Federal Court of Australia

APR19 v Minister for Home Affairs [2020] FCA 1446

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal filed on 13 December 2019 is dismissed.

2.    The appellant is to pay the costs of the first respondent to be taxed if not agreed.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    The narrow issue for determination in this appeal is whether a factual error the Immigration Assessment Authority (the Authority) is acknowledged to have made constituted a jurisdictional error. The Authority made that error in its decision on a review of a decision of the Delegate of the Minister for Home Affairs (the Delegate) to refuse the appellant’s protection visa application. The error concerned related to an aspect of an incident (described in these reasons as “the July 2012 incident”) the appellant advanced in support of his claim to fear harm should he return to Vietnam because he was a practising Catholic. For the reasons that follow, I do not consider the error is of the character alleged by the appellant. Accordingly, the appellant’s appeal must be dismissed with costs.

FACTUAL BACKGROUND

2    The appellant arrived in Australia in June 2013. Three weeks later, on 5 July 2013, he participated in an induction interview with an officer of the Minister’s Department (the Department) (see at [21] below).

3    Later in that year, on 31 October 2013, he submitted what the Authority described as a “supplementary information statement” to the Department.

4    He made his protection visa application on 11 May 2017. The statement he submitted in support of that application is referred to in the Authority’s decision as the “protection visa statement”.

5    In the course of considering the appellant’s application, the Delegate interviewed the appellant. It is common ground that a recording of that interview was before the Authority and, in the course of coming to its decision, it listened to that recording. In its decision, the Authority described that interview as “the protection visa interview”.

6    At this point, it is convenient to pause to note that the appellant therefore had four relevant interactions with the Department, or the Delegate, before the latter made his decision: first, the induction interview on 5 July 2013 (at [2] above); secondly, the supplementary information statement of 31 October 2013 (at [3] above); thirdly, the protection visa statement of 11 May 2017 (at [4] above); and fourthly, the protection visa interview in or about mid 2018 (at [5] above). It is common ground that the Authority had all of this material before it.

7    The Delegate refused the appellant’s application on 26 September 2018.

8    His application was then referred to the Authority for a Fast Track Review under Part 7AA of the Migration Act 1958 (Cth) (the Act). The Authority affirmed the Delegate’s decision on 23 October 2018.

9    The appellant then sought judicial review of the Authority’s decision before the Federal Circuit Court of Australia. That application was dismissed on 19 November 2019 (see APR19 v Minister for Home Affairs and Anor [2019] FCCA 3498).

THE ERROR AND THE GROUND OF APPEAL

10    The error upon which this appeal hinges appears at [20] of the Authority’s decision. That paragraph is as follows:

The [appellant’s] evidence regarding what happened after he was arrested in July 2012 has evolved over time and was unconvincing. In the protection visa statement, he stated that on release from the police station he was told by the police that he had to go back and report to them in five days, yet at the protection visa interview, he stated that while he was released without charge he later received two summonses stating that he had to go and speak to the police. He was asked if he had copies of the summonses. He stated no as his family had not kept them. The [appellant] made no mention that he had ever been the subject of any summonses in any of his previous interactions with the Department and I find it difficult to accept that given the significance of such claims that had they been true he would have provided them earlier including [in] his protection visa statement, which a solicitor and interpreter assisted him to prepare. Furthermore, at the protection visa interview, the [appellant] claimed that after the summonses were issued in 2012 he went into hiding. He stated he stayed at his uncle-in-law’s home for one day and then went to his auntie’s home for about one week before returning to his family home and trying to find a way to get to Australia. He stated he continued to work and lead a normal life but tried to avoid the police. His evidence that he went into hiding to avoid the police in 2012, was not made at his entry interview or in his protection visa statement and I consider his claims that only after a short period of time, that being no more than eight days, he returned to his family home where he was able to stay until his departure from Vietnam over ten months later further suggests that the police did not have the level of interest in him as claimed.

(Emphasis added)

11    This paragraph forms part of the Authority’s reasoning (at [15]-[23] of its reasons, reviewed at [21]-[31] below) in support of its conclusion (at [14] of its reasons, see at [20] below) that the appellant’s evidence had “evolved over time and was inconsistent and unconvincing”. It can be seen from the paragraph above that it relates to the aftermath of the July 2012 incident and, among other things, the appellant’s claim to have received two summonses from the police after that incident. The sentence containing the acknowledged error has been emphasised above. Its import is that the appellant had not mentioned having received those summonses in his previous interactions with the Department and that affected the credibility of that aspect of his evidence. In fact, in his supplementary information statement (the second interaction mentioned at [3] above), the appellant said, at the conclusion of his description of the July 2012 incident, that: “On 05/07/2012, I received a summons to attend to the communal office to resolve that incident, but I was too scared to go”.

12    As expressed in the appellant’s notice of appeal, the Authority’s error was that it did not consider the piece of evidence set out above in making its conclusions on the appellant’s credibility. Hence, the appellant’s sole ground of appeal was in the following terms:

1.    The learned primary judge erred in failing to make a finding as to whether the [Authority], in concluding at [20] of its reasons that the Appellant had allegedly ‘made no mention that he had ever been the subject of any summonses in any of his previous interactions with the Department’, considered the Appellant’s evidence in his ‘supplementary information statement’ dated 31 October 2013 that he had been summonsed by Vietnamese police, and instead ought to have found that the [Authority] failed to consider the evidence in making that conclusion.

Particulars

a.    The Appellant argued below that he had mentioned in his statement dated 31 October 2013 that he had been summonsed by Vietnamese police, and so the [Authority’s] conclusion that the Appellant allegedly ‘made no mention that he had ever been the subject of any summonses in any of his previous interactions with the Department’ at [20] of its reasons was contrary to that evidence, indicative of the [Authority’s] not having considered it in that paragraph of its reasons

b.    The learned primary judge found that the [Authority was] ‘aware’ of the ‘supplementary information statement’ ([18], [22]); that the statement was ‘before it’ ([21]); and that it was ‘taken into account’: [23]. However, those findings did not dispose of the Appellant’s argument as to the jurisdictional error alleged in relation to [20] of the [Authority’s] reasons.

As mentioned at the outset, the narrow question in this appeal is whether that error constituted a jurisdictional error.

THE CONTENTIONS

13    The appellant submitted that the error described above was central to the Authority’s decision in that it could not have made its adverse credibility findings without it. In response, the Minister contended that, when the error was considered in context, it did not have the centrality for which the appellant contended. He submitted that the Authority provided numerous other, quite separate and independent, reasons for its adverse findings with respect to the appellant’s credibility.

THE RELEVANT PRINCIPLES

14    In Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 (SZRKT), Robertson J conducted an extensive review of the authorities bearing on the circumstances in which a failure to have regard to an applicant’s protection claims or evidence in support thereof may constitute jurisdictional error. At [111], his Honour opined that there was no clear distinction between claims and evidence and the fundamental question was “the seriousness of the error”. Specifically, he 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 at [24] … 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.

(Emphasis added)

15    The High Court refused the Minister’s application for special leave to appeal from that decision “in fairly robust terms” (see Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) p 273). Shortly after that refusal, in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [70], the Full Court endorsed the approach taken by Robertson J in SZRKT at [111] (see also more recently Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [2019] HCA 3 at [13] per Bell, Gageler and Keane JJ).

16    Later in his reasons in SZRKT, Robertson J also made some pertinent observations about the kind of illogicality or irrationality in fact finding that is necessary to amount to a jurisdictional error. His Honour opined that “extreme illogicality or irrationality” was required. He said (at [148]):

In my opinion, the ground of “engaging in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds” is to be taken to refer to extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal.

Subsequent Full Courts have affirmed that approach (see most recently BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [145]).

17    Thus, whether it concerns an error about the state of the evidence in support of a claim, or a failure to consider such evidence, the critical question, when assessing whether the error constitutes a jurisdictional error, reduces to the importance of the evidence and, therefore, the seriousness of the error when considered in the context of the applicant’s claims as a whole.

CONSIDERATION

18    In this matter, the error concerned involved one component of the appellant’s description of the July 2012 incident, which incident was itself advanced by the appellant as evidence in support of his primary claim to fear harm in Vietnam because of his status as a practising Catholic. The Authority accurately summarised that claim in its decision as follows (at [4]):

The [appellant’s] claims can be summarised as follows:

•    The [appellant] is a citizen of Vietnam born in Quỳnh Yên Commune, Quỳnh Lu’u District, Nghe An Province in Vietnam. He is a practising Catholic.

•    The [appellant] departed Vietnam because of his past experiences of harm arising from his religion as a practising Catholic and his actions in recording two police officers taking bribes.

•    Since the [appellant’s] arrival in Australia, his family have told him that police have come to his home and told his family that they knew where he was and to tell him to return.

•    The [appellant] fears he will be harmed on return by the Vietnamese authorities because of his religious beliefs, past involvement in religious activities and a failure to attend the police station as requested and they will perceive him to have committed an act against the government because he departed unlawfully and he will [be] returning after seeking asylum in Australia. He also fears he will be harmed by the Vietnamese authorities and their associates because he recorded the police officers taking the bribe. His risk of harm is further heightened by the release of his personal information by the Department of Immigration on its website in 2014.

(Emphasis added)

19    At [8]-[13] of its reasons, the Authority then summarised the contents of the appellant’s protection visa statement (the third interaction at [4] above). That summary included his description of the July 2012 incident as follows (at [10]):

The [appellant] claimed that in July 2012, the Bishop of Vinh called on the Catholic community to pray together in a mass. He travelled to the mass with a group of ten others from his village. On the way to the mass, they observed undercover police taking videos of people traveling to the mass. The undercover police attempted to stop them but they changed their route. When they arrived at the mass, they were told that the police had attacked and tortured many attendees including Father TDN. The [appellant] along with others tried to intervene to stop the police from attacking Father TDN. During this struggle, the [appellant] was beaten and arrested by the police. He was then taken to the local police station. Many people from the Catholic community then attended the police station and protested the [appellant’s] and the other arrested attendees’ imprisonment. They were then released and told to report back to the police station in five days. He did not attend as requested.

20    With respect to this evidence, the Authority said at [14] of its reasons, that it “has evolved over time and was inconsistent and unconvincing”. From [15]-[23] of its reasons, the Authority then reviewed the appellant’s interactions with the Department mentioned above to explain why it held this view.

21    First, at [15] of its reasons, the Authority referred to the induction interview on 5 July 2013 (the first interaction at [2] above) and the following questions and answers given during that interview (extracted from the interview record):

32.    Why did you leave your country of nationality (country of residence)?

Tell me briefly the main reasons why you left Vietnam...

Because the life and economic situation.

What is the life situation, what do you mean?

Looking at TV and newspaper, I feel there is more human rights than in Vietnam.

I’m not talking about why you came to Australia, I’m talking about why you left Vietnam, what is the situation in Vietnam?

Because of the economic situation is not good that is why I had to leave.

Did you come to Australia seeking employment?

If Australia gave me the conditions then I can remain here to work.

Is this the only reason you’ve come to Australia?

Yes

For work is the reason you’ve come to Australia?

yes

33.    What do you think will happen to you if you return to your country of nationality (residence)?

If need to go back to Vietnam with those conditions there, I would be very miserable.

34.    Have you or any members of your family been associated or involved with any political group or organisation?

No

35.    Were you or any members of your family involved in any activities or protests against the government?

No

36.    Are you a member of any particular social or religious group?

No

    …

38.    Were you ever arrested or detained by the police or security organisations?

No

38a.    Did the police and security or intelligence organisations impact on your day to day life in your home country?

No

38b.    Have you ever been arrested or detained and/or charged with any offences?

No

22    It will be noted that, in this interview, the appellant did not mention any fear of harm because of his religious beliefs and, at question and answer 36, expressly denied being a member of any particular religious group. Similarly, at question and answer 38, he denied ever having been arrested or detained.

23    With respect to this interview, it is convenient to interpose to note that the appellant contended that he had not signed the document concerned and therefore had not adopted these statements. I reject that contention for two reasons. First, the challenge to this document was only raised in the appellant’s oral submissions in reply in this appeal. Secondly, and in any event, it was not in dispute that the Authority had this material before it. That being so, it was a part of the materials the Authority was required to consider under s 473DB of the Act.

24    Next, at [16] of its reasons, the Authority described the explanation the appellant gave for the matter mentioned at [22] above, namely the absence of any mention of his fearing harm because of his religious beliefs in the answers he gave in his protection visa interview with the Delegate (the fourth interaction at [5] above), and stated that it did not accept that explanation, as follows:

The omission of any of his past experiences of harm at the induction interview was raised by the delegate at the protection visa interview. The [appellant] explained that when he first arrived in Australia he was scared and did not know what to say. He stated that he was scared of communism and that they (Vietnamese government) have agents everywhere and they might come to know he was in Australia and if they did he would be in big trouble and that this was the reason he had not told the truth. He further stated that later on after coming to know more about Australia he knew it was safe and he could declare the truth. He was asked when he came to know Australia was safe and he could give the (truthful) reasons why he had left Vietnam. He stated that it was when he learnt that he would be sent back home, he … then realised he needed to tell the truth. I am unpersuaded by these explanations.

25    The Authority gave two reasons why it was so unpersuaded at [17]-[18] of its reasons. First, at [17], it pointed to the fact that, notwithstanding this fear, the appellant was willing to give all his personal information during the induction interview (the first interaction at [2] above):

At the induction interview the [appellant] provided his name, residential, educational and employment history and his family’s details and I find it difficult to accept that had he genuinely been scared and believed that the Vietnamese government had agents/spies everywhere as claimed that he would willing[ly] provide his personal information yet selectively withhold the reasons why he had departed Vietnam. I am satisfied that had his past experiences of harm had any credible basis he would have at least made reference to them, even if only to briefly indicate these when specifically asked why he had left Vietnam at his induction interview. He did not.

26    Secondly, at [18] of its reasons, the Authority pointed to the illogicality involved in the appellant saying he came to Australia because it was a safe country, but then claiming he did not disclose his personal information because of concerns for his safety:

Additionally, I find the [appellant’s] explanation that he was only able to provide his past experiences of harm after he had come to know more about Australia and knew it was safe to be illogical when considered against his own statement at the induction interview that he had chosen Australia because it was a developed country and had a high level of human rights. I also consider the timing of when the [appellant] provided his past experiences of harm to the Department, which according to the delegate was in his supplementary information statement which he provided on 31 October 2013 and after he was told he had not engaged Australia’s protection obligations further detracts from the credibility of his claims regarding his past experiences of harm.

27    Thereafter, the Authority proceeded to reject each of the appellant’s other claims. First, at [19] of its reasons, it rejected his claims about the police bribe incident in the following terms:

The [appellant’s] reason for recording the interaction with the police was problematic. At the protection visa interview, the [appellant] claimed that while this was not the first time they had been stopped and paid a bribe to police officers, on this occasion he had his mobile phone and decided to record the event. He stated at that point he did not think about why he was doing it but that he had his mobile phone and started recording. He was asked what he had planned to do with the recording. He stated that he was just going to look at it later and show his friends. I find the [appellant’s] evidence that he undertook this act on impulse and without purpose to be irreconcilable with the actions described, that being in sight of the police officers he would undertake such [a] prejudicial act in overtly record them taking a bribe on his mobile phone.

28    Next, at [20] of its reasons (set out at [10] above), the Authority rejected the appellant’s claims regarding fear arising from the July 2012 incident based on two areas of conflict between the statements in his protection visa statement (the third interaction), his protection visa interview (the fourth interaction) and the induction interview (the first interaction). First, regarding the July 2012 incident itself, the Authority gave two reasons: (1) the appellant made no mention that he had ever been the subject of any summonses; and (2) the appellant had failed to produce the “two summonses” he said he had received. I interpose to note that the first of these reasons contains the error the appellant relies on in this appeal. Secondly, his claim in his protection visa interview to have gone into hiding was not mentioned in his induction interview, or in his protection visa statement.

29    Then, at [21] of its reasons, the Authority listed a series of inconsistencies in the appellant’s claims and statements across the three interactions:

Finally, aspects of the [appellant’s] evidence regarding his past experiences of harm were inherently inconsistent and raises [sic] further doubts about the general credibility of his claims, specifically:

•    In the protection visa statement, the [appellant] stated that the police officers came over to the truck to talk to H and this was when he recorded the police officers taking the bribe, yet at the protection visa interview he stated that H had stepped out of the truck and it was while he remained in the truck that he made the recording.

•    In the protection visa application, he stated that he did not recognise any of the people who had stopped and beaten him in March 2013 but noticed that one was wearing a police uniform yet at the protection visa interview when describing the same event he stated that he knew one was a police officer because he had seen him once or twice before when he was in a police uniform and while he was being attacked he could [see] that while that person was wearing civilians clothes he could see his police uniform inside.

•    At the induction visa interview, he was specifically asked if he was a member of any social or religious groups, he stated “no”. In contrast at at [sic] the protection visa interview, when he was asked how he had practised his religion in Vietnam, he stated that he attended mass and was a member of the youth group called, “the children of the holy lady”. He stated he was also a member of the parish choir. He further stated that it was members from this youth group whom he attended the large mass with. The details regarding his membership of a religious group or that he had attended the large mass with this group were not mentioned in his protection visa statement.

•    At the induction interview, he was specifically asked whether he had been involved in any activities or protests against the government, he stated “no” yet at the protection visa interview, when he was asked whether apart from the event in July 2012 had he attended any demonstrations or anti-government protests, he stated that he had attended many gatherings similar to the one in July 2012.

30    In the penultimate paragraph of its reasons concerning this aspect, the Authority explained why it disagreed with the Delegate’s conclusions regarding the appellant’s credibility as follows (at [22]):

In contrast to the delegate [sic] findings that the [appellant’s] claims were consistent with the country information and on that basis credible, I found the [appellant’s] responses at the protection visa interview only loosely correlated with the evidence in his protection visa statement and supplementary information statement and he appeared to have noticeably embellished on some aspects of his evidence and leads me to conclude that the [appellant] was not providing evidence regarding his own lived experiences. Furthermore, I have not accepted any of the explanations provided for the absence of these claims from his induction interview.

31    Finally, at [23] of its reasons, the Authority summed up its views on the appellant’s credibility as follows:

I am not satisfied the [appellant] has been a truthful witness regarding his past experiences of harm in Vietnam. I do not accept the [appellant] departed Vietnam because of past experiences as a practising Catholic or because he had recorded police officers taking a bribe. I do not accept that he was a member and/or involved in any religious groups including the “children of the holy lady”. I do not accept that in July 2012, he went along with others from his village and attended a mass in Con Cuong where he was beaten, arrested and taken to the police station before being released. Nor do I accept any of the subsequent events the [appellant] claimed to have occurred after this including the issuance of any summons, police requesting his attendance at the police station or that he went into hiding for any period of time. I do not accept that arising from his involvement in any religious groups or activities he was of interest to the Vietnamese authorities. I also do not accept that when working as a milk delivery person, he recorded police officers taking a bribe on his mobile phone. Nor do I accept any of the subsequent events the [appellant] claimed to have occurred after this including that his personal details were taken and mobile phone was confiscated, he was slapped and told not to live in Vietnam or that he was ever stopped and beaten by unknown people including one whom he claimed to be wearing a police uniform. I am satisfied the [appellant] has contrived all these claims to enhance his claims for protection.

DISPOSITION

32    When the error in the first of the two reasons the Authority gave (at [20], see at [10] above) is considered in the context of the whole of its analysis of the credibility of the appellant’s claims and evidence (at [15]-[23], see at [21]-[31] above), including the various contradictory and inconsistent statements the appellant made during his four interactions with the Department, I consider the Minister is correct in his contention that the error the appellant has seized on in this appeal was not central, nor critical, to the conclusion the Authority drew (at [23]) that the appellant’s evidence was not credible. Put differently, that error does not reach the level of seriousness necessary to constitute a jurisdictional error.

33    Finally, it is necessary to briefly mention the primary judgment (APR19 v Minister for Home Affairs and Anor [2019] FCCA 3498) and to explain how it correlates to the conclusion above. The issue the appellant put to the primary judge focused on the materials the Authority did, or did not, have before it. His Honour was not asked to determine the particular question the appellant has raised in this appeal. That being so, the primary judge could not have made an error on this question.

34    For these reasons, the appellant’s notice of appeal filed 13 December 2019 must be dismissed with costs.

Associate:    

Dated:    8 October 2020