Federal Court of Australia

CEL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1503

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

Introduction

1    The appellant is Vietnamese. He arrived in Australia in October 2012 as an “unauthorised maritime arrival”. In 2016, he made an application under the Migration Act 1958 (Cth) (hereafter, the “Act”) for a safe haven enterprise visa (or “SHEV”) (hereafter, the “Visa Application”). The bases underpinning that application are explored in more detail below—it suffices for now to note that he claimed to be owed refugee status or complementary protection.

2    On 9 January 2017, a delegate of the first respondent (the “Minister”—or, more accurately, of the Minister for Immigration and Border Protection, as the relevant department was then known) refused that application (the “Delegate’s Decision”). It was then referred automatically for review to the Immigration Assessment Authority (“IAA”) under s 473CA of the Act. The IAA affirmed the Delegate’s Decision on 21 April 2017 (hereafter, the “IAA Decision”).

3    The appellant then applied to the Federal Circuit Court of Australia (the “FCCA”; now the Federal Circuit and Family Court of Australia (Division 2)) for judicial review of the IAA Decision. On 20 May 2021, the FCCA dismissed that application with costs: CEL17 v Minister for Immigration [2021] FCCA 1064 (hereafter, the “FCCA Judgment”; Judge Cameron).

4    By notice of appeal dated 16 June 2021, the appellant seeks orders to have the FCCA Judgment set aside and, in its place, to obtain relief in the nature of certiorari to set aside the IAA Decision.

5    For the reasons that follow, the appeal shall be dismissed with the usual order as to costs.

The Statutory Framework

6    The Act establishes a class of visas known as “protection visas”: the Act, s 35A. A SHEV is a type of protection visa: s 35A(3A). Like all protection visas, an applicant for a SHEV must fulfil the criteria identified in s 36 of the Act, to which attention will shortly return.

7    It is not in contest that the appellant was an “unauthorised maritime arrival” within the meaning attributed to that phrase by s 5AA of the Act. That has some relevance to the trajectory of his Visa Application.

8    Section 5 of the Act relevantly defines the terms “fast track applicant” and “fast track decision”:

fast track applicant means:

(a)    a person:

(i)    who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

(ii)    to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

(iii)    who has made a valid application for a protection visa in accordance with the determination; or

…

fast track decision means a decision to refuse to grant a protection visa to a fast track applicant, other than a decision to refuse to grant such a visa:

(a)    because the Minister or a delegate of the Minister is not satisfied that the applicant passes the character test under section 501; or

(b)    relying on:

(i)    subsection 5H(2); or

(ii)    subsection 36(1B) or (1C); or

(iii)    paragraph 36(2C)(a) or (b).

Note:    Some decisions made in the circumstances mentioned in paragraph (a), or subparagraph (b)(i) or (iii), of the definition of fast track decision are reviewable by the Administrative Appeals Tribunal in accordance with section 500.

9    Part 7AA of the Act establishes the framework for review of fast track decisions. That review process relevantly provides for:

(1)    the automatic referral, by the Minister, of fast track reviewable decisions to the IAA (s 473CA);

(2)    the provision of certain materials to the IAA for review from the Minister (s 473CB), namely materials comprising the information upon which the IAA must base its review (s 473DB); and

(3)    limitations upon the extent to which the IAA may, for the purposes of its review, acquire or consider “new information” (s 473DC); and

(4)    the obligation on the IAA to either affirm or remit for reconsideration fast track reviewable decision (s 473CC).

10    Sections 473DC and 473DD of the Act loom large in this appeal. They relevantly provide:

473DC Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority 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 Immigration Assessment Authority 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 Immigration Assessment Authority 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 Immigration Assessment Authority 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.

11    Section 473EA(1) of the Act requires that the IAA, when reviewing a fast track reviewable decision, must publish certain details about its decision in writing. The section provides:

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

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

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

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

12    Section 36 of the Act identifies the criteria upon satisfaction of which the grant of a protection visa—including a SHEV—is conditioned. Relevantly, it provides as follows:

36 Protection visas—criteria provided for by this Act

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

(1B)    A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(1C)    A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a)    is a danger to Australia’s security; or

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note:        For paragraph (b), see section 5M.

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

…

(2A)    A non‑citizen will suffer significant harm if:

(a)    the non‑citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non‑citizen; or

(c)    the non‑citizen will be subjected to torture; or

(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non‑citizen will be subjected to degrading treatment or punishment.

(2B)    However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

The Visa Application and Department Interview

13    The appellant sought protection on the basis that, if he were returned to Vietnam, he would be imputed with anti-government ideology, by reason of which he would face a risk of persecution or exposure to harm sufficient to invoke Australia’s protection obligations. For reasons that will soon become apparent, some importance attaches to when the appellant made each of his claims.

14    By the appellant’s Visa Application, the attribution of anti-government sentiment was said to arise because:

(1)    he left Vietnam illegally;

(2)    he is an adherent of the Catholic faith; and

(3)    his father had engaged in activities antithetical to the Vietnamese government.

15    He also claimed that, if he returned to Vietnam, he would suffer discrimination because he lacks identity documentation. The appellant identified in his Visa Application that it was his belief that he:

…cannot seek the protection of the authorities since it is the authorities from whom I fear.

16    On 21 October 2016, the appellant attended an interview with a delegate of the Minister (hereafter, the “Department Interview”). During the course of that interview and in the written submission that he tendered after it, the appellant raised further claims that had not featured in his initial Visa Application. Those claims were said to inform the risk of persecution that he claimed to fear. They included that:

(1)    the appellant’s late father had served as the administrator of a local Catholic parish in Vietnam and had had some involvement in protesting the Vietnamese government’s appropriation of that parish’s land;

(2)    apparently in consequence of that involvement, the appellant’s father had been arrested and detained for a short period of time, during which he was beaten—so badly, in fact, that he later died from his injuries;

(3)    the appellant feared that the same anti-government sentiment would be attributed, by extension, to him;

(4)    authorities in Vietnam had visited his sister and informed her that the appellant was considered to be “a traitor and a protestor against the regime”, which he felt corroborated his narrative that he was perceived to be anti-government; and

(5)    he had had some involvement in certain protests in Australia since 2013, which he feared would cause the Vietnamese government to consider him as somebody who was opposed to it.

17    Before the IAA, the appellant advanced (or sought to advance) further claims, which were said to support the appellant’s overarching claim that he would be imputed with anti-government sentiment by Vietnamese authorities. They centred upon conduct or events that had transpired since his arrival in Australia, and included (by way of summary) that:

(1)    he had made statements on the social media platform, Facebook, which were critical of the Vietnamese government; and

(2)    he is now westernised by virtue of having resided in Australia since 2012.

18    That second claim, in particular, assumes some significance in this appeal (I shall refer to it hereafter as the “Westernisation Claim”).

19    It is necessary to set out with some precision what the appellant’s contentions were with respect to the Westernisation Claim (or analogues of it). In submissions advanced in support of his initial Visa Application, the appellant identified, as one of the reasons for which he feared persecution if he returned to Vietnam:

Membership of particular social group of failed asylum seekers returning to Vietnam from a Western country.

20    Before the IAA, additional submissions on that topic were made on his behalf, namely that:

…the delegate, in making the decision [to decline the appellant’s Visa Application], failed to consider the [appellant’s] time spent in Australia. This has impacted on [his] speech, language, dress style, mannerisms and social opinions. The Vietnamese authorities will conflate Western speech and mannerisms with a pro-democratic anti-government opinion. Given his cumulative profile we believe this will further draw the advisers [sic “adverse”] attentions of the authorities.

21    The extent to which the Westernisation Claim was raised before the Minister’s delegate or, alternatively, was “new information” before the IAA is at issue in this appeal.

The IAA Decision

22    It is convenient to address, as the primary judge did, the IAA’s findings in relation to each of the material contentions advanced by the appellant.

23    First—and in relation to the appellant’s claims about the political opinions that would be attributed to him on account of his father’s activism—the IAA did not accept that the appellant’s father was seen as anti-government. It did, however, accept what the appellant had said about his father’s involvement in certain protests against the government. The IAA found that (errors original):

15. The [appellant] claimed when he was six or seven years old (1998) his father died. His sister told him that his father died soon after his arrest and detention by the police. His father had been arrested and detained as a result of his participation in a protest against the local authority’s confiscation of the local parish’s land.

16. I accept the [appellant’s] father was involved in a protest against the government in approximately 1998. I accept the protest was in response to the authorities taking the parish’s land. The [appellant’s] evidence regarding these claims has been consistent between his entry interview, protection visa application and interview. The details provided by the [appellant] are consistent with the information before the delegate indicating the prevalence of protests against the government’s seizures of religious property.

17. However, I do not accept the [appellant’s] claims that due to his father’s activities, he and his family are considered by the authorities to be anti-government.

18. In the protection visa application the [appellant] reiterated his claims regarding his father’s protest activities and his detention. He claimed because of his father’s activities the authorities believe the [appellant] is opposed to them. He further claimed that when he had attempted to get new birth certificate he was unable to because he was Catholic and his father’s activities in actively opposing the government.

19. At the protection visa interview the delegate asked for more details about his father’s role in the protest. The [appellant] stated his sister told him that his father was the administrator of the parish and the land the government took belonged to the parish. His father with others tried to prevent the local authorities taking the land. His father was not charged with any crime but he was detained for some days. Prior to his father’s arrest the authorities had come to the family home and threatened his father not to participate in any more protests or they would arrest him. The delegate also asked the [appellant] whether he or any of his family members had any political involvement when in Vietnam. He stated “no”.

20. At the protection visa interview the [appellant] also provided further details regarding his claims that the authorities would not issue his birth certificate because of his father’s activities. He stated that his sister had been told by a friend who lived in Hai Phong that they would not issue the birth certificate to him because his family had been placed on a blacklist due to his father’s involvement in actions against the government.

21. Information before me indicates that people who engage in religious activity which is perceived to actively oppose government policy or pose a threat to the state face a high risk of being subject to close monitoring and government action to curtail their activities, including those with an anti-government agenda that organise large numbers of people in public spaces or promote civil activism. The reports are that the harassment by the Vietnamese government of religious and political activists’ is primarily aimed at those who are engaged in activism activities such as blogging, the promotion of human rights and democracy and those who hold prominent positions within the religion who are the subject of interest from the government.

22. I do not accept the [appellant’s] father was considered to be anti-government by the authorities and nor do I not accept the [appellant] or his family is considered to be anti-government as a result of his father’s activities. I am not satisfied the [appellant’s] father’s past activities including his position as an administrator would result in the Vietnamese authorities identifying the [appellant], or any other member of his family, as a political or religious activists or antigovernment. The [appellant’s] own statements are that neither he nor any of his family members had any political involvement in Vietnam. There is an absence of any evidence to indicate the [appellant’s] father had been engaged in any other activities which may have been perceived to be anti-government. After the [appellant’s] father arrest and detention for a short period of time, the [appellant’s] evidence is that his father was released without being charged with any offences.

24    Second—and in relation to what the appellant had said was a visit that Vietnamese authorities had paid to his sister—the IAA did not accept that the alleged visit occurred in the manner that the appellant claimed. Instead, it found:

47. The [appellant] claimed that since his arrival in Australia the authorities, including the police, have visited his sister and told her that they consider him to be a traitor and a protestor against the regime.

48. I have considered…the timing of these claims. The claims were not part of the [appellant’s] protection visa application. The [appellant] provided the claims at his protection visa interview. The [appellant] said he was informed of the visit by the authorities by his sister approximately eight months prior. The [appellant] explained that these claims had not been included in his protection visa application because he was unaware where to put the information. I am not satisfied this explanation sufficiently explains the omission of any details regarding a visit of the authorities from his protection visa application. The protection visa application specifically asks whether the [appellant] thinks the authorities of the home country can and will protect him on return, and if not to provide details. The [appellant] provided a general response of “I cannot seek the protection of the authorities since it is the authorities from whom I fear”. A registered migration agent assisted the [appellant] to complete the protection visa application. Given this, and the significance of these claims to his application, that being the Vietnamese authorities being aware of the [appellant’s] activities in Australia, I do not accept the [appellant’s] explanation for omitting mention of these claims in his application. I do not accept the claimed visits occurred.

49. I do not accept the [appellant] was of interest or being sought by the Vietnamese authorities prior to his departure from Vietnam or that there is any credible basis to the claim that the authorities have visited the [appellant’s] sister since his arrival in Australia.

25    Third—and in relation to his alleged engagement in protest activities—the IAA did not accept the appellant’s contentions that, since his arrival in Australia, he had participated in protests against acts of the Vietnamese government. That finding is not presently in contention.

26    Fourth—and in respect of the Westernisation Claim—the IAA concluded that the appellant was attempting to put forward “new information” (in the sense contemplated by the Act), which had not been advanced before the delegate. It declined to consider that information and the following extract from its reasons explains why:

The submission [advanced on the appellant’s behalf before the IAA] also referred to delegate’s failure to consider the “[appellant]’s time spent in Australia” and this has “impacted on their speech, language dress style, mannerisms and social opinions” and the “Vietnamese authorities would conflate Western speech and mannerisms with a pro-democratic anti-government opinion”. These claims were not made to the delegate and I consider them to be new information. The claims substantially change and add to the basis on which the [appellant’s] claims were initially made before the delegate. The [appellant] has not made any claims regarding his position as an orphan and/or a person without the protection of his parents as a reason for his inability to obtain identity documents. Nor has he previously made claims about his western speech and mannerisms. The [appellant] has not claimed to have a fear of harm on return for these reasons. The [appellant] was represented before the Department and was given the opportunity to set out his claims. Having regard to all the circumstances, I am not satisfied that there are exceptional circumstances to justify the consideration of this new information.

The FCCA Judgment and the present appeal

27    The appellant sought in the FCCA judicial review of the IAA Decision. That application proceeded upon four grounds, all of which feature in the equivalent grounds of appeal now pressed before this court. Those (appeal) grounds are as follows:

Ground one

1.    The Court erred in finding that the [IAA] did not fail to consider an integer of the [appellant’s] case, being that the [appellant] was a member of a particular social group being “failed asylum-seekers from a Western country”, with Westernised attributes, which would cause the government to attribute pro-democratic, antigovernment opinions to him.

Particulars

1.1    His Honour should have found that the [IAA] expressly did not consider this claim because it wrongly identified it as “new information” as defined in ss 473DC of the Migration Act (“the Act”), and found that there were no “exceptional circumstances”.

1.2    The claim was not “new information”, rather, it was a submission based on information which was already before the Minister, which was that the [appellant] was a Westernised asylum-seeker who had spent time in Australia, and presented with those attributes.

Ground two

2.    His Honour erred in finding that the [IAA]’s finding that the authorities, including the police, did not visit the [appellant]’s sister and tell her that the [appellant] was a traitor and protestor against the regime and will be arrested if he returns was logically or rationally supported.

2.1    The basis of the finding was that the [appellant] did not make his claim in his written application for protection, but made it at the protection visa interview.

2.2    His Honour should have found that raising that information at the protection visa application rather than in the written application was not a logical or rational basis to find that the claim was untrue.

Ground three

3.    His Honour erred in finding that the [IAA]’s finding that the state would not consider that the [appellant’s] father was anti-government (and hence would not attribute such qualities to the [appellant]) because he was released without charge was not unreasonable, irrational, and illogical, and therefore beyond jurisdiction given the [IAA] accepted:

(i)    The [appellant’s] father was arrested, detained, and beaten as a result of his participation in a protest against the confiscation of the local Church’s land;

(ii)    That prior to the arrest the authorities had threatened him with arrest if he participated in any more protests;

(iii)    And did not address the fact that he was beaten so severely that he died soon after his arrest and detention by police.

Ground four

4.    His Honour erred in finding that the [IAA] did not fail to make a finding on a critical aspect or integer of the [appellant’s] case, and thus sidestepped (SZQMT v Minister for Immigration and Citizenship [2012] FCA 840, at [30]) a central plank of the [appellant’s] case, and thus failed to take into account a relevant consideration, or failed to perform its statutory task of review, and the [IAA]’s failure was material, giving rise to jurisdictional error.

4.1    His Honour should have found that the [IAA] failed to determine whether the [appellant’s] father was beaten so severely that he died soon after his arrest and detention by police.

4.2    The failure to address this aspect of the claim was both critical and material, because it potentially explained why the father was released without charge, and not subsequently arrested or charged with any offence. The finding that the father was not attributed with an anti-government belief was based upon the fact he was released without charge, and the finding that the [appellant] was not attributed with an anti-government belief was, in turn based upon the finding with respect to his father.

28    It is not necessary to set out the reasons of the FCCA. If the IAA Decision was attended by jurisdictional error as is alleged, it will follow that the FCCA’s conclusion to the contrary was in error and that the appeal should succeed. If it wasn’t, then it will also follow that the FCCA did not err and that the appeal must fail. Either way, the focus should fix upon the IAA Decision. I will now address each of the appellant’s grounds of appeal in turn.

Ground One

29    The appellant charges the IAA with failing to consider an integer of his claim for protection—namely, that he was westernised, which, allied to his return as a failed asylum seeker from a western country, was a circumstance that would cause the Vietnamese government to associate him with pro-democracy opinions.

30    It is not in doubt that the IAA did not take account of the appellant’s Westernisation Claim in making its decision. The IAA deliberately ignored that claim on the basis that it was “new information” that it was precluded from considering in the absence of demonstrated exceptional circumstances: the Act, s 473DD.

31    There is also no doubt that, when he made his Visa Application, the appellant did not cite his “western mannerisms” as a circumstance by reason of which he held a relevant fear sufficient to warrant its acceptance. At issue presently is whether the contention that he advanced was, as the IAA concluded, “new information” that the IAA was precluded from considering or whether it was a submission based on existing factual material.

32    The appellant says that there was no “new information” put before the IAA; merely a submission made about the significance of information which, having observed the appellant for itself during the interview process, was before and available to both the Minister’s delegate and the IAA. The Minister submits that the IAA was correct to characterise the Westernisation Claim as “new information”, as it was not apparent from the appellant’s claims before the Minister’s delegate.

33    The full court of this court has relevantly considered what does and does not constitute “new information” on at least two occasions. In Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482 (hereafter, “CLV16”; Flick, Griffiths and Perry JJ), it considered the meaning of “submission” and “new information” under s 473DC, and said (at 493 [50]-[51]) that:

…a “submission” which only addresses the information already made available for consideration by the Authority and which contains no additional factual information is neither:

•    a “document”; nor

•    “information”

for the purposes of the definition of “new information” as set forth in s 473DC.

Less difficulty is experienced in construing the term “information” as not including a “submission” than in so construing the term “document”. The natural and ordinary meaning of the term “information” is “[c]ommunication of the knowledge of some fact or occurrence” (cf. The New Shorter Oxford English Dictionary (Clarendon Press, 1993)). That natural and ordinary meaning would not embrace a “submission” as to the significance to be attached to any “fact or occurrence”. Albeit less certain, it is nevertheless further concluded that the term “documents” in s 473DC(1) is confined to the means whereby the “knowledge of some fact or occurrence” is conveyed to the Authority.

34    Their Honours further elaborated on how the terms, “submission” and “information”, were adopted throughout the Act and observed (at 494 [53]-[54]) that:

Although caution should be exercised before too readily drawing any inference from the use of the term “submission” in other provisions addressing different decision-making functions, the absence of any reference to “submissions” in the definition of “new information” in s 473DC within Pt 7AA provides some limited support for not including a “submission” within the rubric of the statutory concept of “information” (as that term is used in s 473DC) into which it would not otherwise naturally fall.

The expression “new information” as defined in s 473DC(1), it is concluded, seeks to identify the sources whereby new factual material is sought to be placed before the Authority. To expose the Authority to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of “fast track” decision-making. But there remains no clearly expressed legislative intent to deny to a claimant the ability to place before the Authority—and to have the Authority in fact consider—a submission directed to an established pool of factual information.

35    The full court considered a similar issue in CAQ17 v Minister for Immigration and Border Protection (2019) 274 FCR 477 (hereafter, “CAQ17”; Mortimer, Derrington and Steward JJ). There, a different approach was taken as to whether a submission might constitute “new information”. The appellant in that matter advanced a claim to the effect that, were they to return to Sri Lanka, she and her daughter were at risk of sexual abuse due to her husband’s political activities. The delegate found that that claim was not made out. It is useful to set out how it was advanced. Before the delegate, the second appellant did not advance her own claims; but instead relied on her husband’s. The appeal concerned whether the second appellant’s submissions before the IAA concerning her fear of sexual abuse was said to be “new information”. It was not. Mortimer J (at 481, [8]) described the relevant difference as follows:

As senior counsel for the Minister contended in this appeal, what matters is whether what is in a “claim” are new or different facts, or factual information, or whether what is occurring is that a visa applicant is relying on the same facts, or factual information, but characterised in a different way. In the latter case, this will not be new information. Questions of characterisation are in the nature of a submission: they are not facts, or factual information.

36    Derrington and Steward JJ concluded (at 501 [107]) that a submission could amount to “new information”, but that it did not eventuate in the scenario with which the court was there faced:

It can be accepted that a submission made to an Authority that an applicant actually holds a fear of harm—which was not agitated to the delegate—will amount to “new information”, because it contains a new assertion of fact: FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1620 at [66]-[79] per Farrell J. However, in this case, the submissions of the second appellant to the Authority were so badly drawn and so poorly framed that it is not possible to give the reference to “this fear” any coherent meaning. To do so would be to engage in speculation. It is not possible to reach the conclusion that the words advanced a new claim on behalf of the second appellant.

37    It is helpful to consider the purpose that animates the provisions of pt 7AA of the Act. The scheme was recently described in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 (2021) 285 FCR 381, 384 [3] (hereafter “AWT19”; Allsop CJ):

Parliament is not to be taken to have created a procedure whereby the character of “new information” is to be denied because it can be logically deduced…that some of the words used before the delegate will be repeated before the Authority or that most of the words used (as translated) by the applicant at the interview will be on the same subjects discussed earlier with the delegate. Such logical strictness (perhaps pedantry) is not demanded by the language of Pt 7AA. The procedure under Pt 7AA is supposed to be an efficient, but fair, way of reviewing material and information given to a delegate and available to the Secretary. Recognising the true nature of translation (DVO16 at [4]-[8]), and even assuming English may be the language of an applicant, to deny the ability to remedy an informational gap by denying the character of newness to an entirely fresh oral recounting of events on subjects, because there has been an earlier oral recounting about the same subjects (the record of which has been lost), and thereby create either procedural gridlock or an interference with or an undermining of fair efficacy of the procedure, is not demanded by the words of Pt 7AA.

38    It is artificial to now distinguish between evidence and submission for the purposes of pt 7AA. There was no contention advanced before the delegate regarding the appellant’s westernised manner. It does not follow that the appellant’s argument—namely, that his “speech, language, dress style, mannerisms and social opinions” were “manifest” during his Department Interview—could constitute a pool of factual information that was established at the time of the appellant’s Department Interview.

39    The fear that the appellant sought to highlight before the IAA was one of harm due to his presentation as a westernised individual returning from a western country. That fear was not expressed before the delegate. It is properly characterised as new information. The IAA was right so to conclude. That conclusion was not a product of jurisdictional error and the FCCA did not err by failing to characterise it thus.

Ground Two

40    By his second ground, the appellant submits (and, before the FCCA, submitted) that the IAA’s finding that his sister had not been visited by authorities as he had asserted was unreasonable to a point sufficient to constitute jurisdictional error (that is, to a point acknowledged in authorities such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 365-367 [72]-[76] (Hayne, Kiefel and Bell JJ)). The appellant’s submission is that it was legally unreasonable for the IAA to have formed the view that the visit did not occur in the manner alleged solely on the basis that the appellant did not make that assertion in his initial Visa Application.

41    The IAA formed the view that, if the visit had happened as he now says, he would have said so when he first had that opportunity. Indeed, the appellant did identify in his Visa Application that he was fearful of the authorities (above, [15]); but he did not identify the visit to his sister as a circumstance that informed that fear. The appellant’s explanation for not including that information was that he was “unaware of where to put the information”. It might here be noted that the appellant was represented by a registered migration agent for the purposes of his completing his Visa Application.

42    It was not illogical or unreasonable for the IAA to ground its decision upon a want of consistency between what the appellant advanced at relevant stages. That there might not be a complete correspondence of claims from one stage to another might be something that a reasonable decision maker can be minded to overlook; but so to observe is not to suggest that that is the only course reasonably available. It is open to a reasonable decision maker to reject an applicant’s narrative on the grounds that it hasn’t been consistently advanced. That is what the IAA did here and that course was not attended by jurisdictional error. The FCCA’s conclusion to that effect was, with respect, correct and this aspect of the present appeal must fail accordingly.

Ground Three

43    By his third ground, the appellant contends that the IAA’s conclusion that his (the appellant’s) father was not “considered to be anti-government by the authorities” was illogical and unreasonable to a point sufficient to constitute jurisdictional error. He submits that the IAA failed to afford sufficient weight to his father’s detention and the fatal injuries that he sustained during it. The appellant submits that the only conclusion available from that evidence (which the IAA accepted) was that his father was perceived by authorities to be anti-government.

44    I reject that submission. The weight that the IAA saw fit to attach to the evidence with which it was presented was a matter for it: Abebe v Commonwealth of Australia (1999) 197 CLR 510, 580 [197] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 176 [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). Plainly (and without wishing to understate anything), the appellant’s father can be understood to have attracted the ire of authorities. But it cannot be said that the only reason why events might have transpired as they did was because the authorities perceived him to be anti-government. Just as conceivable is that they were minded to punish him (however unfairly) for his role in protesting the appropriation of his local parish’s land. It could not be said that the authorities must have acted as they did because they perceived the appellant’s father to possess anti-government ideals. Certainly, that is one possible explanation; but others are equally plausible.

45    That being so, it cannot be said that the IAA’s conclusion was so irrational or illogical as to bespeak jurisdictional error. There was no such error and the FCCA was, with respect, correct so to conclude.

Ground Four

46    By his fourth ground, the appellant contends that the IAA erred by failing to make a finding with respect to whether his father was beaten so severely that those injuries became fatal. That failure was said to be central to the appellant’s case.

47    The argument advanced by the appellant is that the IAA was required to “grappl[e] with the fact that when [Vietnamese authorities] arrested and detained [the appellant’s father], they beat him so severely before releasing him that he died shortly afterwards”. The appellant’s father’s death was said to be central to the appellant’s claims that, if he returned to Vietnam, he would be imputed with anti-government ideals (at least partly as a consequence of his father’s activism). Because of that centrality, it is said that the IAA was obliged to “determine whether the [a]ppellant’s father was beaten so severely that he died soon after his arrest and detention by the police”.

48    That contention can be swiftly dealt with. The IAA was obliged to consider what the appellant advanced as to why his Visa Application ought to be granted. Doing so required that it read, identify, understand and evaluate that which was put: Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417, 420 [9], [36] (Kiefel CJ, Keane, Gordon and Steward JJ). It was not obliged to make findings of the kind to which the appellant here points.

49    Here, it cannot be inferred that the IAA made its decision without first considering the nature of the submissions that the appellant advanced. On that front, it should be noted that the appellant’s father’s detention (and subsequent injuries and death) were matters that the appellant raised in support of his Visa Application. However, it cannot be said that they were so central to the narrative that he advanced about his father (and about the anti-government ideals that he feared would be imputed to him in consequence of his father’s history) that they required separate consideration (that is, consideration over and above that given to the appellant’s claims that Vietnamese authorities would regard him as anti-government in part because of his father’s conduct).

50    The IAA was alive to what the appellant advanced. From the written reasons that it published in support of its decision, it is clear that it considered what the appellant had said about his father’s history being a matter that would lead Vietnamese authorities to consider him as anti-government. It was aware that his father was arrested and detained in connection with his opposition to the confiscation of his local parish’s land. Those were not matters that persuaded the IAA that anti-government sentiment would be imputed to the appellant himself; but it cannot properly be inferred that they were not considered in the manner that the Act required.

51    It follows that the appellant’s fourth ground of appeal must fail.

Conclusion

52    None of the appellant’s grounds of appeal can succeed. With respect, the IAA Decision was not tainted by jurisdictional error and the FCCA did not err by so concluding. The appeal must be dismissed with the usual order as to costs.

Associate:

Dated:    16 December 2022