FEDERAL COURT OF AUSTRALIA

ASY17 v Minister for Immigration and Border Protection [2019] FCA 1888

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant has leave to amend further the Amended Notice of Appeal in the form of the document entitled “Proposed Second Amended Notice of Appeal” filed on 28 August 2019.

2.    The Appellant have leave to argue Ground 2 in the Second Amended Notice of Appeal.

3.    The appeal be allowed.

4.    The orders of the Federal Circuit Court made on 22 March 2019 in ADG63/2017 be set aside.

5.    A writ of certiorari be issued quashing the affirmation of the Immigration Assessment Authority made on 25 January 2017 of the decision of the Minister’s delegate to refuse the Appellant’s Safe Haven Enterprise Visa (Subclass 790) application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

Introduction

1    The appellant arrived in Australia on 28 October 2012 as an unauthorised maritime arrival with his brother and sister-in-law. He is a national of Vietnam and, at the time of his arrival in Australia, was 15 years old. The appellant was included as a secondary applicant on his brother’s application for a Safe Haven Enterprise Visa (subclass 790) (a SHEV) lodged on 14 January 2016 on the basis that he was a “member of the same family unit” as his brother.

2    On 16 September 2016, a delegate of the Minister refused the grant of a SHEV to the appellant, his brother and his sister-in-law. On 25 January 2017, acting under Pt 7AA of the Migration Act 1958 (Cth) (the Act), the Immigration Assessment Authority (the IAA) affirmed the refusal to grant the appellant a SHEV.

3    The appellant then sought judicial review of the IAA’s decision in the Federal Circuit Court (the FCC) but was unsuccessful: ASY17 v Minister for Immigration & Anor [2019] FCCA 1041. He now appeals against that decision.

The delegate’s decision

4    The delegate concluded that the appellant was not a member of the same family unit as his brother. At that time, reg 1.12(1)(e) of the Migration Regulations 1994 (Cth) provided that a “member of the family unit” includes:

(e)    a relative of the family head or of a spouse or de facto partner of the family head who:

(i)    does not have a spouse or de facto partner; and

(ii)    is usually resident in the family head’s household; and

(iii)    is dependent on the family head.

5    The delegate considered that the appellant did not satisfy this definition as he was, at the time of the delegate’s decision, living independently of his brother, was over 18 years old and was not financially or physically dependent on his brother.

6    The delegate then went on to assess the appellant’s protection claims separately from his brother and sister-in-law.

The IAA’s decision

7    The IAA member also concluded that the appellant was not a member of the same family unit in the defined sense. No complaint has been made in relation to that finding.

8    As the delegate had assessed the appellant’s application separately, the IAA member treated the decisions made in relation to the appellant, his brother and his sister-in-law as separate matters. However, the member said that, in assessing the appellant’s application she had taken into account the brother and sister-in-law’s claims which were relevant to the appellant.

9    The appellant claimed to fear persecution from the Vietnamese government because he is a devout Catholic, a youth group leader, an active member of his church community, and a pro-Catholic religious activist. The appellant also claims that, if he returns to Vietnam, he will be targeted as a failed asylum seeker and illegal departee.

10    The appellant gave evidence of an incident in Vietnam said to have occurred on 9 August 2012 when he was asked by an elder at his church to take children to pray at Con Cuong Church, located approximately 100 km from his home. He claimed to be the only adult present on this excursion apart from the bus driver. When the appellant and children arrived at the church there were barriers and so they prayed in a nearby building which formed part of the Church property. They also held banners with statements reading “Justice and Peace for Vietnam” and denouncing the use of force against the Church. Whilst the appellant and children were there, a police officer asked the appellant for his details and told him that they could not pray at that place. The appellant claimed that, after returning home, the police twice requested (in writing) that he attend a police station for questioning. He did not comply with this request and shortly, after the second request, he fled Vietnam for fear that, if he remained, he may be arrested, detained or tortured.

11    The IAA member noted that the appellant’s claims turned principally on his involvement with a Catholic youth group and his attendance at the prayer session at the Con Cuong Church on 9 August 2012. There is no suggestion in the materials that the appellant had gone to the Con Cuong Church on any other occasion.

12    In relation to these claims, the IAA member accepted:

    that the appellant is a devout Catholic;

    that he was an active member of his local church;

    that the appellant has encouraged people to live and work in accordance with Catholic principles in the past; and

    that as the appellant gets older he may become more active in proselytising.

13    However, the IAA member had a number of concerns about the appellant’s evidence concerning the events on 9 August 2012, finding:

(a)    there was an inconsistency between the appellant’s written statement that he had entered the Con Cuong Church and his claim in his interview with the delegate that, by reason of barriers, he and his group had not been able to enter the church but had prayed in a smaller building nearby. The IAA member considered that, if in fact the appellant and his group had been unable to enter the actual church by reason of barricades, this was a significant omission from his written statement;

(b)    there was an inconsistency between the appellant’s written statement that he had arrived at the Con Cuong Church as part of a group of 30 Catholic youths made up of one or two representatives from each local area, with the appellant being the only representative from his youth group, and his interview evidence that he had been the leader of a group of 30 children (it seems from his local area) with some as young as seven, who went to the Con Cuong Church to pray;

(c)    it was implausible that the appellant, aged only 15 years, had been given the responsibility of leading a group of about 30 children to Con Cuong Church, approximately 100 km away, especially given the volatile history of that Church, the recent violent and protracted protests there, and the myriad risks involved; and

(d)    the appellant’s explanation for being unable to produce the two letters he had received from the police requiring him to attend for questioning (he said that his father had destroyed them) gave rise to “some concerns”.

14    The IAA member characterised these matters as “serious inconsistencies and implausibilities”, even having regard to the “departmental policy on the assessment of credibility and the applicant’s age”. The member then made a number of findings which were adverse to the appellant:

(i)    she did not accept that the appellant had attended the Con Cuong Church in August 2012, whether as the leader of the youth group or as a member of a group of youths from a number of local churches, at [32];

(ii)    she did not accept that the appellant had displayed political banners, that the group had recited political prayers, that the prayer group had been interrupted by the police, that the appellant had been questioned and had given his details to the police, or that he had subsequently received and ignored two summonses from the police requesting his attendance, at [32];

(iii)    the appellant had fabricated those matters to strengthen his protection claims to fear harm on the basis of his religion, and as a person who is politically and religiously active and opposed to the Government, at [32]; and

(iv)    the member found that the appellant has no profile or connection to the Con Cuong Church and faces no chance or risk of harm on the basis of any involvement or connection with that church, at [34].

15    The IAA member went on to make other findings which were adverse to the appellant, although not directly based on her assessment of the appellant’s credibility. In particular, the IAA member was not satisfied that the authorities in Vietnam would have any interest in the appellant by reason of his brother’s activities or by reason of his brother’s profile or connection with the Catholic Church; that the appellant had not claimed to have suffered discrimination, mistreatment or other harm on the basis of his Catholicity; that it was improbable that either the appellant or his local church had been politically active, unregistered or involved in activities opposed to the state in Vietnam without having suffered some interference from authorities in the past and the appellant had not claimed that that was so; and that the appellant will be able to engage in religious activity in Vietnam without having to modify his behaviour.

16    The IAA member then concluded, at [42]:

Looking forward, I find that the applicant would return to his home area and continue to practise his faith in the manner in which he has in the past, including active involvement in his church community in prayer, community support and youth leadership. This has not caused the applicant any concern in the past, nor has there been any change in his circumstances, or submissions in relation to the country information in his home area, that would indicate otherwise. I acknowledge country information cited by the representative about new laws in Vietnam which have the potential to be used against religious adherents that are critical of the government, or who fail to comply with government laws and policies relating to the practises (sic) of their faith (for example those that practise in unregistered churches). However, I again note there is nothing in the applicant’s personal history, profile, or the background of the church he claims he attends, which suggests that the applicant or his church community has any adverse religious or political profile. The question of the detail and impact of these new laws remains unclear, however given my findings about the applicant’s religious profile, I am not satisfied that these laws would impact on the applicant or his church community. Having regard to all the circumstances, I am satisfied that the applicant does not face a real chance of being seriously harmed on the basis of his religion.

17    The IAA member then went on to address the appellant’s claims based on his having left Vietnam illegally and on returning to Vietnam as a failed asylum seeker.

The application to the FCC

18    The ground on which the appellant sought judicial review in the FCC was as follows:

[The IAA] failed to consider evidence provided by the Applicant to [the Department] which was of corroborative importance to an issue paramount to [the IAA’s] consideration of the Applicant’s claims, and therefore fell into jurisdictional error.

19    The contention, as I understand it, was that by failing to consider the potential for the evidence to be corroborative, the IAA member had failed to engage with the appellant’s claims in a real and meaningful way and had thereby failed to carry out the review required by Pt 7AA of the Act. The particulars identified two matters which it was said the IAA member had failed to consider. The first was the statement provided by the appellant’s brother to the Department on 22 December 2015. This was said to be corroborative of the appellant’s claim that he had participated in a prayer session at Con Cuong Church and had thereby come to the attention of the authorities.

20    The passage in the appellant’s brother’s statement on which the appellant relied is as follows:

[27]    Prior to my departure, my brother [name of appellant deleted] was also having trouble with the authorities. He had also participated in a prayer session at Con Cuong, but with a different group and at a different time. He had come to the attention of the authorities, and I was very worried about his safety so I assisted him to leave the country as well.

21    The particulars asserted that the statement of the appellant’s brother “was of such obvious corroborative importance to the issue of whether the Applicant was wanted by the authorities of Vietnam that, had the [IAA] considered it, it would have mentioned [it] when making its critical findings”, and had not.

22    The second matter identified in the particulars was a translated copy of a Leadership Certificate issued to the appellant by his local church on 2 September 2012 (the Leadership Certificate), which the appellant had provided to the delegate on 12 July 2016.

23    The appellant had provided an untranslated version of the Leadership Certificate to the Minister’s delegate in the course of the hearing on 16 June 2016. The substantive part of the Certificate is as follows:

CERTIFICATE

EUCHARISTIC YOUTH LEADER, LEVEL 1

PARISH PRIEST OF [DELETED] PARISH, [DELETED] DEANERY

Certified that:        [Appellant’s name]

Date of birth:        [Appellant’s date of birth]

Of [name of parish deleted] Deanery

Has completed the Training Course for Leaders Level 1 and has attended the Sa Mac Training held at [name of parish deleted], from 20-21/7/2012 with good achievement.

This certificate is to certify that He is a Leader, Level 1, of Eucharistic Youth Movement, of [name deleted] Group – [name of parish deleted].

Representative of the Training Course

[Signature]

Brother: [name deleted], DV

[Name of parish deleted], dated 2 September 2012

Parish Priest, Chief of Deanery

[Signed and sealed]

Father [name of priest deleted]

24    Counsel for the appellant accepted that both the Leadership Certificate and his brother’s statement had been provided by the Secretary to the IAA in accordance with s 473CB of the Act.

25    The FCC Judge rejected the appellant’s application. His Honour held that the IAA had not been required to refer to every piece of evidence and that it had not been obliged to make express reference to either the Leadership Certificate or to the brother’s statement. The Judge said that, as the IAA had referred to the brother’s role in informing the appellant of the danger and in facilitating his departure, it could not be said that the IAA “did not have a real and meaningful engagement with the applicant’s evidence”.

26    In relation to the Leadership Certificate, the Judge said, at [37]:

Ms Rutherford drew attention to the reasoning of the Authority and the absence of any express reference to the certificate. I do not accept that the certificate was a material document to which the Authority was required to make express reference. There is no proper basis to infer that the Authority failed to take into account the information before it and, indeed, the Authority expressly said it did so, as referred to above. The Court does not accept that the Authority failed to take into account in (sic) that information in the certificate. The Court does not accept that the certificate, of itself, was a matter requiring the Authority to make express findings concerning the same.

27    The Judge also noted that the appellant’s migration agent had not referred to either document in the written submissions provided to the IAA on 26 October 2016, at [38].

Appeal to this Court

28    The Amended Notice of Appeal on which the appellant relied at the commencement of the appeal hearing raised one ground of appeal, namely:

1.    The Federal Circuit Court erred in failing to find the decision of the [IAA] was affected by jurisdictional error in that it had failed to consider evidence which was of corroborative importance to an issue paramount to the [IAA’s] consideration of the Appellant’s claims.

Particulars

1.1    The Federal Circuit Court found that the [IAA] considered the corroborative material contained within the Brother’s Statement and the Leadership Certificate but was not required to expressly refer to them in its reasons.

1.2    The Federal Circuit Court erred in its assessment of the [IAA’s] decision and mischaracterised the two items of corroborative evidence in that it:

1.2.1    Ignored that the Brother’s Statement indicated that the Appellant’s brother had knowledge of the Appellant having come to the attention of the authorities of Vietnam, and in circumstances where the Delegate of the Department of Home Affairs had failed to ask the Appellant’s brother any further detail about that knowledge;

1.2.2    Found, without any basis or in the alternative no sufficient basis, that the Brother’s Statement was based entirely on the Applicant informing his brother of the alleged activities and that therefore the brother could not have any independent knowledge of the events: Judgment [35];

1.2.3    Further, and therefore, the conclusion that the [IAA] “did not have a real and meaningful engagement with the applicant’s evidence” was not correct; and

1.2.4    Overlooked the fact that the Leadership Certificate was signed by the same person who the Appellant said had asked him to accompany the children to the prayer session in Con Cuong, and was therefore corroborative to the issue of whether the Appellant would have been entrusted with such responsibility.

1.3    Both issues were so critical to the claims made by the Appellant that the [IAA] would have mentioned them when making its findings that the Appellant was not entrusted with the responsibility of accompanying the children to Con Cuong, and that he had not come to the attention of the authorities of Vietnam, and the Federal Circuit Court erred in not finding as such.

(Emphasis in the original)

Matters of principle

29    The appellant had the onus of establishing the factual foundations for the jurisdictional error alleged: BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 163 ALD 483 at [35].

30    The IAA was required to “review” the delegate’s decision: s 473CC of the Act. Subject to its limited power under s 473DC to receive “new information” the IAA was required to review the decision by considering “the review material” provided to it under s 473CB of the Act.

31    Section 473EA(1) of the Act, contains a requirement with respect to the provision of reasons by the IAA:

Written statement of decision

(1)    If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:

(a)    sets out the decision of the Authority on the review; and

(b)    sets out the reasons for the decision; and

(c)    records the day and time the statement is made.

32    As is apparent, subs (1)(b) required the IAA to set out “the reasons for the decision”. The obligation of the IAA under s 473EA(1) is elaborated by s 25D of the Acts Interpretation Act 1901 (Cth):

25D Content of statements of reasons for decisions

Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

33    Hence, the IAA was required not only to set out the reasons for its decision but also to set out its findings on material questions of fact and to refer to the evidence or other material on which those findings were based. The question of whether the IAA had committed jurisdictional error by its omission to refer to the passage in the brother’s statement and to the Leadership Certificate has to be assessed in this context.

34    The statutory obligations imposed on the IAA by ss 473CC and 473EA(1) of the Act do not make it necessary for the IAA to refer in its written reasons to every piece of evidence and every contention made by the appellant: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]. Nor is the IAA necessarily required to provide reasons of a kind which might be expected of a court of law: ibid. The IAA is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”: ibid.

35    After the passages mentioned above, the Full Court in WAEE continued, at [47]:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

36    In Dornan v Riordan (1990) 24 FCR 564 at 567, the Full Court said of a provision in the National Health Act 1953 (Cth) (of which s 473EA(1) is a counterpart), and of s 25D of the Acts Interpretation Act 1901 (Cth), that they are not breached by a failure to deal with every argument that may have been raised or to deal with every possibility which could be adverted to. Instead, the duty must be sensibly interpreted and applied with a view to achieving good and effective administration.

37    Other authorities are to similar effect. Thus, in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 the Full Court said at [34]:

The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].

38    In BYA17, it was held that the failure of the IAA to make any reference to news reports containing, potentially, independent and objective corroboration of important aspects of the appellant’s claims, coupled with the IAA’s detailed consideration of other new information on which the appellant’s had sought to rely, warranted an inference that it had not considered the news reports, at [55]. The Full Court referred in this respect to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69].

Did the IAA fail to consider the two items of evidence?

39    The submissions of counsel for the appellant concerning the two items of evidence seemed to repeat the submissions made to the FCC Judge. They did not seek to identify error in the FCC Judge’s reasons: only that his Honour should have reached a different conclusion.

40    In my opinion, the appellant has not shown any error by the FCC Judge in relation to the Leadership Certificate. First, the IAA member stated expressly, at [4], that she had regard to the material referred to the IAA by the Departmental Secretary under s 473CB of the Act, and the appellant’s counsel accepted that both the Leadership Certificate and the brother’s statement had been before the IAA member. Secondly, the IAA member’s reasons proceeded on the assumption that the appellant was a youth leader, and that he had engaged in leadership activities, at [42]. Having regard to those two considerations, it is not to be readily inferred that the IAA member overlooked the Leadership Certificate when assessing whether the appellant’s claim to have attended Con Cuong Church was credible. In any event, it is not readily apparent that, even if the IAA member had overlooked the Leadership Certificate, it could have deprived the appellant of the possibility of obtaining a successful outcome. That is especially so given that there is no logical connection between the appellant’s possession of the Leadership Certificate on the one hand, and his claimed attendance at the Con Cuong Church, on the other.

41    When these matters were raised with the appellant’s counsel during the appeal hearing, he effectively abandoned this complaint, saying “without formally withdrawing that aspect of the appeal, I don’t intend to press the point”.

42    The position with respect to the alleged failure of the IAA member to consider the possible corroborative significance of the statement of the appellant’s brother is a little more complex. The IAA member did refer twice to the claims of the appellant’s brother: at [3], when she said that she had considered the appellant’s brother and sister in law’s claims to the extent that they were relevant to the appellant’s own claims; and at [33], when she referred to the low level and brief nature of the involvement of the appellant’s brother. The member did not engage, at least expressly, in any evaluation of the potential corroborative effect of the brother’s statement for the appellant’s claims. In particular, the member did not consider the truthfulness of the brother’s statement and, if true, how it may bear on the assessment of the appellant’s claims.

43    However, the way in which the IAA member referred to the brother’s claim indicates that she had considered it. It seems implausible that the member could have done so without having regard to the brother’s statement. That being so, this Court should be slow to conclude that the FCC Judge had been in error in concluding that this material had been considered by the IAA member. In my opinion, this is an instance of the Tribunal not having to mention every single matter, or item of evidence to which it had regard.

A new ground – irrationality in reasoning

44    As a result of a matter raised by the Court, the appellant applied to amend further the Notice of Appeal so as to add a new Ground 2 as follows:

2.    The Federal Circuit Court should have found that the decision of the IAA was irrational and or amounted to a failure to conduct a review in that it contained findings of fact that were inconsistent and irreconcilable.

Particulars

2.1    At paragraph [25] of the Decision, the Authority accepted the submission from the Appellant’s representative that the Appellant “could reasonably deduce that his involvement at Con Cuong may have been linked to the letters he claims he later received from the police”.

2.2    The Authority’s acceptance of that submission was a finding of fact that the appellant had been at Con Cuong as claimed and had received letters from the police which were linked to his attendance at Con Cuong.

2.3    At paragraph [32] of the Decision, and contrary to the finding referred to in 2.2 above, the Authority made a finding of fact that it did not accept the Appellant had attended at the Con Cuong Church and further found “that the appellant has fabricated these matters to strengthen his protection claims to fear harm on the basis of his religion, and as a person who is politically and religiously active and opposed to the government”.

2.4    In arriving at inconsistent and irreconcilable findings of fact, the Authority acted irrationally and/or failed to conduct a review of the 1st Respondent’s decision as required by s. 473CC of the Act, and thereby erred.

45    The appellant acknowledged that he had not advanced this ground in the FCC and that he would need leave to argue it.

46    Subsequently, the parties filed submissions in relation to the appellant’s application for leave to amend further the Notice of Appeal and for leave to argue the new ground. The appellant also filed a supporting affidavit. The parties agreed that the Court should deal with the two aspects of the appellant’s application (leave to amend and leave to argue a new ground) at the one time and that it should do so on the papers.

47    In his affidavit, the appellant deposed that he had relied on the advice of his solicitor in deciding the grounds to advance in the application for judicial review and that he had not previously been informed that the proposed new ground may be available. The Minister did not seek to cross examine the appellant on his affidavit and did not submit that his evidence should not accepted. That evidence is plausible and I do accept it.

Relevant principles

48    The principles relating to an application for leave to rely upon a new ground of appeal not raised before a primary judge are settled and uncontroversial. Such leave should only be granted when it is expedient in the interests of justice to do so: O’Brien v Komesaroff [1982] HCA 33, (1982) 150 CLR 310 at 319; VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158, (2004) 238 FCR 588 at [46]-[48]; Murad v Assistant Minister for Immigration & Border Protection [2017] FCAFC 73, (2017) 250 FCR 510 at [19]. Such an approach is “fundamental to the due administration of justice” as otherwise “the main arena for the settlement of disputes would move from the court of first instance to the appellate court”: Coulton v Holcombe [1986] HCA 33, (1986) 162 CLR 1 at 7. Factors such as the finality of litigation, the undesirability of tactical decisions when presenting an issue at first instance, keeping a reserve for appeal and a necessity for vigilance to avoid injustice or prejudice to a party having to meet new facts and issues of law on appeal, all give rise to the “elementary” principle that a party is, but for exceptional circumstances, bound by the conduct of his or her case: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [89]-[90], (2016) 243 FCR 220; Coulton at 8. In other words, an appeal is not to be used as an opportunity to conduct a second trial on a different basis: Han v Minister for Home Affairs [2019] FCA 331 at [10].

49    If the new point clearly has merit and a grant of leave will occasion no real prejudice to the respondent, leave to raise the point may more readily be granted: VUAX at [48]; Han at [8]. However, the merit of the new point may not of itself be sufficient for a grant of leave. Leave is more likely to be granted in circumstances in which the new point turns upon a question of law, or the facts are not in controversy: O’Brien v Komesaroff at 319; Summers v Repatriation Commission [2015] FCAFC 36, (2015) 230 FCR 179 at [94]; Murad at [20]. If the new ground is a potential matter of public interest, considering for example, the interpretation of a statute, the powers of a statutory body, or will have an impact on the wider community, the Court may be more inclined to view this as a special circumstance warranting the grant of leave: Coulton at 9. The fact that a party is unrepresented and seriously disadvantaged in the presentation of their case may also weigh in favour of the Court granting leave: WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106; (2004) 204 ALR 624 at [19]. The extent to which a party will suffer prejudice in having to respond to a new ground, and the reason why the ground was not introduced at first instance are also taken into account: VUAX at [48]; Murad at [26]; Han at [9].

50    The considerations bearing on the application for leave to amend and the application for leave to advance a ground not argued at first instance overlap in the circumstances of this case. If it is plain that the appellant would not be granted the latter leave, then there is little point in the grant of the former. Conversely, if it can be said that there is merit in the proposed new ground, that would be a significant (but not sufficient) consideration in the grant of leave to advance the ground.

The Minister’s submissions

51    The Minister did not contend that, had the new ground been argued in the FCC, he would then have taken a different approach. His counsel accepted, quite fairly, that the Minister would not suffer this form of prejudice.

52    The Minister submitted, however, that he would be prejudiced in the exercise of appeal rights in the event that the new ground is allowed and upheld. That is because he does not have an entitlement to appeal as of right from the decision of this Court on appeal from the FCC. His only recourse to appeal is by a grant of special leave to appeal by the High Court. Counsel referred in this respect to AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 in which Perram J said, at [14]:

[P]t 8 of the Act, which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this court followed by a more cursory review by the High Court. If this court, in substance, determines a case at first instance by entertaining fresh grounds and a notice of contention this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this court then the appellant is denied a layer of appellate scrutiny.

53    Further, given that special leave is required for appeals to the High Court, intermediate courts of appeal (such as this Court presently) are often in practice the final court of appeal: see BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [29] and the authorities cited therein. This is an important consideration.

54    The Minister emphasised that the appellant had had legal representation in the FCC. Counsel noted that parties are generally bound by the conduct of their case and this includes circumstances in which an available ground has been overlooked: see University of Wollongong v Metwally at 483; AYJ15 v Minister for Immigration and Border Protection [2016] FCA 863 at [17]-[18]; and NBMB v Minister for Immigration and Citizenship [2008] FCA 149, (2008) 100 ALD 118 at [31]-[33].

55    Next, the Minister submitted that there is nothing in the new ground itself to indicate that it is in the interests of justice for it to be considered by this Court. In this respect, counsel noted that the ground does not raise any issue which is novel or special and that its disposition is unlikely to have any particular importance beyond the circumstances of this case.

56    Finally, the Minister submitted that the ground lacks merit. It is appropriate to turn to consideration of that aspect of the matter before considering whether effect should be given to the submissions advanced by the Minister.

Irrationality and legal unreasonableness

57    It is accepted that the exercise of a statutory power of review, such as that granted to the IAA under Pt 7AA of the Act, is conditioned by a requirement of reasonableness: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [29], [63] and [88]. The principles bearing on legal unreasonableness as a ground of judicial review have now been considered in a number of the authorities since Li, including Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, (2014) 231 FCR 437 at [43]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, (2016) 237 FCR 1 at [4], [61]-[62] and [92]; and Minister for Immigration and Border Protection v Eden [2016] FCAFC 28, (2016) 240 FCR 158 at [54]-[65]. It is established that a conclusion of legal unreasonableness may be derived by reference to error in the decision making process or in the outcome. In either case, the Court may intervene only if the identified error is jurisdictional.

58    The present ground involves an assertion of error in the decision making process. The appellant contends that the IAA’s reasoning that he does not have a well-founded fear of persecution in Vietnam by reason of his practice of his religion is affected by illogicality or irrationality, amounting to jurisdictional error.

59    In relation to s 65(1)(a)(ii) of the Act, Gummow and Hayne JJ said in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [38]:

The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith …

(Citation omitted)

60    After a review of the authorities in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, Crennan and Bell JJ said, at [130], that, in the context of the decision of the Refugee Review Tribunal then under consideration, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error “must mean the decision to which the Tribunal claimed, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence”. Their Honours continued, at [131]:

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

Consideration

61    In order to understand the claim of illogicality and irrationality in the IAA’s reasons on which the appellant relies, it is necessary to refer first to the decision of the Minister’s delegate. The delegate disbelieved the appellant’s account of the claimed event at Con Cuong Church, saying that she did not accept that it had actually occurred. The delegate said:

Again, in the written statement, the applicant stated ‘… after approximately 30 minutes, at the conclusion of our prayers, a number of security officials and police officers entered the church’. During the PV interview, however, the applicant instead claimed he did not go inside the church as there was a barrier around the church so they prayed at a house alongside the church. Due to such inconsistencies around the detail of the claimed event I do not accept that it actually occurred.

Furthermore, I do not find it plausible the applicant was the only one questioned by police for his and address details as he so claimed. Additionally, in the applicant’s written statement in regards to the summons he stated ‘… although they didn’t specifically state why they wanted to see me, I knew it was to do with my prayer session …’. As such, and based on the fact I do not accept the incident occurred at the church, I also do not accept the applicant received a summons as a result.

(Emphasis in the original)

62    In the written submission to the IAA, the appellant’s migration agent critiqued these findings and provided explanations for the inconsistencies which the delegate had found.

63    The IAA member referred expressly to the migration agent’s submissions concerning these matters:

[25]    I have considered the representative’s submissions on these matters. I accept her submissions that it is plausible he may have been the only person questioned by police, and that he might not know whether the other children were questioned. I also accept the submission that he could reasonably deduce that his involvement at Con Cuong may have been linked to the letters he claims he later received from the police. In these respects, I do not share the delegate’s concerns.

(Emphasis added)

64    Then, after considering other aspects of the appellant’s claims and the submissions made on his behalf, the IAA member made the findings which were adverse to him, including saying that she did not accept that the appellant had attended the Con Cuong Church in August 2012, did not accept his claim to have participated in political activity while there, did not accept that he had been questioned by police in giving his details to him, and did not accept that he had subsequently received and ignored two summonses from the police requesting his attendance at the police station. The IAA member made the strong finding that the appellant had fabricated these claims in order to enhance his protection claims, at [32] (the para [32] findings).

65    Counsel for the Minister submitted that there is no inconsistency between the IAA member’s reasons at [25] and the para [32] findings. She submitted that, in [25], the IAA member was doing no more than indicating that she did not question the appellant’s credibility and reliability on the matters which had been of concern to the delegate (indicated in the passages of the delegate’s reasons quoted above) and that she accepted that the appellant’s claims about these claims were plausible. This was evidenced by the fact that the IAA member then turned to other matters which did cause her concern and which, independently of the reasons of the Minister’s delegate, led her to reject his claims.

66    I am not willing to accept this submission. It does not take account of the factual matters which the IAA member must have accepted in order to conclude that the appellant’s claims were plausible and which led her to reach a different conclusion from that of the delegate. Nor does it explain the inconsistency between the factual matters implicit in the finding and the member’s later finding of plausibility.

67    Given the circumstances described by the appellant, the only way in which he could have deduced reasonably that his involvement at Con Cuong Church may have been linked to the letters he claimed to have received from the police is if he had, in fact, had some involvement at Con Cuong. There is no suggestion that he was aware that the police may have mistaken him for someone else. If the appellant had not had the involvement he claimed, the finding that he had fabricated the claim was inevitable. On that hypothesis, it is not possible to postulate a rational or logical means by which he could reasonably have deduced that his claimed receipt of the police letters was linked to his non-existent involvement. Put slightly differently, the finding by the IAA member that the appellant could reasonably deduce a link between his participation at Con Cuong and the claimed police letters involves, necessarily, an acceptance that he had had some involvement at Con Cuong.

68    In context, I do not consider that the emphasised sentence in [25] can be read as though the IAA member was expressing a conclusion subject to some qualifications. For example, the qualification that, assuming that the appellant had had the involvement at Con Cuong he claimed and assuming that he had received the letters from the police which he claimed, it would have been reasonable for him to draw a link between the two. Nor can the emphasised passage in [25] be understood as though it read “but for the matters set out below, I would have accepted the submission that it is plausible …”.

69    In short, I do not consider it possible to reconcile the IAA member’s acceptance that the appellant made a reasonable deduction that his participation at Con Cuong and his claimed receipt of the police letters were linked, on the one hand, and the finding that he had fabricated the account of events at Con Cuong Church, on the other. I note again that there was no suggestion that the appellant had made more than one trip to the Con Cuong Church.

70    In my opinion, the inconsistency between the IAA member’s findings in [25] and in [32], is the kind of illogicality or irrationality to which Crennan and Bell JJ referred in SZMDS. A logical or rational or reasonable mind could not reach both findings, although plainly, such a mind could reach either finding in the absence of the other. It is the evident inconsistency in the IAA member’s reasoning which supports the conclusion of irrationality, and therefore of legal unreasonableness.

71    I conclude therefore that the proposed amended ground has merit and, subject to the grant of leave to amend and to argue the new ground on appeal, should be upheld.

72    In my opinion, both grants of leave should be made. I accept that it is appropriate for this Court, on an appeal from the FCC, to act cautiously before granting leave in circumstances like the present. That is especially so as the Minister’s means of further appellate review are limited in the way for which counsel for the Minister submitted. However, that will always be a feature of cases such as the present and this Court should not turn its back against the granting of leave in an appropriate case. If the two grants of leave are not made in his case, the appellant would suffer the injustice that the review of his application by the IAA involving the important matter of his ability to stay in Australia had not been carried out according to law. That would be an injustice, even though the appellant had the benefit of legal representation in the FCC. The interests of justice encompass matters which are personal to the appellant, as well as those which may have more general application.

73    In the circumstances, I consider it appropriate to grant the appellant the leave which he seeks.

Conclusion

74    For the reasons given earlier, Ground 1 in the Amended Notice of Appeal is dismissed. However, there will be a grant of leave to the appellant to amend further his Notice of Appeal so as to include the new Ground 2, and there will be a grant of leave to the appellant to argue the new ground. For the reasons given above, the appeal is allowed on Ground 2, the orders of the FCC are set aside and an order in the nature of certiorari will be issued quashing the affirmation by the IAA on 25 January 2017 of the decision of the Minister’s delegate. I will hear from the parties as to costs.

Associate:

Dated:    15 November 2019