, the tribunal did not make any finding to the effect of that set out in ground 1(b) set out above.

8. In my view that is sufficient to dispose of this aspect of ground one of the amended application for review.  However, in the event that I am wrong about that, I will consider the applicant’s arguments more fully.

9. As the applicant points out in her submissions:

   32. The tribunal’s task on review under s 414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it. Relevantly, and almost uniformly for the tribunal (putting complementary protection to one side), the criterion is the one set out in s 36(2)(a) of the Migration Act, which picks up Art 1 of the Refugees Convention.

   33.    The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573.

   34.    Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.

   35.    The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there. It is appropriate to recall how the task was described by Gummow and Hayne JJ in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (S395) at [73]-[76]:

   The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the “reasons of race, religion, nationality, membership of a particular social group or political opinion” that are engaged.

   Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.

   Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.

   Because reasoning of the kinds just described is often employed, it is perhaps inevitable that those, like the tribunal, who must deal with large numbers of decisions about who is a refugee, will attempt to classify cases. There are dangers in creating and applying a scheme for classifying claims to protection. Those dangers are greatest if the classes are few and rigidly defined. But whatever scheme is devised, classification carries the risk that the individual and distinctive features of a claim are put aside in favour of other, more general features which define the chosen class.

1. Here, the tribunal correctly identified the applicant’s claims.  The determination of whether there was an objective basis for her fear of persecution on the basis of her Catholicism, if she were to be returned to Vietnam, was predicated upon the tribunal accepting her claims about the treatment of Catholics in Vietnam at the time she was likely to be returned there.

2. In that respect, the tribunal determined that there was no credible evidence that the applicant and her family had suffered harm in Vietnam because of their religion or that they were unable to practice their religion.  The applicant’s ground of review did not cavil with that finding by the tribunal, although her submissions seemed to do so. 

3. The tribunal did not consider the applicant a witness of truth.  It disbelieved her claims about belonging to a Catholic youth or student group.  It disbelieved her claims that the group conducted prayer sessions which were raided by the police.  It disbelieved her claims that following the raid a group leader and the applicant herself were arrested and detained.  It did not believe that the applicant was ever detained by Vietnamese authorities.  The tribunal did not believe her claim that in July, 2013 police confiscated her father’s vehicle and only gave it back to him after he paid some money to them.  As the tribunal pointed out, the applicant told the tribunal that the only difficulties that her family had because of their religion were her arrest and the police confiscating her father’s vehicle in July, 2013, both of which claims the tribunal did not believe.

4. In light of those matters, the tribunal’s finding that “there is no credible evidence that the applicant and her family have suffered harm in Vietnam because of their religion and that they were unable to practice their religion” was patently correct.  The applicant did not suggest that she or her any member of her family suffered any harm in Vietnam because of their religion, other than that which was raised with the tribunal.

5. The tribunal gave reasons for its conclusion that the applicant’s claims about being of adverse interest to the Vietnamese authorities were to be disbelieved.  It was the function of the tribunal to assess her claims and make determinations about those matters.  The conclusions reached by the tribunal were open on the finding made by the tribunal. 

6. The first respondent correctly submits that the tribunal is required to “have regard to” information it “gets” which it considers to be relevant pursuant to s.424(1) of the Act.  The tribunal will “have regard to” information if it engages in an “active intellectual process” in relation to it: SZRLO v Minister for Immigration and Citizenship [2013] FCA 825 at [49]; DZADQ v Minister for Immigration and Border Protection [2014] FCA 754 at [44] and ATP15 v Minister for Immigration and Border Protection [2016] FCAFC 53 at [50].

7. In light of the tribunal’s finding that the applicant or her family had not suffered harm in Vietnam because of their religion or that they were unable to practice their religion, the tribunal turned to consider the position of Catholics more generally in Vietnam.

8. On the applicant’s own submissions, the tribunal undertook an examination of country information concerning the treatment of Catholics in Vietnam and specifically in the province where the applicant resided.  It accepted international human rights reports that ill-treatment, harassment and persecution of Catholics in the applicant’s home province and in other areas of Vietnam does occur.  Paragraphs 20 – 23 of the tribunal’s reasons for decision demonstrate an active intellectual process by the tribunal concerning that information before it.  Those paragraphs demonstrate that the tribunal engaged with the information, analysed it and put to the applicant for her comment the conclusions that the tribunal might draw from it.

9. The tribunal’s reasons for decision also demonstrate that it actively engaged with the information that the applicant chose to put before the tribunal and in particular a 2013 Amnesty International Report about the detention of prisoners of conscience that the applicant’s representative brought to the attention of the tribunal. 

10. The applicant points out that the tribunal described the Report as concerning “people described as ‘activists’ for different causes not just religion” (at paragraph 23 of its reasons) and that the tribunal stated that the Amnesty report “does make reference to the arrest and imprisonment of Catholics including the arrest of a group of 14 Catholics as referred to by the applicant” and concludes that “these people were not of interest to the Vietnamese government just for practising their religion” (again at paragraph 23).

11. Further, the applicant correctly points out that the tribunal found, or was otherwise satisfied, that:

    a.there are over six million Catholics in Vietnam and the number is growing;

    b.the applicant and her family are Catholics;

    c.the applicant and her family regularly attended churches in the part of Vietnam where they live;

    d.her father often drove the priest to the church;

    e.country information indicated that the Vietnamese Constitution and other laws and policies provide for religious freedom, but, in practice, this is restricted by the government;

    f.in particular, unregistered and unrecognised religious groups were often subject to harassment and punitive actions;

    g.the activities of certain religious groups were monitored because of their political activism;

    h.in some parts of Vietnam, local authorities acquiesced in the activities of unregistered groups, where in other areas, officials restricted those same activities;

    i.in some districts of the applicant’s home province:

    i)there had been attempts to prevent Catholics holding services or religious activities in their own homes, resulting in some being beaten;

    ii)there was a decline of requests to register new parishes;

    iii)some Catholics who had come into conflict with the authorities were arrested;

    iv)in 2013, two men who attended a church which the applicant’s family also attended were arrested and detained until December that year due to conflict with the authorities over a shrine; and

    v)the prayer vigil held for the men in September, 2013 resulted in the detention of a number of people after conflict with the police.

12. Notwithstanding those findings, the tribunal concluded that:

    a.“there is no credible evidence that the applicant and her family have suffered harm in Vietnam because of their religion and that they were unable to practice their religion”;

    b.the applicant was not in the same category of people arrested by the Vietnamese government because of their perceived political opposition to the government;

    c.the applicant’s claims about being of adverse interest to the Vietnamese authorities are to be disbelieved; and

    d.it “remains of the view that the risk of her suffering serious harm in Vietnam on the ground of her religion is remote”.

13. The applicant argues that those conclusions are erroneous “in that they cannot reasonably be made in light of the evidence presented, particularly with regard to Amnesty International’s 2013 Report, which was considered and accepted by the tribunal”.  This aspect of the applicant’s argument suggests irrationality or illogicality in the tribunal’s fact finding.  But there was no illogicality or irrationality associated with the tribunal’s fact finding.

14. The applicant argues:

    It is submitted that the Country Information and Amnesty International Report referred to by the tribunal, together with the evidence accepted by the tribunal that the applicant is a practising Catholic, is sufficient to establish the scale that the “difficulties” (discrimination) occurred in [the applicant’s home province], and further that this discrimination and ill treatment of Catholics occurred on a sufficiently widespread and systematic basis as to amount to persecution by the state of Vietnam.

15. But this argument is, with respect, nothing more than an argument with the merits of the tribunal’s decision and the conclusions that it has drawn from the facts as it has found them to be.  It raises no case of jurisdictional error on the tribunal’s part.

16. The applicant argues that the tribunal’s conclusion that the risk of the applicant suffering serious harm in Vietnam on the ground of her religion is remote, is affected by error of law in that the tribunal failed to take into account a relevant consideration, namely the very serious political imputation alleged to arise from her religious activity as perceived by the Vietnamese government.

17. However, the tribunal considered those matters.  It accepted that the applicant and her family were Catholics and that they practised their faith (at para. 20 of the tribunal’s reasons for example).  It determined, on the basis of the country information given to it by the applicant, that religion of itself was not a predictor of ill-treatment by the Vietnamese government.  The tribunal drew from the Amnesty International report:

    23.    …It does make reference to the arrest and imprisonment of Catholics including the arrest of a group of 14 Catholics as referred to by the applicant. However, whatever background is provided indicates that these people were not of interest to the Vietnamese government just for practising their religion. They are people also described as ‘activists’ who were openly agitating opposition to the government on some basis as well as people having connections with an overseas based group advocating for democracy in Vietnam. The applicant is not in the same category as these people….

18. The applicant cavils with the tribunal’s finding that the applicant was not of interest to the Vietnamese authorities.  She argues that the tribunal’s finding about that is affected by error due to a failure to establish facts about registration of the church to which the applicant belonged, following acceptance by the tribunal from the United States Department of State, “Vietnam 2013 International Religious Freedom Report”, that:

    “[A]vailable country information indicates that the Vietnamese Constitution and other laws and policies provide for religious freedom, but, in practice, this is restricted by the government. In particular, unregistered and unrecognised religious groups were often subject to harassment and punitive actions and the activities of certain religious groups were monitored because of their political activities” (emphasis added) (RRT, para 20).

19. However, the tribunal expressly found that the applicant was not a member of any religious group as she had claimed.  It found that those claims by her were false.  In those circumstances it was unnecessary for the tribunal to make any findings about whether the group to which the applicant claimed to belong was “registered” or otherwise “recognised” by the Vietnamese government.  The tribunal made no error as suggested by the applicant.

20. As the first respondent correctly submits:

    The tribunal, having considered and rejected each of the applicant’s specific claims to fear harm from the authorities related to her religion, was left only with the findings that she was Catholic and her father drove the priest to church. The tribunal then considered whether this attribute would create any profile or risk of harm for the applicant with the authorities. Following a detailed analysis of the country information, it noted that the applicant and her family had not experienced harm in the past as a result of their religious practice, did not identify any characteristic which would give rise to any special risk of harm for the applicant, and was not satisfied that the general risk for Catholics in Vietnam was sufficient to constitute a real chance of serious harm.

1. No jurisdictional error is evident from any of the matters set out in grounds 1 or 5.

Grounds 2, 4 and 6

1. The submissions for the applicant grouped grounds 2, 4 and 6 together.  They are as follows:

   GROUND 2: The tribunal rejected critical aspects of the applicant’s claims without any assessment or evaluation, as it relates to the following:

   (a) The claim that in July 2013 the police confiscated her father’s vehicle and only gave it back to him after he paid some money to them.

   (b) The claim made by the applicant in her application form that after she came to Australia her mother told her on the phone that Catholics were being mistreated.

   GROUND 4: The tribunal erred in its consideration of whether the applicant faced a real chance of persecution because it failed to consider the possibility of error in its evaluation of the applicant’s claims or otherwise failed to ask itself the question “what if I am wrong” in the assessment of the applicant’s claims.

   GROUND 6: The tribunal committed an error of law in making adverse credibility findings based on placing disproportionate weight on minor inconsistencies in the applicant’s evidence and insufficient weight on the impact of detention and past trauma on the applicant’s ability to recall all past events with precision, and in doing so, failed to apply the high threshold expected of the assessment of evidence in findings of implausibility.

2. It is convenient to deal with ground 6 first.  In that respect, the applicant argues that the tribunal’s reliance upon certain inconsistencies in her evidence to the first respondent’s delegate, her written statements and her evidence to the tribunal were not such as to lead to the conclusion that the applicant was not a credible witness.  In particular, she argues:

   43.    The tribunal highlighted and emphasised inconsistencies between the I applicant’s account to the DIBP Delegate, and at the RRT hearing, about the length of time that “Bae” (the Catholic Student Group leader of the group to which the applicant belonged) was detained. Whilst the applicant stated in her written statement dated 2 September 2013 that Bae was detained for 10 days[15], the tribunal highlighted that she told the Delegate at her interview on 10 August 2014 that Bae was arrested and detained for one day (RRT, 8), notwithstanding that, whatever it was that the Delegate claimed the applicant told her about the length of Sac’s detention, the Delegate, did, in her Decision Record, summarise the applicant’s claims by saying that Bae was “held in prison for 10 days”.[16]

   44.    When asked whether she was sure he was detained for one day, the applicant said she was not sure (RRT, 9). When the applicant was asked by the tribunal to confirm that she heard people in her group say that Bae was released one day after his arrest, she confirmed this (RRT, 9). In doing so, the applicant was talking about things had heard from others, and was now asked about (hearsay).

   45.    In finding that the applicant was not a credible witness, the tribunal failed to properly consider that:

   a.  The applicant told the tribunal that Bae was held in detention for 10 days (RRT, 13 and 15), consistent with her written statement made on 2 September 2013, before her protection visa application was lodged.

   b.  Approximately 18 months had passed between the events she was asked to describe and when she was interviewed by the DIBP Delegate; and approximately one year had passed between the time she lodged her Protection Visa application (6 September 2014) and when she was questioned by the Delegate (10 August 2014 ).

   c.  By the time the applicant had her interview with the Delegate on 10 August 2014, she had been in Immigration Detention for approximately 18 months, which, coupled with her reasons for leaving the country, her relatively young age (she was only 18 years old), her separation from family and friends, and isolation in an Australian detention center as a single young woman, had rendered her particularly vulnerable - especially at an interview which she believed to determine her fate including possible return to Vietnam.

   d.  The applicant’s original and various representations, both written oral, were, at different times, conveyed to different persons who interpreted those statements. Those interpreted representations were then conveyed to the Delegate or tribunal Member. What the Delegate and the tribunal Member heard of those accounts was therefore hearsay, and the applicant was asked to verify those hearsay statements (again through hearsay/interpretation) without having the original statements (either written by her in the Vietnamese language, or via audio recordings) put to her. This was done in circumstances where there were no indications on the records used on judicial review, as to what level the interpreters used (at the various interpreted records) were accredited at.

   46.    During questioning by both the DIBP Delegate and tribunal Member, the applicant was asked to comment on various things she purportedly said to the Delegate, things she purportedly did not say to the Delegate, and purported inconsistencies in accounts of past events throughout other times during which she was in immigration detention. When asked about these matters, the applicant did not question the matters put to her and at times appeared to adopt the leading propositions put to her, otherwise stating that she could not remember, or that she omitted certain things because she did not consider them significant at the time of questioning.

   47.    The applicant’s account must be put into the context of the length of time between the events recounted, the time between the various statements and interviews made, the questions she was asked, and her relative age and maturity.

3. She concludes that:

   48.    The applicant’s lack of precision at the interview with the Immigration Delegate should have been considered in the light of her trauma and nervousness, rather than as being indicative of her being an inherently untruthful witness.

   49.    The tribunal’s conclusions contain errors of law in that they were based on disproportionate weight being placed on minor inconsistencies and insufficient weight being placed on the impact of past trauma and detention on the applicant’s ability to recall all past events with precision.

   50.    The tribunal also failed to give sufficient weight to the fact that it is not outside the realm of human experience that someone would (1) infer facts from a number of sources including hearsay, particularly where there is no personal, direct, observable facts from personal experience, and (2) have a genuine belief in the matters which they have inferred, in circumstances where human memory is fallible.

4. The applicant’s submissions cavil with the merits of the tribunal’s fact finding.  However, there is nothing erroneous about the tribunal’s fact finding.  The issues pointed to by the applicant were matters to which the tribunal was alive.  The tribunal acknowledged that the applicant’s claims before the tribunal were consistent with her written statement (at [17] of its reasons).  It acknowledged the effect of interpretation on the applicant’s evidence (at [17] of its reasons). The tribunal considered the other matters raised by the applicant’s advisor in assessing her credibility, including that the interview with the delegate was stressful, she would have been nervous and that she was recounting traumatic events. However, the tribunal did not accept that these factors explained the inconsistencies in her evidence (again, at [17] of its reasons).

5. To the extent that the applicant relies upon the suggestion that the tribunal fell into error because it made a finding or findings that the applicant’s claims were “implausible”, her argument cannot succeed because the tribunal made no such findings.  As the applicant points out, the tribunal found that the applicant’s claims about various matters upon which her case relied were false, not merely implausible.

6. Ground 6 of the applicant’s grounds of review reveal no discernible error in the tribunal’s decision.

1. As to ground 2, the applicant argues that in light of certain matters accepted by the tribunal:

   There is no clear basis for why the tribunal rejected the applicant’s claims regarding the confiscation of her father’s vehicle by police, and the claim that after she came to Australia, her mother told her on the phone that Catholics were being mistreated.

2. However, the “critical aspects” of the applicant’s claims identified in ground 2 of the applicant’s grounds of review were rejected by the tribunal because it did not believe the applicant’s claims about them.  The tribunal said:

   19.    The Tribunal does not believe the applicant was ever detained by Vietnamese authorities and there is no credible evidence that Vietnamese authorities have any adverse interest in her.  There is no credible evidence before the Tribunal as to why the applicant left Vietnam in March 2013 and why she does not want to return there.  The Tribunal also does not believe her claim that in July 2013 police confiscated her father’s vehicle and only gave it back to him after he paid some money to them. The Tribunal also disbelieves a claim the applicant made in her application form that after she came to Australia her mother told her on the phone that Catholics were being mistreated. There is no credible evidence that the applicant and her family had any difficulties with Vietnamese authorities for any reason including because of their religion. The applicant told the Tribunal that the only difficulties that they had because of their religion were her arrest and the police confiscating the father’s vehicle in July 2013; claims the Tribunal does not believe.

   (my emphasis)

3. The applicant argues that the tribunal’s findings about these two matters were based on “no evidence”.  But that is not so.  The tribunal, first, made no findings about the relevant matters.  Second, the tribunal did not believe the applicant’s claims about them.  It did not reject them because there was “no evidence”.  It rejected them because it did not accept her claims about them.  The references in paragraph 19 to “no evidence” were not directly related to the two matters highlighted by the applicant in this ground of review, but rather were related to the tribunal’s conclusions that:

   a.the Vietnamese authorities do not have any adverse interest in the applicant; and

   b.the applicant and her family did not have any difficulties with Vietnamese authorities for any reason including because of their religion.

4. The matters that the tribunal disbelieved might have been evidence that supported conclusions in the applicant’s favour on the broader matters I have just set out.  The reference to “no evidence” by the tribunal is in those circumstances properly understood as a reference to the rejection by the tribunal of the two factual events relied upon by the applicant thereby leaving the applicant with “no evidence” to support her broader claims.

5. The applicant relied upon Re Refugee Review Tribunal; Ex parte AALA [2000] 176 ALR 219, where Gleeson CJ noted, “decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive”.  These remarks do not assist the applicant’s case.

6. Ground 2 of the grounds of review reveal no jurisdictional error.

7. In her argument in connection with ground 4 of the grounds of review, the applicant again repeats her suggestion that the tribunal fell into error because it made “findings of implausibility” which ultimately led it to conclude that there was no real chance of persecution of the applicant for a Convention reason if she returned to Vietnam.  However, the applicant’s submissions in this respect are misdirected.  The tribunal made no findings of implausibility.  It made findings that the applicant was not a witness of truth and that some of her claims were false.

8. In those circumstances, no occasion arises for an application of the “what if I am wrong test” as the applicant argues in this ground of review.  That test, as it appears from cases such as Minister for Immigration and Multicultural Affairs v Rajalingham & Ors (1999) 93 FCR 220; Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 at [29].

9. Indeed, in Thevendram the Full Court said:

   27.    …

   In the current state of the authorities, and in particular Guo, it can be taken to be established that consideration by the RRT of whether a certain finding of fact was or might be wrong:

   ·is mandatory in respect of facts found on the basis that they are “slightly more probable than not” if the facts are those relied upon for concluding that an applicant had not been punished or harmed for a Convention reason;

   ·is unnecessary when it appears that the RRT is of the view that the probability of error in its findings in relation to those facts was insignificant.

   28.    However, a problem arises in cases lying between the two situations stipulated above.  In Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635 at 650, and again in his reasons for judgment in Paramananthan v Minister for Immigration and Multicultural Affairs 160 ALR 24 at 21-22, Merkel J observed that the ‘What if I am wrong?’ approach has a varying applicability in cases lying between the two situations discussed in Guo.  In such cases, in determining whether the claimed fear of persecution is well founded, the decision maker must take into account the chance that the alleged past punishment or harm for a Convention reason had occurred but the weight to be given to that chance is a matter for the decision maker.  The “varying applicability” refers to the weight to be given by the decision maker to the possibility of error rather than to whether the decision maker is excused from considering that possibility.  The weight to be given by the decision maker to the possibility of error will, no doubt, be influenced by the degree of confidence he or she has as to the correctness of the findings made as to the particular past event.

   29.    This problem has also been considered by other judges of the Court.  See for example: Mr A v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Hely J, 17 November 1998) at 9-11 and Zuway v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Katz J, 31 December 1998) at 7-13.  The proper application of the real chance test in the manner explained above, as was observed by the Full Court in Epeabaka, ensures that although findings as to past events may be made on the balance of the probabilities, the determination of a real chance of persecution is made on an evaluation of all of the findings, including the possibility of error, when that possibility is required to be taken into account.

   30.    In the present case it is apparent that the RRT had no real doubt as to the correctness of its findings rejecting Mr Thevendram’s claims in relation to his arrest and detention.  However, those findings were primarily based on the RRT’s conclusion that it was implausible that the Sri Lankan authorities arrested and detained Mr Thevendram because they perceived him to be a supporter or member of the LTTE.

10. Here the tribunal’s reasons reveal that it had no doubt about its findings that the applicants’ evidence was false in certain respects.  It did not reject the applicant’s claims on the basis of findings on the balance of probabilities.  It found they were false.

11. This ground of review reveals no jurisdictional error.

Ground 3

1. Ground 3 is in the following terms:

   GROUND 3: The tribunal erred in its application of the real chance test in its assessment of whether the applicant was at risk of future harm on the basis of her religion:

   (a) The tribunal failed to assess whether the accepted “difficulties between the authorities and some Catholics” was deliberate ‘systematic conduct’ constituting persecution against Catholics and instead engaged in a qualitative assessment on whether the difficulties or harm was taking place on a sufficient ‘scale’, and

   (b) The tribunal confined its assessment of whether the applicant faced a real chance of harm on the basis of her past experiences, and

   (c) The tribunal failed to assess the applicant’s subjective fear in an objective context.

2. In paragraph 22 of its reasons, the tribunal found:

   The Tribunal acknowledges the applicant’s claims that there have been difficulties between the authorities and some Catholics in certain parts of the province, but, the Tribunal does not accept that this is taking place on a scale that would demonstrate there is a real chance the applicant will suffer serious harm in Vietnam for being Catholic. There is no credible evidence that the applicant and her family have ever suffered serious harm on that ground or been unable to practice their religion.

3. The applicant argues that whilst accepting that difficulties between the authorities and some Catholics in certain parts of the province were taking place but rejecting that they were taking place on a scale that would demonstrate there is a real chance the applicant would suffer serious harm in Vietnam for being Catholic, the tribunal failed to assess whether the treatment of the Catholics in the applicant’s home province amounted to “systematic conduct” constituting persecution as required by the Migration Act.

4. It is clear from the tribunal’s reasons that this passage was focused upon the tribunal’s assessment of the magnitude of the risk of harm befalling the applicant. That is to say, whether there was a real chance of serious harm. It was not directed to the nature of the harm to which the applicant might have been exposed and whether that harm met the requirements for it to properly engage Art.1A(2) of the Refugees Convention. As the first respondent submits, on the basis of the tribunal’s finding that the applicant did not face a real chance of experiencing harm on return to Vietnam, the tribunal was not required to consider whether the harm feared by the applicant constituted systematic and discriminatory conduct pursuant to s.91R(1)(c) of the Act.

5. The applicant further argues that a proper assessment of whether there is a “real chance” of persecution requires that the applicant’s subjective state of mind be assessed in an objective context, including from Country Information and Amnesty Reports about treatment of Catholics in Vietnam and in particular, in her home province.  And indeed, that is what the tribunal did.  As set out above, the tribunal rejected the applicant’s claims to have experienced harm in the past.  It considered, on the basis of the facts accepted by the tribunal, the risk faced by the applicant on return to Vietnam (see for example paras. [20] - [29] of its reasons).  The tribunal found that there was not a real chance that the applicant would suffer serious harm in Vietnam and that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of her removal from Australia to Vietnam, there was a real risk that she would suffer significant harm. The tribunal’s reasons, especially at paragraphs [20] to [29] indicate that the tribunal gave detailed consideration to the applicant’s circumstances if she returned to Vietnam.  I accept the first respondent’s argument that there is nothing to indicate that the tribunal confined its review to a consideration of her past circumstances.

6. Moreover, the tribunal well understood that the absence of past persecution does not deny that there is a real chance of future persecution.  It is for that reason that the tribunal undertook a consideration of the country and other information to which I have earlier referred.

7. This ground of review reveals no jurisdictional error.

Grounds 7 and 8

1. In her submissions, the applicant grouped grounds 7 and 8 together.  They are said to contain some overlap.  Those grounds are in the following terms:

   GROUND 7: The tribunal’s decision regarding complementary protection involved an error of law as the tribunal failed to consider and apply the test for complementary protection under section 36(2A) of the Migration Act, by failing to properly consider and apply the applicable law defining “significant harm” to the facts as raised by the evidence.

   GROUND 8: The tribunal failed to give reasons for its determination that the applicant is not someone to whom Australia owes complementary protection, in accordance with the requirement under section 430 of the Migration Act 1958 (Cth) that the tribunal record decisions, reasons, findings on any material questions of fact and references to the evidence.

2. As to ground 7 the applicant argues that the tribunal’s decision regarding complementary protection involved an error of law because the tribunal failed to “consider and apply the test for complementary protection under s.36(2A) of the Migration Act, by failing to properly consider and apply the applicable law defining “significant harm” to the facts as raised by the evidence”. She argues that the applicant’s feared harm, on the basis of what she knew was occurring to other Catholics in her home province, was arrest, detention and eventually an unfair trial, on the basis of religion and imputed political opinion, amounting to “significant harm” and/or “degrading treatment and punishment” for the purposes of s.36(2A) of the Act.

3. The applicant also points out that in SZSFF v Minister for Immigration and Border Protection [2013] FCCA 1884 [34], Lloyd-Jones J held that

   ... s.36(2B)(c) does not necessitate in all cases that the individual be singled out or targeted for any particular reason. What is ultimately required is an assessment of the level of risk to the individual and the prevalence of serious human rights violations is a relevant consideration in that assessment.

4. However, the task undertaken by the tribunal in the case addressed those issues amongst others.  The tribunal considered and assessed the level of risk to the applicant should she return to Vietnam.  The tribunal, as part of that process, took into account the prevalence of serious human rights violations.  It is because the tribunal took the view that serious human rights abuses of the type about which the applicant complained were not prevalent, that it determined that the applicant did not engage the criteria for complementary protection.  The tribunal said:

   29.    With respect to the complementary protection criterion, the Tribunal repeats its finding that the applicant is not a witness of truth and disbelieves her claims about belonging to a youth group and being arrested and detained because of activities for that group. The Tribunal repeats its finding that there is no credible evidence that the applicant and her family were ever harmed by Vietnamese authorities and no credible evidence that Vietnamese authorities (or anyone else in Vietnam) hold any adverse interest in her. For the same reasons the Tribunal finds there is not a real chance the applicant will suffer serious harm in Vietnam, as discussed above, the Tribunal also finds that there is not a real risk she will suffer significant harm.

5. It is not necessary for the tribunal to set out again all of the findings that it made with respect to the applicant’s claims for protection when it deals with her claims for complementary protection.  That includes the findings that it made in relation to the prospect that the applicant will not face a real chance of serious harm if she returned to Vietnam.  The reasons that the tribunal gave to support its assessment that there was no real chance of serious harm were sufficient to support its conclusion that there was no real risk that she would suffer significant harm if she was returned to Vietnam.

6. As to ground 8 of her grounds of review, the applicant argues that the tribunal was required by s.430 of the Migration Act to record decisions, reasons, findings on any material questions of fact and references to the evidence. She argues that in finding that “there is not a real chance the applicant will suffer serious harm in Vietnam” and that “there is not a real risk she will suffer significant harm”, the tribunal failed to demonstrate any proper evaluation of the evidence and factual findings in connection with the definition of “significant harm” under s.36(2A) of the Migration Act. She also argues that the tribunal also failed to adequately record any reasons in accordance with the requirement under s.430 of the Migration Act.

7. However, these contentions must be rejected.  The tribunal’s reasons set out its findings in relation to the applicant’s claims as they were relevant to complementary protection.  The tribunal said:

   32.    Based on country information discussed above about the treatment of Catholics in the province of Vietnam where the applicant lives and the fact that there is no credible evidence the applicant and her family were ever harmed for practising their religion or prevented from doing so, the risk of her suffering significant harm on that ground is remote. Based on the country information discussed above about the attitude of Vietnamese authorities toward failed asylum seekers, including those who left the country illegally, the Tribunal finds that the risk of the applicant suffering significant harm on those grounds and because access to personal information was temporarily available on 31 January 2014 is remote. Even when all of those matters are considered cumulatively, the risk of the applicant suffering significant harm in Vietnam is remote. Accordingly, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, Vietnam, there is a real risk that she will suffer significant harm.

8. As the first respondent submitted, the applicant has not identified any claim relevant to complementary protection which was not dealt with in the tribunal’s reasons.

9. An applicant’s claim to complementary protection is often dealt with in a briefer fashion than the applicant’s claims for protection pursuant to s.36(2)(a) of the Act. There is no error of principle in a tribunal undertaking that consideration by reference to its earlier findings and expressing itself in brief terms. In SZTFZ v Minister for Immigration [2014] FCCA 1861 Driver J said:

   23.  As Robertson J held in SZSGA v Minister for Immigration each case must depend on its own facts and, in particular, the reasons of the tribunal in each case.  Further, SZSFK does not stand for the proposition that findings of fact made in the course of considering refugee claims cannot be relied upon for the purpose of assessing complementary protection claims.

   24.  Consistently with the principles set out in the previous paragraph it is not always necessary for the tribunal to give extensive reasons for the rejection of complementary protection claims.  This is especially so where the facts giving rise to the complementary protection claims are the same as those upon which refugee claims are based.  In particular:

   (a)  It is sufficient for the tribunal to refer to its previous findings where the effect of those previous findings was that the tribunal did not accept that the events which were said to give rise to the risk of harm actually occurred.  This is consistent with the principle that the tribunal has no obligation to give consideration to a claim where the factual premise upon which the claim depends has been rejected, and;

   (b)  Where the tribunal, in the course of considering an applicant’s refugee claims makes a finding that there is not a real chance of the applicant suffering any harm by reason of a particular matter, it is open for the tribunal to rely on this finding when rejecting a complementary protection claim arising from the same facts.  That is, a finding that there is not a real risk of any harm is sufficient to dispose of claims to fear both serious harm under s.36(2)(a) and significant harm under s.36(2)(aa).

1. A similar approach was adopted on appeal from Driver J’s decision: SZTFZ v Minister for Immigration and Border Protection [2015] FCA 1347. Special leave to appeal from the decision of the Federal Court was rejected on 6 April, 2016: SZTFZ v Minister for Immigration and Border Protection & Anor [2016] HCASL 34.

2. These grounds of review reveal no jurisdictional error by the tribunal

Ground 9

1. This ground provides:

   GROUND 9: In rejecting the applicant’s refugee sur place claims, the tribunal’s decision about the effects of the Department’s unlawful disclosure of the applicant’s personal information involved an error of law, being that there was no actual evidence before the RRT about the content of the material disclosed by the DIBP, upon which the tribunal could have directed its consideration.

2. To put this ground in context, it is necessary to recite some further facts, none of which are controversial:

   a.between 10 and 19 February 2014, the first respondent’s Department unintentionally published the personal information of approximately 9,250 asylum seekers on its website, as part of its “Immigration Detention and Community Statistics Summary”;

   b.this enabled the world to access personal information about people who were in immigration detention on 31 January, 2014;

   c.the applicant was one of those people affected;

   d.the applicant was informed of this data breach through a letter dated 13 March, 2014;

   e.on 24 December, 2014 the applicant wrote to the first respondent’s Department  stating:

   I remain in fear that the risk of harm upon return to my home country has been greatly heightened by the placing of my name on the internet and I respectfully submit that I am a refugee “sur place” and cannot return to my country of origin.

   f.in November, 2014 the Privacy Commissioner published a report which found that:

   i)the Department breached Information Privacy Principle 4 by failing to put in place reasonable security safeguards to protect the personal information that it held against loss, unauthorised access, use, modification or disclosure and against other misuse, and

   ii)the publication of the personal information of the listed individuals was an unauthorised disclosure, in contravention of Information Privacy Principle 11;

   g.the tribunal did not make itself aware of the nature or content of the data unlawfully published, but rather relied upon the descriptions given by the Department about what was disclosed;

   h.however, the first respondent’s Department summarised and described the categories of personal information compromised in the data mistakenly published as consisting of full names, gender, citizenship, date of birth, period of immigration detention, location, boat arrival details and reasons why the individual was deemed to be unlawful.

3. Although the applicant was asked by the tribunal to comment on how the Department’s mistake would impact upon her claims, she argues that she could make no informed submissions about that because she was not given all of the information relevant to her, including the content of what was disclosed on the Department’s website.  She argues that procedural fairness requires that she be given particulars of the information disclosed so that she could evaluate the danger to her arising from the Department’s disclosure.

4. In any event, she argues that even if she was provided with the level of detail she demands, the damage is done.  The relevant data, whatever it is, once accessed after it was made available to the world, could be saved, modified and/or passed on further without the Department’s knowledge.

5. Accordingly, she argues, the tribunal’s conclusion at para. 32 of its reasons that:

   …Based on the country information discussed above about the attitude of Vietnamese authorities toward failed asylum seekers, including those who left the country illegally, the tribunal finds that the risk of the applicant suffering significant harm on those grounds and because access to personal information was temporarily available on 31 January 2014 is remote….

   is incorrect at law because the tribunal could not have properly decided on the effect of the Department’s data breach without knowing the exact content of what was disclosed.

6. However, it is clear that the applicant did appreciate the extent of the information that was disclosed by the Department about her in the “data breach”.  In its letter to her dated 12 March, 2014, the Department said:

   The information that it was possible to access was your name, date of birth, nationality, gender, details about your detention (when you were detained, reason and where) and if you have other family members in detention.

   The information did not include your address (or any former address), phone numbers or any other contact information.  It also did not include any information about protection claims that you or any other person may have made, and did not include any other information such as health information.

7. The nature and extent of the information published about the applicant is clear from that letter.

8. The applicant made submissions about the disclosure of her information by letter dated 26 September, 2014.  The tribunal summarised the applicant’s claims concerning the release of her information as follows:

   29.    In submissions dated 26 September 2014, the representative submitted that the temporary data breach by the Department would enable Vietnamese authorities to find out the applicant has applied for protection in Australia and for doing so the authorities will perceive her as an opponent. Because she has applied for protection, the Vietnamese authorities will assume that she has voiced criticisms about the regime. The Tribunal rejects these submissions because country information mentioned above is to the effect that Vietnamese authorities do not take an adverse interest in or harm Vietnamese nationals because they sought asylum abroad. At the hearing, the representative submitted that the fact that Vietnamese authorities would visit Vietnamese people held in the same detention centre as the applicant showed they held an adverse interest in people held in detention in Australia. The Tribunal does not have independent evidence to corroborate the claims the applicant has made on this matter. The Tribunal does not accept that Vietnamese authorities will hold an adverse interest in or harm this applicant because she has been held in a detention centre in Australia (while seeking asylum).

9. I accept the first respondent’s submissions that there is no basis on which the Court can find that the tribunal failed to accord procedural fairness to the first applicant as a result of the Department not providing her with further or other information about the information disclosed in relation to her.  The applicant was told by the Department of the information that was disclosed in relation to her.

10. I accept the first respondent’s submissions that the tribunal was not required to take steps to ensure that it knew the exact contents of the material disclosed in relation to the applicant given the content of the Departments’ letter of 13 March, 2014.

11. In my view, no jurisdictional error is evident from any of the matters set out in ground 9 of the amended application for review.

Ground 10

1. Ground 10 is in the following terms:

   GROUND 10: The tribunal denied the applicant procedural fairness in deciding on the effect of the DIBP’s unlawful disclosure of the applicant’s personal information (data breach) when there are multiple ongoing and unresolved litigation directly affecting the applicant’s interests, specifically the applicant’s interests concerning DIBP “normal processes” for assessment of implications for individuals personally, as described in the DIBP’s letter to the applicant about the data breach, dated 12 March 2014.

2. In support of this ground, the applicant argues that a number of individual complaints had been lodged and were being investigated by the Australian Privacy Commissioner.  Amongst those is a complaint by the applicant. At the time of the hearing before me, the Privacy Commissioner had not finalised his report on the applicant’s complaint or those of four separate cohorts of asylum seekers apparently affected by the Department’s disclosure of information.

3. The applicant argues that “Given that there is ongoing privacy complaints which are currently under investigation, it is inappropriate for the Immigration Delegate and the RRT Member to determine conclusively that the DIBP’s data breach would not render the applicant a refugee sur place, or invoke complementary protection.”

4. However, that argument must be rejected. The two matters are not connected. Whatever the outcome of any complaint to the Privacy Commissioner, the task of the tribunal was a statutory task, the metes and bounds of which are measured out by the Migration Act. Having regard to the matters to which the tribunal needed to consider for the purposes of the review undertaken by it, it is difficult to conceive of any impact that the outcome of the applicant’s complaint to the Privacy Commissioner might have on that review. No proper basis was identified by the applicant in submissions to establish the proposition that the continuation and finalisation of the tribunal’s review function was, in the circumstances, erroneous.

5. The applicant also argues that there is other unresolved litigation on foot which has “direct import to the applicant in respect of questions concerning the processes by which her own Protection Visa application must be dealt.”  In that respect, the applicant emphasises that in the Department’s letter to her of 12 March, 2014 the Department said:

   The Department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes.

6. The applicant points to litigation that has ensued to test the meaning and effect of the words “normal processes” in that letter and in particular, SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26. In that case, an applicant had received a letter in similar terms to the one received by the applicant in this case. She had been found not to have invoked Australia’s protection obligations by a delegate of the first respondent and then by a tribunal. The applicant did not seek judicial review of the tribunal’s decision. The applicant in that proceeding claimed that the statement in the letter that the Department would assess any implications arising from the data breach “as part of its normal processes” gave rise to an expectation that the Department would conduct some other process to assess the impact of the data breach for her in addition to the protection visa application process. On the basis that such additional process has not yet occurred, that applicant sought an injunction restraining her removal from Australia. When considering the applicant’s claim for an interlocutory injunction to prevent her removal for Australia pending the full hearing of an appeal from the Federal Circuit Court, Greenwood J observed that:

   ... there is at least an arguable question that the paragraph in the letter gives rise to a possible process other than simply subsuming the data disclosure questions within what would normally be a protection visa application.

7. Subsequently, the appeal from the Federal Circuit Court was determined against the applicant.  In SZWAJ v Minister for Immigration and Border Protection [2016] FCA 1173. As to the suggestion that the letter from the Department suggested that there would be a separate and independent process available to the applicant as a result of the disclosure of her information, Griffiths J said:

   30.    Ground 2 of the notice of appeal claims that the primary judge erred in finding that there was no arguable case that the 12 March 2014 letter involved a commitment by the Secretary to initiate a Departmental process to ascertain the effect on the appellant individually of the Data Breach and that this commitment went no further than permitting the appellant to raise those issues in any other process already open to her.

   31.    There are several reasons why this ground must also be rejected.  First, the primary judge did not find that there was no arguable case that the Department would assess the impact of the Data Breach on the appellant as an individual.  Rather his Honour found at [25] that there was no arguable case that the Department would “undertake anything more than giving the applicant an opportunity to make submissions about the consequences to her” of the Data Breach (emphasis added).  In circumstances where that particular opportunity had been given to the appellant, and which she took advantage of, there was no reasonably arguable case that the appellant had been denied procedural fairness so as to warrant the grant of an interlocutory injunction to prevent her removal.

   32. Secondly, as the Minister pointed out, there was no evidence below to support any claim that the Department’s “normal processes” as they applied to the appellant involved something other than, for example, the processes associated with the making of a valid application in Australia for a visa, including a protection visa. In the appellant’s case, for her to remain lawfully in Australia she had to obtain a visa. It was only after receipt of the 12 March 2014 letter that the appellant applied for a protection visa and, in the context of the process relating to the consideration and determination of that application (together with the subsequent review by the Tribunal under Pt 7 of the Migration Act), the appellant had the opportunity to make submissions and adduce evidence as to the effect of the Data Breach on her claims for protection. The former process is appropriately regarded as a “normal process” of the Department and the appellant availed herself of the opportunity presented by it. She also availed herself of the opportunity to have the Tribunal review the delegate’s decision. In the particular circumstances appertaining to the appellant, the primary judge did not err in finding that the appellant’s case in this respect was not reasonably arguable. Different considerations could arise in respect of other detainees who were affected by the Data Breach, as is demonstrated by the proceedings relating to SZSSJ and SZTZI and the relevance to them of the ITOA process, which is another “normal process” of the Department for a person in their particular circumstances. It is possible that the particular circumstances of other persons who are affected by the Data Breach may well be different from those here or in those other cases. Accordingly, it will be important to pay close attention to the relevant circumstances in any particular case.

8. I accept the first respondent’s decision that the present proceeding is one for judicial review of the decision of a tribunal dated 19 November, 2014 and therefore of a different character to the process that was pursued by the applicant in SZWAJ.  The applicant in SZWAJ sought a finding that the Department must carry out some assessment of the impact of the data breach on her which is additional to the protection visa application process.  The question of whether the present applicant is entitled to the benefit of some further process is irrelevant to the judicial review of the tribunal’s decision in this case.

9. No jurisdictional error is revealed by this ground 10.

Ground 11

1. This ground provides:

   GROUND 11: The tribunal’s conclusion that “even if Vietnamese authorities were aware, from the temporary access to the Department’s records on 31 January 2014, that the applicant was in detention in Australia and had even applied for protection, the risk of her suffering serious harm is remote including for having left the country illegally” was affected by error in that there was an over-reliance on DFAT Country Information which the tribunal was mandated to take into account under Ministerial Direction 56, and was a conclusion otherwise based on “no evidence”.

2. This ground, as revealed by its text, seeks to joust with the tribunal’s assessment of the country information before it.  An argument that there was an “over-reliance” on country information is to cavil with the weight ascribed to the material by the tribunal.  The tribunal was entitled to interpret and place such weight as it considered appropriate on country information: NAHI v MIMIA [2004] FCAFC 10 at [10-14]. There is no suggestion that the tribunal misunderstood the information before it in any way.

3. The applicant’s arguments demonstrate the point:

   107.  The tribunal’s finding that “the risk of [the applicant] suffering serious harm is remote, including for having left the country illegally” because “it would be reasonable to assume [the Vietnamese government] are not concerned about [asylum seekers] having left the country illegally” based on country information (RRT, 26), is based mostly on DFAT’s 2007 CIS Request No VNM 8771: Update on treatment of Vietnamese Returnees. This information from DFA T stated that it was unlikely that a person who left Vietnam illegally would suffer punitive action from Vietnamese authorities if sent back to Vietnam (RRT, 25).

   108.  The tribunal also relied on DFAT Post in Hanoi reporting that it was “not aware of any information that contradicts this claim” (RRT, 25). A decision based on Post not being aware of certain information is a decision based on “no evidence”, and is therefore affected by error of law.

   109.  The tribunal relied on information from the United States Department of State reporting that the Vietnamese government generally cooperated with UNHCR. This is a consideration that should not be given much weight, as cooperation with UNHCR does not equate to condoning the actions of failed asylum seekers.

   110.  The tribunal relied on reports from the United Kingdom Home Office that “made no mention of failed asylum seekers being punished on return to Vietnam for leaving the country illegally”. Again, a decision based on “no mention” of certain matters is a decision based on “no evidence”, and is affected by error of law.

   111.  Whilst the tribunal allowed the applicant to comment on the country information considered by the tribunal, and heard her say that the conclusions drawn are incorrect from information she heard from others about failed asylum seekers being arrested, prosecuted and jailed upon return to Vietnam (RRT, 27), the tribunal, ultimately decided that “the risk of the applicant suffering serious harm on these grounds is remote” (RRT, 28) because it did not have “independent evidence to corroborate these claims made by the applicant”, and because it decided to “prefer the country information ... to [the applicant’s] anecdotal claims”, stating also, that the claims were nothing more than “anecdotal rumours”.

   112.  It is submitted that the tribunal gave too much weight to DFAT country information and that its preference for country information over the evidence given by the applicant is wrong in law, on account of Judge Driver’s statement in SZSFK v Minister for Immigration [2013] FCCA 7 [31], that “[t]he fact that a diplomatic post is not aware of something does not mean that it did not occur”.

   113.  The tribunal rejected submissions dated 29 September 2014, made by the applicant’s former representative about Vietnamese authorities taking adverse interest in asylum seekers in Australia, on the basis that “the tribunal does not have independent evidence to corroborate the claims the applicant has made and “because country information ... is to the effect that Vietnamese authorities do not take an adverse interest in or harm Vietnamese nationals because they sought asylum abroad” (RRT, 29).

4. In my view, this ground reveals no jurisdictional error.

Conclusion

1. None of the grounds of review relied upon by the applicant reveal jurisdictional error on the part of the tribunal.  Consequently, the amended application for review filed on 2 April, 2015 must be dismissed with costs.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 28 November, 2016.

Date: 28 November 2016