FEDERAL COURT OF AUSTRALIA

BEP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 80

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant is refused leave to rely upon proposed Ground 3.

2.    The appeal be dismissed.

3.    The Appellant pay the costs of the First Respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

KERR J:

1    The Appellant, BEP19, is a Vietnamese citizen. He arrived in Australia as an Unauthorised Maritime Arrival on 14 July 2013.

2    On 19 July 2013, the Appellant attended an arrival entry interview.

3    On 12 April 2017, he lodged an application for a Safe Haven Enterprise Visa (SHEV).

4    On 4 December 2018, he attended an interview with a delegate of the Minister (the Delegate).

5    On 10 January 2019, the Delegate refused to grant him a SHEV.

6    On 15 January 2019, his application was automatically referred to the Immigration Assessment Authority (the IAA) for review. On 22 February 2019, the IAA affirmed the decision of the Delegate.

7    On 20 March 2019 the Appellant filed an originating application for judicial review of the decision of the IAA in the Federal Circuit Court of Australia (FCCA). He filed an amended application on 11 September 2019.

8    On 7 October 2019, the FCCA dismissed the Appellant’s application. It is that decision which is the subject of this appeal.

Claims

9    The Appellant has filed an affidavit in these proceedings which includes a summary of his claims as advanced before the IAA. It is convenient to extract the following parts of that affidavit as are contextually relevant to the present appeal:

8.    I experienced discrimination and persecution in Vietnam because, I believe, (i) I am a devout Catholic from a family with a strong Catholic tradition; and (ii) I participated in some church-based and youth group activities which were seen by the authorities as subservient and a threat to national security.

9.    As a catholic, I participated in all aspects of church work, including as alter boy 2003-2008, as part of the youth Catholic movement in the parish 2008-2013 and helped with bible study classes. I joined groups of mainly young people protesting against the destruction of church property. Organised religions in Vietnam, such as the Catholic Churches and Buddhist temples have long been viewed with suspicion by the Vietnamese government who considers them to be hot beds of anti-government activities. In February 2013 I joined a group of parishioners to construct an alter for our parish church. On the second day of construction the police came and ordered us to stop. We resumed work two days later. The police came to dismantle our work and collected our tools. When the police started loading the tools, I tried unsuccessfully to stop them. Police warned me and the others to go away.

10.    A week later I received a summons on the charge of interfering with police on official duty. My father pleaded with the police and they let me off with a warning that I must stop all activities with the church, otherwise they would prosecute me on the charge. I had seen my friends being tortured and imprisoned and I did not want to suffer the same fate …

..

Political activities in Australia

14.    Since coming to Australia and having contact with a number of people in the Vietnamese community in Brisbane, I have learned a little bit about human rights, democracy and freedom. My suspicion about the oppressive about the oppressive nature of the Vietnamese government was confirmed and I decided that I wanted to do something pro-active rather than just complaining to my friends. To this end, I joined the Viet Tan (Vietnamese Reform Party) which has been declared a terrorist organisation by the Vietnamese government because of its anti-government activities, in particular, its avowed aim to bring about a regime change in Vietnam. Annexed hereto and marked the letters VHN10 is a copy of the letter from Duc Minh Truong Char of Viet Tan, Queensland Chapter.

15.    I have also joined the International Youth Movement for Human Rights in 2018. I participated in a peaceful demonstration walk to raise awareness of the plight of prisoners in Vietnam on 22 September 2018. Annexed hereto and marked the letter VHN11 is a copy of the letter form Teresa Kieu Ngoc Tran, President of the movement.

16.    I have started my Facebook page to express my opinion against the Vietnamese government to promote my thoughts. In December 2018 I shared some Viet Tan posts on my FB page.

…

18.    … I have been an active member of the Viet Tan since September 2018. Just this fact alone is enough to invite scrutiny from Vietnamese authorities because Viet Tan is banned in Vietnam. Viet Tan is an organisation dedicated to the modernisation and economic and political development of Vietnam. Its mission is a reform of the current institutions which, it argues, are oppressing the people; its ultimate goal is the ending of the communist regime in Vietnam. Viet Tan’s published aim of overthrowing the government, albeit through ‘people power’, places the organisation in direct contravention of the law of Vietnam …

10    It is uncontentious that the materials before the IAA included a number of photographs of BEP19 said to show him participating in anti-Vietnamese government activities in Australia. They also included the letters referred to in paragraphs 14 and 15 of the affidavit above.

The Immigration Assessment Authority Decision

11    As noted above, in a decision dated 22 February 2019 the IAA affirmed the decision of the Delegate to refuse the Appellant a SHEV.

12    The IAA considered claims made by the Applicant for protection due to his religion; political views; required participation in national service; having illegally departed Vietnam and having been subject to the data breach in 2014.

13    Only the IAA’s findings with respect to the political activities of the Appellant are directly relevant to the grounds (including a proposed ground) he advances in this appeal. It is convenient, therefore, to reproduce in full the following parts of the IAA’s reasons as are relevant to that specific issue.

14    The first relevant extract concerns the IAA’s assessment of whether the Appellant’s political activities might establish that he had a well-founded fear of persecution, and as such satisfied the criteria for refugee status. The IAA’s reasons for rejecting that contention were as follows:

Political

31.    It was submitted the applicant continued to be politically and socially active in activities aimed at drawing attention to the disregard of human rights by the Vietnamese government and to the plight of prisoners of conscience. The applicant claimed he had attended protests and demonstrations and joined their international youth movement for human rights (IYMIHR) and was a member of the VIET Tan (Vietnamese Reform Party) party, which was a declared a terrorist organisation by the Vietnamese government. He claimed he sold tickets to a concert to raise funds to aid prisoners in Vietnam, manned a desk for people to sign a petition for human rights in Vietnam and sold raffle tickets to raise funds for the Vietnamese community. He claimed he attended 30 April event which remembered when Vietnam lost to the Communists. He provided photos of himself at various events in Australia. He also claimed he used Facebook to express his opinion against the government and to promote his thoughts. He provided Facebook (FB) pages which showed his photo at demonstrations and shared Viet Tan posts in December 2018. As a result he feared imprisonment and harm upon return to Vietnam.

32.    I have considered the 2014 and 2016 summons above and placed no weight on them. Further, having listened to the applicant's evidence about the 2016 summons for propaganda I consider the applicant was making up his account as he went along. The applicant could not explain what the police told his father when he was summoned about the applicant's propaganda. The applicant said the police told the father "tell your son it was not right". The applicant had difficulty explaining what was meant by propaganda activity as the delegate asked a number of times about it. Eventually the applicant said he had photos on Facebook (FB), but his father did not have FB so was not sure. Even if the father did not have FB it is not credible that the father would attend for the summons and not be told or know what the activity or problem was. It is not credible that the applicant or his father would not have discussed it also. Further, the applicant's FB posts did not appear until 2017, but the summons was in 2016. 1 consider the applicant was not recounting true events but making up his account as he went. I do not accept the police were seeking the applicant in 2016 or in 2014 for propaganda activities or illegal departure.

33.    A letter from the president of the IYMHR stated the applicant had been active since the beginning of 2018 and assisted in the organising committee for a winter camp retreat in July 2018 which was to share experiences and plans and bond. While the letter noted there was a peaceful demonstration walk to raise awareness of prisoners in Vietnam on 22 September 2018, the letter did not state the applicant attended. The letter stated the applicant had strong views and opinions against the Vietnamese government and actively involved in events within the Qld chapter of the IYMHR, although it did not specify what these were or the nature or extent of his involvement.

34.    The letter from the Chair of the Viet Tan Qld Chapter stated he met the applicant at the December 2014 Christmas party organised by the party and he continued to actively support and engage in local community activities. The letter listed events between 2015 and 2018 which included helping out at the Vietnamese community and Viet Tan lunar new year events, Quoc Han and prisoner of conscience rallies, assisting the local Federal MP hand out how to vote card, memorial days, fundraising and other events. The Chair stated as he knew the applicant since 2015 as a loyal hard worker and proper person he recruited him to be a "pre-member" of the Viet Tan party on 1 September 2018 and that he has been an active member since. The Chair stated if returned to Vietnam, it is likely the applicant will be arrested, charged and detained by the police.

35.    I have considered the supporting letters, photos and FB posts. I accept the applicant has joined these organisations and attended events since coming to Australia. 1 accept he attended protests and had raffles and petitions for prisoners and attends to the welfare of the Vietnamese community in Australia (eg letter from aged senior citizen who he lives with and assists) and Vietnam.

36.    However, I have serious concerns that the applicant participated in these events and memberships for the sole purpose of enhancing his protection claims. I do not accept the applicant has been engaged or interested in any such activities or anti-government views or sentiment or that he feared harm due to his political opinion before coming to Australia. As discussed above the applicant's initial claims revolved around avoiding national service, his religion and economic issues.

37.    Further, I note while the applicant has been in Australia since May 2013 and in the community since October 2014, he did not join the Viet Tan party until September 2018 and the letter stated he was an active member since then. I note also the letter stated he was as a "pre-member", which suggests he is not a full member. Further, according to the Viet Tan letter he was not known to attend the claimed events until February 2015. Further, in respect of most events, the letter states the applicant was seen at them, rather than organised them. I note also the letter stated he supported and engaged in a wide range of local community events. Some of the events are also common celebratory events, such as Lunar New Year and Christmas party.

38.    I note also that the applicant did not become of a member of the IYMHR until 2018, four years after he had been in the Australian community and well after he had lodged his SHEV application. Further, the applicant's activities outlined in the IYMHR were in July 2018 and September 2018. Like the delegate, I have serious concerns about the timing of this activity that I consider more than just coincidence. Further, his account of his understanding of the organisation was superficial and limited.

39.    Further, having listened to the protection interview I consider the applicants understanding of and information about the Viet Tan party was limited, other than the organisation wanted to overthrow the Vietnamese government and to modernise Vietnam and its people ad stop the control of the Chinese government. While the applicant only joined in September 2018, he claimed he had studied the group a lot from June 2017. If he had so studied and been involved with the group as claimed, I find it difficult to believe that he would not have more information about the group and the reasons why he joined it.

40.    Further, when asked why he joined the group, the applicant referred to his study of the group and policy to overthrow the government, but he did not articulate reasons why he chose to study this, joined or was interested in it or overthrowing the government. Further, when asked what he was protesting against when he attended the 30 April event which commemorates the loss to the communists, he said it was because of the way the Vietnamese government operates. When asked what he did not like about the government, the applicant said it is multiple parties and they do things on their own despite the wish of the people and 'create a society where students assault teachers, people fight in the family and economy is bad and not allowed to practise religion’. While I understand concerns about religious practise and economy, I consider the applicant's explanation of why he wanted to overthrow the government was simplistic and rambling without much sense. I am aware that people will have different reasons for participation and that there is not one level of knowledge that can be expected. However, in this case I find his description particularly lacking given his claims he had studied the organisation. 1 consider his poor responses and lack of information indicate that he did not have a genuine interest in political activity, overthrowing the government, or the organisation.

41.    Further, as discussed above, 1 consider the summon documents about propaganda spreading lack credibility and have placed no weight on them. Further, I note when asked about the police and applicant's father's interactions, the applicant referred to national service issues rather than "propaganda" issues. I consider the applicant was not recounting true events but making it up as he went.

42.    I do not accept that the applicant is a genuine pre member or has a genuine interest in Viet Tan or overthrowing the government or political activities.

43.    Further, the applicant did not claim he intended to attend protests or similar events in Vietnam. Further, I do not consider he may wish to engage in political activity but not do so out of fear of consequences. As discussed, 1 consider the applicant does not have a genuine interest.

44.    Given these concerns, including the timing of his political activity in Australia and the poor and limited evidence in his application about his political convictions, views and knowledge, the credibility of the summons documents provided the applicant has not satisfied me that he has engaged in the conduct for a purpose other than for the purpose of strengthening his claim to be a refugee. As per s 5J(6) of the Act I am required to disregard this conduct for the purpose of determining whether the applicant has a well-founded fear of persecution.

(Footnotes omitted).

15    The IAA thus concluded that the criteria in s 36(2)(a) of the Migration Act 1958 (Cth) (Migration Act) were not satisfied.

16    The IAA then turned to consider whether or not obligations of complementary protection as are provided for by s 36(2)(aa) of the Migration Act were engaged with respect to the Appellant. In that regard, it reasoned as follows:

62.    A criterion for a protection visa is that the applicant is a non-citizen in Australia (other than a person who is a refugee) in respect of whom the Minister (or Reviewer) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.

63.    Under s.36(ZA),a person will suffer 'significant harm' if:

• the person will be arbitrarily deprived of his or her life

• the death penalty will be carried out on the person

• the person will be subjected to torture

• the person will be subjected to cruel or inhuman treatment or punishment, or

• the person will be subjected to degrading treatment or punishment.

64.    I have disregarded the applicant's claim about his attendance of protests, photos, activities and membership of IYMHR and Viet Tan and FB posts under refugee headings pursuant to s 5J(6), because I found he engaged in the Australian activities solely for the purpose of strengthening his protection claims. However, I must consider his Australian activities under complementary protection.

65.    It was submitted the applicant's right to protect property and freedom of association are basic human rights, but in exercising these rights he was warned off and charged by police. However, as discussed above, I have not accepted the applicant's claims about the February church incident or that he was warned by police.

66.    I accepted that the applicant has attended the events and put posts on his FB in Australia. The applicant's FB had a picture of him with a sign about human rights for Vietnam in December 2018 and he shared Viet Tian post. He claimed he had been involved in live streaming with the Human Rights organisation also. He also provided a number of photos of himself at various demonstrations, BBQ and community events in Australia.

67.    I have considered the country information in the referred material. I accept that that Viet Tan party is considered a terrorist organisation in Vietnam, although not in Australia or the US. I have considered the information provided by the applicant about persons who have been detained who were involved in political protests. The UK Home office reported that Vietnam bans all political parties and human rights organisations independent of the government or the Communist Party and persons in Vietnam who exercise their basic rights to defend human rights and to voice criticism of power broker often face harassment, intimidation and imprisonment. Public protests are rare due to tight social controls and severe government reprisals.

68.    DFAT notes that the Vietnamese Government does not tolerate political expression against the communist party of Vietnam. DFAT is aware of at least 19 reported convictions of political/human rights activists in 2016. Such activists who openly criticise the government or its policies or the party are at high risk of attracting adverse attention from authorities; however the treatment from authorities depends on the person's level of involvement. DFAT assesses individuals who are known to authorities as active organiser or leaders of political opposition are at high risk of surveillance, detention arrest and prosecution and prominent political and human rights activists are monitored, harassed and prevented from leaving their homes to attend meetings and events. Individuals and groups who protest or openly criticise the communist party are likely to attract adverse attention from authorities. Actively protesting will result in police intimidation and harassment. DFAT assesses low level protesters and supporters often feel intimidated by police presence and sometimes are detained and released the same day.

69.    UK Home office reports those who openly criticise the state or who protest against the Government are likely to attract adverse attention from authorities. Treatment will vary depending on a persons' level of involvement, nature of the activities, role and their profile. Where the person is perceived to be low level protester/opposition supporter they may be subject to intimidation by police and may be arrested and released but it is not sufficiently serious by its nature to amount to persecution.

70.    I have accepted that the applicant attended protests and joined the IYMHR and Viet Tan party as pre-member. I consider these activities were low level. Further, for the reasons given earlier I do not accept that this was the result of any genuine interest but instead was undertaken for the purpose of enhancing his claim for protection.

71.    I do not accept the applicant has a genuine interest in overthrowing the government, participating in any protests, political or human rights activities or organisations that may attract adverse attention. Further, the applicant had not claimed he wanted or would protest or take part in such activities or organisations upon return to Vietnam. I do not accept the applicant will be engaged in any such activity upon return. Further, I am not satisfied his non participation is out of any fear of harm.

72.    I have considered the country information in the referred material about Vietnam's cyber unit to tackle dissident views online and censorship and that well known bloggers have been jailed and posts are taken down or blocked. Blogs and social media platforms are widely available in Vietnam, including FB, which has been sporadically blocked. DFAT noted individual accounts of high profile activists have been disabled at various times. However, I do not accept that the applicant is or will be a high profile activist. I do not accept that he has come to the attention of authorities for his Australian FB posts or protests or other activity or that he will continue this as I have found that he pursued this activity to enhance his protection claims. Further, I am not satisfied his avoidance of political FB activity would be out of any fear of harm.

73.    I have considered whether the applicant's membership, activities or FB could become known and if so whether that puts him at risk of harm upon return.

74.     At interview the applicant said the Vietnamese government would probably know about his membership of Viet Tian through his putting his thoughts on social media.

75.    Country information indicates that that the Government limits use of the internet and prohibits a broad range of activities including opposing Vietnam and disturbing national unity. Censorship targets high profile blogs or websites with many followers, as well as content considered threatening to Communist Party rule, including political dissent, human rights and democracy, as well as websites criticizing the government's reaction to border and sea disputes with China. [...] Websites critical of the government are generally inaccessible. The government has also called for closer watch over social media networks and sought the removal of content that it deemed offensive.

76.    While I note the country information indicates that the Government monitors social media and shuts down anti-government posts there is no evidence before me that the applicant has come to the attention of authorities in that regard. Further, I note that the applicant provided evidence of only a few posts on his FB.

77.    The applicant also thought his social media and activities could come to the attention of authorities because he had a lot of FB friends, some whom he did not know, and they could report him to the government or could have the FB linked to different party members. I consider this speculative and that the applicant was making up his account as he went along. Further, his FB page does not publicly disclose his friends.

78.    While he shared a Viet Tian post, it was not evident that the applicant was a member of Viet Tian from FB. The letters are private communications. The letter from Viet Tian was a letter to the decision maker (ie. the delegate). I note also the applicant's membership is "pre-member", which suggests he is not a member. The IYMHR letter was also a "to whom it may concern" letter. I do not accept that the applicant's "pre-membership" or association with Viet Tian or IYMHU has come to the attention of the authorities.

79.    I do not consider there is a real risk that the applicant's protest activities or FB posts will come to the attention of authorities. Firstly, I have not accepted that he was issued summons. Further, there was no credible evidence that his activities had come to the attention of authorities. There was no evidence that his FB account has been removed or posts deleted as the country information suggests may be the case for those considered critical of government. Further, 1 consider his claims his friends could inform lacked credibility and did not make sense. 1 consider the applicant was making up his account in response to delegate concerns. Secondly, the applicant's activities were low level and some of the activities were fundraisers or community events and were done to enhance his protection claims and I do not accept he would bring his activities to the attention of authorities. I do not consider he would be perceived as an activist. Thirdly, there were few political posts. Fourthly, despite the country information about monitoring social media and deleting antigovernment posts or removing accounts of independent bloggers, there is no credible evidence the applicant has come to the attention of authorities, which further reinforces my view that the applicant's is not of interest and his activities were limited and not of interest. The applicant had no adverse profile while in Vietnam and was not of interest and there is no evidence that he is of interest now. Further, I have not accepted that he would continue to post or protest upon return. On the evidence, I am not satisfied that the applicant's past activities would come to the attention of the authorities or that he would be perceived as a person of interest if they were.

80.    While country information in the referred material indicated that some failed asylum seekers were detained and physically harmed, this was in 2010 and 2011 and the individuals concerned had been targeted previously in Vietnam or were a specific ethnic minority, of which the applicant is not.

81.    While he may be interviewed upon return as a failed asylum seeker, the current country information does not indicate that authorities take an interest in offshore protest activity of returnees or failed asylum seekers. Even if interviewed upon arrival, I do not accept that there is a real risk that the applicant's past activities or posts would come to their attention.

82.    I do not accept that the applicant has an adverse profile with Vietnamese authorities as an anti-government dissident, blogger, protester, political or human rights activist or that he will be perceived as such in the reasonably foreseeable future.

83.    I am not satisfied that as a result of his political activities in Australia that as a necessary and foreseeable consequence of being returned to Vietnam, that there is a real risk that the applicant will suffer significant harm.

(Footnotes omitted).

17    The IAA accordingly concluded that Australia’s complementary protection obligations were not engaged.

The Federal Circuit Court of Australia Decision

18    The Appellant sought judicial review in the FCCA. His sole ground of appeal was follows:

1.    The Immigration Assessment Authority (‘Authority’) engaged in conduct which amounted to jurisdictional error in that:

a.    The Authority determined that the Applicant did not have a genuine interest in political activity and overthrow of the Vietnamese Government on the basis that the Applicant provided ‘poor responses’ and did not have more information about the Viet Tan party;

b.     In making that determination, the Authority made itself the arbiter of the level of knowledge to be expected by one who claimed to be politically active within the Viet Tan party;

c.    The Authority did not put forward any probative material to suggest any basis for its ability to fulfil the role of arbiter;

d.    Accordingly, the Authority’s evaluation was irrational and illogical, so as to be arbitrary and/or perverse.

19    After reciting relevant background and summarising the reasoning of the IAA, the FCCA rejected the ground of appeal. The primary judge found as follows:

41.    … [t]he Authority did consider matters of relevance before it. It took into account the applicant’s poor responses to questions put to him, and the applicant’s lack of information provided at interview. It assessed the applicant’s responses, and formed an adverse view as to his level of knowledge about a political party which he said he was integrally involved in. Some of his responses were found by the Authority to be unconvincing, and others were found to be inconsistent with the truth.

20    His Honour concluded that the FCCA had not failed to make an obvious inquiry about a critical fact ([42]); reached a decision that no other rational or logical decision-maker could have made ([43]); or made a legally unreasonable decision or one lacking an evident and intelligible justification ([44]).

21    To the contrary, his Honour concluded (at [45]) that the IAA’s decision had been “soundly based after a close consideration of the claims made by the applicant, and after having listened to the applicant’s protection interview”. No jurisdictional error on its part had therefore been established. BEP19’s application for judicial review was dismissed.

Grounds of Appeal

22    In a notice of appeal filed in this Court on 17 October 2019, BEP19 advanced two grounds of appeal. On 29 January 2020, ahead of the hearing listed for 5 February 2020 the Appellant filed a (proposed) amended notice of appeal in which he sought to abandon the second ground and to add a new third ground. It is not in dispute that in advance of that formal filing, on 23 January 2020 the Appellant had provided that proposed amended notice of appeal to the Minister’s representatives.

23    The proposed amended notice (omitting abandoned ground 2) advances the following grounds:

1.    Ground One. The Federal Circuit Court failed to find that the Immigration Assessment Authority (‘Authority’) engaged in conduct which amounted to jurisdictional error in that:

  a.    The authority determined that the Applicant did not have a genuine interest in political activity and overthrow of the Vietnamese Government on the basis that the Applicant provided ‘poor responses’ and did not have more information about the Viet Tan party;

  b.    In making that determination, the Authority made itself the arbiter of the level of knowledge to be expected by one who claimed to be politically active within the Viet Tan party;

  c.    The Authority did not put forward any probative material to suggest any basis for its ability to fulfil the role of arbiter;

d.    Accordingly, the Authority’s evaluation was irrational and illogical, so as to be arbitrary and/or perverse.

Particulars

a)    The Appellant claimed that he had engage in political and social activities in Australia including anti-government activities [Paragraph 31-34]

b)    The Authority relied on UK report which states that persons perceived to be low level protestor/opposition supporter may be subject to intimidation by police and may be arrested and released but it is not sufficiently serious by its nature to amount to persecution. [Paragraph 69]

c)    The Authority accepted that the Appellant attended protests and joined the IYMHR and Viet Tan party as a pre-member but found that his activities were low level [Paragraph 70].

2.    Ground Three

The Authority failed to consider the Appellant’s claims under the complementary protection regime, pursuant to s 36(2)(aa), in accordance with the law in that it (i) conflated or replicated the application of s 5J(6) under the Refugee Criterion, to the assessment of the Appellant’s Claims under the Complementary Protection regime; (ii) failed to consider reasonable reasons advanced by the Appellant for the purpose of asserting that his Anti-Government Activities could become known to the Vietnamese Government.

Particulars

a)    The Appellant claimed that he had engaged in political and social activities in Australia including activities anti-government activities [Paragraph 31-34, AB 211- 212]

b)    The Authority accepted that the Appellant attended protests and joined the IYMHR and Viet Tan party as a pre-member but found that his activities were low level [Paragraph 70, AB 217]

c)    “……….Further, for the reasons given earlier, I do not accept that this was the result of any genuine interest but instead was undertaken for the purpose of enhancing his claim for protection” [Paragraph 70, AB217]

d)    “I do not accept the applicant has a genuine interest in overthrowing the government, participating in any protests, political or human rights activities or organisations that may attract adverse attention”.[ Para71, AB 217]

e)    “….. I do not accept that he has come to the attention of authorities for his Australian FB posts or protests or other activity or that he will continue this as I have found that he pursued this activity to enhance his protection claims – [Para 72, AB 217]

f)    The Applicant also thought his social media and activities could come to the attention of authorities because he had a lot of FB friends, some of whom he did not know and they could report him to the government or could have the FB linked to different party members. I consider this speculative and that the applicant was making up his account a he went along. Further, his FB does not publicly disclose his friends. [Para 77, AB 218].

24    Ground 1 as advanced in the proposed amended notice of appeal varies in some degree from that advanced in the court below. However, the Minister does not appear to contend that leave to rely upon it is required.

25    However the Minister submits - and the Appellant accepts - that the BEP19 does require leave of the Court to rely upon proposed Ground 3 because such a proposition was not advanced in the court below.

26    As to whether such leave should be granted, the Appellant submits as follows:

4.    A detailed overview of authority discussing when leave should be granted for new grounds to be argued on appeal is to be found in the decision of Flick J in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11].

5.    The Appellant was represented by counsel in the proceeding before the primary judge. His counsel at the time advanced two grounds of application. The Appellant's best explanation as to why the arguments sought to be raised on appeal were not raised in the proceeding in the lower court is that his new Counsel has approached the appeal from a different perspective.

6.    The Appellant acknowledges that leave is required to raise the new grounds. For leave to be granted, the Court must be satisfied that it is expedient and in the interests of justice for arguments which were not before the primary judge to be considered for the first time on appeal: O'Brien and Others v Komesaroff (1982) 150 CLR 310 at 319; [1982] HCA 33. Matters to be considered were summarised in Sun and Others v Minister for Immigration and Border Protection and Another (2016) 243 FCR 220 at [89]-[92] (Flick and Rangiah JJ); [2016] FCAFC 52 and in Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 at [19] (Griffiths and Perry JJ); [2017] FCAFC 73 Furthermore, the Applicant acknowledges that if a review ground is raised for the first time on appeal and leave is given to raise the point and the ground succeeds, then it is to be borne in mind that a consequence may be that the respondent is denied a right to appeal because any further appeal lies only by grant of special leave by the High Court: AAM15 and Others v Minister for Immigration and Border Protection and Another (2015) 231 FCR 452 at [14]; [2015] FCA 804

7.    However, the Appellant notes that the full court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] per Kiefel, Weinberg and Stone JJ held that "an appellate court retains a discretion to allow a new argument to be raised on appeal where it is expedient in the interests of the administration of justice to do so". On this note, the Appellant submits that the ambit of the arguments demonstrates merit and no prejudice to the Respondents is evident. More importantly, the impact on the Appellant of a refusal to grant leave is arguably considerable for reasons set out below

8.    Given the circumstances, the Appellant submits that the potential for prejudice to the Appellant thereby outweighs, the administrative and costs prejudice, which the Minister might suffer as well as the legitimate interest in public law matters being resolved in a timely and efficient manner. Consequently, the Appellant submits that it is expedient in the interest of the administration of justice, that leave to rely on the new grounds be granted.

27    The Minister opposes the grant of leave to rely upon the proposed amended notice of appeal “irrespective of the merits of the proposed new ground”, in circumstances where the Appellant has failed to comply with r 36.10 of the Federal Court Rules 2011 (Cth) which provides:

Amendment to notice of appeal

An appellant may, without the Court’s leave, amend a notice of appeal during the period 28 days after filing the notice of appeal by filing a supplementary notice of appeal in accordance with rule 36.01.

28    The Minister, citing Han v Minister for Home Affairs & Anor [2019] FCA 331 at [18], further submits as follows:

17.    The amended second ground is an entirely new ground. As set out above, the appellant requires leave not only to rely upon the proposed amended notice of appeal, but to raise this complaint for the first time on appeal.

18.    Regarding proposed amended ground two, if leave were to be granted, it would be necessary for the Full Court to “decide the entirety of the matters which were for trial.” It would require the Full Court to decide matters not decided by the Circuit Court in circumstances where:

   18.1    the appellant was represented in the Circuit Court by Counsel;

18.2    Part 8 of the Migration Act 1958 (Cth) (Act) generally operates to provide for one substantive trial in the Federal Circuit Court and for one substantive appeal in this Court. As acknowledged by the appellant (AS [6]), if leave were granted to rely upon this new ground a consequence may be that the Minister is denied a right to appeal because any further appeal lies only by grant of special leave by the High Court. As such, there is prejudice to the Minister, which extends beyond “administrative and costs prejudice” (AS [8]);

18.3    it is relevant that section 476A of the Act removes from this Court original jurisdiction in cases of this kind;

18.4    the appellant’s “best explanation” for why the ground was not raised below is that his new Counsel has “approached the appeal from a different perspective” (AS [5]). That is not a “compelling circumstance”. Rather, a forensic choice was made not to advance this contention in the Circuit Court and that choice should not be permitted to be revisited

18.5    the issue sought to be argued by the proposed second ground is not novel or special in any discernible way.

19.    The Minister respectfully submits that the appellate jurisdiction of this Court should not be used to consider the proposed amended second ground of appeal and that leave to rely upon the proposed amended notice of appeal should be refused.

20.    In any event, the proposed amended ground lacks sufficient merit to warrant the grant of leave. The grounds of the proposed amended notice of appeal are addressed below.

(Footnotes omitted).

29    I will return to the question of whether a grant of leave should be made later in these reasons. However, I first turn to Ground 1.

Ground 1

30    It will be recalled that Ground 1 provides as follows:

Ground One. The Federal Circuit Court failed to find that the Immigration Assessment Authority (‘Authority’) engaged in conduct which amounted to jurisdictional error in that:

a.    The authority determined that the Applicant did not have a genuine interest in political activity and overthrow of the Vietnamese Government on the basis that the Applicant provided ‘poor responses’ and did not have more information about the Viet Tan party;

b.    In making that determination, the Authority made itself the arbiter of the level of knowledge to be expected by one who claimed to be politically active within the Viet Tan party;

c.    The Authority did not put forward any probative material to suggest any basis for its ability to fulfil the role of arbiter;

d.    Accordingly, the Authority’s evaluation was irrational and illogical, so as to be arbitrary and/or perverse.

Particulars

a)    The Appellant claimed that he had engage in political and social activities in Australia including anti-government activities [Paragraph 31-34]

b)    The Authority relied on UK report which states that persons perceived to be low level protestor/opposition supporter may be subject to intimidation by police and may be arrested and released but it is not sufficiently serious by its nature to amount to persecution. [Paragraph 69]

c)    The Authority accepted that the Appellant attended protests and joined the IYMHR and Viet Tan party as a pre-member but found that his activities were low level [Paragraph 70].

Appellant’s Submissions

31    The Appellant’s written submissions state that the nub of the argument that is sought to be advanced is:

… the IAA has adopted the position of “arbiter of the Viet Tan Party” in determining whether the Appellant’s [sic] had genuine interest in the political activities and whether to take his Anti-Government Activities in Australia into account in assessing his protection claims.

32    The Appellant’s written submissions take issue with two findings made by the IAA: namely that the Appellant did not have a genuine interest in anti-government activities, and that the sole purpose of his participating in those activities was the strengthening of his claim for protection. The Appellant cited paragraphs 39 and 40 of the reasons of the IAA (reproduced above at [14]) with respect to those issues.

33    The written submissions advanced on the Appellant’s behalf contend that the IAA failed to engage in an intelligible consideration of the reasons that he gave for having joined the Viet Tan Party (namely “because of the way the … Vietnamese government operates – the multi-party system. The government operates as it wishes, despite the wish of the people, creates a society where students assault teachers, people fight in the family, the economy is bad and they are not allowed to practise religion”), when it reached its finding that:

While I understand concerns about religious practise and economy, I consider the applicant's explanation of why he wanted to overthrow the government was simplistic and rambling without much sense

34    The Appellant’s written submissions also take issue with various parts of the reasons of the IAA that described his responses with respect to his political convictions as “poor”. He submitted there was no evident or intelligible basis for reaching that conclusion or, in turn, for concluding that he did not have a genuine interest in political activities or was not a genuine pre-member of the party.

35    In support of that contention, the Appellant cites Kenny J’s analysis in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; 187 FCR 362. He submits that:

Kenny J addressed the question of whether jurisdictional error might arise in applying an “arbitrary standard” of knowledge which a person must have in order to be found to be a follower of a religion. If a decision-maker relies on a premise that every follower of a particular religion must have certain knowledge or provide certain answers concerning an aspect of a religion, it may fail to engage with the question whether the particular applicant before it is in fact a follower of the religion. Her Honour noted at [37] “that there is a difference between (emphasis in original): (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter without any preconception as to what knowledge all believers will demonstrate, that a particular appellant’s lack of knowledge indicates that he is not a genuine adherent of a religion”.

36    The Appellant submits, by analogy, that the IAA:

…. relied on an erroneous premise that every member of the party must have a certain knowledge or provide certain answers concerning certain aspects of the party and the [IAA] was aware of the relevant threshold

37    Those were the written contentions advanced.

38    However, in advancing BEP19’s case in oral argument his counsel, Ms Okereke-Fisher, accepted that there had been sufficient materials before the IAA to have entitled it to make a finding that the then applicant’s conduct had been for the purpose of strengthening his protection claim:

I do accept that the case primarily falls away because … as my friend also articulated in his submissions, there were other aspects or reasons that the authority gave for the purpose of establishing that he undertook those activities for the purpose of strengthening his protection claims.

39    In that regard I take Ms Okereke-Fisher to refer to the following written submissions advanced on behalf of the Minister:

26.    To the extent that the AS at [16] argue that the Authority’s findings were illogical (particular (d) of the proposed amended notice of appeal and the Circuit Court amended application), the Minister submits that no appealable error is revealed by the primary Judge holding (at AB 241-242, [43]-[44]) that the Authority’s decision was not one that no other rational or logical decision maker could have made; nor was it lacking an evident and intelligible justification His Honour identified that in reaching the conclusion that the appellant was not a genuine pre-member of Viet Tan, the Authority considered, in addition to the applicant’s “poor responses and lack of information” that:

26.1    he was not engaged in or interested in political activities whilst he was in Vietnam and did not claim that he intended to attend protests or political activities in Vietnam: AB 232-235, [18] and [27];

26.2    the timing of his political activities with the IYMHR and Viet Tan: AB 233, [20];

26.3    the lack of credibility with respect to the purported police summons relating to the appellant’s propaganda spreading activities: AB 234, [26]; and

26.4    his reference to national service issues in answering questions about the propaganda activities: 234, [26].

40    The concession that Ms Okereke-Fisher made (which I accept was properly made) - namely that there was no basis on which to challenge the IAA’s findings with respect to its state of satisfaction that the Appellant did not have a genuine political interest in anti-government activities, because there was sufficient material before it to support its affirmative conclusion that he had engaged in those activities for the purpose of strengthening his claim to be a refugee - has statutory significance. That flows from the terms of s 5J(6) of the Migration Act.

41    Section 5J codifies the circumstances which, for the purpose of the Migration Act, come within the meaning of the term “well-founded fear of persecution”. Section 5J(1) identifies those in which such a person can be found to have such a fear:

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)    the real chance of persecution relates to all areas of a receiving country

42    However, s 5J(6) requires certain conduct undertaken by a protection visa applicant to be disregarded in the making of that determination:

(6)     In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.

43    The effect of that provision is that the IAA was required to proceed on the basis that the (accepted) political activities of the Appellant in Australia were to be disregarded for the purpose of his refugee claim, subject to him satisfying the IAA that he had undertaken that conduct otherwise than for the purpose of strengthening his claim to be a refugee.

44    Ms Okereke-Fisher thus confined her submissions to the proposition that there was no material before the IAA to suggest that the Appellant had engaged in those activities lacking a genuine interest in them:

… the Appellant submits that there was no … evident and intelligible basis on which the authority could conclude that the Appellant had no genuine interest in the anti-government [movement] and also there was no basis for the authority to conclude that the sole purpose for the participation was to strengthen his protection claim. What the Appellant says is that it was one thing for the authority to find that the Appellant had impact on the antigovernment activities for the purpose of strengthening his protection claims, and then it was another thing for the authority to conclude that he had participated in those activities for the sole purpose of strengthening his protection claim.

The Appellant does submit that both propositions are different … they’re not one and the same. In concluding that he had no genuine interest and the authority was, in fact, stating that his interest in anti-governmental activities was fake, in circumstances where there was no material before the authority to support that conclusion. The Appellant may have been motivated to engage in anti-governmental activities for the purpose of strengthening his protection claim, but that’s not to say that his interest was not genuine. That notwithstanding …what the Appellant says is that the primary issue before the authority was the fact that the Appellant had engaged in those anti-governmental activities and the fact that his claim was he feared harm as a result of his conduct.

(Emphasis added).

45    Ms Okereke-Fisher thus submitted that:

… it was open to the [IAA] to make a finding … that would enliven the operation of section 5J(6). There was sufficient material to do that; however, what the Appellant says is that there was no material … before the [IAA] to then subsequently say that he … had no genuine interest in those activities.

46    In advancing those submissions, Ms Okereke-Fisher drew attention to a number of matters that she submitted might support a conclusion that the Appellant’s interest in anti-government activities was genuine. In particular, she drew attention to correspondence before the IAA from the President of the International Youth Movement for Human Rights stating that the Appellant:

…has strong views and opinions against the Vietnamese communist government. He is actively involved in all events within the State of Queensland chapter of the International Youth Movement for Human Rights, dedicating his efforts towards raising awareness of human rights issues.

47    She also drew the Court’s attention to a letter from the Chair of the Viet Tan Queensland chapter, which advises that the Appellant had “always helped Viet Tan on all events organised by us”. The author of that letter goes on to state that:

I knew [BEP19] since 2015 in Queensland and have known him as a loyalty, hard worker and proper person. Therefore on 01/09/2018, I recruit him to become a pre-member of the Viet Tan Party, and he has been an active member since then.

48    However, Ms Okereke-Fisher effectively conceded that the submission she advanced was relevant only to the IAA’s consideration of BEP19’s claim for complementary protection (which was not subject to the limitation imposed by s 5J(6) which applied to his refugee claim):

I do accept that the case primarily falls away because there are other – as my friend also articulated in his submission, there are other aspects or reasons that the authority gave for the purpose of establishing that he undertook those activities for the purpose of strengthening his protection claims, which sit outside whether or not he was actually a member of the Viet Tan party. And … if that argument remains alive, your Honour, [it] will be [with respect to] the way in which the authority then dealt with the fear stemming from anti-government activities in circumstances where section 5J, subsection (6) would not apply under the complementary regime. And that would take us to the proposed ground.

Minister’s Submissions

49    The Minister’s written submissions with respect to Ground 1 engage with the case that had been advanced in writing by the Appellant. Understandably, much of what is contained in the Appellant’s written submissions became of only marginal relevance having regard to Ms Okereke-Fisher’s concession that there were materials before the IAA adequate to sustain its finding that the Appellant had undertaken the relevant political activities in Australia for the purpose of supporting his claim for refugee status.

50    Given that circumstance and my conclusions, it is unnecessary to detail the Minister’s submissions with respect to Ground 1.

Consideration

51    It can be accepted as a matter of strict logic that an (uncontested) finding that a person has undertaken conduct for the purpose of strengthening their protection claim will not necessarily preclude a decision maker from accepting that they may have been genuine in their holding the views that they had professed to hold. As such an outcome is within the range of logical possibilities, those two conclusions are not necessarily inconsistent.

52    However, the same materials that the Minister refers to at [26] of his written submissions (which materials Ms Okereke-Fisher accepts entitled the IAA to find that the Appellant’s conduct was for the purpose of strengthening his refugee claims) would ordinarily also supply a rational basis on which the IAA might be sceptical of a claim that his conduct was also genuinely motivated. For that reason, I reject Ms Okereke-Fisher’s submission that there was no material before the IAA to support that conclusion.

53    Having said that, I place no weight on the reasoning of the IAA at paragraphs 39 and 40 (as set out above) insofar as that reasoning might serve as an independent basis for rejecting the genuineness of the Appellant’s beliefs. Were it necessary for the IAA to have relied on his want of understanding of the ideology of the Viet Tan movement for that purpose, attention would have to be given to that which was said by Kenny J in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 at [38]:

38.    Absent an explicit statement in the Tribunal’s reasons that an applicant must meet a particular standard of knowledge to establish that he is a follower of his claimed religion, it may not always be possible to distinguish a potentially illegitimate a priori approach from a legitimate exploration of an applicant’s knowledge. As the analysis in WALT and SBCC demonstrates, the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge. Even where the Tribunal relies primarily on its evaluation of the applicant’s answers, however, it will not necessarily run into jurisdictional error. As the authorities emphasize, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.

54    However, what the IAA found to be the Appellant’s incapacity to articulate any persuasive basis for his participation cannot sustain the affirmative proposition that the IAA ought to have found his motivation to have been genuine.

55    Moreover, once it is accepted that the IAA was entitled to find that the Appellant’s conduct was properly to be characterised as having been undertaken for the purpose of enhancing his refugee claim, Ms Okereke-Fisher’s submission that the IAA erred in not giving weight to what was asserted in the two letters to which I have drawn attention at [46] and [47] falls away. The IAA was entitled to reason that a person whose conduct was for such a purpose (that is, to strengthen their claims to be a refugee) could be expected to have conducted themselves such that those whose references and support might be called upon in an application for a protection visa would perceive them in that light.

56    For the above reasons, I reject the proposition that there is any sound basis for the submission that the IAA impermissibly conflated its reasoning as between those circumstances material to a finding that the Appellant’s conduct had been for the purpose of supporting his refugee claim, and its ultimate conclusions that his reasons for participating as he did were otherwise than genuine. To the extent that a distinction might in some circumstances be drawn, in the actual context in which this matter was heard and determined by the IAA I reject the proposition that the IAA fell into jurisdictional error.

57    In my view it cannot be said, consistently with the analysis of the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 and of the Chief Justice of this Court in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 and in other cases that have considered legal unreasonableness, that there was any legal unreasonableness in the course of reasoning in which the IAA engaged or in the outcome ultimately reached.

58    Having regard to the manner in which the appeal ground was advanced before the Court, the case that the IAA fell into jurisdictional error has not been made out.

Proposed Ground 3

59    It will be recalled that proposed Ground 3 provides as follows:

The Authority failed to consider the Appellant’s claims under the complementary protection regime, pursuant to s 36(2)(aa), in accordance with the law in that it (i) conflated or replicated the application of s 5J(6) under the Refugee Criterion, to the assessment of the Appellant’s Claims under the Complementary Protection regime; (ii) failed to consider reasonable reasons advanced by the Appellant for the purpose of asserting that his Anti-Government Activities could become known to the Vietnamese Government.

Particulars

a)    The Appellant claimed that he had engaged in political and social activities in Australia including activities anti-government activities [Paragraph 31-34, AB 211- 212]

b)    The Authority accepted that the Appellant attended protests and joined the IYMHR and Viet Tan party as a pre-member but found that his activities were low level [Paragraph 70, AB 217]

c)    “……….Further, for the reasons given earlier, I do not accept that this was the result of any genuine interest but instead was undertaken for the purpose of enhancing his claim for protection” [Paragraph 70, AB217]

d)    “I do not accept the applicant has a genuine interest in overthrowing the government, participating in any protests, political or human rights activities or organisations that may attract adverse attention”.[ Para71, AB 217]

e)    “….. I do not accept that he has come to the attention of authorities for his Australian FB posts or protests or other activity or that he will continue this as I have found that he pursued this activity to enhance his protection claims – [Para 72, AB 217]

f)    The Applicant also thought his social media and activities could come to the attention of authorities because he had a lot of FB friends, some of whom he did not know and they could report him to the government or could have the FB linked to different party members. I consider this speculative and that the applicant was making up his account a he went along. Further, his FB does not publicly disclose his friends. [Para 77, AB 218].

60    As referred to above, counsel for the Minister Mr Eskerie submitted that leave to rely on that ground should be refused on the basis that it had not been contended for in the court below. Accepting however that the potential merit of the proposed ground was a material consideration, the Minister for completeness made submissions on that point.

61    The Minister submits that if the Court were to consider the question of merit, proposed Ground 3 does not raise a sufficiently arguable case so as to warrant the grant of leave. The Minister’s submissions in that regard are as follows:

30.    By this proposed amended ground, the appellant contends that the Authority failed to consider the appellant’s claims under the complementary protection criterion because it:

30.1    “conflated or replicated” the application of s 5J(6) under the refugee criterion to the assessment of the appellant’s claims under the complementary protection criterion; and

30.2    Failed to consider the “reasonable reasons” advanced by the appellant as to how his anti-Government activities could become known to the Vietnamese government.

31.    The basis upon which the appellant contends that the Authority “dismissed the Claims pursuant to s5J (6)” (emphasis added) is unclear (AS [20]). The Authority plainly understood that, having disregarded the appellant’s claims about his ‘Australian activities’ pursuant to s 5J(6) when assessing his claims against the refugee criterion, it was required to nonetheless consider those claims in its assessment of the complementary protection criterion: AB 216, [64].

32.    The AS attempt to reconstruct the Authority’s reasons at [70] as a finding that, like at [44], it disregarded the claims because it had found that he had undertaken the Australian activities for the purpose of enhancing his claims for protection. That is plainly not what the Authority did. Rather, it found that the appellant did not have a genuine interest in participating in protest activities upon return to Vietnam and that his lack of interest in such activities was not out of any fear of harm: AB 217, [71]. Further, the Authority considered whether the appellant’s membership, activities (which it had accepted were low-level) or Facebook posts could become known in Vietnam and if so, whether that put him at risk of harm upon return: AB 217-218, [73]-[79]. The appellant has not explained how that assessment shows a “conflation” between the refugee and complementary protection criteria. Nor has he explained how the Authority’s conclusion at [83] that there was not a real risk of significant harm to the appellant in light of his political activities in Australia was the result of an erroneous understanding of the operation of s 5J(6). Further, there is no basis for the contention that the Authority mistakenly imported its reliance on s 5J(6) into its complementary protection assessment.

33.    The second complaint raised by the proposed amended ground is equally unsustainable. The Authority’s reasons plainly reveal that it did consider the reasons advanced by the appellant as to how the Vietnamese government could come to know about his political activities in Australia: AB 217, [72]-[79]. The AS appear to acknowledge that these reasons were considered but contend that the Authority should have found that they were “real” reasons, not just speculative (AS [26]-[27]). Properly understood, the proposed argument is that the Authority should have reached a different conclusion on the basis of the evidence before it and invites this Court, in exercising its appellate jurisdiction, to engage in an impermissible merits review of the Authority’s findings.

(Footnotes omitted).

62    The nub of Ms Okereke-Fisher’s oral submissions was that even if the IAA had been correct in concluding that the Appellant had engaged in political activities for the purposes of strengthening his protection claims and had not done so out of any genuine political motivation, nonetheless it was uncontentious that there was a body of political material which he had posted on the internet. Were that material to become known to the Vietnamese Government, he would be at significant risk of harm were he to be compelled to return to that country. Such a circumstance would engage Australia’s complementary protection obligations in accordance with s 36(2)(aa) of the Migration Act.

63    It is unnecessary to canvass the arguments advanced by Mr Eskerie as to whether leave should be refused irrespective of the merits of the proposed ground. I do not discount that it would be open for me to proceed on that basis. However, on the view I have formed the merits of proposed Ground 3 in any event do not warrant the grant of leave sought.

64    Four things might be said in that regard.

65    First, it is clear that the IAA did not misunderstand its task. The IAA commenced its discussion regarding complementary protection by referring to and setting out aspects of the relevant provisions of the Migration Act as were material to that task. At [64] of its reasons, the IAA stated:

I have disregarded the applicant’s claims about his attendance of protests, photos, activities and membership of IYMHR and Viet Tan and Facebook posts under refugee headings pursuant to section 5J(6) because I found he engaged in the Australian activities solely for the purpose of strengthening his protection claims. However, I must consider his Australian activities under complementary protection.

66    It is thus manifest from the commencement of the reasoning of the IAA that it was proceeding on the basis that the Appellant’s political activities, to the extent they were manifested and might become known to the Vietnamese authorities, were factors that had to be taken into account in an assessment of his complementary protection claims.

67    Secondly, the IAA accepted that the Appellant had done the things he had claimed to have done. It did not reject the proposition that he had posted the materials he contended he posted on his Facebook page and elsewhere on the internet.

68    Thirdly, the IAA accepted the country information before it concerning Vietnam’s identification of the Viet Tan organisation as a terrorist organisation. The IAA further accepted that Vietnam had little sympathy for political dissidents, and had a history of taking action to disrupt dissident online views and had taken steps to censor posts on the internet it regarded as being of concern. The IAA accepted that political organisers or leaders of political opposition were at high risk of surveillance, detention, arrest and prosecution, and that prominent political and human rights activists had been monitored, harassed and prevented from leaving their homes to attend meetings and events. It accepted that individuals or groups who protested or openly criticised the Communist Party were likely to attract adverse attention of that kind.

69    Fourthly, the IAA referred to country information from the Department of Foreign Affairs and Trade suggesting that that even low-level protestors and supporters of dissident groups would often feel intimidated by police presence and would sometimes be detained and released on the same day. However, the IAA noted in that regard a report from the United Kingdom Home Office which suggested that such a circumstance was not sufficiently serious to amount to persecution.

70    Having regard to those circumstances, I therefore proceed on the basis that the IAA correctly accepted that at least a potential issue was before it as to whether Australia’s complementary protection obligations would be engaged.

71    However, I am satisfied that the IAA dealt closely and without error with the circumstances that were before it. In my view, understood on a fair reading, its reasons reveal that the IAA came to two broad conclusions. The first was that there was no real risk that the Appellant’s activities had already come, or would in the future come, to the attention of the Vietnamese authorities. The second was that even if those matters had come or would come in the future to the attention of the authorities, the authorities would not perceive the Appellant as an activist. The IAA gave reasons for both of those conclusions.

72    As to the former conclusion, at [79] of its reasons the IAA refers to it not having accepted that the Appellant had been issued with a summons. That finding is not challenged. The IAA also found that there had been no attempted censorship of the Appellant’s posts on social media of the kind that the country information before it suggested would occur in respect of persons who might be perceived as opponents of the regime. The IAA rejected as implausible BEP19’s concern that an informant might provide information to Vietnam as to what appeared on his social media.

73    In my view, it cannot plausibly be contended that those conclusions did not provide a rational basis for the IAA’s finding that it was unlikely that the Appellant’s activities had come or would come to the attention of the Vietnamese authorities.

74    However, in any event the IAA went further and discussed the Appellant’s claims on the assumption (beneficial to him) that the Vietnamese authorities might have or come to have knowledge of what he had posted on his social media accounts. It concluded in that regard that even if what he had done had come or would in the future come to the attention of the authorities, the Appellant would not be perceived by them to have been an activist. His conduct would be perceived as low level. In that regard the IAA concluded (and no attack is made on this conclusion) that many of the activities as capable of being revealed by reason of the Appellant’s Facebook posts related to his attendance at community events, rather than circumstances that would agitate the interests of the Vietnamese authorities. The IAA reasoned that few of the Appellant’s posts would be characterised as political, and further noted that his Facebook page did not disclose a list of his friends. It concluded that having regard to the nature of the conduct that he had undertaken as would be represented on his internet posts, he had no profile as an activist.

75    The IAA concluded, having regard to those circumstances that:

[o]n the evidence I am not satisfied that the Appellant’s past activities would come to the attention of the authorities or that he would be perceived as a person of interest if they were.

76     Even if (and this is advanced as a matter of hypothetical possibility rather than by way of suggested conclusion) it might have been open to a different decision-maker to have come to a different conclusion as to either of those propositions, it cannot be said that that anything in the reasoning of the IAA or the conclusion that it reached could be characterised as jurisdictional error for want of legal reasonableness within the understanding of that term as the authorities have applied it.

77    The High Court’s decision in Coulton v Holcombe [1986] HCA 33; 162 CLR 1 stands for the proposition that ordinarily, leave to rely on a ground not adduced in a court below will not be granted. I accept that, particularly in the case of self-represented litigants advancing protection claims, there may be sound reasons in the interests of justice to permit a ground to be agitated notwithstanding that general position. In this instance however, BEP19 was legally represented in the court below and there is no sufficient explanation of the reason for the ground not having been previously articulated: see above at [26]. That circumstance, coupled with the want of plausible merit with respect to the proposed ground, is sufficient to establish that leave should not be granted. I would therefore decline to grant leave to the Appellant to rely on proposed Ground 3.

Disposition and Orders

78    The Appellant is refused leave to rely on proposed Ground 3.

79    I otherwise dismiss the appeal. The Appellant is to pay the First Respondent’s costs as agreed or as assessed.

Associate:

Dated:    7 February 2020