FEDERAL COURT OF AUSTRALIA

ANR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 155

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    Paragraphs 2 and 3 of the orders of the Federal Circuit Court of Australia made on 22 February 2019 are set aside and in their place it is ordered that:

(a)    The decision of the Immigration Assessment Authority dated 3 February 2017 is set aside.

(b)    The review of the decision of the delegate of the first respondent dated 19 December 2016 is remitted to the Immigration Assessment Authority for determination according to law.

(c)    The first respondent must pay the applicant's costs of the application for judicial review to the Federal Circuit Court, to be assessed if not agreed.

3.    The first respondent must pay the appellant's costs of the appeal, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    A decision of a delegate of the first respondent (Minister) to refuse a protection visa to the appellant was referred to the Immigration Assessment Authority for review. The appellant is a citizen of Vietnam who claimed that he held a well-founded fear of persecution should he be returned to that country, by reason of his religion and his political views.

2    The Authority affirmed the delegate's decision and the Federal Circuit Court of Australia dismissed an application for judicial review. The sole ground of review, and the sole ground of appeal in this court, raise the issue of whether the Authority adequately addressed a particular aspect of the appellant's claims concerning the risk of harm he would face in Vietnam as a result of expressing his political opinions in the future.

3    For the reasons that follow, the Authority did fail to deal with an important aspect of the appellant's claims. The primary judge erred in not so finding, and the appeal will be allowed.

The application for a protection visa

4    The appellant arrived in Australia in October 2012. In March 2016 he applied for a Safe Haven Enterprise visa, which is a kind of protection visa. The application was supported by a statutory declaration of the appellant. He said that his main reason for seeking the protection of Australia was his fear of harm at the hands of the Vietnamese government on account of his Vinh Catholic religion and political views.

5    Only the claim about the appellant's political views is relevant to this appeal. The statutory declaration did not expand on that claim to any great extent. Its focus was on adverse treatment the appellant claimed to have experienced on and after an incident when government officials and others said to be associated with them disrupted a church service.

6    However at his protection visa interview with the delegate of the Minister, the appellant made a new claim. When asked whether there were any other reasons he was seeking protection in Australia he raised the actions of a Taiwanese owned company, Formosa Ha Tinh Steel Corporation (Formosa), in causing a chemical spill that killed marine life along 200 km of coastline in central Vietnam. The area affected included the appellant's home province. It is necessary to set out the relevant passage from the transcript of the interview in full:

DELEGATE:    Okay. Is there any other reasons why you're seeking protection in Australia that we haven't talked about today?

APPLICANT:    If you live in a country and the people there is controlled by only one detector(?) [sic dictator], one political party, nobody has freedom. Recently, the - a - a company named Formosa, they produce waste which was very dangerous, very poisonous, and all the waters in central Vietnam were contaminated, all the fish - all the fishes there died. That's why the people in central Vietnam stood up, they organised demonstration. A lot of them were assaulted. Vietnam has a lot of issues with religions. They - and also the problem from these companies and I believe that in future the Vietnamese human rights will not be protected.

DELEGATE:    Yeah. So, have you ever been involved in any political activism or involved in any political parties?

APPLICANT:    Yeah, after coming here sometimes I joined people in demonstrations in Perth and occasionally I joined them.

DELEGATE:    Yeah. Was that a particular group of people?

APPLICANT:    Yes, the name of the party is Viet Tan.

DELEGATE:    Yeah. Does Viet Tan mean anything? Does it have a definition or a longer name?

APPLICANT:    I haven't - I haven't got much information about them, but some members of Viet Tan invited me to join them. But I - I accompanied them when we had a peaceful demonstration.

DELEGATE:    Yeah. When were those demonstrations?

APPLICANT:    It was a Sunday about one or two months ago. I came - I - I - I came to a place with the other people and was holding banners in Vietnamese and in English, Australian flags, because we wanted to protest the Formosa company in Vietnam. We just - we just stayed there for a short time then we went home.

DELEGATE:    And is that the only demonstration you've attended?

APPLICANT:    That's right.

DELEGATE:    Yeah. So, you said that some people asked you to join them. What made you say yes to join those people?

APPLICANT:    In Vietnam there are a lot of people suffer from the situation caused by Formosa. I - I just want to support my family and my people in Vietnam.

DELEGATE:    So you obviously feel strongly about the issue with Formosa and the contamination. Would you consider joining the Viet Tan for any other protests, or is it just about that incident specifically?

APPLICANT:    At the moment, it is too early for me to enrol for membership because I am a little bit too busy. But in future, where - after I learn more about them, I will apply to be a member of Viet Tan.

7    Before the conclusion of the hearing, the delegate put the appellant on notice that she would need to consider whether he became involved in the protest in Australia purely in order to increase his chances of obtaining a protection visa. In response to that, the appellant's migration agent, who attended the interview by telephone, said:

REPRESENTATIVE:    The fourth one, in terms of whether you will dismiss his claims about his activities in Australia, he said that seeing the - the whole Formosa incident from Australia while he was here, it made him want to be part of, you know, letting everybody in the world know what was happening in Vietnam and he - he also wanted overseas Vietnamese - Vietnamese people to understand what was happening in Vietnam and to understand how - how terrible the situation there is that something like that could happen. And he said that, you know, he - his - his motivation for being involved in - in those demonstrations was that he would love to see a - a Vietnam that Vietnamese people could go back to if they wanted to and that Vietnamese people - he - he wants to work together with Vietnamese people to protect Vietnamese people. So quite passionate about that. And he said that if he was still living in Vietnam he would have done exactly the same thing; he would have joined in those marches against, you know, what happened with Formosa and he would have been wanting to tell the Vietnamese government how angry he was about it. So, basically, regardless of where he is, whether it was Vietnam or Australia, he would have behaved the same way. So, his claim should be considered and not dismissed. And he-he really wants the international community to be aware of what is happening to people in Vietnam.

8    After the protection visa interview, the migration agent sent the delegate written submissions. These provided a further response to the delegate's concerns about the appellant's motives for joining the Viet Tan protest in Australia, including:

… if he was still in Vietnam he would do the same thing - he would join the march with Vietnamese people to tell the Vietnamese government that they are angry. Therefore he would do the same whether in Vietnam or Australia because he wants the international community to be aware of what is happening to people in Vietnam.

9    It was further submitted:

28    It is submitted that [the appellant's] explanations about his activities in Australia are measured yet passionate - he does not overstate or embellish his claims in any way but, rather, he responded factually to the questions put to him, explaining faithfully his involvement and his reasons for involvement with Viet Tan in Australia according to his strong convictions on this matter that affects everyone he knows in Vietnam, as it happened in his home region. It is submitted that [the appellant's] explanations about this are convincing, enhance his claims for protection and demonstrate his genuineness as a refugee, in that he expresses a genuine view - unaffected by how this may impact his claims for protection - that he wants change for Vietnamese people and that he might increase his involvement in Viet Tan in the future, because he wants for those in the diaspora to be able to return safely to Vietnam if they wish.

29    It is further submitted that the environmental disaster of Formosa is an ongoing disaster that impacts greatly on the lives and livelihoods of people in [the appellant's] home region - such that it is inconceivable that [the appellant] would be unconcerned or unaffected by this event. Further, the continuing impact of this disaster and lack of resolution of the problems continue to cause significant social unrest and protest in Vietnam and among the diaspora, and the authorities in Vietnam continue to crack down on people who protest around the Formosa disaster - see the Formosa reports in the enclosed document of Supporting Information.

10    The submission was accompanied by a document entitled 'Supporting Information for Protection Claims Vietnam', which summarised country information on a number of issues, including protests that had taken place against the Formosa incident and more general country information about the likelihood that persons who engage in protest, political dissent or public advocacy can experience adverse treatment from the authorities, including arrest and lengthy detention.

11    In refusing the application for a Safe Haven Enterprise visa, the delegate of the Minister considered the appellant's claim to fear harm on return to Vietnam because of his participation in the protest in Australia against Formosa. The delegate accepted that he had participated, and had done so because of genuinely held views, albeit more likely to be a desire to support his local fishing industry than because of interest in Viet Tan. The delegate found that the appellant did not participate entirely for the purpose of embellishing his claims for protection. The delegate recorded the statement that the appellant had been too busy to join Viet Tan but would likely do so in the future and his statement that he 'would have participated in these activities had he been in Vietnam at the time as he felt strongly about the environment and the way the Vietnamese government had handled the situation'.

12    It is not clear whether the delegate accepted that last statement as true, or what significance she placed on the qualification 'had he been in Vietnam at the time'. She made no finding on the likelihood of the appellant expressing political views on return to Vietnam. She did find, however, that he was not 'a high profile political activist'. After considering country information about whether members of Viet Tan have been subject to harm on return to Vietnam, the delegate found that given the appellant's 'low level involvement in the Viet Tan group in Australia, I am not satisfied that he has a well-founded fear of being harmed as a result of his involvement in the Viet Tan in Australia'. So the delegate did not address any claim that the appellant would continue to be outspoken about the Formosa incident after returning to Vietnam and would suffer harm as a result of that.

13    A submission which the appellant's migration agent sent to the Authority on 11 January 2017 addressed that alleged gap in the delegate's reasons. The submission said:

Further, it is submitted the Decision fails to consider the impact of [the appellant's] adjustment as a maturing young man to life in Australia, in that he has become imbued in Australia to feel safe to express his deeply held views in relation to issues such as the Formosa environmental disaster in Vietnam, and that if he were to return to Vietnam he would not be able, nor should he be expected, to supress his passionately held views that make up his personal being and outlook on life. It is submitted that if he were to return to Vietnam, in order to avoid persecution or significant harm, he would have to supress this kind of deeply held conviction which is not consistent with case law - referred to in the Supporting Information provided in post-interview submissions, S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473; 203 ALR 112; 78 ALJR 180 (9 December 2003) - that says at [80] the applicant for refugee status should not have to hide the fact that he or she holds particular beliefs nor be discreet about such matters.

The Authority's decision

14    In its written reasons, delivered on 3 February 2017, the Authority recorded the appellant's claim that in July 2016 he participated in a peaceful demonstration in Australia concerning the Formosa incident, which was organised by Viet Tan. The Authority summarised the fears he claimed to hold as follows:

The applicant fears on return to Vietnam he will be imprisoned by the Vietnamese government as a result of his Catholic faith, his non-attendance at the police station, his illegal departure from Vietnam, the unintentional release of some of his personal details on the Department's website, his personal details being provided to the Vietnamese Ministry of Public Security - Immigration (MPSI) and his return to Vietnam as an asylum seeker.

15    The Authority did not accept the appellant's claim to fear persecution on his return to Vietnam by reason of his Catholic faith, and did not accept that he was of any interest to the police by reason of the incident in the church which I have mentioned.

16    The Authority then went on to consider the appellant's involvement in the demonstration against Formosa under the heading 'Claims relating to actual or imputed political opinion'. It recorded the appellant as claiming that he was not a member of any political party, including Viet Tan. But it accepted that he had participated in one peaceful demonstration in Australia against Formosa that was organised by Viet Tan. It found that he did not do so for the purpose of strengthening his protection claims. After recording country information concerning Viet Tan, the Authority said:

The country information before me indicates there are credible risks for people who are associated with or perceived to be associated with the Viet Tan in Vietnam. While I accept the applicant has participated in one demonstration organised by the Viet Tan in Australia, I am not satisfied this level of participation would be perceived to be an act of a political activist or an associate of the Viet Tan by the state, or otherwise viewed adversely. On the applicant's own statements the applicant is not a member of the Viet Tan group, nor has he propagandised, instigated others to join or has sponsored or sought sponsors for the group. Nor is there any evidence before me the applicant has undertaken any activities which would perceive him to a redemptorist, blogger, writer or activist by the Vietnamese authorities.

I am not satisfied the applicant would be imputed to hold any anti-government political opinion or perceived to be associated with the Viet Tan or any other political group as a consequence of his participation in one demonstration organised by the Viet Tan in Australia against a company. It follows I am satisfied the applicant would not face a real chance of harm on this basis on his return to Vietnam now or in the reasonably foreseeable future.

17    Having found against the appellant in relation to the other aspects of his claims, the Authority affirmed the decision of the delegate to refuse to grant the visa.

The Federal Circuit Court proceeding

18    By the time the application for judicial review came on for hearing in the Federal Circuit Court, the appellant was represented by solicitors. He put forward as the sole ground of review a contention that the Authority failed to consider the risk of harm he would face in Vietnam in the reasonably foreseeable future as a result of expressing his political opinions in the future. The sole particular to the ground referred to the written submission dated 11 January 2017 made to the Authority by the appellant's migration agent, the relevant part of which is set out at [13] above.

19    The primary judge dismissed the application in brief ex tempore reasons. His reasoning was as follows (at [33]-[35]):

The Authority's reasons are not to be read with a keen eye for error. The adverse findings by the Authority in respect of the applicant's claimed fear of harm by reason of actual or imputed political opinion was dispositive of the applicant's claim. I do not accept that there is an integer of the applicant's claim or a material issue that required any finding of fact in respect of the applicant's views in respect of the pollution caused by Formosa. I do not accept the reference in the transcript to what the applicant may possibly do in the future, read in context of the transcript as a whole, gave rise to an issue that required the Authority to address the consequences of the applicant joining the Viet Tan. No such claim fairly arose on the material before the Authority.

On a fair reading of the Authority's reasons, the Authority has taken into account and accepted that the applicant generally holds views in relation to the environmental disaster in respect of Formosa. I do not accept that the Authority's reasons should be read as making any finding that the applicant had to suppress his views in that regard in the context of the adverse finding by the Authority.

The Authority's reference in the context of the applicant's actual or imputed political opinions to the Formosa subsidiary of the Taiwanese company and the reason behind the applicant wanting to show support for the situation that had been caused, are consistent with the Authority making dispositive findings upon the whole of the applicant's claims in respect of actual or imputed political opinions. The Authority's reasons in that regard reflect, on a fair reading, an orthodox and comprehensive review of the applicant's claims and a real and meaningful engagement with the applicant's submissions. It was not necessary for the Authority to refer to every piece of evidence. There was no constructive failure by the Authority to exercise its jurisdiction. There was no failure by the Authority to consider an integer of the applicant's claims. No jurisdictional error as alleged in ground 1 of the amended application as is made out.

Did the Authority fail to discharge its function of review?

20    The basic principles governing this appeal are not in issue. They are encapsulated in the following quote from Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [45]-[47] (French, Sackville and Hely JJ):

The critical question which ordinarily will have to be addressed in applying this criterion [the refugee criterion] is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

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.

21    There is no reason why these observations concerning the duty of the Refugee Review Tribunal should not also apply to the Immigration Assessment Authority under s 473CC of the Migration Act 1958 (Cth) to review a fast track reviewable decision that is referred to it: see the discussion in FIG17 v Minister for Home Affairs [2019] FCA 1105 at [83]-[88].

22    The appellant relied chiefly on NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1, where at [63] Black CJ, French and Selway JJ observed:

It is plain enough, in the light of Dranichnikov [v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389], that a failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.

23    The appellant also relied on NABE at [58] for the proposition that a claim need not be expressly articulated if it arises squarely on the materials before the decision-maker, and it does not arise squarely if its exposure depends on constructive or creative activity by the decision-maker.

24    However, in my view the claim that is the subject of the present case, that the appellant would suffer harm as a result of expressing his political views after returning to Vietnam, was clearly articulated in the submission to the Authority of 11 January 2017, which is set out above. The appellant's agent said that if the appellant were to return to Vietnam, he would not be able to suppress his deeply held views in relation to issues such as the Formosa environmental disaster. The Authority took the submission into consideration on the basis that it was a 'discussion' which 'reiterates and addressed claims made by the applicant during the protection application process' and not new information. If it had been the latter, there would have been restrictions on whether the Authority could consider it: s 473DD.

25    So there was a claim before the Authority that the appellant feared harm on return to Vietnam because he would express his political views after his arrival there. That claim was distinctly put. The issue of whether it was unarticulated, but arose squarely on the materials, does not arise. And it was a claim which, if it were to be accepted, in conjunction with the country information which the appellant's representative put to the delegate, would justify concluding that the appellant was entitled to Australia's protection as a refugee. This goes further than an item of evidence which might lead to a different finding of fact.

26    There was some debate between the parties as to whether the Minister was entitled to assert on the appeal that the claim was not raised, since the appellant said that the Minister did not take that point before the primary judge. The Minister submitted that he was not bound by how the case was conducted below. No authority was cited for that surprising proposition, which is inconsistent with well-known authorities such as Water Board v Moustakas (1988) 180 CLR 491 at 497. The Minister might have relied on that case to say that here, all the facts have been established beyond controversy so that the court may find it expedient and in the interests of justice to entertain the point, but that submission was not made.

27    The Minister did submit that in any event, it was open to him to argue that findings made by the primary judge were correct. But it is not clear from his Honour's reasoning, which is set out above, that he found the claim about the appellant's future conduct in Vietnam was not made at all. Rather, his finding was that there was no claim that required a finding of fact about the appellant's views in respect of the pollution caused by Formosa. When his Honour later in the paragraph says '[n]o such claim fairly arose on the material before the Authority', he may have been referring to the somewhat different claim, described in the immediately preceding sentence, as to the consequences of the appellant joining the Viet Tan. I do not consider that the primary judge's brief reasons provide a firm foundation for the Minister to now assert that the relevant claim was not made at all.

28    However, the transcript of the Federal Circuit Court hearing was not before this court, and the primary judge does not record the Minister's position on the point in his reasons. The only material this court has to go on is the Minister's outline of written submissions in the Federal Circuit Court. They described the relevant claim made by the appellant as 'that he would have joined the march whether he was in Vietnam or Australia' (emphasis added). That is not an unqualified acceptance by the Minister that the appellant expressly claimed that if he were to return to Vietnam in the future, he would continue to express his political views. In my view it is open to the Minister to say now that a claim to that effect was not made.

29    Nevertheless, as I have said, I find that the claim was made to the Authority. But that does not mean that the ability of the Minister to take the point is academic. That is because it still permits agitation of the issue on which this appeal ultimately turns: whether the claim that was articulated was based on sufficiently probative material.

30    Before turning to that issue, I will address what counsel for the Minister described as her client's primary argument, namely that the Authority did deal with the claim. The Minister submitted that the Authority did consider and dispose of the appellant's claim to fear harm as a result of his actual or imputed political opinion. Counsel submitted that, given the Authority's other findings, it did not need to make a specific finding about any claim that might have been raised that the appellant would in future join Viet Tan. That claim was subsumed into findings of greater generality, as to which see: Applicant WAEE at [47] which is quoted above. The findings on which the Minister relied were the Authority's acceptance that the appellant had attended one demonstration in Australia for the reasons he gave, but was not a member of Viet Tan and had not engaged in the sorts of activities which country information indicated led to a risk of harm at the hand of the Vietnamese authorities and the appellant's level of participation would not be viewed adversely by the Vietnamese government.

31    The difficulty with this submission is that, as the passage from the Authority's decision quoted at [16] above shows, the Authority considered all of these matters in determining whether the appellant's past activity, namely participating in one demonstration in Australia, exposed him to a risk of harm if he were to return to Vietnam. It did not go to the different question of whether he would be outspoken or engage in political activity after his return. The Minister relied on the statement in the Authority's conclusion, quoted above, that it was not satisfied that the appellant would face a real chance of harm on his return to Vietnam 'in the reasonably foreseeable future'. But in context, that was only a reference to harm that would arise in future because of his past activities. It cannot be read as encompassing a finding about the consequences of his future activities. I find that the Authority did not address in its reasons the appellant's claim to fear harm by reason of political activity in which he was likely to engage after any return to Vietnam. No finding on that claim was subsumed in any finding of greater generality.

32    Which brings the analysis to the issue which, in my view, is determinative. In order to be a claim that the Authority was required to deal with in order to discharge its statutory function of review, the claim needed to be not only articulated on the appellant's behalf, but supported by probative material. The authorities on that point are summarised in FIG17 at [86]-[90] and I need not repeat the survey here; it was common ground that the Authority would not fall into error solely because it failed to address in its reasons a bare claim unsupported by such material.

33    It is however necessary to add three points to that. The first is that in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]-[112], Robertson J said:

In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [[2004] FCA 545] at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [[2005] FCAFC 117] at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant's claims. To the extent that the Minister's submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal's reasons I do not agree.

34    A Full Court (Katzmann, Griffiths and Wigney JJ) explained and endorsed these observations in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [53]-[54]. After referring to a number of cases in which, the Minister submitted, the distinction between evidence and claims was observed, their Honours said (at [54]):

It may be accepted that the authorities referred to by the minister remain good law. Certainly they have not been overruled. It may be accepted, too, that the distinction between ignoring evidence and ignoring a claim can be useful. So much was accepted by Robertson J when his Honour described it (at [111]) as a 'tool of analysis'. His Honour did not suggest that the previous authorities which had drawn the distinction were wrongly decided. The point his Honour was making was that it is too narrow an approach merely to ask in a case such as this whether the ignored material is a claim or part of a claim on the one hand or evidence on the other. Such an approach may provide the answer in some cases, but not in all. That is because, as his Honour also pointed out (at [98]), the tribunal can fail to exercise its jurisdiction or fail to consider a claim in a number of different ways, including by ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction. Some cases, including the category of case just referred to, may not comfortably fall on either side of the supposed claims/evidence divide, yet the error in ignoring the material may be serious and go to the exercise of the tribunal's functions. We respectfully agree with Robertson J's analysis.

35    These observations were directed towards a different point to the one I am considering here; they concerned an argument that if something is only an item of evidence, and not a claim or the integer of a claim, it is not a jurisdictional error to disregard it. But in my view they still apply in the present context. It is misconceived, in a review of an administrative decision, to draw too sharply the line between what in a court of law might be called submissions and evidence. The fundamental question is, was the material that was ignored of such importance that a decision-maker who fails to consider it falls into jurisdictional error? Put that way, the question risks circularity, but it expresses the reality that it is an evaluative judgment for the court on the facts of each case. That is consistent with the High Court's exposition of the concept of jurisdictional error, as found in cases such as Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [64] and Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [18]-[25] (Kiefel CJ, Gageler and Keane JJ). And the question will not be answered at large, but will be guided by the principles set out in cases like Applicant WAEE and NABE.

36    The second point to be added is that the question of the cogency or importance of a matter that has been ignored can arise at three different stages in the analysis. The first is the one I have already described. The second is the question of whether the matter was raised in such an insubstantial way as to support an inference that the decision-maker decided that it did not warrant mention in its reasons: see e.g. Applicant WAEE at [47] and ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228 at [14]. The third is whether the error, if there be one, is material in the sense that it could realistically have resulted in a different decision: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]. The considerations relevant at each of these stages may overlap; administrative law is not conducive to tidy categorisation: see SZRKT at [77].

37    The third point to add concerns the limited review function of the Authority, which in one respect at least sets it apart from the other tribunals which many of the authorities cited above concern. Section 473DB(1) of the Act provides:

Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)    without accepting or requesting new information; and

(b)    without interviewing the referred applicant.

38    Section 473DD provides that for the purposes of making a decision in relation to a fast track reviewable decision, the Authority must not consider any new information unless it is satisfied of certain things, including that there are exceptional circumstances to justify considering the new information: s 473DD(a). 'New information' is defined in s 473DC(1) to mean any documents or information that were not before the Minister when the Minister made the decision under s 65 (here, this refers to the decision of the delegate to refuse to grant a protection visa), and which the Authority considers may be relevant. This statutory regime has been described as meaning that, subject to limited exceptions, the review to be conducted by the Authority must be conducted on the papers, being the review material provided to it by the Secretary of the Department, without accepting or requesting new information or interviewing the appellant: BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; (2018) 261 FCR 35 at [31].

39    It follows that unless the Authority exercises its discretion to receive a submission as new information, it cannot consider the submission on that basis. So the Authority would potentially fall into error if it were to treat a submission which does not form part of the materials provided by the Secretary of the Department as having some probative value for the purposes of its review.

40    Here, the Authority accepted the submission of the migration agent on 11 January 2017 as a submission, and did not consider it by way of its discretion to admit new information. So while the submission put the Authority on notice of the relevant claim, it cannot be taken to have given any probative force to the claim. In order to resolve the issue I have described as determinative, I will therefore focus on the material that was before the delegate. It is to be expected that this material, including the recording of the delegate's interview of the appellant, was forwarded to the Authority under s 473CB(1)(c) as material that the Secretary considered to be relevant to the review, and references to the interview in the Authority's reasons confirm that it was forwarded.

41    The passages from the interview and subsequent submissions set out above establish the following when they are read in context, and as a whole:

(1)    The delegate asked the appellant whether there were any other reasons why he was seeking protection in Australia.

(2)    The appellant answered by referring to the Formosa incident in close connection with the subjects of political repression in Vietnam, and activism in Vietnam and violent repression of that activism, including a lack of protection of human rights in the future.

(3)    That was the appellant's initial response to the delegate's question about further protection claims. He did not mention his activities in Australia until the next question from the delegate. So up to that point, the appellant was conveying his fear of repression as a result of activism taking place in Vietnam.

(4)    Then, after the delegate's next question, the appellant referred to his attendance at the Viet Tan demonstration in Australia.

(5)    The appellant did not profess any great knowledge of or affinity with Viet Tan. I accept the Minister's submission that, despite the fact that the appellant (through an interpreter) is recorded as saying he 'will apply to be a member of Viet Tan', in context that was qualified by the statements that he was 'a little bit too busy' and needed to learn more about them, so it is not a categorical statement of his intention to join Viet Tan. Also, the delegate's question about joining Viet Tan, taken in context, seems to have been directed to whether the appellant would join and carry out further activity in Australia.

(6)    So I accept that the appellant was lukewarm about joining Viet Tan. But it is important to recognise that the claim he made went beyond that.

(7)    The delegate acknowledged that the appellant felt strongly about the Formosa issue. The appellant may have displayed strong emotions on the subject in ways that are not captured in the transcript.

(8)    At that point the appellant said he accepted the invitation to join the protest because in Vietnam there were a lot of people suffering from the situation caused by Formosa and he wanted to support his family and people in Vietnam.

(9)    Later, in the appellant's presence (although whether it was interpreted to him it is not clear), his representative said that the appellant is passionate about working to protect Vietnamese people and 'if he was still living in Vietnam he would have done exactly the same thing … and he would have been wanting to tell the Vietnamese government how angry he was about it.' It is relevant, however, that the representative was putting this in response to the suggestion that the appellant's activities in Australia were motivated purely by a desire to enhance his protection claims.

(10)    The similar statements in the post interview written submission by the representative were also confined by that context, in that they were directed towards the appellant's activities in Australia. But they still conveyed that the appellant held strong views.

(11)    In her decision the delegate accepted that the appellant did not participate in the demonstration in Australia solely to embellish his claims for protection. She found he had the motive of supporting people in his home area in Vietnam who rely on fishing for their income.

42    It is not the function of this court to engage in merits review by reaching a conclusion as to the soundness of the appellant's protection claims on the basis of the above material. The purpose of examining the material is to show that it conveyed that the appellant had strongly held political views, that it was possible that he would express them in Vietnam, and that he claimed protection as a result. That was not implausible or speculative and, coupled with the delegate's acknowledgment of the views in the interview, and her findings in her reasons, there was no basis to dismiss it out of hand.

43    It may be accepted that all of this only emerges after close scrutiny of the materials. By itself, it might not have been clear enough to require the Authority to consider the relevant claim. But when the materials before the delegate are coupled with the clear articulation of the claim in the submission that was put to the Authority, that was enough, in my view, to raise a matter of sufficient importance that the Authority was required to address it in order to discharge its statutory function of review. In failing to do so, it fell into jurisdictional error.

44    The same result follows at the second stage of analysis I have mentioned above. That is, the claim was sufficiently important that it speaks against an inference that the Authority considered it and discarded it as not worthy of mention. To apply an observation from Applicant WAEE (at [47]), it was not even 'identified at some point'. In my view, the better explanation, with respect, is that the Authority overlooked the claim, even though it was distinctly made, at least in the representative's submission to the Authority.

45    The Minister did not contend that the error, if made, would not be material in the sense explained in SZMTA, so there is no need to consider that third stage in the analysis.

46    It follows from this conclusion that, with respect, the primary judge erred. The Authority's adverse findings about lack of persecution due to the appellant's political opinion were confined to the consequences of his activities in Australia. But there was, to adopt the term his Honour used, an integer of the appellant's claim about future activities on return to Vietnam. That integer went beyond the question of whether he would join Viet Tan. His Honour placed emphasis on whether the Authority made a finding about whether the appellant would need to suppress his political views, but that was not to the point; the true problem was that the Authority did not make any finding about whether he had a well-founded fear of persecution because he would express those views in Vietnam.

Disposition

47    The appeal is allowed. The decision of the Federal Circuit Court will be set aside and in its place there will be orders remitting the review to the Authority for consideration according to law. The first respondent must pay the appellant's costs in the Federal Circuit Court and in this court.

Associate:

Dated:    20 February 2020