Federal Court of Australia

CHB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 635

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

3.    Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

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

REASONS FOR JUDGMENT

GREENWOOD J:

1    These proceedings are concerned with the question of whether the Immigration Assessment Authority (the “IAA”) engaged in jurisdictional error by deciding that it could not be satisfied that “exceptional circumstances” existed to justify, for the purposes of s 473DD of the Migration Act 1958 (Cth) (the “Act”), consideration of particular information described at paras 5 to 7 of the IAA’s decision and described as “new information” for the purposes of the discussion in those paragraphs. Those paragraphs are said by the appellant to reveal legal errors in the method of analysis undertaken by the IAA (required when considering and applying, in particular, ss 473DC and 473DD of the Act) resulting in jurisdictional error.

2    There are now many authorities of the High Court which address the construction of the provisions of Part 7AA of the Act: see particularly Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 (“Plaintiff M174/2016”), Gageler, Keane and Nettle JJ at [13] to [38]; AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 (“AUS17”), Kiefel CJ, Gageler, Keane and Gordon JJ at [2] to [12]; Edelman J at [23] and [24]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 (“ABT17”), Kiefel CJ, Bell, Gageler and Keane JJ, generally; and BDV17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091, Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ at [3] to [17].

3    The present question arises in the context of an appeal from a decision of the Federal Circuit Court of Australia (now described as the Federal Circuit Court and Family Court of Australia (Division 2)) (the “primary court”) constituted by his Honour Street J (the “primary judge”) dismissing an application for the grant of the constitutional writs under s 476 of the Act concerning the decision of the IAA to affirm the decision of the Minister’s delegate to refuse the grant of a “Safe Haven Enterprise (Subclass 790) visa” (the “visa”) to the appellant.

4    Before examining the method of analysis required of the IAA by the authorities mentioned at [2] of these reasons and the analysis undertaken by the IAA in the circumstances reflected at paras 5 to 7 of its decision, the following matters ought to be noted.

5    The appellant arrived in Australia on 17 June 2013 as an “Irregular Maritime Arrival”. He is a citizen of Vietnam. In his arrival interview he was asked a series of questions concerning his circumstances including why he had left Vietnam. He said that he had not “[had] a chance to go to school and we heard the news about over here, my family secured a loan from [a] bank with the [hope] of me coming here and supporting them financially”. He said that he was a member of the Catholic faith and would “go to Catholic meetings to do the prayers”. The appellant lodged an application for the visa with the assistance of the “Humanitarian Group”, described as a “non-profit community legal centre”. The application attaches a six page written statement setting out the appellant’s claims. In his statement he says these things:

22.    I left Vietnam because I was scared. I was scared because I am Catholic.

23.    I am a practising Catholic. I go to church every week, on a Sunday. From time to time, I also went to church on other days. When I was in Vietnam I attended the [nominated churches] in the [nominated] parish.

24.    On 22 May 2013 I was travelling to attend [nominated] church. On this particular day we were going to pray for the freedom of other young Catholics who had been arrested. I had made a banner for the occasion.

25.    Two men came up and stopped my brother [ABC’s] motor scooter in front of the church. ABC and I were on the scooter.

26.    We were carrying my banner. The slogan on the banner said “Asking for freedom, truth and legal rights”. It refers to the people in the Church and Catholic friends who had previously been arrested. It was a banner asking for a revolution. I made the banner, and wrote the slogan myself. The two men tried to take the banner. The people around us supported my brother and me.

27.    I was stopped from entering the church by the two men. I did not recognise the men. I later found out they were policemen from the [nominated] province. The men asked me where we were going, and for our ID cards. I did not give them my ID because I did not recognise them. They were wearing plain clothes. I was able to push past them to go into the church. I attended the mass, which lasted about an hour.

28.    After the mass many people were arrested. I do not know why the police did not follow people into church to arrest them. I assume it was easier for them just to wait outside. There was an altercation. People around us came to see what was happening. Some people were assaulted by those men. They then introduced themselves as police officers. During the altercation the boot of their motor scooter was opened and there were weapons inside. There was a baton and some pepper spray.

29.    Since all the surrounding people came to help my brother and me, the policemen were beaten and taken into the church. This gave me an opportunity to leave the church and go home.

6    In the statement, the appellant says that the day following the incident described above, the police came looking for him. His eldest brother answered the door and was handed a summons requiring the appellant to go to the local government office the next day to discuss the altercation. The appellant packed his clothes that night and left for Saigon. The appellant says that a further three summonses issued after the first summons although the appellant has never received any of those summonses. He says that a fifth summons was issued to him on 5 June 2013, and that summons was posted to the appellant by a family member after he arrived in Australia. The appellant says that having regard to all of these circumstances he feels for his safety.

7    The visa application also attached English translations of a summons dated 23 May 2013 and another summons dated 5 June 2013 requiring the appellant to attend a police station (at different addresses) to answer questions. Pages 87 to 96 of the Appeal Book (“AB”) comprise documents under the name “Humanitarian” with a footer “Community focused legal services for people new to Australia” including eight schedules all of which seem to have been completed by the appellant in handwriting and returned to the person at the Humanitarian Group assisting the appellant. The schedules are concerned with the appellant’s family members, educational and employment history and other matters. These documents (commencing at AB 87) have a handwritten note: “received 27/1/17” which seems to be a note made by the appellant’s adviser at the Humanitarian Group. At AB pp 97 to 101, there are five photographs. They seem to be part of the material provided to the Humanitarian Group by the appellant. The photograph at AB 97 is a photograph of people gathered in a street or open area with what appears to be police with shields, helmets, vests and perhaps in some cases, a baton. The photograph has a handwritten note: “All pics [presumably a reference to all five photographs] of incidents at same church after client departed Vietnam”. The photograph at AB 98 is a line of police officers with helmets and shields. There is no writing with the photograph. The photograph at AB 99 is a photograph of a banner in Vietnamese held by two people and the note is: “Friends of Client. Banner is similar to one in his claims”. The photograph at AB 100 is a photograph of a banner in Vietnamese suspended between trees. It has a date across it of “30/07/2013 11:59” and has a handwritten note “Banner”. The photograph at AB 101 includes a photograph of police and people lying injured on the ground. The note is: “Same church”. The handwritten notes seem to be those of the community legal adviser. The handwriting is the same in each case with two of the notes referring to the “client”.

8    It is not clear when these photographs were provided to whoever they may have been provided to. However, I proceed on the basis that they were received by the community legal adviser on or about 27 January 2017 and provided by the adviser to the delegate. The application for the visa was lodged on 6 October 2016 (stamped as received on 7 October 2016). The delegate’s decision to refuse the visa was made on 20 February 2017 and in the letter of that date, the delegate advised the appellant that his case had been “automatically referred” to the IAA.

9    On 23 February 2017, the IAA, by letter, advised the appellant that the refusal decision of the delegate had been referred to it. The IAA advised the appellant that all material provided by the appellant to the departmental officer (the delegate) had been provided to the IAA and a decision would be made on the basis of the referred material “unless we decide to consider new information” and “we can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction”. The letter directs the appellant’s attention to certain steps he needed to take and again requests him to have regard to the attached information sheet and the Practice Direction for further information. The letter has three attachments. They are an English and Vietnamese version of a document headed “What you need to know about the IAA” and, in English, a “Practice Direction for Applicants, Representatives and Authorised Recipients”.

10    The circumstance that engages the question at the centre of this appeal is an email sent by the appellant to the IAA on 3 May 2017 attaching “a letter and new evidence for your consideration of my application”. The email attached a four page letter and 10 jpg images.

11    As to the letter, the appellant says that he “would like to supply further evidence” for the IAA’s consideration. He says that he could not provide this evidence previously because he “did not know” that the evidence was “relevant at the time”. He says that “some of the evidence” is “new evidence” which he believed was “extremely important” as proof of “real harm” should he return to Vietnam. He then identifies the harm he believes he would face, in this way:

I believe that I will be arrested if I return to Vietnam because other than my involvement in the taking part in the demonstration and fleeing the country, I have also been openly engaged in activities that are considered to be anti-government by the police in my town. I am now a target of the police in my country town and I will present the evidence as below.

12    He then says this:

The assessor from the Department mentioned that I do not fall [within] the profiles of an activist primary target by police because I have not claimed that I would undertake such activities now or in the future. However, this is only an assumption as I was never asked about it.

[emphasis added]

13    Notwithstanding the proposition that he was never asked about his profile as an activist, he says, as to the fact, had he been asked about it, he would have said this:

As a matter of fact, I have been very active about posting and sharing critical news and thoughts about the Vietnamese government on my Facebook Page. I have been doing this since I arrived in Australia. The link to my Facebook’s page is [link quoted]. I have 1,672 friends. Amongst these are my friends, family and relatives from Vietnam.

[emphasis added]

14    At this point, no doubt because the appellant is focused on his information about posting and sharing thoughts critical of the Vietnamese government, there is no reference or emphasis given to his earlier concerns about the difficulty and harm he would face arising out of the practice of his Catholic faith should he return to Vietnam.

15    As to his posts and the sharing of news and thoughts critical of Vietnamese government, the appellant gave this additional information:

From the beginning, I only posted information critical of the Vietnamese communist regime roughly once a month (please see attachment regarding some of the past posts I have made [Image 1, 2, 3, 4 attached]). The frequency of these activities increased over time due to the growth in the number of human rights abuse[s] by the government of Vietnam.

[The italics and words in square brackets are the original italics and square brackets]

16    The appellant then said this:

The incident that had a major impact on me and made me want to engage in more online activities was the oppression of the protesters in Saigon during a demonstration on the 01/05/2016. Many people were beaten, detained and jailed as a result of taking part in a peaceful protest demanding the government to investigate the company Formosa over the deaths of tonnes of fish along the sea of the Province of Har Tinh.

The livelihood of the people [was] affected and instead of listening to their concerns, the communist government ordered the undercover police to attack them. …

17    In the context of those remarks, the appellant also said that the incident quoted above was similar “to what [had] happened to me in the past”. He says that it was the very reason why he fled the country and he was scared for his own safety as the communist regime is extreme in taking measures to stop anyone who does anything said to be against the interests of the government.

18    As to the consequences of his posts, he says this:

As a result of my posts on Facebook, my father and brother told me that the police have been visiting our house more often these days. And on the 30/03/2017, the police came to our house again with a letter of request from the police demanding my father to come to the district office for an interview regarding my online activities.

My brother notified me of this news through a mobile phone text (Image 5). He also sent me a picture of the letter of request that was hand delivered by the police (Image 6).

19    He then says this:

My father told me that the police asked him many questions during the interview. They asked why I have dared to criticise the Vietnamese government and whether I am intending to get people to overthrow the government? They further told my father that I have committed serious crime because I have falsely accused the Vietnamese government of human rights abuse and corruption. They claimed that I have directly incited people to commit illegal acts against the government by calling people to speak out against the government and telling them to take part in the protest and signing a petition.

I believe they were referring to my posts on 2/03/2017 (Image 7) and 30/03/2017 (Image 8). … As for the 30/03 post, I was inviting people to sign a petition to help the victims of the Formosa’s waste dumping incident in Har Tinh.

… My family is scared and so am I.

I have also received threats on my Facebook. One substantial threat came from a local police [officer] following the publication [on 29 April 2017] of my personal thoughts on the ruling of Vietnam since the Fall of Saigon (Image 9).

This police [officer] threatened to arrest me if I return to Vietnam (Image 10).

20    At the end of the letter, the appellant summarised his position in this way:

Following the constant harassment of the police to our house in Vietnam, the letter of request along with the interview of my father regarding my Facebook’s post and the threats I received from the local police on my page, I believe I am now a police target in my district. With the high number of arrest and detention of dissidents and failed asylum seeker, I believe there is a real chance that they persecute me if I return.

21    Taking the images in the order in which they appear in the Appeal Book, they can be described as follows.

22    Image 1 at AB 127 is text in Vietnamese under the name “Tony Aba” next to a small image of a person (presumably identifying the person described as Tony Aba making the post). Underneath the text is two photographs of many police officers wearing helmets and possibly with shields.

23    Image 2 at AB 128 comprises posts bearing dates 20:08, 20:54, 2:14 and 10:12. Two of them are under the name “Tony Aba” (some of the others may or may not be references to Tony Aba).

24    Image 3 at AB 129 is a post under the name “Tony Aba” next to the same small image of someone. The text is in Vietnamese under the Tony Aba name. It also shows a large image of many assembled people and across the centre of the image is “NGAY 5-3-2017”.

25    Image 4 at AB 130 is a post under the name “Tony Aba”. The text is in Vietnamese. The post shows a photograph of a person at the water’s edge holding five dead fish. There seem to be three other posts in this image one of which is under the name “Tony Aba”.

26    Image 5 at AB 131 is another post under the name “Tony Aba” with three photographs. The first depicts a banner in Vietnamese. The second is a person carrying baskets and the third appears to be a candlelight assembly of people.

27    Image 6 at AB 132 is another post under the name “Tony Aba”. The reasonably lengthy text is in Vietnamese. The image shows a photograph of a protester with clenched fist in the air in front of a row of police with helmets and shields.

28    Image 7 at AB 133 is another post under the name “Tony Aba” (but dated in English “May 12 2016 Denmark, WA”). The text is in Vietnamese. Underneath the text is another image of a coastal landscape showing a dead sea animal.

29    Image 8 at AB 134 is another post under the name “Tony Aba” bearing the date December 28, 2016. It displays a photograph of what appears to be a person lying down in the street (although the image is very unclear).

30    Image 9 at AB 135 is a post with no attribution. It displays an image under the time “20:57”. The text of that image is in Vietnamese and is almost impossible to see. The text underneath the particular image is also in Vietnamese.

31    There does not appear to be an Image 10 in this sequence in the Appeal Book.

32    It will be necessary to return to a reconciliation schedule concerning these images at these pages of the Appeal Book and the references to the images in the appellant’s letter and email of 3 May 2017.

33    On 5 May 2017, the appellant sent the email of 3 May 2017 and the same attachments to the IAA again and he did so again on 8 May 2017. The appellant filed an affidavit dated 5 June 2020 before the primary court in support of his application for a remedy under s 476 of the Act. In that affidavit, the appellant explains that although he received the IAA’s letter of 23 February 2017 and attachments (including the Practice Direction although only in English), he was in a remote area of Denmark in Western Australia with no access to legal assistance. He says that he cannot read or write English. In April 2017, he spoke to Ms My Nguyen who is fluent in English and Vietnamese. She suggested that he contact the IAA as the nominated 21 day period for lodging new information (as described in the other English and Vietnamese attachments to the IAA’s letter) had elapsed. He contacted the IAA. He says that he was advised by the IAA officer that although the 21 day period had expired, he could submit new information but “it should be done on an urgent basis before the IAA makes the decision”. Ms Nguyen and the appellant “hurriedly prepared and emailed the submission and new information” together with the explanation for lodging new information (as recited in the letter) on 3 May 2017. He says that because he received no acknowledgement from the IAA, he emailed the material again on 5 May 2017 and again on 8 May 2017. He says that on 8 May 2017, having called the IAA, he was advised that it had received all three emails. The appellant annexes to his affidavit a translation of the Facebook pages which were sent untranslated to the IAA as attached to his emails. An annexure to his affidavit has each of the images as sent to the IAA in the emails with a translation of the Vietnamese text (although the translations were not before the IAA).

34    It is necessary to reconcile the images by identifying each of the posts/images described as 1-10 by the appellant in the email of 3 May 2017 as put to the IAA with the corresponding image in the appellant’s affidavit of 5 June 2020, as well as reconciling that material to the English translation of the text in the relevant post/image and also with the description of the posts/images as they appear in the Appeal Book at AB 127 to 135. That reconciliation schedule is set out below:

35    On 9 May 2017, the IAA affirmed the decision of the Minister’s delegate without having regard to the new information on the footing that it was not satisfied that there were exceptional circumstance to justify considering the new information.

36    Before examining the reasoning of the IAA, it is important to keep in mind the following principles:

(1)    There is no dispute that the IAA’s duty arising under s 473CC of the Act to review the fast track reviewable decision of the Minister’s delegate referred to it was properly engaged.

(2)    That being so, the IAA was required to review the decision referred to it by considering de novo the merits of the decision (Plaintiff M174/2016 at [21]; ABT17 at [5]) by considering the “review material” (ss 473BB, 473CB) without “accepting” or “requesting” new information and without interviewing the referred applicant (s 473DB(1)), subject to Part 7AA.

(3)    Section 473DC(1) of Part 7AA confers a power on the IAA in relation to the decision, to “get any documents or information (new information)” from the referred applicant or any other person where that new information was not before the Minister when the referred decision was made; and, the IAA considers the new information “may be relevant”, that is, relevant to the IAA’s de novo consideration of the merits in the sense that the new information may be capable of rationally affecting the IAA’s assessment of the probability of the existence of some fact about which it may be required to make a finding in reaching its decision in discharging the duty to review the referred decision: AUS17 at [3] citing Minister for Immigration and Border Protection v CED16 (2020) ALJR 706 at [23].

(4)    However, the IAA’s statutory capacity for entitlement to “consider” new information obtained (in this case) from the applicant, is a function in part at least of its state of satisfaction concerning the qualification on the prohibition contained in s 473DD on considering such information, the qualification being set out in the text of ss 473DD(a), 473DD(b)(i) and 473DD(b)(ii) after the word “unless”. In other words, s 473DD is to be construed so as to impose a “duty” on the IAA to “assess” new information it has “got” (s 473DC) “against the specified criteria” so as to determine whether it can “consider any new information” in discharging its review duty under the Act: AUS17 at [6].

(5)    The text of ss 473DC and 473DD at the date of the IAA’s decision on 9 May 2017 was in these terms:

473DC    Getting new information

(1)    Subject to this Part, the [IAA] may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The [IAA] does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the [IAA] may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

473DD    Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the [IAA] must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

(6)    The construction attributed to these provisions set out at subpara (5) and related provisions of Part 7AA was put this way at [6]-[8] and [10]-[12] by Kiefel CJ, Gageler, Keane and Gordon JJ in AUS17:

[6]    … [S]ection 473DD must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria. Having performed that duty to assess the new information against the specified criteria, the Authority must take that new information into account in making its decision on the review if those criteria are met and must not take that new information into account in making its decision on the review if those criteria are not met.

[7]    The criteria that must be met if the Authority is to take new information that it has got into account in making its decision on the review vary according to the provenance of the new information that has been obtained by the Authority. All new information is required to meet the criterion specified in s 473DD(a) that the Authority is satisfied of the existence of “exceptional circumstances” justifying its consideration of that new information.

[8]    New information obtained from the referred applicant is required to meet at least one of the additional criteria specified in s 473DD(b). The additional criterion specified in s 473DD(b)(i) is met if the referred applicant satisfies the Authority that the new information meets the bipartite description of information that was not before the Minister at the time of making the referred decision and that could not have been before the Minister at the time of making the referred decision. The additional criterion specified in s 473DD(b)(ii) is met if the referred applicant satisfies the Authority that the new information meets the tripartite description of “credible personal information”, that was not previously known, and that may have affected consideration of the referred applicant’s claims to be a person in respect of whom Australia has protection obligations if it had been previously known.

[10]    Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).

[11]    Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

[12]    The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).

[emphasis added]

(7)    In ABT17, Kiefel CJ, Bell, Gageler and Keane JJ said this at [3]:

3    The duty of the Authority to review a referred decision is imposed on the implied condition that the duty must be performed within the bounds of reasonableness, and the powers of the Authority to get and consider new information are likewise conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness.

[citations omitted]

(8)    As to the observations of the majority in ABT17 at [3], see also Plaintiff M174/2016 at [21].

37    In this case, the IAA, having got information from the appellant, was required (had a procedural duty) to consider the new information submitted to it first against the criteria specified in s 473DD(b)(i) (that is, whether the new information was not, and could not, have been provided to the Minister before the decision was made) and the criteria specified in s 473DD(b)(ii) (that is, whether the new information is credible personal information which was not previously known and, had it been known, may have affected the consideration of the claims of the appellant), and only then against the criterion in s 473DD(a) (that is, whether the IAA could be satisfied that there are exceptional circumstances to justify considering the new information). Of course, if neither of the criteria in s 473DD(b)(i) and s 473DD(b)(ii) is met, further assessment of the new information against the criterion specified in s 473DD(a) would be “redundant”: AUS17 at [11].

38    If, on the other hand, the criteria in either s 473DD(b)(i) or s 473DD(b)(ii) is met (the IAA having first addressed the criteria in each), the matters about which the IAA is then satisfied arising out of either assessment must be taken into account in the subsequent assessment of whether there are exceptional circumstances to justify considering the new information. If the IAA is satisfied that the criteria in both s 473DD(b)(i) and s 473DD(b)(ii) are met, that circumstance must be taken into account by the IAA in determining whether it can be satisfied that there are exceptional circumstances that justify considering the new information for the purposes of s 473DD(a) and, in that circumstance, satisfaction of the criteria under both “must heighten the prospect” of s 473DD(a) being met: AUS17 at [11].

39    The methodological rubric for the procedural duty cast upon the IAA by s 473DD is that the IAA will fail in its duty under s 473DD to “take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a)” (AUS17 at [12]) in the conduct of a review if it determines that it is not satisfied that there are exceptional circumstances to justify considering the new information without first having assessed the new information against the criteria specified in both ss 473DD(b)(i) and 473DD(b)(ii) so as to determine whether particular factors may need to be taken into account in applying the criterion in s 473DD(a) or whether, having regard to the assessment, further assessment of the new information against the criterion specified in s 473DD(a) would be “redundant”.

40    At [23] and [24] of AUS17, Edelman J agrees that the method reflected at [11] (and also at [12]) of the reasons of the plurality in AUS17 is “a prudent approach” and that it would be “efficient and prudent” for the IAA to first consider the criteria of each of ss 473DD(b)(i) and 473DD(b)(ii), but departs from the majority view that such an approach is demanded by the “logic of s 473DD” or at all, and is thus not a method demanded, as a matter of law. Nevertheless, the majority view is that the method reflected in s 473DD casts a duty on the IAA to approach the analysis in the way described at [5] to [12] of the reasons of the majority, noting of course, that a failure to discharge that duty is characterised as a “failure to take account of a mandatory relevant consideration”.

What did the IAA do in this case?

41    At para 4, the IAA set out a short statement of s 473DD and the conjunction of the criteria in ss 473DD(a) and 473DD(b) of the Act. As to the analysis, the IAA began at para 5 by noting that the basis of the appellant’s submission put to the IAA in the new information is that he would be at risk of harm should he return to Vietnam because he has engaged in political activism, including by posting items online critical of the Vietnamese government, and that he had been undertaking these activities since his arrival in Australia in 2013. The IAA at this point in its reasoning notes that this information was not before the delegate at the time of the primary decision (an aspect of s 473DD(b)(i)) and is new information. The IAA at this point in its reasoning does not mention the incident that had a major impact on the appellant which caused him to engage in more “online activities” as described in his letter attached to the email of 3 May 2017, but it is clear that the IAA understood the contentions being made in the letter/submissions attached to that email. The IAA observes at para 5 that no mention was made of the appellant’s online activities of posting items critical of the Vietnamese government at or prior to the delegate’s protection visa interview with the appellant on 24 January 2017. The IAA also notes at para 5 that the appellant did not provide the delegate with “any information” pertaining to his “political activism” of posting online items critical of the Vietnamese government, prior to the delegate making the decision to refuse the application on 20 February 2017 (a further aspect of s 473DD(b)(i)).

42    The IAA at para 5 notes the appellant’s references to Documents 1 to 4 as described in the letter/submissions of 3 May 2017. The appellant described these posts as the ones made “from the beginning” posted “roughly once a month” and the IAA described these posts as the “older posts”. It described these posts as Facebook posts dated 7 August 2013 (Image 1), 19 May 2014 (Image 2), 12 May 2016 (Image 4), and 28 December 2016 (Image 3) respectively. In context, the IAA is noting that all of these posts are dated at a time prior to the delegate’s decision of 20 February 2017. At this point, it seems clear enough that the IAA has in mind the question of whether the posts critical of the Vietnamese government (now relied upon by the appellant) were not put before the delegate and whether, having regard to the dates, they could or could not have been put before the delegate. There is, however, a further fundamental concern expressed by the IAA at para 5 that each of these “older posts” are made under the name “Tony Aba” which is not the name of the appellant. As to that matter, the IAA observes that there is nothing before it to “confirm that Tony Aba is a name used by the applicant”. The appellant contends that by the submission of 3 May 2017, he made it plain that he was the author of, or at least the person making, the posts. Three references in the letter/submissions of 3 May 2017 are emphasised. First, “from the beginning, I only posted information critical of the Vietnamese communist regime roughly one a month” [emphasis added] (referenced to Images 1 to 4). Second, the “frequency of these activities increased over time due to …” [emphasis added]. Third, the particular nominated incident “had a major impact on me and made me want to engage in more online activities” [emphasis added]. I accept that by the submission, the appellant was asserting that he had engaged in the conduct, but the IAA was entitled to be concerned about the anomaly of a different name and a lack of an explanation by the appellant concerning the use of the name “Tony Aba” and the reasons for adopting that name. Perhaps the appellant felt unsafe for either himself or his many family members remaining in Vietnam (or both) should he use his real name or perhaps he thought it prudent to simply remain anonymous in making social posts. However, and in any event, the appellant does not offer an explanation for the use of the adopted name or clearly explain to the IAA that although the documents, as examples of his online activities, are in the name of “Tony Aba”, he is actually “Tony Aba”. This is not an insignificant matter as s 473DD operates on the footing that the IAA must be satisfied about the criteria in either or both (having considered both) s 473DD(b)(i) and/or s 473DD(b)(ii) in relation to any new information given by the referred applicant before taking into account the criterion at s 473DD(a). One aspect of that new information is whether it is what it is said to be. Nevertheless, clearly enough, the IAA was confronted with a contention that these posts under the name of “Tony Aba” were posts of the appellant although that proposition of fact is not expressly made plain.

43    A further fundamental matter noted at para 5 is that the text of all the documents is in Vietnamese leading the decision-maker to observe “so I cannot ascertain any of the content”. The IAA then expressly moves onto the second limb of s 473DD(b)(i) by noting the appellant’s contention that he “could not” have provided the information prior to 3 May 2017 as he did not know that it was “relevant information” at any time prior to the delegate’s decision. This is an express consideration of s 473DD(b)(ii).

44    At para 5, the IAA notes that at the protection visa interview with the delegate, the appellant referred to “a number of postings on friends’ Facebook pages, relating to protests that they attended in Vietnam and pointing out banners bearing protest slogans”. It seems that this is a reference to the images of posts sent to the Humanitarian Group (described earlier at [7] of these reasons) put before the delegate. Having noted that this material concerned postings on the Facebook pages of friends of the appellants, rather than postings by the appellant, the IAA noted that at the time of the protection visa interview (which is the reference contained in the IAA’s phrase “at that time”) the appellant “made no mention … of any on-line activity of his own and so was not asked about such activity”. The IAA at para 5 concludes that it is “not satisfied” that “this information” (the examples and information as to online activity) is “credible personal information which was not previously known” and “may have affected the consideration of the applicant’s claims”. The IAA also concludes that it is not satisfied that the new information could not have been provided to the Minister’s delegate before the decision was made.

45    At this point in the analysis, the IAA has examined the new information with a view to reaching conclusions about whether the criteria of each of ss 473DD(b)(i) and 473DD(b)(ii) are met.

46    At para 6, the IAA considers further aspects of the new information that are said to have resulted in his father being interrogated by the police, as a result of the appellant’s more recent online activities. The IAA refers to Documents 7, 8 and 9 (2 March 2017 (Image 7); 30 March 2017 (Image 8); and, Image 9 (undated), respectively) and notes that these documents are also postings under the name “Tony Aba”. The IAA notes that Document 5 (Image 5) is a text message (at 20:57), Document 10 (Image 10) is a text conversation; and Document 6 is a letter (AB 174, Image 6) which seems to be dated 30 March 2017. The IAA describes Document 6 as appearing to be a summons delivered to the appellant’s father to attend a police station. The IAA accepts that these documents post-date the delegate’s decision and “could not have been given to the delegate before the decision was made”: s 473DD(b)(i).

47    The IAA notes, however, that the documents are in Vietnamese and “the content is not known to me”. At this point in the reasoning, the IAA has accepted that the criteria in s 473DD(b)(i) is met concerning Documents 5, 6, 7, 8, 9 and 10, but the IAA is not able to take the content of the documents “into account” for the purposes of s 473DD(a) because the content of “these documents are all in Vietnamese therefore their content is not known to me”.

48    At para 7, the IAA addressed the difficulty of not having an English translation of those documents.

49    The IAA refers to the notice (letter) sent by it to the appellant on 23 February 2017 attaching the English and Vietnamese language versions of the document described as: “What you need to know about these IAA”. Those documents explain the role of the IAA, the information it will consider, the circumstances in which new information can be considered and the need to provide any new information within 21 days of the case being referred to the IAA. Those documents do not say, as the Practice Direction does say (at cl 27), that all documents “not in English should be translated into English” by an accredited translator and “both the documents and the translations should be provided” to the IAA. The Practice Direction is provided only in English.

50    Two things are important.

51    First, the Vietnamese version of the document about what you need to know about the IAA states each of the matters described above including the need to provide any new information within 21 days. That document was in Vietnamese.

52    Second, it would be obvious to the appellant that documents put to the IAA such as the written submission of 3 May 2017 by letter are to be put to the IAA in the English language and that any supporting documents said to evidence the merits of a claim would need to convey the content of the document, written in Vietnamese, to the IAA in English.

53    Further, had the appellant acted on the document given to him in Vietnamese by the IAA, he would have understood the need to act within 21 days of the reference of the case to the IAA (either acting on his own behalf being fluent in Vietnamese or with the assistance of others). That is not to say, of course, that circumstances may be such that steps could not be taken within 21 days and those circumstances, properly addressed, could be taken into account in deciding whether the criterion in s 473DD(a) is satisfied assuming that the IAA has first undertaken an assessment of the criteria contained in ss 473DD(b)(i) and 473DD(b)(ii).

54    At para 7, the IAA observes that there is no explanation as to why the requirement to lodge any new information within 21 days of the reference of the case to the IAA was not met (rather than a period of 70 days with no translations of the documents from Vietnamese to English being provided).

55    The Tribunal then returns to the underlying difficulty concerning the question of whether the new information in relation to the claims now made could or could not have been made before the delegate at the protection visa interview. The IAA said this:

Further to this, the applicant was given several opportunities by the delegate to provide details of any claims, both before and after the “natural justice” break in the [protection visa] interview. There was no suggestion that he had made any political statements including postings under his own name or a pseudonym, although he referred to the on-line postings of friends. On 27 January 2017 he provided the delegate with additional documents including a photo of his friends with a protest banner from their Facebook pages, but none of the documents [which were] subsequently provided to the IAA.

[emphasis added]

56    In other words, the IAA was not satisfied that the details of the claims now made could not have been provided to the delegate.

57    As to the question of whether the local police would be questioning the appellant’s father as a result of anonymised Facebook posts under the pseudonym “Tony Aba”, the IAA said this:

As the name “Tony Aba” bears no relation to that of the applicant, I do not accept that the local police would be questioning the applicant’s father about any posts made under that name.

58    So, it follows that as to the matters at para 5, the IAA was not satisfied that the criteria of ss 473DD(b)(i) or 473DD(b)(ii) were met and thus taking those conclusions into an assessment of the criterion under s 473DD(a) would be redundant. In any event, the IAA considered the criterion in s 473DD(a) and concluded that it was not satisfied that there were exceptional circumstances to justify consideration of the new information.

59    As to the documents at para 6 of the IAA’s decision (and information contained in Vietnamese in them), the IAA was satisfied that s 473DD(b)(i) was satisfied but that, in effect, the IAA could not be satisfied that there were exceptional circumstances to justify considering that new information because the documents were all in Vietnamese and “therefore their content is not known to me”.

60    There is no error in the method adopted by the IAA in reaching its conclusions concerning s 473DD of the Act.

61    The remaining question is whether the IAA fell into jurisdictional error by failing to consider the practicality or practicability of either itself having the Vietnamese documents translated, or of allowing the appellant an further short period of time to arrange for translations to be lodged.

62    The appellant contends that it ought to be inferred that the IAA did not give consideration to those questions. I am not willing to draw that inference especially in circumstances where the IAA has expressly turned its mind to the 21 day period, the mention of the period in the Vietnamese document provided to the appellant by the IAA, and has discussed the delay and the receipt of the appellant’s submissions (and documents in Vietnamese) 70 days after the referral of the case to the IAA.

63    The IAA observed that no explanation had been given to it for the failure to provide the material until 70 days after the referral of the case to the IAA and expressly notes that the supporting documents were in Vietnamese. I am not satisfied that in looking closely at these questions, the Tribunal did not consider the possibility that the documents might be translated by the IAA itself or that some further time might be given to enable the documents to be translated and submitted in English.

64    I am not satisfied that there is error on the part of the IAA on the basis that an inference should be drawn going to the exercise of the procedural duty as an element of the review duty having regard to s 473DD of the Act as framed by AUS17, or the Act more generally, so as to give rise to jurisdictional error.

65    Accordingly, the appeal is to be dismissed with an order that the appellant pay the costs of the first respondent of and incidental to the appeal.

Associate:

Dated:    1 June 2022