FWV18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1117
•30 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FWV18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1117
File number(s): PEG 262 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 30 November 2023 Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizens of Vietnam – dependent children – claims of conversion to Christianity from Buddhism – claims that seeking asylum from Vietnam will be considered act of betrayal or treason – claims of physical harm and detention on return to Vietnam - claims of being unable to pay fine on return to Vietnam – whether failure to perform statutory task in considering whether to seek or get new information concerning Vietnamese police interview invitations – whether legal unreasonableness because decision concerning domestic registration in Vietnam of Australian born children made without foundation or justification – whether material jurisdictional error – writs issued Legislation: Migration Act 1958 (Cth) ss 65, 438, 473, 473CB, 473DC, 473DD, 474, 476 Cases cited: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196
BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24; (2020) 273 FCR 170; (2020) 171 ALD 477
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196
BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221; (2018) 159 ALD 417
Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21; (2022) 397 ALR 1
DVE18 v Minister for Home Affairs [2020] FCAFC 83; (2020) FCR 401
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628; (2018) 364 ALR 423
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123; (2018) 92 ALJR 780; (2018) 75 AAR 551
Minister for Immigration & Border Protection v SZMTA [2019] HCA 3, (2019) 264 CLR 421; (2019) ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38
Minister for Immigration and Border Protection v AUS17 [2019] FCA 1686; (2019) 167 ALD 313
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111; (2017) 158 ALD 198
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150; (2020) 171 ALD 477
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481 (2018) 353 ALR 600
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 72 ALD 1; (2003) 77 ALJR 454; (2003) 195 ALR 24
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1
SZUXN v Minister for Immigration and Border Protection & Anor [2016] FCA 516; (2016) 69 AAR 210
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submission/s: 25 July 2022 Date of hearing: 25 July 2022 Place: Perth Counsel for the Applicants: Mr S Walker Solicitor for the Applicants: Western Legal Lawyers Counsel for the First Respondent: Ms C Taggart Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 262 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FWV18
First Applicant
FXB18
Second Applicant
FWZ18 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.A writ of certiorari issue quashing the decision of the Second Respondent made on 7 August 2020.
3.A writ of mandamus issue requiring the Second Respondent to re-determine its review of the decision of the delegate of the First Respondent made on 9 October 2018, and to determine it 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 LUCEV
INTRODUCTION
Before the Court is an amended application for judicial review (“Amended Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) filed by the first applicant, FWV18. FWV18 was the primary applicant for a Subclass XE-790 Safe Haven Enterprise visa (“SHE Visa”) lodged on 2 May 2017. On 9 October 2018 a delegate (“Delegate”) of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), refused to grant the SHE Visa (“Delegate’s Decision”). The Delegate’s Decision was referred to the Immigration Assessment Authority (“Authority”) under s 438 of the Migration Act for review of the Delegate’s Decision and on 7 August 2020 the Authority affirmed the Delegate’s Decision (“Authority Decision”).
The second, third, fourth, fifth, sixth and seventh applicants in the Judicial Review Application are FWV18’s wife, mother-in-law, son, an Australian born (in 2016) daughter, step-daughter, and another Australian-born (in 2014) daughter respectively. For convenience the applicants will hereafter mostly only be referred to by reference to FWV18.
The Court has before it the following materials:
(a)the two volume Court Book (“CB”) of 1694 pages, which was marked as “Exhibit 1”;
(b)FWV18’s affidavit sworn 4 September 2020 (“FWV18’s Affidavit”);
(c)FWV18’s affidavit affirmed 31 August 2021 (“FWV18’s Further Affidavit”);
(d)FWV18’s written submissions filed 1 September 2021 (“FWV18’s Submissions”); and
(e)the Minister’s written submissions filed 10 September 2021 (“Minister’s Submissions”).
The Court notes that prior to the Authority Decision there had been a previous decision by the Authority on 2 November 2018. That previous decision by the Authority was, by consent, quashed by the then Federal Circuit Court and remitted to the Authority for redetermination according to law: CB 554-556. That previous decision by the Authority is not otherwise relevant for present purposes.
BACKGROUND TO THE AUTHORITY DECISION
The background to the Authority Decision is as follows:
(a)FWY18 and FWX18 (the two Australian born minor children) excepted, all of the other applicants are citizens of Vietnam: CB 14;
(b)the applicants entered Australia on 14 April 2013: CB 10;
(c)on 2 May 2017 FWV18 applied for the SHE Visa: CB 64-260;
(d)the claims for protection made by FWV18 in the SHE Visa application are set out at CB 101-103 as follows:
(i)because of their illegal departure and as failed asylum-seekers:
(A)they cannot return to Vietnam because they are afraid that they will be arrested and imprisoned by the Vietnamese Government, being Vietnamese people who left the country illegally;
(B)the Vietnamese Government will know that they have applied for protection in Australia;
(C)the Vietnamese government will be very angry at them for leaving and for coming to Australia and applying for protection;
(D)if returned to Vietnam, they will be put in handcuffs, taken to interrogation, beaten up, and then detained indefinitely;
(E)even if the children were not detained, they would have nobody to look after them and would be on the street and destitute;
(F)prison in Vietnam is very terrible and the conditions very bad – they would be beaten and not have food or health care;
(ii)there were Vietnamese officials at the detention centres and they were asking questions, and the officials might have found out about them as their details were accidentally released;
(iii)as to their conversion to Christianity and the treatment of Christians in Vietnam:
(A)all of the applicants converted from Buddhism to Christianity in Australia, and in 2015 were baptised;
(B)the only Christian church near their village in Vietnam is very far away and they would not have access to it;
(C)their pastor had told them about a Christian couple living in a small village in Vietnam who had been arrested and imprisoned because they were preaching Christianity to others, and they died in gaol; and
(D)there were other cases of people who follow Christian teachings and who get treated badly because of their religion;
(e)the cumulative effect of being failed asylum-seekers and having converted to Christianity while overseas will draw even more attention from the Vietnamese Government, so it will be looking to charge them and their conversion will give more grounds to imprison them. They cannot return, it is very dangerous for them; and
(f)on 9 October 2018 the Delegate’s Decision was to refuse the SHE Visa application: CB 420-441.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)set out the background to the matter coming before the Authority again: CB 1628 at [1]-[3];
(b)detailed the material it had before it: CB 1628-1638 at [4]-[32];
(c)summarised FWV18’s claims for protection: CB 1637 at [33];
(d)set out the relevant law: CB 1638 at [34]-[35];
(e)noted the rights applicable to Vietnamese citizens regarding registration of births and identity: CB 1639 at [38]-[40];
(f)accepted the family background and details of the applicants: CB 1639-1641 at [42]-[46];
(g)noted the claims by FWV18 that Vietnamese officials had visited the immigration detention centre where the family was detained: CB 1641 at [47]-[48];
(h)accepted the family are genuine Christian converts: CB 1641 at [49]-[51] and 1644 at [62];
(i)detailed the country information before it about Vietnam and its treatment of minority religious groups: CB 1641-1642 at [52]-[61];
(j)referred to information before it about the treatment of returnee asylum seekers in Vietnam as well as those who have used the services of people smugglers: CB 1645-1647 at [66]-[73];
(k)accepted that FWV18 may be questioned if returned to Vietnam: CB 1647 at [75];
(l)accepted FWV18 may have to pay a fine of up to AUD $310 as a consequence of illegal departure from Vietnam: CB 1647 at [76];
(m)found that FWV18 did not have a well-founded fear of persecution on return to Vietnam: CB 1648 at [78]; and
(n)affirmed the Delegate’s Decision: CB 1650.
AMENDED JUDICIAL REVIEW APPLICATION
Grounds
The Amended Judicial Review Application has two grounds set out at [11] (ground 1) and [35] (ground 2) below.
The requirement for jurisdictional error
The Authority Decision may be set aside on judicial review if it is affected by jurisdictional error: Migration Act ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 72 ALD 1; (2003) 77 ALJR 454; (2003) 195 ALR 24. To constitute jurisdictional error any error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ, and in Minister for Immigration & Border Protection v SZMTA [2019] HCA 3, (2019) 264 CLR 421; (2019) ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 (“SZMTA”), as involving a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the applicant for judicial review (here FWV18) bears the onus of proof.
The onus is upon FWV18 to establish jurisdictional error in the Authority Decision: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196 at [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 at [47] per Griffiths, White and Bromwich JJ.
It is not within the jurisdiction of this Court to review the merits of the Authority Decision, or to determine FWV18’s claim for protection: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground 1
Ground 1 of the Amended Judicial Review Application is as follows:
In deciding not to consider new information consisting of three invitations from the People’s Police of Hoi An Commune (referred to as Attachment 3), the Immigration Assessment Authority ("Authority '') committed jurisdictional errors bv failing to perform the statutory duty imposed on it by s 473DD of the Migration Act 1958 and by failing to take account of a mandatory consideration in the purported application of the criterion in s 473DD(a).
Particulars
(a)The Authority failed to consider and to reach a conclusion as to whether the invitations could not have been provided to the Minister before his delegate made the primary decision under s 65, but merely noted that:
(i)they were said to have been received by the family (sic) well prior to the lodgement of the SHEV application;
(ii)the First Applicant did not mention the invitations at his SHEV interview and had provided no explanation as to why he was only now putting them forward; and
(iii)he had not suggested that he had only become aware of them several years after the claimed events; and
(b)the Authority further failed to consider and to reach a conclusion as to whether the invitations or any of them were credible personal information, but confined itself to a comment that it had substantial concerns whether they were genuine; and
(c)the Authority further failed to consider whether, if the invitations had been previously known, they might have affected the consideration of the applicants’ claims.
FWV18’s Submissions
FWV18’s submissions on ground 1 are as follows:
(a)FWZ18 and FWW18 on 30 October 2018 had provided to the Authority a number of attachments to an email. They are enumerated in the Authority Decision CB 1628 at [5];
(b)they included the documents the subject of this ground, which were described as “Three invitations form the People’s Police of Hoi An Commune to the applicant, his wife and mother in law along with their English translations (Attachments 3)”;
(c)the submission was handwritten and in Vietnamese. A typed English translation of it was included: CB 508-509. The third-last paragraph of that translated submission read:
“Since my family left my hometown to go on 14 April 2013 and on 24 June 2014, my family in Vietnam received a letter of notification for some related issues due to long absence without declaration. Now, in addition to illegally crossing the border, my family has to face complete loss of freedom and danger to life”.
(d)the documentation included three Vietnamese-language documents: CB 503, 505 and 507 and English translations: CB 502, 504 and 506. The first of these was directed to FWZ18 (FWV18’ mother-in-law); the second to FXB18 (FWV18’s wife); and the third to FWV18;
(e)each of the translated documents is an “INVITATION” from the People’s Police of a district within the Hoi An Commune to come to the police station of that commune to meet a particular person or comrade, to either “discuss some related issues” or “discuss some issues” (“Police Invitations”);
(f)the Police Invitations bear different dates, ranging from 11 March to 10 September 2014. Each document is a pre-typed form, completed by hand, and bearing stamps;
(g)the Authority declined to consider the Police Invitations for the following reasons set out at CB 1630 at [9] as follows:
(i)the Police Invitations are said to have been received by the family well prior to the lodgement of the SHE Visa application;
(ii)FWV18 had not mentioned the Police Invitations at his SHE Visa interview and had provided no explanation as to why he was only now putting this information forward, and had not suggested that he only became aware of them several years after the claimed events;
(iii)the Authority had substantial concerns about whether the Police Invitations were genuine, given their content, the absence of any indication to the Delegate that they existed, and their presentation following the Delegate’s Decision; and
(iv)having regard to those factors, the Authority was not satisfied that there were exceptional circumstances to justify considering the Police Invitations;
(h)FWV18 accepts that the Police Invitations were new information as they had not been provided to the Minister before the Delegate’s Decision: Migration Act, s 473DC;
(i)the Police Invitations were clearly relevant to FWV18’s claims, and also highly probative, in the required determinations of whether:
(i)there were exceptional circumstances which justify considering the Police Invitations;
(ii)the Police Invitations were credible personal information (which was not previously known); and
(iii)had the Police Invitations been known, whether it may have affected the consideration of the claims made by FWV18;
(j)in the circumstances the Authority could not consider the Police Invitations unless it was satisfied that the Police Invitations were credible personal information which was not previously known and which, had it been known, may have affected the consideration of their claims: Migration Act, s 473DD(b)(ii), and that there were exceptional circumstances to justify considering them: Migration Act, s 473DD(a);
(k)what was required of the Authority was considered by the High Court in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196 (“AUS17”);
(l)the Authority was required to assess the Police Invitations, first against the criteria specified in both s 473DD(b)(i) and (ii) of the Migration Act, and only then against the criterion specified in s 473DD(a) of the Migration Act: AUS17 at [11] at per Kiefel CJ, Gageler, Keane and Gordon JJ;
(m)if either the criterion specified in s 473DD(b)(i) of the Migration Act or the criterion specified in 473DD(b)(ii) of the Migration Act is met, that is a circumstance which must be factored into the subsequent assessment of whether the Police Invitations meet the criterion specified in s 473DD(a) of the Migration Act. If both the criterion specified in s 473DD(b)(i) and (ii) of the Migration Act are met, that too is a circumstance which must be factored into the subsequent assessment of whether the Police Invitations meet the criterion specified in s 473DD(a) of the Migration Act, and which must heighten the prospect of that criterion being met: AUS17 at [11] at per Kiefel CJ, Gageler, Keane and Gordon JJ;
(n)the Authority does not perform the procedural duty imposed on it by s 473DD of the Migration Act in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) of the Migration Act that exceptional circumstances justifying consideration of new information do not exist without first assessing that information against the criteria specified in both 473DD(b)(i) and (ii) of the Migration Act and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a) of the Migration Act. The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a) of the Migration Act: AUS17 at [12] at per Kiefel CJ, Gageler, Keane and Gordon JJ;
(o)here, the Authority breached those requirements. It determined that exceptional circumstances did not exist without first assessing whether the Police Invitations were credible personal information which was not previously known and which, had it been known, might have affected the consideration of the claims;
(p)instead, the Authority made only a passing comment about whether the documents were genuine, but without expressing a conclusion. The Authority said nothing concerning its relevance and possible weight, and whether, had the information been previously known to it, it might have affected the consideration of the claims;
(q)the Authority failed to reach a conclusion as to whether the Police Invitations were credible. It did no more than express “substantial concerns” about whether they were genuine (for several reasons), and such an expression cannot be construed as a conclusion or decision;
(r)in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111; (2017) 158 ALD 198 (“BBS16”) the Full Court of the Federal Court said at [105] per Kenny, Tracey and Griffiths JJ that s 473DD(b)(ii) of the Migration Act requires an evaluation of the significance of new information in the context of a referred applicant’s claims more generally;
(s)properly understood, the two limbs of s 473DD(b) of the Migration Act are alternatives: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (“CSR16”) at [37] per Bromberg J, citing BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221; (2018) 159 ALD 417 (“BVZ16”) at [37] per White J;
(t)all that the “credible” element of the s 473DD(b (ii) of the Migration Act criterion requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful, or accurate, or genuine. It is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not: CSR16 at [41]-[42] per Bromberg J;
(u)the phrase “not previously known” means “not previously known to either the applicant or the Minister”: BVZ16 at [49]-[58] per White J, approved in BBS16 at [106] per Kenny, Tracey and Griffiths JJ;
(v)in relation to the condition stated in s 473DD of the Migration Act “… all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant's claims.”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481 (2018) 353 ALR 600 (“Plaintiff M174”) at [34] per Gageler, Keane and Nettle JJ;
(w)the failures to perform the statutory duty imposed on the Authority by s 473DD of the Migration Act and the failure to take account of mandatory considerations, amount to jurisdictional error, and are material, as they deprived FWV18 of the benefit of the requirement under the statute that the documents comprising a key part of the new information be considered when the statutory tasks are discharged. It is instructive that in Minister for Immigration and Border Protection v AUS17 [2019] FCA 1686; (2019) 167 ALD 313 at [27] per Logan J had “little doubt” that the letter of support in that case would have been material in the sense described in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123; (2018) 92 ALJR 780; (2018) 75 AAR 551;
(x)conduct that is said to amount to jurisdictional error is only material (and therefore jurisdictional) if compliance with the requirement could realistically have resulted in a different decision: BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24; (2020) 273 FCR 170; (2020) 171 ALD 477 (“BDY18”), citing SZMTA at [38], [44]-[45] per Bell, Gageler and Keane JJ; and
(y)in the circumstances the Authority constructively failed to exercise its jurisdiction, and further it either misapprehended or failed to apply the terms of s 473DD of the Migration Act.
Minister’s Submissions
The Minister’s submissions on ground 1 are set out hereunder.
Section 473DD of the Migration Act
In relation to s 473DD of the Migration Act generally the Minister submitted that:
(a)section 473DD of the Migration Act regulates when the Authority may depart from the “primary rule” that it is to review a fast track reviewable decision by considering review material provided under s 473CB of the Migration Act and without seeking or getting new information: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150; (2020) 171 ALD 477 (“BTW17”) at [64] and [70] per Mortimer and Jackson JJ;
(b)section 473DC(1) of the Migration Act defines “new information” and provides, in effect, that the Authority may (in the sense of must) have regard to new information only where the Authority is satisfied that:
(i)there are exceptional circumstances to justify considering the new information (the requirement of s 473DD(a) of the Migration Act); and
(ii)the new information:
(A)was not and could not have been provided to the Minister before the Minister made the decision to refuse a visa under s 65 of the Migration Act; or
(B)is credible personal information which was not previously known and, had it been known, may have affected the consideration of an applicant’s claims (the requirements of s 473DD(b) of the Migration Act);
(c)in considering whether the requirements of s 473DD of the Migration Act are satisfied, a decision-maker must consider each of the requirements of s 473DD(a) and (b) of the Migration Act. In the case of s 473DD(b) of the Migration Act, both the requirements of (i) and (ii) must be considered: AUS17 at [10]-[12] per Kiefel CJ, Gageler, Keane and Gordon JJ;
(d)the requirement in s 473DD(b)(ii) of the Migration Act, that the “personal information” be “credible” is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. In that way, the Authority is not required (or permitted) to assess or determine the truthfulness of the new information: CSR16 at [40]-[42] per Bromberg J; approved in BTW17 at [62] per Mortimer and Jackson JJ; and
(e)in assessing whether the Authority has erred in the way contended by FWV18 the essential question is whether the Authority considered that it was satisfied the requirements of s 473DD(b) of the Migration Act were met, and not whether the Authority’s reasons used a particular formulation of words or the like in expressing its reasons. Although trite, in considering that question, the Tribunal’s reasons are not to be construed finely and with an eye finely attuned to the perception of error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In relation to the Authority’s consideration of the new information the Minister submitted that:
(a)the “new information” relevant to ground 1 of the Amended Judicial Review Application concerned a claim that since FWV18 and members of his family had departed Vietnam in 2013 “my family in Vietnam received a letter of notification for some related issues due to long absence without declaration”: CB 508. FWV18 provided the Police Invitations: CB 502-507;
(b)the Police Invitations were variously dated in March, June and October 2014 and invited FWV18 and members of his family to attend the police station at Hoi An to discuss certain issues; and
(c)the Authority’s reasons at CB 1630 at [9] consider this new information. When read as a whole and without an eye finely attuned for error it is apparent that the Authority did consider each of the requirements of s 473DD(b) of the Migration Act and considered it was not satisfied those requirements were met.
In relation to the requirements of s 473DD(b)(i) of the Migration Act it was submitted that:
(a)whether or not the Authority expressly referred to that provision is not to the point. As set out above, what must be identified is whether the Authority considered whether the new information could have been provided to the Minister, and in that regard, the Authority was not satisfied that the information could not have been provided to the Minister. Relevantly, the Authority reasoned that:
(i)the invitations were said to have been received well-prior to FWV18 applying for the SHE Visa;
(ii)FWV18 did not mention these invitations in his interview for the SHE Visa; and
(iii)FWV18 had provided no explanation as to why the new information was only being put forward now, including by observing there was no claim or assertion that FWV18 had become aware of the invitations some years after they were made;
(b)it is apparent that the absence of information or explanation from the FWV18 was relevant to the Authority’s consideration of whether the new information could have been provided to the Minister. In particular, where the documents were said to have been dated and made before the Delegate’s Decision was made (and before the SHE Visa application was made), then absent some explanation as to when FWV18 received those documents, there was no basis upon which the Authority could have been satisfied that the information was not and could not have been provided to the Delegate; and
(c)even if that were not accepted, any failure of the Authority to consider the requirements of s 473DD(b)(i) of the Migration Act was immaterial. There was no evidentiary or other basis upon which the Authority could have reached a state of satisfaction that the new information could not have been provided to the Minister prior to the decision being made under s 65 of the Migration Act to refuse to grant the SHE Visa.
As it concerns s 473DD(b)(ii) of the Migration Act:
(a)the Authority’s reasons reveal that the Authority was not satisfied that the new information was genuine and so was not capable of being believed;
(b)the Authority’s reasons reveal that in reaching that conclusion it considered:
(i)the absence of basic and relevant information from the Police Invitations themselves, such as the date when the invitee was required to attend the police station;
(ii)the matters relevant to the time at which FWV18 raised this new information and the absence of any explanation relevant to that lateness; and
(iii)the presentation of this information only after the Delegate’s Decision to refuse the SHE Visa;
(c)it is not determinative or demonstrative of error that the Authority identified it had “substantial concerns” about the genuineness of the Police Invitations. Although always a matter of fact and degree, it is apparent that not every such expression is demonstrative of error: see, for example, BTW17 at [24] and [84]–[85] per Mortimer and Jackson JJ. The reasons as a whole reveal that the Authority did consider the requirement of s 473DD(b)(ii) of the Migration Act and was not satisfied that, in light of all the concerns it had identified, the new information was capable of being believed and so was not credible; and
(d)FWV18’s observation that the Authority did not proceed to consider the relevance and weight of the new information does not establish the error complained of. If relevance is used by the FWV18 to refer to the probative value of the information, it is not surprising the Authority did not proceed to consider that matter. The probative value or weight to be attributed to new information is not a matter that arises for consideration for the purposes of s 473DD(b) of the Migration Act.
Consideration of Ground 1
Ground 1 of the Amended Judicial Review Application contends, in summary, that the Authority relevantly erred by failing to perform the statutory task required by s 473DD of the Migration Act, and particularly that the Tribunal failed to consider “and reach a conclusion” about the matters prescribed by s 473DD(b) of the Migration Act.
It is convenient to commence by setting out what the Tribunal said about the Police Invitations being “new information” at CB 1630 at [9], which was as follows:
Attachment 3 comprises the three ‘invitations’ from the People’s Police of Hoi An Commune. The first invitation is dated 10 September 2014 and invites the applicant to come to the police station to meet Bang at 8 o’clock, 2014 to ‘discuss some issues’. The second invitation is dated 24 June 2014, is addressed to the applicant’s wife for her to attend the police station to meet Bang and the reason given is to ‘discuss some related issues’. The only indication of when this is to occur is ‘2014’. The third invitation is dated 11 March 2014. It is addressed to the applicant mother in law for her to attend the police station at 8’o’clock in 2014 to meet Bang to ‘discuss some issues’. Two of the invitations provide a time to meet, one does not. None of the invitations give any real indication of when these meetings are to take place. None include a day or month but only the year of when they are expected to attend. The applicant notes in his submission that after he left his hometown on 14 April 2013, on 24 June 2014 his family received a letter of invitation for some related issues due to the long absence without declaration. These invitations and this claim are new information. The invitations are said to have been received by the family well prior to the applicant lodging his SHEV application. The applicant did not mention these invitations at his SHEV interview and he has provided no explanation as to why he is only now putting this information forward. He has not suggested that he only became aware of them several years after the claimed events. I have substantial concerns about whether these documents are genuine given their content, the absence of any indication to the delegate that they existed and their presentation following the department’s negative. Having regard to these factors, I am not satisfied there are exceptional circumstances to justify considering this information.
Section 473DD of the Migration Act provides as follows:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The primary rule applicable to so called fast track reviews by the Authority under Pt 7AA of the Migration Act is that they be conducted by the Authority on the review material provided to the Authority “without accepting or requesting new information and without interviewing the referred applicant”, subject to certain exceptions including those provided for in s 473DD of the Migration Act: Plaintiff M174 at [22] per Gageler, Keane and Nettle JJ.
The exercise of the power under s 473DD of the Migration Act is anterior to the Authority’s consideration of new information given to it: Plaintiff M174 at [34] per Gageler, Keane and Nettle JJ; BTW17 at [68] per Mortimer and Jackson JJ. Effectively what the Authority does at this anterior stage is to determine what material – and in particular what, if any, new information – should be before it on the fast track review: AUS17 at [6] per Kiefel CJ, Gageler, Keane and Gordon JJ; BTW17 at [71] per Mortimer and Jackson JJ. In BTW17 at [77] per Mortimer and Jackson JJ it was further observed that:
77Viewed in its context, as Bromberg J identified [in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474] at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii). As the Full Court observed in BDY18 [v Minister for Immigration and Border Protection [2021] FCAFC 24; (2020) 273 FCR 170; (2020) 171 ALD 477] at [23]-[26], there is some overlap, and the factors in (b) may well inform the factors in (a).
New information must meet at least one of the additional criteria specified in s 473DD(b) of the Migration Act, and, relevantly here, meet the criterion specified in s 473DD(b)(i) of the Migration Act if a visa applicant “satisfies the Authority that the new information meets the bipartite description of information that was not before the Minister at the time of making the referred decision and that could not have been before the Minister at the time of making the referred decision”: AUS17 at [8] per Kiefel CJ, Gageler, Keane and Gordon JJ. Of the failure by the Authority to perform the procedural duty imposed by s 473DD of the Migration Act it was observed in AUS17 at [12] per Kiefel CJ, Gageler, Keane and Gordon JJ as follows:
12The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
[Footnotes omitted]
In the Authority Decision the Authority did not include s 473DD in the “Applicable law” set out at the end of the Authority Decision: CB 1650-1653, and further did not:
(a)expressly advert to s 473DD(b)(i) of the Migration Act;
(b)expressly set out or advert to the matters of which it had to be satisfied for the purposes of s 473DD(b)(i) of the Migration Act; and
(c)make any findings as to its satisfaction, or otherwise, expressly directed to the requirements of s 473DD(b)(i) of the Migration Act.
For the purposes of s 473DD(b)(i) of the Migration Act it was for FWV18 to satisfy the Authority that the Police Invitations:
(a)were not; and
(b)could not have been,
before the Minister at the time of the making of the Delegate’s Decision.
The failure to advert to s 473DD(b)(i) of the Migration Act or the matters of which the Authority had to be satisfied, coupled with the failure to actually make findings as to its satisfaction, or otherwise, in relation to the requirements of s 473DD(b)(i) of the Migration Act, might indicate a failure by the Authority in the Authority Decision to undertake the procedural duty imposed by s 473DD(b)(i) of the Migration Act: AUS17 at [12] per Kiefel CJ, Gageler, Keane and Gordon JJ.
The Minister, however, argued that the information referred to in the Authority Decision was sufficient for the Authority to be able find, and that it had effectively, albeit not expressly, found that FWV18 had not satisfied it that the Police Invitations could not have been before the Minister at the time of the Delegate’s Decision.
The Authority Decision at CB 1630 at [9] (set out at [19] above):
(a)acknowledges that the Police Invitations are new information;
(b)notes that the Police Invitations were said to have been received “well prior” to lodging of the SHE Visa application;
(c)notes that there was “no explanation as to why” the Police Invitations were only then being put forward;
(d)notes that FWV18 “has not suggested” that he only became aware of the Police Invitations several years later; and
(e)notes the Authority’s “substantial concern” that the Police Invitations may not be genuine given:
(i)the absence of any indication to the Delegate that they existed; and
(ii)the presentation of the Police Invitations only after the Delegate’s Decision refusing the SHE Visa application.
The Authority’s observations as to the timing of the alleged receipt of the Police Invitations by his family in Vietnam, and the subsequent failure to provide the Police Invitations in the SHE Visa application and review process until after the Delegate’s Decision not to grant the SHE Visa, effectively constitute a finding that FWV18 did not satisfy the Authority that the Police Invitations could not have been before the Minister at the time the Delegate’s Decision was made, and, therefore, that s 473DD(b)(i) of the Migration Act was not met by FWV18. It follows that, in this respect it was not therefore necessary for the Authority to consider whether, if the Police Invitations had previously been known, they might have affected the consideration of FWV18’s claims. There was no error in this respect in the Authority Decision as alleged in ground 1.
In relation to whether the Authority failed to further consider and reach a conclusion as to whether the Police Invitations were credible personal information for the purposes of s 473DD(b)(ii) of the Migration Act, the Court notes that in BTW17 the Full Court of the Federal Court was dealing with a case in which the Authority specifically found a newspaper article was not credible personal information. The relevant part of the Authority decision in that matter was set out in BTW17 at [24] per Mortimer and Jackson JJ, as follows:
…[i]n respect of the 2015 newspaper article, there is a mention of the arrest of ‘R’ (the applicant’s nickname) for the shooting of ‘SN’. I accept if true this is personal information. However, that the applicant only provided this document so late in the proceedings leads me to doubt the genuineness of the document. As discussed above, I find it difficult to believe that he would not have such a document in possession earlier given his claims it mentioned him and given it was dated January 2015. Secondly, the article mentioned that R gave the weapon to AJ and it was found in a cupboard. However, this inconsistent with other evidence provided by the applicant, such as the magistrates court document, about who the gun was given to and that it was found under the bed. Further, the applicant statement noted that AJ was shot in 2011, which was inconsistent with the article’s account that AJ was released on bail in 2012 and developed a friendship with SD again at the end of 2013. Further, given the long rambling nature of the account it is odd there is no further mention of what happened to R, the claimed bail or that he fled the country. Thirdly, the country information … indicates the prevalence of fraudulent documents which further reinforces my view that the document is not credible.
In BTW17 at [84] per Mortimer and Jackson JJ the plurality observed that:
The second Authority’s invocation of country information about fraudulent documents is one of the indications that, in substance, it was making a finding that this information was not capable of being believed, rather than any final determination that the contents of the 2015 article were not true. The Authority begins and ends [15] of its reasons with findings doubting the genuineness of the document: that was, we find, its primary focus in its reasoning. On the facts and reasoning in this review, the finding that the 2015 newspaper article was not genuine was a finding that the document is not capable of being believed…
In BTW17 there was a specific finding of doubt as to the genuineness of the document concerned and that the document was therefore not credible, in the sense credible was referred to in CSR16 of being information open to be or capable of being believed: CSR16 at [41]-[42] per Bromberg J; BTW17 at [62] per Mortimer and Jackson JJ. In the Authority Decision there was an expression of “substantial concerns” about the genuineness of the Police Invitations, but no finding as to doubt about the genuineness of the Police Invitations, and the failure to make a finding of doubt is reinforced by the fact that there was no specific finding that the Police Invitations were not credible, that is that they were information not open to be or capable of being believed. There was, therefore, contrary to the requirements of s 473DD(b)(ii) of the Migration Act, a finding that exceptional circumstances did not exist, without proper consideration or assessment of the mandatory statutory criteria as to whether the Police Invitations were credible personal information not previously known to either FWV18 or the Minister: Plaintiff M174 at [34] per Gageler, Keane and Nettle JJ; AUS17 at [12] per Kiefel CJ, Gageler, Keane and Gordon JJ. In this respect the Authority Decision was affected by error.
As to whether the error found in the preceding paragraph was material in an MZAPC sense, and therefore constituted jurisdictional error, the Court need only be satisfied that proper consideration of the mandatory statutory criteria could, not would, have made a difference to the Authority Decision to affirm the Delegate’s Decision to refuse the SHE Visa application: MZAPC at [37]-[38] per Kiefel CJ, Gageler, Keane and Gleeson JJ. Acceptance of the Police Invitations as new information would have required the Authority to consider their content which, on their face, demonstrated that the police in Vietnam were interested in FWV18, possibly because of both the illegal departure from Vietnam and having sought asylum in Australia. It might also have required the Authority to give more detailed consideration to whether the Police Invitations were as a consequence of, or related to, the assistance, by way of the sale of a house to purchase diesel for the people smuggler’s boat, that FXB18 (FWV18’s wife) claimed FWZ18 (FWV18’s mother-in-law) had given to the organisers of the people smuggling operation whom she knew by name. That is because if that assistance was suspected by the Vietnamese police as having been given, then there may have been a significant risk of harm for the applicant’s, and FWZ18 at least, upon return to Vietnam, because “the Vietnamese authorities differentiate between those suspected of being involved in organising smuggling operations and would be migrants who pay money to organisers”: Authority Decision at CB 1646-1647 at [72]. It is certainly arguable that paying for fuel for a people smuggler’s boat constitutes involvement, to some degree, in a people smuggling operation, and is different to the payment of money to a people smuggler for a passage on the boat. The consideration of such matters consequent upon the Police Invitations being considered as new information could have resulted in the Authority Decision being different. It follows that the error was material, and therefore jurisdictional.
It follows that ground 1 of the Amended Judicial Review Application establishes jurisdictional error in the Authority Decision.
Ground 2
Ground 2 of the Amended Judicial Review Application is as follows:
2.The Authority reached a conclusion that was legally unreasonable because it lacked a rational foundation and an evident or intelligible justification, namely that the first and second applicants on return to Vietnam would be able to update their household registration (Ho Khau) to include the third and fourth applicants to enable them to have access to education.
Particulars
a. The Authority noted that the information before it was unclear in respect of children born overseas whose birth had not been registered within 30 days;
b. It observed from country information that in recent years the Vietnamese government had taken steps to enhance its Civil Registration and Vital Statistics system, including providing legal identification, including birth registration with a particular focus on ethnic minorities, migrations and those living in mountainous areas;
c. In reliance on those steps by the Vietnamese government to register its population, the Authority reached the conclusion in issue; and
d. Neither the country information relied upon to reach the conclusion, nor the evidence and material as a whole, was capable of sustaining the conclusion.
FWV18’s submissions
FWV18’s submissions on ground 2 are as follows:
(a)the Authority noted that two of the applicants had been born in Australia: CB 496 at [9], and further that FWV18 stated in his SHE Visa interview that the children would (if returned to Vietnam) not be allowed to go to school there;
(b)one of the documents submitted (as attachment 24) by FWZ18 and FWW18 on 9 July 2020 was a transcript of FWV18’s SHE Visa interview on 18 June 2018. This was noted as being merely a copy of the interview material which was in the review material, albeit in a different format, and so was considered not to be new material: CB 1635 at [26];
(c)however, it was relied on to provide argument in support of FWX18 and FWY18’s claims. This “argument” was said to consist of a new claim and new information: an assertion that “the children” would be discriminated against due to their failure to be registered under the Ho Khau system: CB 1635 at [27]. Further, extracts about that system taken from the DFAT 2017 report which had been before the Delegate were submitted;
(d)the Authority concluded that the information that FWX18 and FWY18 are not registered under the Ho Khau system was credible personal information that was not previously known and had it been known might have affected the consideration of FWX18 and FWY18’s claims. Accordingly, there were exceptional circumstances to justify consideration of “this new information”: CB 1636 at [28]. By using that phrase, the Authority clearly was referring to the claim made about discrimination because of non-registration under the Ho Khau system (“Ho Khau Claim”), and the information submitted and relied upon to support that claim;
(e)another document submitted at the same time, and which the Authority accepted as “new information”, was the Department of Foreign Affairs and Trade report dated 13 December 2019 (“DFAT 2019 Report”): CB 1634 at [21];
(f)that the Authority went on to deal with that claim, particularly by reference to the DFAT 2019 Report, makes it obvious that it had indeed decided to consider the Ho Khau Claim and all information submitted to support it;
(g)having concluded that FWX18 and FWY18 are Vietnamese nationals: CB 1639 at [38], the Authority relied on the DFAT 2019 Report to find that:
(i)FWV18 and FXB18 have rights and obligations to register births under the Civil Registration and Vital Statistics system (“CRVS System”);
(ii)applications for birth registration of a Vietnamese child born overseas can be processed through the relevant Vietnamese embassy;
(iii)births are required to be registered within 30 days;
(iv)birth certificates are required to access public services, including education and health care;
(v)FWX18 and FWY18 had not registered their Australian-born children within 30 days;
(vi)the information before the Authority was unclear when the children are born overseas (sic); and
(vii)the Vietnamese government has taken steps in recent years to enhance its CRVS system;
(h)on the basis of those findings, and given the positive steps taken by the Vietnamese authorities to register its population: CB 1639 at [40], the Authority concluded that it was not satisfied that FWX18 and FWY18 would be prevented from applying for birth certificates through the Vietnamese embassy, and was satisfied that their parents on return to Vietnam will be able to update their household registration (Ho Khau) to include FWX18 and FWY18 to enable them to have access to education;
(i)the DFAT 2019 Report is at CB 845-891. The observations in the report, relevant to these findings by the Authority are as follows (with references noted):
(i)returnees, including failed asylum seekers, typically face a range of difficulties upon return, including challenges accessing social services, particularly in cases where household registration has ceased: CB 888 at [5.33];
(ii)applications for birth registration of a Vietnamese child born overseas can be processed through the relevant Vietnamese embassy, but it is unclear whether replacement identity cards can be issued overseas: CB 888 at [5.36];
(iii)an application for a birth certificate requires (among other things) a family residence book or temporary residence certificate of the mother: CB 889 at [5.37];
(iv)birth certificates are required to access public services, including education: CB 889 at [5.37];
(v)the Vietnamese government has taken steps in recent years to enhance its CRVS system (none of the examples given have any relevance to the facts before the Authority): CB 889 at [5.41];
(vi)from 1 January 2020 citizens will use their citizen identification cards (CICs) for all administrative transactions, and this digital transition marks a change from the previous physical household residence book (Ho Khau) and national identity card system: CB 889 at [5.42] and 890 at [5.48]; and
(vii)CICs are now used to carry out administrative transactions to access basic legal, social and economic rights in Vietnam: CB 890 at [5.43];
(j)the effect of these observations is that by the time of the Authority’s consideration of the prospects of FWX18 and FWY18’s if returned to Vietnam a new system had abolished the old household residence books (Ho Khau), and replaced them with a new online database with new CICs, requiring an individual 12-digit personal identification number which will be needed to access services, including schooling;
(k)resolution of the Ho Khau Claim required findings to be made as to the operation of the new CIC system. The key question became whether FWX18 and FWY18 would be discriminated against because of their non-registration under the new system, and the subsidiary question of whether such registration would now be easier or more difficult than under the old Ho Khau system;
(l)thus, the Authority was bound to consider and deal with a substantial argument based on established facts and which clearly emerged from the materials before it. Indeed, it recognised the argument and attempted to address it. However, in doing so it misapprehended the effect of the only evidence upon which it relied, and so failed to carry out a part of its statutory task and constructively failed to exercise its jurisdiction;
(m)in particular, the Authority had no information before it to allow it to reach its expressed satisfaction that the parents on return to Vietnam “will be able to update their household registration (Ho Khau) to include … [FWX18 and FWY18] to enable them to have access to education”;
(n)such a finding needed to be, but was not, supported by some probative material or logical grounds: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577 at [145] per Gummow J; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1 at [34] per Gleeson CJ; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [130]-[131] per Crennan and Bell JJ;
(o)factual findings of the Tribunal must be rationally made and based on probative material and logical grounds: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [40]-[55] per McKerracher, Griffiths and Rangiah JJ. The approach to be applied in considering whether there has been a jurisdictional error of that kind was summarised in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641 at [30] per Kenny, Kerr and Perry JJ;
(p)it is submitted that there is some similarity between this finding and the finding by an Assistant Minister which came before the Full Court of the Federal Court in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628; (2018) 364 ALR 423 (“Hands”). A finding of fact had been made that was critical to the assessment in question – that over time Mr Hands would be capable of settling in New Zealand without undue difficulty. It was concluded in Hands at [32] per Allsop CJ (Markovic and Steward JJ agreeing) that there was nothing in the material that could permit a finding that Mr Hands may experience short term hardship. The proposition that there would be short term hardship was unsupported by any material, and utterly at odds with any reasonable reading of the whole of the material. More particularly, it was found that there was no rational or probative evidence to support a conclusion that Mr Hands emotional and psychological hardship would be short term: Hands at [44] per Allsop CJ (Markovic and Steward JJ agreeing);
(q)the observations in Hands at [45] to [47] per Allsop CJ are apposite here:
45.This was a central and crucial consideration. The separation of Mr Hands from his community, his wider family, his partner, his children, grandchildren and step-grandchildren is a life-changing decision, potentially life-destroying. The statements that he “may experience some emotional and psychological hardship” and “may experience short term hardship, [but] would be capable of settling in New Zealand without undue difficulty” are findings of fact simply incapable of being reasonably made by any decision-maker, there being no evidence at all to support them, and all evidence being to the contrary to a reasonable decision-maker.
46.The making of the findings, without any material to found them, given their central importance in the reasoning, is a sufficient basis to conclude that there has been jurisdictional error.
47.The fact that this could be said raises doubt that those drafting the reasons and the Minister adopting them have considered the whole human consequences of the decision, and thus whether real consideration was given to the totality of the representations. It is sufficient to rest, however, on the conclusion that a central finding of fact was made without any probative foundation.”
(r)likewise, the important observations in Hands at [3] per Allsop CJ (and cited in DVE18 v Minister for Home Affairs [2020] FCAFC 83; (2020) FCR 401 at [37] per Perram, Charlesworth and Stewart JJ) apply to the circumstances of this case, involving as they do the prospect of the Minister “returning” to Vietnam, a country unknown to them, two small children whose chances of access to education there appear to be extremely limited by the fact of their exclusion from the relevant social registration system. Those observations are as follows (citations omitted):
…[b]y way of preliminary comment, it can be said that cases under s 501 [Migration Act 1958 (Cth) and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law ... The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
Minister’s submissions
The Minister’s submissions on ground 2 are as follows:
(a)by his second ground, FWV18 contends that the Authority Decision was affected by legal unreasonableness because it was made, in summary, without any foundation or justification;
(b)the particular finding or conclusion identified by FWV18 is a finding or conclusion that FWV18 and his wife FXB18 could update their household registration (Ho Khau) to include FWX18 and FWY18 to enable those children to have access to education;
(c)as a general proposition probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said to be illogical, irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion: SZMDS at [130] per Crennan and Bell JJ;
(d)self-evidently, consideration of a claim of unreasonableness is fact specific and must be undertaken by close consideration of the evidence available in a particular instance: SZMDS at [133] per Crennan and Bell JJ;
(e)ground 2 is premised upon the contention that the Authority decided to consider a new claim and information that FWX18 and FWY18 would suffer discrimination in Vietnam because of non-registration under the Ho Khau system;
(f)the claim as made and considered by the Authority was not open ended and was not so wide as to consider a generalised claim of discrimination arising from non-registration under Ho Khau, and critically no claim was made that FWX18 and FWY18 were simply incapable of being included in their family’s household registration in Vietnam;
(g)the claim was that having failed to register under Ho Khau, FWX18 and FWY18 were stateless: CB 1393. The Authority identified that claim of statelessness had not been considered by the Delegate and reasoned that a potential fear of harm arising from that claim of statelessness was an inability to be included under the Ho Khau system;
(h)in submissions before the Authority, FWV18 contended that he had sought to claim that non-registration under the Ho Khau system, in combination with other matters, would lead to FWX18 and FWY18’s exclusion from education in Vietnam. The Authority did not accept that claim had been made or had been sought to be made before the Delegate: CB 1636 at [27]-[28];
(i)the Authority also found that FWV18’s concern as to his children not being permitted to go to school was made in relation to his claim that he would be arrested and jailed for having left Vietnam illegally: CB 1636 at [28];
(j)the Authority found that FWX18 and FWY18 were not stateless: CB 1639 at [38]. That was sufficient to resolve the claim that had been made: namely, that because they had failed to register on the Ho Khau system, FWX18 and FWY18 were stateless;
(k)assuming, without conceding a claim was made that non-registration would result in a denial of access to education, the Authority found that possession of a Vietnamese birth certificate was necessary to access education services and that FWX18 and FWY18 could obtain such records: CB 1639 at [39]-[40];
(l)the Authority also found that upon return to Vietnam, FWV18 and FXB18 could update their Ho Khau to include FWX18 and FWY18 “to enable them to have access to education”;
(m)the country information was to the effect that there had been a change in the law in 2020 relevant to household registration. The information did not provide that household registration of any kind was repealed. The change was explained as having the effect of abolishing the household registration book in 2020 and replacing it with a new online database with the result of greater administrative efficiency: CB 890 and 1062;
(n)the DFAT 2019 Report did not state that access to education was to be conditioned upon the holding of a CIC. It provided, amongst other things, that:
(i)possession of a birth certificate was necessary to obtain the CIC: CB 890 at [5.43];
(ii)registration of a home residence occurred by registration of the child’s birth with the local province and that access to public education without charge was linked to a person’s home residence: CB 890 at [5.46]; and
(iii)CIC’s were used by people over 14 and must be replaced when the cardholder reaches the ages of 25, 40 and 60: CB 890 at [5.43]. That is consistent with the same country information which explained that children under 14 used their birth certificate to apply for a passport and those over 14 used their identity cards: CB 890-891 at [5.49];
(o)the Authority’s reasons explain that it was satisfied FWV18 and his wife (FXB18) could, upon return to Vietnam, update their household registration to enable FWX18 and FWY18 to have access to education. The country information explained that it was the fact of holding a birth certificate (which the Authority had found could be obtained) that facilitated the updating of household registration as it related to FWX18 and FWY18; and
(p)necessarily it was FWV18 and FXB18 (as distinct from FWX18 and FWY18, being minor children) who would update the household residence information. There was no unreasonableness in the Authority’s finding to the effect that such updates could occur in Vietnam.
Consideration of Ground 2
In certain circumstances unreasonableness, and more correctly, legal unreasonableness, may constitute jurisdictional error: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [63]-[76] per Hayne, Kiefel and Bell JJ. Reasonableness is an implied condition on the valid exercise of the Tribunal’s statutory duty: Li at [92] per Gageler J. What is considered the legal standard of reasonableness is predicated on the scope and purpose of the statutory functions conferred upon the Tribunal under the Migration Act: Li at [67] and [74] per Hayne, Kiefel and Bell JJ.
Legal unreasonableness is fact dependent and each case must be examined and determined in light of the individual circumstances and evidence in a proceeding: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21; (2022) 397 ALR 1 at [30]-[33] per Allsop CJ, Besanko and O’Callaghan JJ (and cases there cited). Fact-finding can only be impugned where the factual determination is illogical, irrational or lacking a basis in a finding or inferences supported on logical grounds: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 at [52] per McKerracher J. SZMDS sets a very high threshold for findings of irrationality or illogicality, and that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence is insufficient to establish irrationality or illogicality: SZMDS at [131] per Crennan and Bell JJ.
In SZUXN v Minister for Immigration and Border Protection & Anor [2016] FCA 516; (2016) 69 AAR 210 (“SZUXN”) the Federal Court, by reference to the judgment of the High Court in SZMDS and a number of relatively recent first instance Federal Court judgments, observed that:
(a)jurisdictional error may be established on the basis of illogical reasoning or illogical or irrational findings by the Tribunal in the course of reaching its final conclusion: SZUXN at [54] per Wigney J;
(b)jurisdictional error will not be made out in relation to particular findings or reasoning challenged on the basis of illogicality or irrationality unless it is shown that those findings could not have been made, or that the reasoning could not have been employed, by a reasonable or rational decision-maker: SZUXN at [50] per Wigney J; and
(c)it is not sufficient to establish illogicality, irrationality or unreasonableness simply because one conclusion has been preferred to another possible conclusion: SZUXN at [52] per Wigney J.
In circumstances where:
(a)FWX18 and FWY18 are Vietnamese citizens, and are not stateless as originally claimed by FWV18: CB 1639 at [38];
(b)FWX18 and FWY18 are minor children under the age of 14 (at the time of the Authority Decision);
(c)the evidence indicated that:
(i)it would be possible for FWV18 and FXB18 (the parents of FWX18 and FWY18) to obtain Vietnamese birth certificates for FWV18 and FWX18; and
(ii)that it was the production of a Vietnamese birth certificate, which facilitated the updating of household registration information, that enabled services, such as education, to be made available to FWX18 and FWY18,
there was an adequate evidentiary basis for the Authority Decision to find that FWX18 and FWY18 would have access to services, and in particular education, if they were returned to Vietnam. There is therefore no basis to conclude that the Authority Decision was, in this respect, illogical, irrational or unreasonable, as it was open to the Authority acting upon the available evidence to rationally conclude that Vietnamese birth certificates would be able to be obtained for FWX18 and FWY18, which would facilitate, via updated household registration information, their access to education services in Vietnam: SZMDS at [130]-[135] per Crennan and Bell JJ; SZUXN at [50] and [52] per Wigney J.
It was unnecessary for the Authority to consider the availability of a CIC for FWX18 and FWY18 as the evidence indicated that CIC’s were not used to access services for children 14 years of age: CB 890-891 at [5.49].
In the above circumstances ground 2 does not establish jurisdictional error in the Authority Decision.
CONCLUSION AND ORDERS
In conclusion the Court finds that there was jurisdictional error in the Authority Decision as alleged in part of ground 1 of the Amended Judicial Review Application. It follows that writs of certiorari and mandamus ought to issue to quash the Authority Decision and remit the matter to the Authority for reconsideration according to law.
The Court will hear the parties as to costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 30 November 2023
SCHEDULE OF PARTIES
PEG 262 of 2020 Applicants
Fourth Applicant:
FWW18
Fifth Applicant:
FWX18
Sixth Applicant:
FXA18
Seventh Applicant:
FWY18
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