Federal Court of Australia

DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 296

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

THOMAS J:

1    The appellants appeal from the judgment of the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Division 2)) given on 23 August 2021 (DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1954).

2    There are two grounds of appeal, namely:

Ground one

1.    His Honour erred in finding that the [IAA’s] decision was not legally unreasonable, and/or irrational or illogical, and that the error was material.

1.1    His Honour should have found that the [IAA’s] identification and reliance upon “inconsistencies” between the entry interview and the visa interview was legally unreasonable, because at least some of the “inconsistencies” identified were either illusory, insignificant, or easily explained as differences of expression or emphasis, rather than “inconsistencies” that logically or rationally suggested fabrication.

1.2    The [IAA] relied upon the following purported “inconsistencies” between the two interviews:

(i) At the visa interview the Appellant said that a fight took place between “labourers” digging up his land rather than “developers” (digging up his land), which is what he said at the visa interview;

(ii) At the entry interview, the [First] Appellant said that his family applied to the court for the return of their land, while in the visa interview, the [First] Appellant said that the family submitted a claim for compensation, but did not get any compensation;

(iii) In his written claims, the [First] Appellant said that the [First] Appellant was on his land and the developers contacted the police following an altercation (IAA decision at [17]), whereas at the visa interview, the [First] Appellant said that the police were present prior to the altercation;

(iv) In his written claims, the [First] Appellant claimed that he suffered from a broken tendon and a cut on his arm, whereas at the visa interview, the [First] Appellant said that he had a broken arm and leg.

(v) In his written claims, the [First] Appellant only mentioned that the police were searching for him, whereas in his visa interview, the [First] Appellant said that people hired by the authorities were searching for him as well as the police.

1.3    His Honour should have found that each of the “inconsistencies”, on closer consideration, were either not inconsistent at all, were inconsequential, or were simply differences of emphasis.

1.4    His Honour erred in finding that any error with respect to the “inconsistency” particularised at 1.2(iii) above was not material, because it was “it was only one of a number identified by the [IAA]” as impugning the credibility of the claims (Judgment, [74]).

1.5    His Honour should have found that it was material, because the “inconsistencies” identified by the [IAA] were relied upon by the [IAA] for their cumulative effect rather than in isolation.

Ground two

2.    His Honour erred in finding that the [IAA] did not err with respect to the exercise of their jurisdiction by failing to consider an integer of the [First] Appellant’s claims, being the cumulative risk of his claims over and above of the risk posed by his claims when considered separately.

2.1    The [First] Appellant expressly raised the risk posed by the combination of factors which gave him an adverse profile, and asked that the cumulative risk be assessed.

2.2    The [First] Appellant claimed, and the [IAA] accepted;

(i) that the First Appellant would be detained and questioned upon return;

(ii) that the First Appellant was a Catholic (who had been discriminated against in the past, because his Church had been demolished, the land resumed, and his fellow practitioners arrested and beaten);

(iii) that he had been arrested and detained for three days after an anti-government protest in Hanoi (which there was a real chance that either questioning or government records would reveal)

(iv) that he had sought asylum in Australia and by implication had claimed to be persecuted in Vietnam; and

(v) that he had a clearly visible tattoo on his forearm with the word “Australia” on it.

2.3    As his Honour correctly apprehended (judgment, at [81]), the [First] Appellant contended before His Honour that the [IAA] did not consider whether the combination of characteristics of the [F]irst [Appellant], rather than each aspect of his profile considered in isolation, would give rise to sufficient suspicion upon return that he would be imputed with an anti-government sentiment, would vigorously question him, and would punish him for that reason.

2.4    His Honour wrongly apprehended (at [84]) that Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 was authority for the proposition that where individual claims are not found to be sufficient to found a claim for protection, there can be no obligation to ask whether the cumulative effect of the individual claims gives rise to a sufficient possibility that there is a real risk of persecution, and dismissed the ground relying upon that principle.

2.5    In fact, whether a claim expressly made (here, that there was a cumulative risk over and above the risk posed by the individual claims which should be assessed), whether or not it has to be separately addressed requires a consideration of the facts and circumstances of the particular case.

2.6    In this case, His Honour should have found that the findings with respect to the individual claim were not sufficient to deal with the claim that the [First] Appellant’s cumulative profile gave rise to a risk over and beyond that raised by his individual claims, sufficient to give rise to a well founded fear of persecution, or a claim for complementary protection.

(emphasis in original)

3    The notice of appeal sought the following orders:

1.    An order that the decision and orders of the Federal Circuit Court be set aside.

2.    An order quashing the decision of the Second Respondent.

3.    An order that the First Respondent pay the Appellant’s costs of the appeal, and in the Federal Circuit Court.

4.    Such further or other orders as the Court sees fit.

(error in original)

PROCEDURAL BACKGROUND

4    Taken from the reasons for judgment in the Federal Circuit Court, the procedural background is as follows.

5    The first appellant is a citizen of Vietnam. He arrived in Broome on 14 July 2013 with his younger brother, the second appellant in these proceedings. For the purposes of the Migration Act 1958 (Cth) (the Act), both were unlawful maritime arrivals. The first appellant participated in an arrival interview on 19 July 2013.

6    On 24 October 2015, the first appellant was invited to apply for a visa. On 7 April 2016, the appellants applied for a Safe Haven Enterprise visa (SHEV). The appellants received assistance through the Primary Application and Information Service to lodge their application.

7    The appellants were invited to attend an interview with a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), the first respondent, on 5 October 2016. Following the interview, the appellants’ migration agent provided written submissions and supporting documentation to the delegate.

8    The first appellant’s claims were outlined in the statement accompanying his visa application and expanded upon during his interview with the Minister’s delegate. These were that:

(a)    he was a Catholic of Kinh ethnicity and Vietnamese nationality;

(b)    he did not have the right to freely practise his religion in Vietnam. He witnessed the Vietnamese government suppressing Catholics, including members of his church. He claimed that when he was very young the Vietnamese police destroyed a different Catholic church of which he was a member;

(c)    in 2012, he participated in a demonstration in Hanoi. He was arrested by the police, interviewed, and detained for three days before being released without charge;

(d)    two months prior to leaving Vietnam, his family’s ancestral land was taken by the local government without payment of compensation. He tried to stop the land being confiscated but was attacked by the police who had been called by the developers. He suffered a broken tendon and a cut on his right hand. The second appellant’s left arm was broken. Whilst at the hospital they were advised that the police were looking for them. They took a bus to Vung Tau because they feared being arrested. They then stayed at the houses of different friends and relatives for six weeks to avoid being found by the police;

(e)    both appellants fled by boat to Australia. They have been contacted by their mother who indicated that the police came to her house in search of the appellants. Since their arrival in Australia, the police have hired gangsters to look for them in Vietnam; and

(f)    he also feared returning to Vietnam because:

(i)    his personal information was released in the 2014 data breach. He also spoke to a Vietnamese delegation when he was in immigration detention and he feared that they will have his personal details;

(ii)    he got a tattoo on his forearm which depicts a barcode with the word “Australia” and his boat identification number. The first appellant claimed that this tattoo will identify him as a person who unsuccessfully sought asylum in Australia; and

(iii)    he lost his Vietnamese citizenship because of his illegal departure.

9    The second appellant did not advance any separate claims for protection, but relied upon being a member of the first appellant’s family group.

10    On 15 November 2016, the Minister’s delegate refused to grant the visa to the appellants. On the same date, a different delegate of the Minister issued a notification under s 473GB of the Act.

THE IMMIGRATION ASSESSMENT AUTHORITY’S REASONS

11    On 18 November 2016, the decision was referred to the Immigration Assessment Authority (IAA) for review under Part 7AA of the Act. The first appellant was notified of the referral by letter dated 21 November 2016.

12    After conducting a review of the application, on 6 February 2017, the IAA affirmed the delegate’s decision to refuse the grant of the visas.

13    The IAA’s reasons for decision recorded that it had regard to the material referred by the Secretary of the Minister’s Department under s 473CB of the Act ([2]) and noted that no further information was obtained or received from the appellants ([3]).

14    The IAA noted that, during the arrival interview on 19 July 2013, the first appellant stated he left Vietnam as he wanted to find freedom and that he was not happy with the way the Vietnamese government was leading the country and that he came to Australia to find work and did not know what would happen to him if he were to return to Vietnam. He referred to having been involved in a demonstration against the Vietnamese government and being arrested by police and detained for three days ([7]).

15    On 15 August 2013, the first appellant was advised by the Department that he and the second appellant would be removed from Australia as he did not appear to have raised any claims for protection.

16    On 2 September 2013, claims for protection were raised and the removal was aborted. The first appellant said he was in an argument with the Vietnamese government and had a fight with them – his family land was forcibly taken by the Vietnamese government and his family applied to the court to give their land back and, while waiting for the court to respond, the police came and his family got in a fight with the police. The first appellant defended himself and fled the scene and remained in hiding whilst the authorities searched for him ([8]). He said he was a Catholic and the government took away the church where he prayed and police hit a lot of people. He claimed to fear returning to Vietnam as he would be put in jail on this basis [9].

17    In a written statement of claims dated 28 January 2016, the first appellant referred to a fear of returning to Vietnam as the family land was taken away by a developer, and no compensation was provided despite their mother’s request. The appellants and their family had found out that developers had come with excavators to dig up the land, they tried to stop this digging and the developers contacted police and accused the appellants of interfering. There was a verbal argument and physical fight and the first appellant broke a tendon and was cut on his right hand. The second appellant was pushed to the ground and his arm broken. After this, whilst medical attention was being sought, the appellants were told that the police were looking for them. They went into hiding before organising a departure from Vietnam to Australia. Subsequent to their departure, their mother informed them that the police had been looking for them. They fear being jailed upon return on the basis of being involved in this fight ([10]).

18    The first appellant attended an interview with the delegate on 5 October 2016 ([11]).

19    The first appellant said that the family land was leased to a policeman and the government took the land away from his family without providing any compensation. The first appellant was not aware who informed him that the family would not have their land returned to them, but their family was approached in April or May 2013. The first appellant saw some labourers digging up the land, tried to stop them and the labourers started assaulting him. He suffered a broken arm and leg ([12]).

20    The delegate put to the first appellant that he had stated that police were present (in his written statement of claims ([10])). He responded that some police officers were present when the fight started, but more arrived after some time. His mother was also injured and his brother was pushed. Whilst seeking medical treatment, the police went to his home to look for him as they wanted to arrest him because he interfered with the labourers doing their work and it was a government project. He feared being arrested so they went to the south of Vietnam and stayed with a friend. They moved around other friends’ houses and then rented a room whilst arrangements were made to travel to Australia. The government hired some gangsters to look for him. He concluded this because his father saw a stranger who followed him and watched his house and wanted to arrest the appellants. He knew they were gangsters and were looking for the appellants because they had tattoos, dressed in a particular manner and had the appearance of gangsters ([13]).

21    The IAA noted that, during the arrival interview on 19 July 2013 ([7]), the first appellant had not raised any claims in relation to a land dispute or in relation to his family’s land being confiscated by the government. The IAA considered why he might not have raised that at the initial interview and determined that it did not accept a submission from the appellants’ migration agent that the first appellant’s age, fear of the authorities, or lack of education explained why he had failed to raise the claim relating to the family’s land during the arrival interview. The IAA noted that the first appellant raised the claim less than two months after his arrival interview. The IAA accepted that the first appellant may not have been aware of the importance of providing all claims for protection during the arrival interview, but noted that in any event the first appellant’s account of this aspect of his claim had been inconsistent over time ([14]).

22    The IAA concluded that, even discounting the initial omission of these claims, it was apparent the first appellant had provided an inconsistent account of this event over time ([15]). In [16], [17] and [18] of the reasons, the IAA referred to inconsistencies as between the evidence presented in August 2013, the written claims for protection dated January 2016 and during the SHEV interview in October 2016. The IAA observed:

(a)    in August 2013, the first appellant told the Minister’s delegate that he got into a fight with the Vietnamese authorities, his family land was taken by the authorities, and his family applied to the court to receive compensation. While they were waiting for the court to decide the case he got into a fight with the authorities ([16]);

(b)    in his written claims for protection dated January 2016, the first appellant stated that his family land was taken by a developer and that the developers contacted the police. He got into a fight with the developers and had a broken tendon and a cut to his hand and the second appellant suffered a broken arm. His mother told him that the police had been looking for him since his departure ([17]); and

(c)    in his SHEV interview with the Minister’s delegate in October 2016, he said that the fight was with labourers who were digging up the land. He did not raise any claim regarding going to court to receive compensation. He was asked about whether police were present and he said they were present prior to the altercation commencing. He suffered a broken leg and a broken arm and the second appellant was pushed ([18]).

23    In addition to these matters, the IAA considered it to be material that the first appellant had claimed that police were present during the physical altercation yet they allowed him to leave the scene despite him claiming that they later went to his house to arrest him. The IAA also noted that, during the SHEV interview with the delegate in October 2016, the first appellant had claimed to fear harm from gangsters who were hired by the authorities, yet this claim was not included in his written statement dated January 2016. The first appellant said he had provided this information to his migration agent and was not sure why it was not included. The IAA was not satisfied that this was the case given he was represented by a registered migration agent who had included other details such as the police search for him. The IAA did not accept that the agent would have omitted such a vital aspect of the first appellant’s claim for protection. In a post-interview submission the agent submitted that, whilst there was no proof of him providing the information, the benefit of the doubt should be provided to him. The IAA concluded that, given other aspects of the first appellant’s claims being inconsistent, the IAA was not willing to give the first appellant the benefit of the doubt ([19]).

24    The IAA was not satisfied the first appellant’s family land was forcibly taken away or that the appellants were involved in any physical altercation or conflict with any labourers or authorities in relation to the land. The IAA was also not satisfied the appellants were forced to relocate to south Vietnam on this basis or that the police or any gangsters have been looking for the appellants since their departure from Vietnam ([20]).

25    In the post-interview submission, the migration agent submitted that the Vietnamese authorities were looking for the appellants on the basis of the land confiscation incident and because the first appellant already had a profile given he participated in a protest in 2012 in Hanoi. The IAA noted that the first appellant raised this claim in his arrival interview, but not in his visa application. During the SHEV interview with the Minister’s delegate, the first appellant said that, whilst he had participated and was detained for three days following the protest, it was not of concern to him and he did not fear any harm on this basis. He said he had not had any problems with the authorities on this basis subsequent to his release. Accordingly, the IAA was not satisfied that the first appellant had a profile with the authorities by reason of his participation in this protest ([21]).

26    The IAA accepted that the first appellant was a practising Catholic and was satisfied that both appellants, upon return to Vietnam, would continue to practise their faith. The IAA’s assessment of country information led it to conclude Catholics were able to freely practise their religion in Vietnam provided that they were not perceived as opposing government policy or a risk to national security or were not political activists. It was not satisfied that the first appellant had demonstrated any behaviour that would be seen, or perceived to be seen, as a threat to the government in relation to his religion, nor was there any evidence that the first appellant would participate in such conduct on his return to Vietnam. The IAA was satisfied that the appellants were able to return to Vietnam and practise their religion as they had done previously and it was not satisfied that the appellants had modified their behaviour in the past to avoid harm.

27    The IAA accepted that the appellants would be returning to Vietnam as failed asylum seekers who had departed Vietnam illegally and that the Vietnamese authorities were aware that the appellants departed illegally through the assistance of a people smuggler. However, it noted that there was no country information before it to support the first appellant’s claim that he would lose his Vietnamese citizenship on this basis and the IAA did not consider this to be the case. With reference to country information, the IAA found that the appellants would be viewed as victims of criminal activity and it was satisfied that they may be subject to a brief period of detention for questioning only and would not be required to pay a fine. The IAA was not satisfied that these circumstances amounted to serious harm.

28    The IAA accepted that the appellants were affected by the 2014 data breach and that the Vietnamese authorities may have accessed their personal information. It noted the first appellant’s evidence during the interview with the delegate that he had volunteered to speak with a Vietnamese delegation whilst he was in immigration detention and had told the authorities his name, age and parents’ names. The IAA found there was no indication that the information published in the data breach contained any details of the protection claims and found that the first appellant had volunteered information to the Vietnamese delegation. The IAA was thus not satisfied that the first appellant was of any interest to the Vietnamese authorities on the basis of the authorities having the personal details.

29    Finally, the IAA noted that, in the appellants’ post visa interview submission, the first appellant had indicated that he had a tattoo of a barcode with certain identifying numbers and the word “Australia” and pointed out that this information had not been provided earlier. The IAA accepted that the first appellant had such a tattoo. The IAA considered that the Vietnamese authorities were already aware that the first appellant was in Australia and had sought asylum and was not satisfied that the first appellant would face serious harm on return as a result.

30    Accordingly, the IAA found that the appellants did not meet the requirements of s 36(2)(a) of the Act. In relation to the complementary protection criterion, the IAA relied on its anterior findings to be satisfied that the appellants would not face a real risk of significant harm in the event that they were returned to Vietnam and, in that circumstance, s 36(2)(aa) of the Act was not engaged.

THE FEDERAL CIRCUIT COURT PROCEEDINGS

31    The primary judge noted that the appellants’ submissions do not grapple with the distinction between the unreasonableness of the decision or a conclusion, on the one hand, and irrationality or illogicality in fact-finding, on the other.

32    The primary judge also noted that the conclusion by the IAA was not a finding that the claims were not true but rather that the IAA had failed to reach the state of satisfaction required.

33    The primary judge undertook an analysis of the particular factual matrix.

34    The primary judge considered the relevant transcript of the appellant’s interview with the delegate, the appellant’s statements and also the reasons of the IAA which founded its conclusions.

35    The primary judge considered each of the areas said to have been inconsistencies which were relied upon by the IAA. The primary judge engaged with the relevant evidence and findings by the IAA.

36    As to each of these inconsistencies, the primary judge concluded that, whilst other decision-makers may have come to a different view, this was not the test which should be applied, and that the conclusion reached by the IAA was clearly open to it.

37    As to ground two, the primary judge noted that the IAA was obliged to consider the case as articulated by the appellants, or any articulated claim which was nevertheless raised clearly or squarely on the material before the IAA. It was noted that a failure to take into account an integer, or an aspect of a claim, which was made or which arose on the evidence, would generally give rise to jurisdictional error.

38    As to whether claims had been considered cumulatively, the primary judge observed that it was not fatal if it was not expressly stated that the claims had been considered cumulatively but rather it was necessary to consider the reasons of the IAA to understand what was actually considered.

39    The primary judge concluded, by reference to the relevant sections of the reasons, that the reasons showed that the IAA did consider, but rejected a real risk of harm, based upon each of the appellants’ claims individually.

40    The primary judge referred to Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 (DDK16) in concluding that, having expressed a lack of satisfaction in respect of each of the individual claims upon which the first appellant based his case, the IAA was not obliged to then consider those matters cumulatively. The primary judge noted that, apart from the land dispute claim issue, the other findings and conclusions reached by the IAA, in particular those relevant to the second ground of review, were not subject to challenge by the appellants.

THE BASIS OF THE APPEAL

Ground one

41    The appellants raised two grounds of appeal.

42    Ground one is said to relate to the first appellant’s land dispute claim in which it was asserted that the first appellant was wanted by the police as a result of the conflict regarding his family’s ancestral land in Vietnam which was being confiscated without compensation in order to be developed by developers ([6] of the appellants’ written submissions).

43    The IAA relied upon the inconsistencies to reject the first appellant’s account of the critical incident, in turn rejecting every significant aspect of the claim to fear harm as a result of the dispute over his family’s land ([8]).

44    The appellants asserted that the inconsistency findings were material in that the IAA refused to give the first appellant the benefit of the doubt with respect to an additional concern about an omission in his first statement ([9]).

45    The first appellant asserted that the approach taken by the IAA was unreasonable, irrational or illogical because at least some of the inconsistencies on which the IAA relied to reject the claim were illusory. The first appellant submitted that there was “no logical connection between the evidence and the inferences or conclusions drawn by the IAA” and, in that sense, referred to the test outlined in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16 (SZMDS), which was cited in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175, [2018] FCAFC 2 (DAO16) and was followed in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516 (SZUXN).

46    Based upon comments made in DAO16, the appellants submitted that the question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry and not assessed by reference to fixed categories or formulae.

47    The appellants submitted that close scrutiny of the reasoning process was particularly relevant where the review process was on the papers, as occurred with respect to the IAA review, and the reviewer did not have the opportunity to observe the demeanour of the first appellant or to test evidence.

48    The first inconsistency dealt with by the appellants was said to be that the fight was with “the labourers” rather than with “the developers”.

49    The appellants submitted that there was no inconsistency as the two words referred to the same people ([18]).

50    The appellants submitted that the primary judge, in dealing with the issue of inconsistency, failed to place the passage extracted from the transcript of the SHEV interview in context with the reference to the transcript as a whole. It was submitted that the transcript revealed:

(a)    the land was leased to a police officer who was well connected with government authority and power who refused to return the land; and

(b)    “the officer – the government officer” who took his land (ie, the police officer) was present together with labouring people who were working on that land.

51    The second inconsistency dealt with by the appellants was that the first appellant did not raise any claim relating to his family appealing to the court in the SHEV interview. The appellants submitted that, in the SHEV interview, the first appellant said that his family had submitted a claim for compensation, but they did not get any compensation ([21]).

52    The first appellant submitted that, even if the two references are to two different attempts to obtain redress, they are not inconsistent with each other and, second, if they are a reference to the same attempt (whether to a “court” or another authority), it is overly pernickety to draw a distinction between compensation in the form of return of the land, on the one hand, and payment in return for alienation of the land, on the other ([22]).

53    The third inconsistency was that, at the SHEV interview, the first appellant did not raise claims that the police were present, which he had initially raised in his written statement. At the SHEV interview, when asked whether police were present, the first appellant responded that they were present prior to the alteration commencing whilst his earlier evidence provided in the written claims indicated that it was the labourers who contacted the police ([23]).

54    The appellants submitted that, in the SHEV interview, the first appellant stated that one government officer was with the labour workers from the start, but more police officers arrived on the scene. This does not, in the submissions of the appellants, contradict the suggestion that the labourers contacted the police.

55    The appellants submitted that the government officer present was the police officer who had refused to return the appellants’ family land. It was submitted that, read fairly and in context, it was apparent that the whole purpose of the paragraph ([18] in the reasons) was to document inconsistencies in the first appellant’s evidence.

56    It was submitted that nothing in the SHEV interview contradicted a claim that the labourers contacted the police.

57    The fourth inconsistency related to the injuries. At the SHEV interview, the first appellant said he suffered from a broken arm and leg and the second appellant was pushed. In the written claims, the first appellant stated he suffered a broken tendon and a cut on his hand and the second appellant suffered a broken arm.

58    It was submitted that the transcript reveals the first appellant clarified that he had injured his left thumb and the second appellant had also injured his hand. It was submitted that the primary judge did not grapple with the fact that any inconsistency was not as characterised by the IAA.

59    The appellants submitted that, at their highest, the inconsistencies were trivial or inconsequential. They submitted that the primary judge should have found that at least some of the inconsistencies particularised were inconsequential and that it was legally unreasonable, irrational or illogical or lacking proportionality to rely upon them to make an adverse credibility finding and reject the first appellant’s account. It was submitted that the primary judge’s conclusion mischaracterised the state of the evidence and misapplied the test of materiality because the inconsistencies identified were relied upon as a whole.

60    The appellants’ notice of appeal referred to a fifth inconsistency, which related to the people searching for the appellants. The appellants did not press this inconsistency.

Ground two

61    The primary judge addressed the claims individually but not cumulatively, as had been emphasised by the appellants and should have occurred.

62    The primary judge was in error to rely upon DDK16 as authority for the proposition that, where individual claims are not found to be sufficient to found a claim for protection, there is never an obligation to ask whether the cumulative effect of the individual claims gives rise to a sufficient possibility that there is a real risk of persecution.

63    Rather, a consideration of the facts and circumstances of the particular case is required to determine whether an integer of the claim remains unresolved.

64    The IAA accepted:

(a)    the first appellant had been involved in a demonstration in Hanoi at the beginning of 2012 against the Vietnamese government, but he was arrested and detained for three days (but no longer feared harm solely because of that and “did not have a profile”) for that reason alone;

(b)    the appellants were affected by the release of their personal information which may have been accessed by the Vietnamese authorities;

(c)    the first appellant was interviewed by a Vietnamese delegation;

(d)    the first appellant had a tattoo on his arm with his boat identification, his barcode and the word “Australia”;

(e)    the appellants were practising Catholics;

(f)    the government took away the church where the first appellant prayed when he was young and some people from his church were physically assaulted by the authorities; and

(g)    the appellants would be returning to Vietnam as failed asylum seekers who departed Vietnam illegally, the Vietnamese authorities would have been aware that they were returning as failed asylum seekers, and would have been aware that they did so illegally through the assistance of people smugglers, and they would be at risk of being detained upon return “for questioning”.

65    The primary judge should have found that the findings with respect to the individual claims were not sufficient to deal with the claim that the first appellant’s accumulative risk profile gave rise to a risk over and beyond that raised by his individual claims, sufficient to give rise to a well-founded fear of persecution or a claim for complementary protection.

DISCUSSION

Ground one

66    The appellants asserted that ground one related to a claim regarding a “land dispute”. The appellants identified “perceived inconsistencies” on which the IAA focused as between the statement in support of the protection visa application and the SHEV interview. The IAA described the inconsistencies as a “different” account.

67    The IAA relied on the inconsistencies in rejecting the first appellant’s account of the critical incident and, in turn, rejecting “every significant aspect of his claim to fear harm as a result of a dispute over his family’s land” [submissions [8]).

68    The appellants submitted that the inconsistencies were material; that the IAA refused to give the first appellant the benefit of the doubt with respect to an additional concern about an omission from his first statement “given other aspects of the [appellant’s] claims have been inconsistent”.

69    The appellants asserted that it was “unreasonable, irrational or illogical” for the IAA to have reached the conclusions because at least some of the “inconsistencies” upon which the IAA relied to reject the claim were illusory. The appellants asserted that there was no logical connection between the evidence and the inferences or conclusions drawn by the IAA.

70    The appellants referred to a number of authorities, namely SZMDS; DAO16 and SZUXN. It is well-established that the exercise of power (such as by the IAA) must be exercised reasonably. It is also well-established that bodies such as the IAA must also act rationally and logically.

71    Of course, it is not the case that only one decision will satisfy the requirement. As was said in SZMDS (at [131]):

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions … If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

72    Further (at [133]):

[T]he correct approach is to ask whether it was open to the [Refugee Review] Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it …

73    The appellants then referred to the test taken at [135] where it was said that:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn …

74    In SZUXN (at [50]), Wigney J said: “jurisdictional error [will] not be made out unless it is shown that the findings could not have been made, or the reasoning could not have been employed, by a reasonable or rational decision-maker”.

75    Wigney J observed (at [56]):

An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the [Refugee Review] Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision … Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny … Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error … That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

76    Dealing with the question of credit, the Court in DAO16 summarised the relevant principles as follows (at [30]):

(1)    While findings as to credit are generally matters for the administrative decision-maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review … The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae …

(2)    Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis …

(3)    [J]urisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims …

(4)    Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error …

(5)    A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review … As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “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” … Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality” …

77    In terms of the approach, as was pointed out by the Court in DAO16, the question posed by the appellants is not one which can be assessed by “reference to fixed categories or formulae”, but rather is “a case specific” analysis based upon the particular factual matrix.

78    A decision will not be tainted as unreasonable or illogical or irrational if there is room for a logical, rational and reasonable person to reach the same decision based upon the material before the decision-maker. The Court should be very careful not to stray impermissibly into the area of merits review even if it favours a different reasoning. What is involved is the consideration of an issue of jurisdictional fact – and it is accepted that different individuals, each acting in a reasonable, rational and logical way, might reach different conclusions. The Court must consider whether logical, rational or reasonable minds might differ. If there are a number of alternatives on which logical, rational or reasonable minds might favour, the reviewing Court (even if it does not favour the particular decision-maker’s decision) will not conclude that the decision is illogical, irrational or unreasonable merely on the basis that one conclusion has been preferred over another.

79    As required, in this case, the primary judge undertook a case specific inquiry.

80    His Honour noted that the paragraphs particularly relevant to this ground are [19]-[20] of the IAA’s decision (see above at [23]-[24]).

81    His Honour noted that the statement by the IAA that it was not satisfied about the appellants’ claims ([20]) was not a finding that those claims were untrue, but simply an expression by the IAA that it had failed to reach the state of satisfaction required for the purposes of the task being undertaken ([42]).

82    Before considering the matters identified by the IAA as inconsistencies in the appellants’ claims, to put the conclusions in context – as the primary judge put it, to consider “how those four matters fit into the [IAA’s] conclusions about the claim” – the primary judge reviewed the relevant paragraphs from the IAA decision, from [6], which dealt with factual findings. Those findings are set out earlier in these reasons. There is no error in this approach.

83    The factual findings in [6]-[14] set out the factual underpinning for the IAA’s conclusions regarding the inconsistencies.

84    In [51], the primary judge referred to points of difference in account being, first, the identity of the persons with whom the appellants had a fight on the land (at one point described as developers and subsequently as labourers); second, that the first appellant had not raised any claims relating to his family appealing to the court or that police were present as he had initially raised; and third, that the injuries said to have been suffered differed (on one occasion the claim was that the first appellant had suffered from a broken arm and leg and that the second appellant had been pushed whereas on another (in his written claims) the injury was suggested as the first appellant having suffered a broken tendon and a cut on his hand and the second appellant having suffered a broken arm).

85    The primary judge also made reference to other matters identified, beyond those inconsistencies, which are contained in [19] of the IAA’s reasons.

86    The primary judge then proceeded to consider, in depth, each of the inconsistencies identified. The primary judge identified five inconsistencies.

87    As to the first inconsistency (whether the fight took place with labourers or the developers), the primary judge quoted from the written statement made on 28 January 2016 and also the interview transcript on 5 October 2016, drawing conclusions from those paragraphs at [59] of his reasons.

88    The primary judge concluded ([60]) that the description from the written statement and the interview are quite different. The primary judge noted the IAA conclusion that there was indeed an inconsistency between the use of the word “developers” and the word “labourers” which, when seen in a context of the written statement as a whole and the relevant comments in the delegate’s interview as a whole, was a conclusion of inconsistency between the use of the two words which was plainly open to the IAA. Consistent with the relevant authorities, the primary judge observed that others may not have reached the same conclusion, but that this was not the relevant test. The primary judge concluded that there was nothing illogical or irrational in the IAA’s conclusions of inconsistency.

89    There was no error in the approach taken by the primary judge who identified that, whilst reasonable minds might differ, the conclusion reached by the IAA was plainly open.

90    As to the second inconsistency (family appealing to the court), the primary judge extracted the references to statements made by the first appellant in September 2013, January 2016 and October 2016.

91    The primary judge concluded that the IAA was “right to identify an inconsistency” between what the first appellant said in October 2016 and September 2013. The primary judge concluded that the two matters described were, on their face, “quite separate and distinct” and the IAA was entitled to conclude that the two statements were inconsistent and act on that basis. The primary judge concluded that another decision-maker might not have come to the same view, but that this would not establish illogicality or irrationality on the part of the IAA.

92    Again, there is no error in the principle applied by the primary judge and the way it was applied.

93    The primary judge noted that the third inconsistency (whether the police were or were not present) included an error by the IAA. As to this inconsistency the primary judge concluded that, in view of the fact that this was only one of a number of identified issues, it was not material.

94    As to the fourth inconsistency (the injuries suffered), the primary judge extracted the relevant passages from the documents and concluded that the first appellant’s statements made in January 2016 “are plainly inconsistent” with statements made during his SHEV interview in October 2016.

95    The primary judge concluded that it was plainly open to the IAA to conclude that the statements were inconsistent, one with the other.

96    There is no error evident in the reasoning of the primary judge.

97    The fifth inconsistency was not pressed by the appellants.

98    The primary judge concluded that the inconsistencies were not illusory and that the IAA was entitled to treat as inconsistencies those matters identified by the first appellant in the ground of review.

99    Ground one should be dismissed.

Ground two

100    Whether the claims were considered cumulatively is a question of substance rather than form (EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796 at [70] and SZTZY v Minister for Immigration and Border Protection [2018] FCA 911 at [10]).

101    In considering this issue, it is necessary to have regard to all comments and findings made throughout the reasons. The substance of the reasons must be considered as a whole.

102    The appellants referred to seven matters which were said to have been accepted by the IAA.

103    As to each of those matters, the IAA rejected that the facts accepted would give rise to the necessary and sufficient well-founded fear of prosecution. As to each, in summary, the IAA found:

(a)    Involvement in a demonstration in Hanoi at the beginning of 2012

104    Whilst the first appellant was arrested, on his own evidence the Vietnamese authorities had no interest in the first appellant on this basis. The IAA was not satisfied there is a real chance that the first appellant would face any harm on this basis upon return to Vietnam now or in the reasonably foreseeable future ([30]). As to the protest, the first appellant said it was not of concern to him and he did not fear any harm on this basis. He had not had any problems with the authorities on this basis subsequent to his release. The IAA was not satisfied the first appellant had a profile with the authorities given his participation in this protest (at [21]).

(b)-(d), (g)    Release of personal information by data breach, interview by Vietnamese delegation, tattoo, returning to Vietnam as failed asylum seekers

105    In [37] of the reasons, the IAA referred in a cumulative way to each of these matters. The IAA recorded that people are returned to Vietnam usually on the understanding that they will not face charges as a result of having made asylum applications. The IAA further recorded that the Department of Foreign Affairs and Trade (DFAT) assessed that persons who paid money to organisers of people smugglers are viewed by the government as victims of criminal activity rather than as criminals. While some returnees may be briefly detained and interviewed, the DFAT assesses that long term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people smuggling operations. The IAA was not satisfied that either of the appellants was involved in organising people smuggling adventures and was satisfied the authorities would be aware of this given they were on a list of people who the smugglers assisted in departing Vietnam. The IAA found that the appellants would be viewed as victims of criminal activity and as such was satisfied the appellants may be subject to a brief detention for questioning purposes only and would not be required to pay a fine. The IAA was satisfied that this would be applied in a non-discriminatory manner (at [37], [29] and [40]) and the IAA concluded that there was no indication that any information published through the data breach contained any details of protection claims of the appellants and, on the first appellant’s own evidence, he did not provide this information to the Vietnamese delegation (at [41]).

106    Cumulatively, the IAA concluded that the appellants are not of any ongoing interest to the Vietnamese authorities for any reason and was not satisfied the appellants would be of any interest to the authorities on the basis of having their personal details (at [41]). As to the tattoo, the IAA concluded that the tattoo would not “enhance any treatment” the first appellant would receive from Vietnamese authorities (at [42]). The use of a word such as “enhance” is consistent with a cumulative review.

107    Again, on the evidence before the IAA, the IAA was not satisfied that the appellants would face any real chance of serious harm as a result of them returning to Vietnam after having departing illegally and having been known to have sought asylum in Australia. The IAA continued, in the same paragraph, that the appellants had no real chance of serious harm as Catholics or as returning asylum seeker from Australia or, in the case of the first appellant, as a person who had once participated in a demonstration.

108    This demonstrated the cumulative approach which was taken by the IAA in relation to the assessment of the claims made by the appellants.

(e) and (f): Practising Catholics

109    The IAA concluded that the Catholic Church is officially recognised by the government of Vietnam and in recent years has had some restrictions on activities lifted. The IAA referred to the DFAT reports that those who engage in religious activity which are perceived to oppose the government or pose a threat to the State are at high risk of being subject to close monitoring by the government (at [33]). However, the DFAT assessed that, as long as religious practice is exercised in State-sanctioned boundaries, and does not challenge the interest or authority of the government, religious adherence in Vietnam is tolerated. The DFAT was not aware of credible claims of societal abuse or systematic discrimination based on religious practices (at [34]). The IAA concluded that Catholics were able to practise their religion freely provided they were not perceived as opposing government policy, national security or were political activists. The IAA was satisfied the appellants were able to return to Vietnam and practise their religion as they had done previously.

110    From the way in which the reasons are structured, it is apparent that the claims were considered in a cumulative way. Another illustration was in the section concerning complementary protection assessment, where the conclusion reached by the IAA included:

I have taken into account the [appellants’] claims individually and cumulatively and even then I am not satisfied there is a real risk of significant harm.

111    In his reasons, the primary judge concluded that it was necessary to consider the reasons of the IAA to discern what was actually considered. This approach does not demonstrate error.

112    The primary judge recorded that the reasons of the IAA demonstrated it was not satisfied that there was any real chance that the appellants would face any harm upon their return to Vietnam now or in the foreseeable future by reason of those factors identified by the appellants as having been accepted by the IAA.

113    Moreover, the primary judge concluded that the reasons of the IAA showed it did consider, but rejected, any real risk of harm, upon each of those claims individually.

114    The primary judge referred to the decision of DDK16. In that case, the Court concluded:

It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result.

115    The appellants’ objection to reliance upon DDK16 seems to be an objection to DDK16 being authority “for the proposition that where individual claims are not found to be sufficient to found a claim for protection, there is never an obligation to ask whether the cumulative effect of the individual claims gives rise to a sufficient possibility that there is a real risk of persecution”. The appellants’ submission was that there must be a consideration of the facts and circumstances of a particular case to determine whether an integer of the claim remained unresolved. That is the approach that was taken by the primary judge.

116    In this case, as was concluded by the primary judge, the IAA clearly and comprehensively considered each of the individual claims, rejecting in each case that the claim would give rise to a well-founded fear of persecution. Through that thorough analysis of the circumstances of this particular case, it is clear that no integer of the claim was left unresolved.

117    Moreover, as outlined above, it seems clear that there was a cumulative assessment which led to the conclusion that the claims did not give rise to a well-founded fear of persecution or a claim for complementary protection.

118    Ground two should be dismissed.

COSTS

119    No submissions were made by the appellants in relation to costs. The Minister submitted that the appellants should pay his costs. I will hear from the parties as to costs.

Associate:    

Dated:    3 April 2023