Federal Court of Australia

CRB18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1180

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    The appellants, CRD18 and CRB18 are husband and wife and citizens of Vietnam. They arrived in Australia in December 2016 as holders of visitor visas issued under the Migration Act 1958 (Cth).

2    Six days before the expiry of their visitor visas, each appellant made a separate application for a Protection (Class XA) visa. Those applications were determined separately by different delegates of the then named Minister for Immigration and Border Protection. The appellants made separate applications for review of the delegates’ decisions before the Administrative Appeals Tribunal. After conducting separate hearings, the Tribunal affirmed each of the delegate’s decisions in the exercise of its powers of review under Pt 7 of the Act.

3    The appellants made separate applications for judicial review to the then named Federal Circuit Court of Australia (FCCA). In those proceedings the onus was on the appellants to show that the Tribunal’s decision was affected by jurisdictional error:  Act, s 474; Craig v South Australia (1995) 184 CLR 163; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. The arguments advanced by the appellants disclosed no such error and each application for judicial review was correctly dismissed by the learned primary judge: CRB18 v Minister for Immigration & Anor [2020] FCCA 864; CRD18 v Minister for Immigration & Anor [2020] FCCA 865.

4    The appellants were self represented at first instance but legally represented on these appeals. Each of them applied for leave to rely upon three arguments not advanced before the primary judge. The Minister has not opposed the application for leave. Given the position of the Minister and the prior self represented status of each appellant, I have determined that the application for leave in each case should be granted. As the alleged jurisdictional errors are advanced for the first time in this Court, it will be unnecessary to refer again to the reasons of the primary judge. The reasons of the Tribunal in each case will be summarised in the course of addressing each ground.

GROUND 1

5    This ground alleges that the Tribunal “materially misconstrued and misapplied” s 423A of the Act. It provides:

How Tribunal is to deal with new claims or evidence

(1)    This section applies if, in relation to an application for review of a Part 7-reviewable decision (the primary decision), the applicant:

(a)    raises a claim that was not raised before the primary decision was made; or

(b)    presents evidence in the application that was not presented before the primary decision was made.

(2)    In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

6    The Tribunal in each case identified that the claims originally made by each appellant were articulated in responses to questions 89 to 96 of their respective visa application forms. In each case the responses are extracted at [14] of the Tribunal’s reasons and are expressed in identical terms as follows:

Question 89 Why did you leave that country(s)?

I left my own country because distrust of the judiciary and low enforcement, poor system of government, burreacracy starting from the lowest lever up to the top. The distruction of the global economy impact on the nations economy. Poverty and unemployment are still big, due to such problems, as the people of Vietnam, I has been living in harsh conditions so I had to borrow money from relatives because of that I finally could not pay the debt. I live in mental distress and fear. Many people in Vietnam have problems like me, who borrowed money had been hit, injured and killed.

Question 90 What do you think will happened to you if you return to that country(s)?

If I return to my country, I will get caughtby creditor and could be beaten, injured or killed. They will searching me.

Question 91 Did you experienced harm in that country(s)?

Yes I already experience harm in that country because I already received verbal threatened from them to hurting me. Besides that, I live in hardship (because the bad economy)

Question 92 Did you seek help within the country after the harm?

Yes but nothing happen because this is a matter of economy of the country (they consider as a personal problem)

Question 93 Did you move, or try to move, to another part of that country(s) to seek safety? No.

Give reasons why you did not try to move to another part of the country(s)

I did not try to move to another part of the country because this is a matter of socioeconomic. I will experience the same problem even move to another places (inside that country)

Question 94 Do you think you will be harmed or mistreated if you return to that country(s)?

Yes I will live in harsh conditions, suffered discrimination for Tawainese women

Question 95 Do you think the authorities of that country(s) can and will protect you if you go back?

No because the authorities could not protect me because this is a matter of socioeconomic. I will experience the same problem.

Question 96 Do you think you would be able to relocate within that country(s)?

No, unable to relocate because this is a matter of socio-economic. I will experience the same problem.

(original spelling and grammar retained)

7    Prior to the delegates’ decisions, neither appellant had provided any other information or documents in support of those claims.

8    In accordance with s 425 of the Act, each appellant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in each case. In response to those invitations, the appellants each confirmed that they did not request that the Tribunal take oral evidence from any other person. They did not give evidence at each other’s hearings.

9    CRD18 appeared before the Tribunal on 6 March 2018 with the assistance of an interpreter. At the hearing, he provided the Tribunal with five documents in Vietnamese, together with English translations, described by the Tribunal as follows:

•    ‘Loan Agreement’ dated 28 February 2018. The agreement purports to be signed by [redacted] and is in the amount of 190,000,000 VND (about $11,000 AUD) which was borrowed by the applicant and his wife from [redacted]. (The applicant claimed that although the Loan Agreement purports to be executed by [redacted], this person has the same name as his mother-in-law and they are two different people.)

•    ‘Confirmation Letter’ dated 21 March 2015, signed by [redacted] and co-signed by [redacted], [redacted] and [redacted].

•    ‘Confirmation Letter’ dated 21 February 2018, signed by [redacted] who claims to have loaned 396,190,000 VND (about $23,000 AUD) and gold to the applicant and his wife.

•    ‘Commitment to Pay Loan’ dated 28 February 2018, signed by [redacted] and [redacted].

•    ‘Statement’ dated 28 February 2018, signed by [redacted] (the applicant’s father-in-law), [redacted] (the applicant’s mother-in-law) and [redacted] (a witness). The Tribunal notes that the document titled ‘Statement’ purports to be written by the applicant’s parents-in-law and largely repeats the information which is detailed in the document titled ‘Commitment to Pay Loan’.

10    In its written reasons, the Tribunal identified that CRD18 had made “new claims” at the time of the hearing which it summarised as follows:

Summary of new claims

21.    The applicant made the following new claims for the first time at the Tribunal hearing.

22.    In 2009 he married and travelled to Australia with his wife to visit his wife’s aunt. The aunt paid for the trip and sponsored them to visit her in Australia after they married. The applicant and his wife subsequently returned to Vietnam. Soon after the trip the applicant’s wife became pregnant and gave birth in late 2010.

23.    About four years after their child was born (2014) his wife suggested that they should start a ‘Hui Scheme – a mutual loan club’ while he continued helping his father-in-law work in the rice fields in Vietnam.

24.    About a year or so after (2015) he and his wife became ‘master of Hui Scheme’. He claims that some subscribers (‘shareholders or creditors’) of the scheme did not make their financial contributions. For this reason he and his wife had to borrow money from outsiders at high interest rates to pay to other subscribers (the unsuccessful bidders).

25.    Their parents helped them and used their land as collateral to secure a loan. Even with help of the parents there was insufficient money to make payments to others.

26.    The creditors came around to their home and used ‘strong language and made threats of beating or even killing us’. The applicant and his wife had to run away and hide in Ho Chi Minh City leaving their child behind.

27.    The applicant commenced working as a driver in Ho Chi Minh City. The wages were just enough for food and rent with some savings to send home to support their child.

28.    The applicant claims that creditors kept coming to their home and called them bad names and made threats. Their child was frightened at seeing strangers coming around.

29.    His driving work did not go as well as expected. He had to pay fines to the police otherwise his driver’s licence would have been taken away. He was short of money and borrowed from friends.

11    Later in its reasons the Tribunal identified that CRD18 had claimed at the hearing that he and his wife had started a Hui Scheme, that subscribers of the scheme had failed to make repayments, that as a consequence he and his wife had been forced to borrow money, that they now feared harm from creditors who had threatened to kill them, and that the police could not assist because Hui Schemes were not legal in Vietnam. That summation of CRD18’s claims is not challenged on his appeal.

12    The Tribunal went on to conclude that CRD18 had made new claims and provided new evidence after the delegate’s decision had been made. It continued (at [52]):

…  Applicants are expected to present their case in full before the primary decision maker and not wait until after the primary decision has been made. Section 423A, which applies with respect to protection visa applications made on or after 14 April 2015, requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such cases, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision, s.423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of the claim or evidence. This effectively requires applicants to present all claims and evidence to the primary decision maker, unless they have a reasonable explanation for not doing so.

(footnote omitted)

13    The Tribunal went on to consider whether CRD18 had given an adequate explanation for his failure to raise the new claims or provide the new evidence before the delegate. It did not accept that the failure was explained by asserted difficulties with English or his lack of legal representation or assistance.

14    CRB18 appeared at a hearing before the Tribunal on 9 March 2018. She provided the Tribunal with five translated documents at the hearing. They are described in the same terms as those provided to the Tribunal in CRD18’s case. The Tribunal went on to identify at some length the “new claims” that CRB18 had advanced at the hearing about her running an unauthorised “Hui Scheme”. Given the arguments advanced on this ground of appeal it is necessary to extract that portion of the reasons in full:

Summary of new claims

23.    The applicant made the following claims for the first time at the Tribunal hearing.

24.    The applicant said she first travelled to Australia in 2008 to visit her aunt who lives in Australia. After she married she travelled with her husband to Australia in March 2010 and in December 2016. Her aunt sponsored them to travel to Australia.

25.    The Tribunal questioned the applicant about her employment in Vietnam. The applicant said that she ran a small grocery shop and she also became the Master of a Hui Scheme. The Tribunal referred the applicant to her protection visa application and noted that she had only declared that she worked in a shoe factory. The applicant said that she commenced work in the shoe factory in 2014 when she moved to Saigon. After further questioning she said it was in 2015.

26.    The Tribunal questioned the applicant why she left Vietnam and travelled to Australia.

27.    The applicant said that when she last travelled to Australia she was a Master of a Hui Scheme in Vietnam and she owed people money. The Tribunal invited the applicant to provide further information. The applicant said that she originally planned to return to Vietnam but since she has come to Australia people have come to her family home in Vietnam and threatened to kill her.

28.    The applicant said she started the Hui Scheme in 2014. The scheme was not approved by the Vietnamese government but they are very popular.

29.    The Tribunal noted that she had a young child at that time and asked the applicant why someone of her age would consider getting involved with an unauthorised money-lending scheme. The applicant said she wanted to be able to get money for her family.

30.    The Tribunal asked the applicant if she kept a list of people involved in the Hui Scheme. The applicant said that she did not have any paperwork. She trusted the people. She only entered into a written agreement with the people from whom she borrowed money.

31.    The applicant said that in early 2014 about 10 subscribers left and did not contribute any money. She had to borrow money to pay her creditors. She had a list of the people who owed her money but it was in Vietnam. She only wrote down their first name. She claims she was owed about a total of 400,000,000 VND. The Tribunal asked why the 10 people decided not to pay her the money. The applicant did not answer the question.

32.    The Tribunal asked the applicant if she went to the police. The applicant said she did not go because she did not have any paperwork. The applicant said that her creditors went to the police because she could not repay. The applicant said there were two people demanding money from her and gangsters threatened to kill them. The applicant said that [redacted] was a person from whom she borrowed money.

33.    The Tribunal asked the applicant to provide evidence about the threats she received.

34.    The applicant said that the creditors did not threaten her but they paid gangsters. She claims that in August or September 2015 her husband was approached by gangsters and was beaten. They told him if he did not pay he would be killed.

35.    The Tribunal asked the applicant on a number of occasions if there were any other threats. The applicant said that since she has been in Australia her mother told her that a female called ‘Mi’ said that she would ‘kill her and chop off her head’.

36.    The Tribunal asked the applicant on a number of occasions if she or her husband had been threatened when they were in Vietnam. The applicant said she was not threatened because she moved away but every day someone would come and threaten her mother.

37.    After further questioning the applicant said she was threatened all the time. The applicant said that [redacted] told her that she would ‘kill her and chop her up’. The Tribunal referred the applicant to her earlier evidence where she claimed that the creditors did not personally threaten her or her husband but used gangsters. The applicant said the creditors only used gangsters when they moved to Saigon.

38.    The Tribunal asked the applicant if she reported [redacted] to the police. The applicant said her father reported the matter to the police. The police did nothing because they were poor and could not pay a bribe.

39.    The Tribunal asked the applicant why she did not go to the police personally if she was the victim. The applicant changed her evidence and said she and her father both went to the police. The applicant said that the police encouraged [redacted] to sue her (the applicant) for the money.

40.    The Tribunal found the applicant’s evidence about the threats she received in Vietnam vague, inconsistent and lacking in credibility.

41.    The Tribunal told the applicant that it was concerned that she had not provided this evidence in her protection visa application when she lodged it with the Department. The applicant said she was frightened and her English was not good.

42.    The Tribunal told the applicant it was concerned that many of the documents she has provided in support of her claim are dated 28 February 2018 and were created shortly before the hearing which may suggest they are not genuine. The applicant said that she did not know the procedure. The applicant said that she went to see a lawyer who told her to submit the documents.

43.    The Tribunal told the applicant that it found it very unusual that [redacted] would cooperate and agree to provide her with the loan agreement after she threatened to kill her and chop her up into little pieces. The applicant said that if she is allowed to stay in Australia her parents will still have to repay the debts. She said that there was a contemporaneous loan agreement but [redacted] would not give her the document and her father prepared the new document for [redacted] to sign.

44.    The Tribunal told the applicant that it was concerned the loan agreement was not genuine. The applicant said that in Vietnam it is easy to obtain a signed document confirming that you owe people money.

45.    The Tribunal told the applicant that it found her evidence inconsistent with her earlier claim that she did not get written confirmation from the Hui subscribers who owed her money. The applicant said that many of those people left her village which made it difficult to get a written agreement from them.

46.    The Tribunal referred the applicant to the issues raised in the s.424A letter and told the applicant it was concerned that the claims in her protection visa application may be false because they are identical to those made by many other Vietnamese applicants who have applied for protection visas and are currently before the Tribunal. The applicant said that her story was true. The Tribunal asked the applicant on a number of occasions to confirm if the claims in her protection visa application were genuine. The applicant did not answer the Tribunal’s question. After further questioning the applicant answered by stating the number ‘39’. Having observed the applicant at the hearing and having considered her response, the Tribunal finds she was aiming to frustrate the Tribunal’s attempt to obtain an answer to the question. It was also apparent to the Tribunal that there was no issue with the interpreter at the time.

47.    The Tribunal reworded the question and asked the applicant why she did not provide any evidence about the Hui Scheme in her protection visa application. The applicant did not answer the Tribunal’s question.

48.    The Tribunal asked the applicant if she has ever had trouble with the police in Vietnam. The applicant said that she had not had trouble yet. She said her husband had trouble when he was in Saigon when he was working as a driver.

49.    The Tribunal referred the applicant to her evidence and noted that she claims to fear harm in Vietnam from creditors because of a private dispute and not for the reasons detailed in s.5J(1)(a). In response the applicant said she joined the Khmer Krom group in Vietnam.

50.    She claims the group faces discrimination and has had their land confiscated. She took part in a march in 2008 and held up their flag because she has freedom in Australia. The applicant was unable to provide any information about the group or how it is relevant to her claims. The Tribunal told the applicant it was concerned that she had not previously provided any evidence about her activities with the group.

The appellants’ submissions

15    On each appeal it was submitted that the Tribunal erred in identifying some parts of the claims as “new”. The appellants submitted that the evidence given before the Tribunal amounted to a mere elaboration of the claims they had originally made on their protection visa applications. In the case of CRD18 the following matters were said to have been wrongly characterized as new claims:

    he and his wife had borrowed money from relatives (referred to at [24] and [25] of the Tribunal’s reasons);

    the borrowings were insufficient to pay their debts (referred to at [25] of the Tribunal’s reasons); and

    creditors had threatened him (referred to at [26] and [28] of the Tribunal’s reasons).

16    Those claims, it was submitted, had been fairly raised by CRD18 on his visa application form.

17    In the case of CRB18, the submission is limited to her claim to have been threatened all the time by creditors (referred to at [37] of the Tribunal’s reasons). It was submitted that the threats of creditors had been raised by her on her visa application form and so could not properly be characterised as a new.

18    Accordingly, it was submitted, the Tribunal erred by concluding that it was obliged under s 423A to draw an inference unfavourable to the credibility of those “claims” in circumstances where there was no statutory obligation to do so. The appellants submitted that in doing so the Tribunal misunderstood the nature of its fact finding powers, specifically by assuming that the powers were constrained.

19    Neither appellant discretely challenged the Tribunal’s reasoning in relation to the lack of an adequate explanation for raising the “claims” at an earlier time.

Consideration

20    It may be accepted that the Tribunal in each case identified that new claims had been made, described in each case under the heading “summary of new claims” in the respective written reasons. It may also be accepted that the Tribunal proceeded on the basis that it was required under s 423A of the Act to draw an inference adverse to the credibility of the “new claims” it had earlier described. The Tribunal’s decisions on review were founded on adverse credibility findings which in part included a reasoning process based on s 423A of the Act.

21    However, I do not accept that the Tribunal should be understood to have treated each and every asserted fact to constitute a separate and discrete new “claim”, as the appellants assert. For the purposes of s 423A, a “claim” is not to be equated with a singular factual allegation. Rather, a claim is to be understood as a narrative of alleged facts that, if accepted, might support a finding that one or more of the alternate criteria for a protection visa is fulfilled. The word “claim” in the reasons of the Tribunal in each case must be understood to mean the reason advanced by each review applicant for asserted fear of persecution or other harm should they be returned to Vietnam, which in each case was based on a version of events occurring in the past.

22    The Tribunal members identified that the respective appellants had given a particular version of events on their visa application forms which differed in substance from the version of events later given at the respective Tribunal hearings. It was open to the Tribunal to conclude that the narratives differed in multiple respects, particularly the reasons for the appellants’ impecuniosity and indebtedness, the motivations of those who might threaten harm against them and the reasons why the Vietnamese authorities may be unwilling or unable to afford the appellants protection.

23    The Tribunal in each case identified that the original claims were founded on general hardship arising from the economic situation in Vietnam. It identified that the delegate had determined the visa applications on that discrete basis.

24    Contrary to the appellants’ submissions, their alleged participation in an unlawful money lending scheme was not a mere elaboration of the claims of generalised poverty and economic hardship originally put forward in support of their claims for protection. As I have said, the Tribunal did not err by concluding that the events said to fulfil the requirements of a protection visa were later put forward on a different factual basis. That finding was open notwithstanding that the new narratives had some common factual elements to the narratives originally put forward, specifically involving threats from creditors.

25    The long description of the evidence given by CRB18 is illustrative. The Tribunal was correct to identify that she had put forward a different version of events, bearing little relation to claimed poverty arising from the general economic situation in Vietnam. The discrete fact that she was “threatened all of the time” is not the same as that raised on her application form, when viewed in the context of her evidence as a whole.

26    As a result, given the differences it had identified, it was also open to the Tribunal in each case to conclude that the claims originally put forward by each appellant had changed in substance. On a fair reading of the Tribunal’s reasons, the Tribunal applied s 423A to the whole of the new narrative founded on each appellant’s asserted involvement in the Hui Scheme and its alleged consequences. The Tribunal did not commit error by proceeding on the basis that it was obliged to draw an inference adverse to the credibility of that different narrative, nor by characterising the whole of the narrative in each case as a new claim.

27    The first ground is not established.

GROUND 2

28    Section 424 of the Act relevantly provides:

(1)    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)    Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

29    Ground 2 alleges that the Tribunal on each separate review respectively failed to exercise the discretion under s 424 of the Act to get evidence from the files of CRD18 and CRB18 to mutually support their respective applications. The appellants submitted that the failure to exercise the discretion to get that evidence was legally unreasonable.

30    The power to “get” information under s 424 is discretionary. The power is subject to an implied condition that the discretion be exercised within the bounds of legal reasonableness in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, French J (at [26] and [29]), Hayne, Kiefel and Bell JJ (at [63]) and Gageler J (at [88]).

31    In AVN15 v Minister for Immigration and Border Protection [2019] FCA 1825, two Iranian brothers made separate applications to the Tribunal for review. Both claimed to have converted to Christianity. Logan J concluded that in the particular circumstances of the case, the Tribunal was under a duty to “get”, and to consider, the evidence that the review applicant’s brother had given on his own review application in relation to their activities in Iran. His Honour’s reference to there being a positive “duty” to get information may be understood to mean that the failure of the Tribunal to exercise the discretion conferred under s 424 was legally unreasonable having regard to all of the facts and circumstances of the case. I do not understand his Honour to posit any general principle, whether as a matter of statutory construction or otherwise. The question of whether a failure to exercise the discretion to “get” information constitutes legal unreasonableness must be determined by reference to the particular facts of each case.

32    In respect of CRD18, it was submitted that on at least 15 occasions, he responded to the Tribunal’s questions about the Hui Scheme in terms that made it plain that he was unfamiliar with its workings, that CRB18 was the key proponent of it and that the Tribunal should obtain that information from her because she could furnish the details. There is no dispute that the Tribunal did not do so.

33    In respect of CRB18, it was submitted that the Tribunal ought to have obtained originals of the translated documents referred to earlier in these reasons from the Tribunal’s separate file relating to CRD18. It was submitted that the Tribunal could not make findings about the authenticity of the translated documents without first having regard to the originals. The reasons of the Tribunal indicate that it had not obtained the originals from the file relating to CRD18’s application for review, and yet drew a conclusion that they were not authentic.

34    In both instances, it was submitted that the evidence given by each appellant was “factually intertwined and mutually supportive” such that a proper assessment of the credibility of the claims of CRB18 could not be made without regard to the evidence of CRD18, and vice versa.

35    It was submitted that the failure to exercise the discretion was legally unreasonable in the sense that the only lawful exercise of the discretion under s 424 of the Act would result in a decision to get the evidence from each appellants file and to have regard to it.

36    The contention that the Tribunal committed jurisdictional error must be rejected for four reasons.

37    First, both CRB18 and CRD18 were afforded the opportunity to make submissions and present evidence in support of their respective applications for review. Each of them was extended an invitation to appear before the Tribunal and to call witnesses. It was open to each of them to give evidence in the separate application for review that had been separately commenced by the other.

38    Second, in the case of CRD18, the questions put to him were directed to ascertaining how much he knew of the Hui Scheme which he claimed had given rise to his indebtedness to participants in the Scheme or other creditors. The Tribunal was not undertaking a generalised enquiry as to how the Scheme operated, but rather was concerned to test the veracity of CRD18 with respect to his claimed involvement, including by testing his familiarity with it. It was not to the point that CRB18 was more familiar with the Scheme. The Tribunal was entitled to probe whether CRD18 had knowledge of it.

39    Third, at the hearing of CRB18’s application for review, the Tribunal afforded her the opportunity to obtain and supply copies of the five translated documents referred to earlier in these reasons, which she promptly did. The Tribunal ultimately concluded that the documents were not authentic. However, that conclusion was not based on any failure by CRB18 to supply the original versions or otherwise upon any characteristic of the originals. The finding of inauthenticity was based on the time at which the documents first came into existence and the implausibility that they would have been willingly supplied by their asserted authors, including disgruntled creditors. Those adverse conclusions did not depend upon anything contained in the original versions of the documents that was not apparent from the English translations or copies of them. In the circumstances, it was not legally unreasonable for the Tribunal in the case of CRB18 to decline to obtain them from the file relating to CRD18.

40    Finally, the material to which I was taken on the appeals does not establish that the evidence given in the respective review hearings was mutually supportive in any event. As Counsel for the Minister correctly submitted, the evidence of each appellant differed with respect to (at least) the extent of CRD18’s participation in the Hui Scheme. The evidence of CRB18 was to the effect that CRD18 participated equally in its operation, whereas CRD18 denied active or substantial involvement. The submissions of neither appellant demonstrated that their accounts were wholly corroborative.

41    It was of course open to the Tribunal to obtain documents from the file of one review applicant in determining the application of the other. However, in the circumstances I have described the failure to do so does not give rise to jurisdictional error.

42    The second ground of appeal is not established.

GROUND 3

43    Section 424A(1) of the Act provides:

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

44    By separate letters provided to each appellant in advance of their respective hearings, the Tribunal stated:

In assessing your Application for a Protection visa (form 866C) the Tribunal notes that you declared that you did not receive any assistance in the completion of the form. The Tribunal also notes that you have signed the form and declared that the information supplied is complete and correct and up-to-date in every detail.

In assessing your claims the Tribunal has become aware that your answers to question 89 to 96 are worded identically to the answers provided by a number of other Vietnamese asylum seekers whose claims are currently before the Tribunal.

Specifically, the Tribunal has identified the following wording in other Vietnamese protection visa application forms which is identical to your claims:  …

45    In each case, the letter sets out excerpts from the answers given on the visa application form which were said to be identical to the words used by other Vietnamese protection visa applicants (being those extracted at [6] of these reasons).

46    The letters asserted that the information was relevant because, subject to any comment the appellants might make, it may lead to the conclusion that the claims for protection were not genuine and so lead the Tribunal to affirm the decision under review. The letters invited each appellant to respond to the information in writing. Neither appellant provided a written response.

47    The Tribunal orally raised the issue of the duplication of claims with CRD18 at the hearing of his application for review. CRD18 responded more than once that the claims on his visa application had not been copied.

48    In its reasons in each case, the Tribunal drew an inference that the claims on the visa application forms were not genuine including because they were expressed in identical terms to claims that had been made by other Vietnamese review applicants. The finding as expressed in the reasons is the same finding foreshadowed in the notice given to the appellants under s 424A of the Act and based upon the same limited information. No additional information is referred to in the reasons.

49    By their third ground of appeal, the appellants allege that the Tribunal failed to give clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review and so failed to comply with the procedural obligation imposed by s 424A of the Act.

50    The appellants submitted that the Tribunal was obliged to provide details of the authors of the identical applications, details about the timing of those applications, together with details about whether the other Vietnamese review applicants had received assistance by a migration agent or other representative in the drafting of their claims and, if so, the identity of the agents or representatives. Without that information, it was submitted, the appellants were in no position to respond to the assertion that the information might lead the Tribunal to affirm the decision under review in each case.

51    The appellants further submitted that without the additional information the statutory purpose of s 424A of the Act had been frustrated, in the same manner identified by Flick J in SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505. In that case a review applicant relied on a letter supporting his claim that he had converted to Christianity. The Tribunal gave notice that the letter upon which he relied was similar to that relied upon by another visa applicant in another review proceeding. In the course of the review hearing, the Tribunal orally notified the applicant that the similarities in the letters gave rise to a concern that the letter was “made to order” and so may lead the Tribunal to make an adverse credibility finding about him. The oral notice was given or purportedly given under s 424AA which applies in cases where written notice under s 424A of the Act has not previously been given prior to a hearing. Like s 424A, s 424AA imposed a requirement that the review applicant be given “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review”. When raising the issue of the similar letter with the applicant, the Tribunal did not provide details as to who wrote the other letter, the capacity of the person who wrote it or its date.

52    Flick J concluded that the Tribunal had failed to comply with its obligations under s 424A and s 424AA by reason of the “withheld information”. His Honour said (at [23]):

There may be circumstances in which the requirement to ‘give’ information to which s 424A applies may not extend to a requirement to disclose the entirety of any document in which such ‘information’ is contained. In those cases it may not matter for the purposes of making a decision affirming a refusal of a protection visa that the ‘information’ in question is but part of a document or report touching other matters or containing diverse other matters. In those cases the disclosure of that specific part of a much lengthier document may be sufficient. But ‘information’ for the purposes of s 424A cannot in all cases be clinically divorced from the context in which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case. In some cases it may be necessary to identify the ‘source’ from which information has been obtained. Thus, in SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 Buchanan J concluded that extracts from a published book and the source of that material should have been disclosed. Indeed, the extent of disclosure may not necessarily be confined to the disclosure of material which ensures that a particular part is not rendered misleading; the touchstone is that ss 424A and 424AA require the disclosure of so much as to ensure that the opportunity to ‘comment … or respond …’ is meaningful. In some cases the disclosure of the ‘substance’ of information may be sufficient (NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]); in other cases ‘clear particulars’ may require more.

(emphasis added)

53    His Honour continued:

26    Although the concern of the present Tribunal Member that such letters can be ‘made to order’ may not be without substance, such limited procedural protections as remain within Pt 7, Div 4 of the Migration Act are to be given full force. Sections 424A and 424AA ensure that the decision-making function of the Tribunal in respect to ‘information’ that forms ‘a part of the reason’ for affirming the decision under review is assisted by an applicant’s ‘comment … or respon[se].

27    A meaningful opportunity to ‘comment … or respond” in the present proceeding required the disclosure of information that was withheld. An explanation may have been forthcoming if the applicant had been told more about the other letter that the Tribunal Member had come across. The reservations of the Tribunal Member, especially given his other concerns as to the credibility of the now appellant, may not have been misplaced. No further ‘comment … or respon[se]’ may in fact have been forthcoming. But the opportunity to ‘comment … or respond’ is the very procedural safeguard which enables an applicant to at least have an opportunity to address those reservations. An opportunity to ‘comment … or respond’ to the other letter is only a meaningful opportunity if there has been disclosure of such particulars as enables an applicant to put that other letter into context. Letters in the same terms, but dated years apart, may be more difficult for an applicant to explain (for example) than letters written relatively contemporaneously in much the same circumstances.

54    The appellants in the present case submit that, like the applicant in SZNKO, they were in no meaningful position to respond to the notice given under s 424A because the foreshadowed inference that their claims were not genuine would depend on information of the kind that was not disclosed. They submitted that they could not make any comment dissuading the Tribunal from drawing the adverse inference without the benefit of the additional information. The effect of their submissions is that s 424A obliged the Tribunal in each case to provide them with all “information” that tended for or against the foreshadowed inference that their claims were not genuine.

Consideration

55    As I have already emphasised, the Tribunal in each case made the adverse finding based solely on the circumstance that other Vietnamese visa applicants with review proceedings presently on foot had provided identical responses to the same questions on their visa application forms. In neither case did the Tribunal act upon any “information” other than that identified in the letters issued under s 424A:  namely that there existed a cohort of current applicants having identical responses and that the appellants had each confirmed that they had not obtained the assistance of any other person in the preparation of their visa applications. The affirmation of the decisions under review was not based on any information concerning the timing of each application, the identity of the other review applicants or the identity of any of their representatives. That information formed no part of the reasoning process by which the Tribunal in each case affirmed the delegate’s decision.

56    It may be open to the appellants to argue that the adverse inference drawn by the Tribunal in each case was not capable of being drawn solely on the basis that the appellants’ responses on their visa application forms were identical to those provided by other visa applicants. Submissions in support of this ground of appeal were at times to that effect. However, neither appellant has alleged any such error affecting the Tribunal’s substantive reasoning process affecting its fact finding powers. Their challenge is confined to a breach of the procedural obligation imposed by s 424A.

57    On its proper construction, the “clear particulars” the Tribunal was obliged to provide to the appellants under s 424A were “clear particulars” of the information that the Tribunal considered rightly or wrongly would be a reason or part of a reason for affirming the decision under review. It is not an obligation to provide a review applicant with information upon which the Tribunal does not propose to rely.

58    In each case, it is plain that the Tribunal considered that the limited information provided to the appellants was sufficient, without more, to provide a foundation for the adverse inferences it foreshadowed in the notices issued under s 424A. That is what it subjectively “considered” in each case could form the reason or part of the reason to affirm the original decision to refuse to grant the visa. It therefore discharged its procedural obligation under s 424A.

59    Whether the limited information considered by the Tribunal was in fact or law sufficient to support the inference foreshadowed by the Tribunal is a different question. The sufficiency and relevance of the information is plainly a matter that the recipient of the information may comment upon in response to the invitation.

60    In the present case, it was open to each appellant to respond to the s 424A notice in terms that stated that the inference foreshadowed by the Tribunal was not open to it to be drawn solely on the basis that other Vietnamese protection visa applicants had provided identical responses on their application forms. It was open to them to submit that the Tribunal could not act on that information alone because the information could not relevantly inform the genuineness of their own claims. It was open to them to submit that the Tribunal could not draw the inference without having regard to additional information of the kind referred to in submissions on this appeal. Accordingly, I do not accept that the appellants could not meaningfully respond to the invitation presented to them without having particulars of information of the kind referred to in their submissions. The appellants were afforded an opportunity to comment upon the limited information the Tribunal “considered” could form a reason for affirming the original decisions, clear particulars of which had been provided to them.

61    In summary, I consider that the submissions in support of this ground of appeal confuse the procedural obligation to disclose information with the substantive question of whether the inference foreshadowed in the s 424A notice was capable of being based on the limited information disclosed. It may well be the case that the substantive conclusion that the claims were not genuine was affected by error because it lacked intelligible support in the limited evidence. But that was not argued as a matter of substance. The contention that the procedural obligation in s 424A was not complied with is rejected for the reasons given above.

62    There will be orders dismissing each appeal.

Associate:

Dated:    5 October 2023