Federal Court of Australia

DAJ22 as Litigation Representative for DAH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1677

ORDERS

THE COURT ORDERS THAT:

1.    As to the proposed amendment of the notice of appeal in the terms set out in Exhibit 1:

(a)    the appellants have leave to amend the notice of appeal in terms of proposed grounds 1 and 2;

(b)    the appellants have leave to amend the notice of appeal in terms set out in proposed ground 3 and, insofar as the same may be necessary, related leave is granted to raise ground 3 notwithstanding that the issue raised in that ground was not raised in the original jurisdiction;

(c)    leave to amend the notice of appeal in respect of proposed ground 4 be refused.

2.    The appeal be dismissed.

3.    The litigation representative, namely DAJ22, pay the first respondent’s costs of and incidental to the appeal as fixed by a registrar in a lump sum, if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    DAH22 and DAI22 are each children born in Australia to Vietnamese parents. Their parents arrived in Australia in March 2013 by boat, and without a visa authorising their entry to and residence in Australia, pursuant to the Migration Act 1958 (Cth) (the Act). They sue, by their mother, DAJ22, as their litigation representative.

2    The proceedings have a somewhat complicated procedural history. Each of DAH22 and DAI22 applied to a predecessor of the present first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), for a protection visa under s 65 of the Act. On 12 December 2016, a delegate of the Minister refused each of their applications. They then sought the review of that decision by the Administrative Appeals Tribunal (Tribunal). On that, as it proved, initial review, the Tribunal affirmed the delegate’s decision, although, in relation to one of the children, the Tribunal substituted a decision that the child’s protection visa application was not valid and could not be considered.

3    Ultimately, that initial decision of the Tribunal came to be quashed by this Court, with a consequential remitter to the Tribunal to hear afresh the children’s application for the review of the delegate’s 12 December 2016 visa refusal decision. On 27 April 2021, having heard afresh the review application, and for reasons published that day, the Tribunal decided to affirm the Minister’s delegate’s decision not to grant the children a protection visa. By their mother, as litigation representative, the children then sought judicial review of the Tribunal’s decision by the Federal Circuit and Family Court of Australia Division 2 (Circuit Court). On 4 August 2022, for reasons given that day, that court dismissed the judicial review application: see DAH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 662.

4    The children, by their litigation representative, have now appealed to this Court against that order of dismissal and a related, consequential costs order. As they came, finally, to be proposed as grounds of appeal by amendment, see exhibit 1, the grounds upon which the appellant’s seek to challenge the judgment of the Circuit Court are as follows:

(1)    The Federal Circuit and Family Court of Australia (Division 2) (the Court) erred by failing to find that the Tribunal took into account an irrelevant consideration, namely, the insincere motivation of the appellants' mother in engaging in political activity hostile to the government of Vietnam in determining that the political activities of the appellants and their mother would not be of any interest to the Vietnamese authorities.

(2)    The Court erred by finding that, in any event, the irrelevant consideration, namely, the insincere motivation of the appellants' mother in engaging in political activities hostile to the government of Vietnam, was immaterial to the Tribunal's decision to reject the appellants' claims that they met the criteria for the grant of protection visas.

And, by way of grounds not raised before the Court:

(3)    The Tribunal, in determining that the political activities of the appellants and their mother would not be of interest to the Vietnamese authorities such that the appellants did not have a real fear of persecution, was unreasonable and illogical.

(4)    In the premises of grounds 1, 2 and 3, the Tribunal erred by failing to decide whether the participation of the appellants and their mother in public political activities directed against the government of Vietnam (which activities were not anti-China activities) (an integer of the appellants' claim) was such as to cause the appellants to have a real fear of persecution and such failure amounted to:

(a)    A breach of procedural fairness; and/or

(b)    A constructive failure to exercise the Tribunal's jurisdiction.

[underline in original]

5    As for these proposed amended grounds, the Minister does not oppose amending the existing notice of appeal so as to raise grounds 1 and 2.

6    Ground 3 is opposed on the basis that it seeks to raise a point not raised as a ground of review in the Circuit Court. It is accepted, on behalf of the appellants, that that is so and that a grant of leave is necessary. Proposed ground 4 was also not raised in the Circuit Court and would require a grant of leave. The root authority in respect of whether or not to permit the amendment of a notice of appeal so as to permit to be raised for the first time, in an exercise of appellate jurisdiction, is Coulton v Holcombe (1986) 162 CLR 1, at 7, issues not raised in the original jurisdiction. In essence, the point there made is that it is important in the administration of justice that the substantial issues between parties to litigation ordinarily be settled at trial.

7    That is not to say that a new point cannot be raised where it is shown to be in the interests of justice, which necessarily includes, also, consideration of whether permitting such an amendment might visit prejudice upon a respondent. Such prejudice will readily be found where the new ground could have been met by calling evidence by the respondent. Further observations which have also frequently been adopted in this Court with respect to the permitting, on appeal, grounds raising issues not raised below are to be found in the Full Court’s judgment in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588, at [48].

8    As to proposed ground 3, it is conceded on behalf of the Minister that it entails no evidentiary prejudice. Further, it seems to me that the ground is arguable, which is not to say that it must succeed, only that it is arguable. I therefore grant leave to amend the notice of appeal in terms of proposed ground 3 and insofar as the same may be necessary, so do, notwithstanding that the issue raised in that ground was not raised in the Circuit Court.

9    It must be said of proposed ground 4 that its inspiration is to be found in an exchange between bench and bar in the course of the appellants’ oral submissions. The amendment in terms of proposed ground 4 is opposed by the Minister not just on the basis that it raises an issue not raised in the Circuit Court, but also on the basis of an asserted evidentiary prejudice. In turn, the terms of proposed ground 4 led to an application on behalf of the Minister for the adjournment of the appeal so as to investigate the nature and extent, if any, of an asserted evidentiary prejudice, as well as to make a supplementary written submission in respect of the merits of that proposed ground.

10    As it happens, it is not necessary to consider that adjournment application. That is because, on reflection, I do not consider proposed ground 4 to have, in any event, sufficient merit as to warrant amendment of the grounds of appeal so as to permit it to be raised, and with that, leave to raise the issue, notwithstanding that it was not raised below. I shall have something further to say in relation to proposed ground 4 in due course.

11    Reflecting proposed grounds 1, 2 and 3, submissions on the appeal focused upon a particular aspect of the claim made by the appellants for a protection visa.

12    I have on earlier occasions made observations as to administrative decision-making being a continuum. The subject, and some such observations are comprehensively discussed by M Paterson in, Adventures on the Administrative Decision Making Continuum: Refraining the Role of the Administrative Appeals Tribunal [2019] AIAL Forum No 96, 65.

13    By that, I mean that the issues which arise for administrative determination are not necessarily static, but can evolve according to the way in which an applicant advances a case for a particular administrative decision and, in turn, the way in which a respondent administrator responds to the claim. In this particular case, by the time the case reached the second Tribunal, a feature of the appellants’ claim for protection visas was based on an asserted real chance of persecution on the basis of their having an imputed political opinion grounded in their mother’s asserted anti-Vietnamese government activism in Australia.

14    Thus, in a submission to the Tribunal dated 31 July 2020, by their solicitor and migration agent, it was put on behalf of the appellants that:

6.2.    Imputed Political Opinion – Applicants’ Mother’s Anti-Government Activism in Australia

We submit that the Applicants’ mothers’ activist activities in Australia would result in her being persecuted upon her return to Vietnam. Photos evidencing the Applicants and their mother’s participation in political activities opposing the Vietnamese Government and Communism are attached. This persecution, we submit, would in turn subject the Applicants to serious harms.

15    In that same letter, various claims for a protection visa by the children were summarised as follow:

6.5.    Cumulative Profile

The Applicants claim that Australia owes them protection obligations based on the following claims:

•    The Applicants being imputed with their parent’s political opinion which led them to depart Vietnam illegally to seek asylum. We submit that because of this imputed political opinion there is a real chance that the Applicants will experience the serious harms of: significant physical harassment; denial of access to basic services which threatens their capacity to subsist; and denial of the capacity to earn any livelihood which would threaten their capacity to subsist.

•    The Applicants being imputed with the mother’s political opinion which is against the Vietnamese government. We submit that because of this imputed political opinion there is a real chance that the Applicants will experience the serious harms of: significant economic hardship that threatens their capacity to subsist and denial of access to basic services which threatens their capacity to subsist.

•    The Applicants’ practice of the Catholic religion provides a real chance that the Applicants will experience a number of serious harms similar to those currently being experienced by Catholics in Vietnam.

•    The Applicants’ membership in the PSG of Children in Vietnam whose Parents have been returned to Vietnam after leaving Vietnam illegally. We submit that membership in this PSG provides a real chance that the Applicants will experience significant economic hardship which threatens their capacity to subsist.

We submit that if the Tribunal determines that the aforementioned protection claims do not establish the Applicants’ holding a well-founded fear of persecution in their own right, that the Tribunal can be satisfied that the protection claims taken cumulatively establish that the Applicants have a well-founded fear of persecution.

[footnote references omitted]

16    Later, the appellants, by their solicitor and migration agent, by a letter of 30 March 2021, to the Tribunal put the following aspect of the subject of political activism on their mother’s part as a basis for their claim for a protection visa:

1    Political Activism

We refer to attachment ‘A’ (enclosed) which contains evidence of Ms Chu’s continued political activism including sharing articles/posts via social media during 2020-2021. We note that physical events such as protests have been largely not permitted since early 2020 due to restrictions associated with the ongoing COVID-19 pandemic event.

[footnote references omitted]

17    I was initially disposed to think that this aspect or integer of the appellants’ claim for a protection visa had not been addressed by the Tribunal. That, however, on reflection, was the result of focusing too narrowly on [67] of the Tribunal’s reasons, and that is something which was the subject of a reminder by Ms Hoiberg of counsel for the Minister one must not do: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

18    The Tribunal addressed the subject of claims relating to the appellants’ mother’s political activities in a lengthy passage in its reasons, which must be set out in full in order to deal with the grounds of appeal. The Tribunal stated, under the heading Claims Relating to the Mother’s Political Activities, the following:

Claims relating to the mother’s political activities

49    It was submitted on behalf of the applicants that their mother’s activist activities in Australia would result in her being persecuted upon her return to Vietnam. Photographs were submitted to the Tribunal depicting Ms Chu with the applicants at events in Brisbane at which she is holding or in proximity to placards with political slogans.

50    It was submitted that the persecution which is likely to be experienced by the applicants’ mother would result in the applicants experiencing serious harm as they would be imputed with their mothers' anti-government political opinion. It was submitted that, if their mother was imprisoned for her activism, the applicants would be denied the support of their mother which would result in significant economic hardship that would threaten their capacity to subsist. Their father, it was submitted, has been denied any livelihood since returning to Vietnam and would be unable to alleviate the applicants’ economic hardship. It was further submitted that the applicants themselves will be denied access to basic services, because their mother's anti-government political opinion would be imputed to them.

51    Ms My-Linh Do’s ‘statement of facts’ describes how, on her return to Vietnam in 2012, she was detained and interviewed by Vietnamese police in relation to, inter alia, her political activities in Australia. She claimed that the police held a substantial dossier of her public and private information, including every news release associated with her work. She says that, “despite the fact that I am now an Australian citizen and although entered Vietnam on my Australian passport, I can still be treated as a Vietnamese citizen and will not be protected by the Australian government…” As with her evidence at paragraph 36, I give her statement some weight as evidence of the treatment that the Vietnamese authorities may give to someone in her position.

52    In relation to the applicant’s mother specifically, she states:

Hien is very active in her participation in protests against the Vietnamese government while living in Australia; and has participated in many activities such as: rally to collect signatures to free Vietnamese prisoners of conscience and to support victims of state sanctioned injustice in Vietnam at Inala shopping centre and attend VOICE functions;

Hien is genuinely caring and passionate about human rights activities…

Hien will most likely be sentenced or imprisonment for her active support of the activities organised by different associations, organisations, groups, lobby parties

and connection with different stakeholders in the Vietnamese community in Australia, with the priority to abolishing the dictatorial regime blocking the advancement of the Vietnamese people and to expose the injustice of the Vietnamese government …

Hien and her children will face many adversities and will most likely be excluded from many things which will make it extremely hard for their lives. They will also face community exclusion as not too many people would like to associate with Hien’s family as it may be a danger to be seen as associate [sic].

This assessment, in my view, is coloured by Ms Do’s personal experience, which includes a political profile much higher than Ms Chu's and derives from a historical background of considerable interest to the security organs of the Vietnamese regime.

53    The post-hearing submission included a letter of support from Dr Cuong Trong Bui, dated 16 August 2020. Dr Bui, who is the president of the Vietnamese Community in Australia - Queensland Chapter (‘VCA’), certifies that Ms Chu participated in the following events:

•    a protest on 30 March 2018 against the Vietnamese Communist Party in support of imprisoned members of The Brotherhood for Democracy;

•    protests on 10 June, 14 July, 2 September and 29 September 2018 at the Inala Civic Centre and in the Brisbane CBD against the grant of long-term leases of property in Vietnam to Chinese entities and/or the Chinese Communist Party will;

•    a candlelight vigil on 28 October 2018 at Freedom Place, Inala, to pray for human rights democracy and freedom of speech in Vietnam; and

•    a protest on 6 October 2019 in the Brisbane CBD against the Chinese Communist Party in relation to the invasion of Vietnam by the occupation of the Paracel and Spratly Islands, and a maritime incident on 20 July 2019 said to constitute a violation of Vietnamese sovereignty.

54    Ms Chu’s political activity, on her own account of it, commenced in or about 2018. Evidence was presented of her participation at rallies and vigils, most against the activities of the Chinese government as they affect Vietnam, Hong Kong and Australia, but also against the Vietnamese cyber security law and, she claims, in support of prisoners of conscience. There are some photographs depicting her with the flag of the former Republic of Vietnam and in the proximity of placards bearing the slogan “down with communist Vietnam.” It was put to her that all of her political activity has been conducted since arriving in Australia, was of recent inception and had been undertaken for the purpose of strengthening the applicants' claims. Her evidence was that she has become politically active as a matter of conscience. When asked to describe her political activities, her answers were confined to descriptions of the physical events and she volunteered no information about the issues in respect of which the events had been convened. She provided short descriptions of the issues when pressed.

55    It was suggested to Ms Chu that the majority of the photographs submitted to the hearing concerned issues (specifically those concerning China) that enjoy popular support in Vietnam, and in respect of which country information is that, save for some specific protests that turned violent, the Vietnamese government has largely tolerated. Ms Chu’s evidence was that she wished to express solidarity with the Vietnamese people in respect of these issues.

56    A statutory declaration from Ms Chu was included with the post-hearing submission. In that declaration, she says:

Since 2018, I have engaged in political activities which oppose the government of Vietnam, Communism and which seek to bring awareness of the human rights abuses being conducted by the Government of Vietnam. I was not able to express these political opinions while I was in Vietnam because of the lack of freedom to express his opinions in Vietnam. When I lived in Logan it [was] difficult for me to connect with members of the Vietnamese community. At that time, my children were very young which also made it difficult for me to attend political events. After I moved to Inala, I was able to connect with a larger Vietnamese community. My children were also older which made it easier for me to engage in political activities.

On or around 30 March 2018, I participated in a public protest against the Vietnamese Communist government for its imprisonment of members of the brotherhood for democracy.

In June 2018, I participated in a public protest at the Inala Civic Centre against the Vietnamese communist government for allowing Chinese expansion into Vietnam special economic zones.

On or around 28 October 2018, I participated in a public candlelight prayer vigil, in Inala, which advocated for human rights, personal freedoms, democracy and freedom of speech in Vietnam. I live streamed this political event on social media using my mobile phone.

On or around 6 October 2019, I participated in a public protest, in the Brisbane CBD, against the Vietnamese communist government for allowing Chinese expansion into Vietnam’s special economic zones.

In 2020, I have continued my political activities by writing and sharing articles through social media which oppose the communist government of Vietnam’s unjust treatment of the people of Vietnam.

57    Accompanying this statutory declaration were a selection of photographs and screenshots of videos depicting some political events at which Ms Chu and the applicants were present. The events were those of 10 June, 14 July, 2 September and 28 October 2018, and 6 October 2019. Translated copies of the were also two advertisements issued by the VCA for the candlelight vigil of 28 October 2018 and the demonstration of 6 October 2019 were also included.

58    At paragraph 9 of her statutory declaration Ms Chu states: “In 2020, I have continued my political activities by writing and sharing articles through social media which oppose the communist government of Vietnam’s unjust treatment of the people of Vietnam.” There was no material provided with the post-hearing submission dated later than 6 October 2019 to support or evidence this claim, and none answering the description of ‘writing and sharing articles.’ The Tribunal raised this with the applicants' representatives in a letter pursuant to s. 424A. The response attached screenshots of social media items claimed to have been posted by Ms Chu during 2020 and 2021. The items, in Vietnamese, are accompanied by English translations.

59    I consider it relevant that all of the items included post-date the hearing, and that there is no evidence of activity between 6 October 2019 and 17 August 2020. The items she has posted are, in each case, a simple re-posting of items composed by others. In each case but one, they are not accompanied by any commentary of her own. The exception is a single line comment, “Pray for Thien An Monastery” to a reposting of a YouTube video on 17 August 2020. One item, dated 26 October 2020, at first glance appears to contain commentary from her but on closer inspection merely copies and pastes someone else’s press release (which is reposted below her purported comment).

60    The conclusion I have reached on the evidence presented is that Ms Chu’s claimed political activity, which commenced only after the rejection of this claim by the previous Tribunal (which made a positive finding, on Ms Chu’s own evidence, that she held no political views critical of the Vietnamese regime), was passive and temporary in nature. She maintained the activity throughout 2018, which is well self-documented. At the hearing, her descriptions of her political beliefs were vague and showed little insight into the issues to which she claimed to be committed.

61    On the evidence, Ms Chu has not satisfied the Tribunal that she has engaged in her claimed political activity otherwise than for the purpose of strengthening the claims.

62    Included with the post-hearing submission was a copy of an article from France24 (credited to Agence France-Presse) dated 7 March 2019 and bearing the headline “Vietnam jails 15 over anti-China protests.” The context of this story is that the protests in question, in Binh Tuan province, turned violent and led to the ransacking of a police station and destruction of security vehicles. The post-hearing submission includes a copy of an academic article, “Domestic Protest and Foreign Policy: An Examination of Anti-China Protests in Vietnam and Vietnamese Policy Towards China Regarding the South China Sea”. This article notes that numerous anti-China protests throughout Vietnam were permitted to continue, at least for some time, without opposition from the authorities. It was only with the outbreak of large- scale rioting and violence that the protests were suppressed. The article also observes that " … overseas protests [whether by Vietnamese nationals living abroad or other members of the Vietnamese diaspora] have less potential to threaten the Vietnamese regime than domestic protests that could quickly accelerate and evolve into demonstrations against Vietnam's political system." Neither article supports the argument that the involvement of Ms Chu and/or the applicants in anti-China protests in Australia necessarily expose them to the risk of persecution in Vietnam.

63    The post-hearing submission argues that “the Tribunal only approached the evidence of Mrs Chu’s political activities in relation to those activities which oppose the expansion of China into Vietnam's special economic zone.” The Tribunal’s questions to Ms Chu were directed towards eliciting an explanation as to why these activities, conducted in Australia, might expose her or the applicants to the risk of persecution, when the views articulated by these activities appear to have popular support in Vietnam. In view of the country information that any official suppression of the public articulation of these views in Vietnam was directed at those identified with leading or participating in localised violent disorder, I cannot be satisfied that her peaceful expression of similar views in Australia gives rise to a well-founded fear of persecution by reason of imputed political opinion on the part of the applicants. For the same reasons, I also cannot be satisfied that there is well-founded fear of persecution of the mother by reason of her imputed political opinion that would result in persecution of, or the risk of serious harm to, the applicants.

64    The post-hearing submission also argues that:

The Tribunal stated, during the hearing, that the applicants were required to satisfy it that Mrs Chu's political activity was not conducted to strengthen her protection claims. We submit that the applicant’s fear of persecution on the basis [of] Mrs Chu’s political activities and their involvement in those activities does not require consideration of whether those activities were conducted to strengthen Mrs Chu’s protection claims. Firstly, the Applicants’ claims for protection are made independently from Mrs Chu. Secondly, Mrs Chu participated in political activities against the government of Vietnam because she genuinely holds a political opinion which opposes the Vietnamese government. Thirdly, s5J(6) of the Act is not a relevant consideration in this matter.

We submit that consideration of Mrs Chu’s protection claims is an irrelevant consideration as she is not an applicant in the decision under review. Furthermore, Mrs Chu is precluded by s48A of the Act from making an application for a protection visa …

We submit that s5J(6) of the Act does not apply to third-party minors whose sur place claims for protection arise through the actions of a parent [citing s5J(6) and SZREM & Anor v Minister for Immigration & Anor [2014] FCCA 129 at [81] and [82]]…

We submit that the reasoning in SZREM precludes the Tribunal from disregarding Mrs Chu's political activities as they are an integer in the applicant's claim of a well- founded fear of persecution by reason of their imputed political opinion. Furthermore, we submit that Mrs Chu’s political activities form a basis for the Applicants’ sur place claim consistent with the Tribunal’s Guide to Refugee Law in Australia at [3-16] …

We submit that the Applicants’ sur place claims for protection are based upon their being imputed with their mother’s anti-Communist government of Vietnam and pro- human rights political opinions which arise from Mrs Chu's political activities.

Furthermore, we submit that Mrs Chu’s engaging in these activities is sufficient for the applicants to be imputed with her political opinion, irrespective of her motives for engaging in these activities or the relevance of these activities to Mrs Chu’s personal claims for protection. Therefore, we submit that the applicants have a well-founded fear of persecution and face the real chance of experiencing serious harm as articulated in their previous submission…

65    In my view, the submission is misconceived. In CAH17 v Minister for Immigration and Border Protection [2019] FCA 1129 at [19], Flick J held “the claims made by the son necessarily had to be resolved by reference to the evidence given by the mother on his “behalf”, together with such other evidence as there was available. The adverse finding made by the Tribunal as to the “credibility” of the mother’s evidence could not be divorced from such evidence as she gave on her own behalf and that given on behalf of her son.”

66    I have taken into account the evidence that shows the applicants present at political rallies but, given their very young ages and the extremely limited amount they were able to tell the Tribunal, consider that their presence could only be at the behest of their mother. In light of the approach taken by the Federal Court in CAH17, I am not prepared to accept a submission that the Tribunal is bound to find that the applicants have a better claim to an imputed political opinion than that of the person who expressed the opinion.

67    For the reasons in paragraph 60, I am not satisfied that Ms Chu’s claims of political activism are motivated for reasons other than strengthening the visa application. I do not consider that her claimed political activity is other than contrived. Having regard to that finding, and to the DFAT Country Information Report at 5.29, that returns to Vietnam are usually done on the understanding that the individuals in question will not face charges as a result of making an application for protection, I do not consider the political activities in which she has engaged would be of any interest to the Vietnamese authorities. Therefore, I am not satisfied that there is a real chance of harm to her or the applicants on the grounds claimed. Accordingly, I am not satisfied that there is any evidence for a well-founded fear of persecution on the part of A and J on the grounds of imputed political opinion.

[footnote references omitted]

19    In order to understand the arguments made for the appellants, it is also necessary to set out [13] from the Tribunal’s reasons, in which the Tribunal makes reference to s 5J(6):

13.    The first issue in this case is whether the application of the second-named applicant is valid and can be considered, and if not, then the second issue is whether the first-named applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, in relation to the second-named applicant, the Tribunal sets aside the decision refusing to grant a protection visa and substitutes a decision that the protection visa application is not valid and cannot be considered and in relation to the first named applicant, the Tribunal has concluded that the decision under review should be affirmed.

20    Section 5J(6) of the Act provides:

(6)    In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

[emphasis in original]

21    Had the Tribunal not considered an aspect or integer of the appellants’ claim for a protection visa, it would have committed either or each of the errors of failing to exercise the review jurisdiction consigned to it, or denying the appellants procedural fairness: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1058. Further, as to that error, it could hardly be said that it was not material and therefore not jurisdictional. As it happens, though, considering that lengthy passage in the Tribunal’s reasons as a whole, I do not consider that the aspect or integer of the appellants’ claim for a protection visa, as highlighted in their migration agent’s submission correspondence to the Tribunal, is reasonably arguable.

22    It is for that reason that I have refused leave to amend, in terms of ground 4, and accordingly, that it is unnecessary to deal with the adjournment application. I should, however, observe that I am by no means persuaded, having regard to those submission letters, that there was any great likelihood that recourse to a transcript of oral submissions would have altered the position. That is underscored by reading the way in which the Tribunal did deal with the subject in its reasons. It just seems unlikely that there was any particular refinement in oral submissions. However, it is truly unnecessary to consider that subject further.

23    Insofar as grounds 1, 2 and 3 were issues raised before the primary judge, they were addressed by his Honour at [28] through to and including [36]:

28    The Applicants contend that, in expressing itself in the manner in which the AAT did in paragraph 61, the Tribunal has, in effect, attempted to assess the claims of the children as if they were assessing the claims of the mother. If paragraph 61 were in fact a conclusion on s 5J(6) regarding the mother, this is an irrelevant consideration to the claims of the children.

29    At paragraph 63 of the Reasons, the Tribunal says:

The post-hearing submission argues that “the Tribunal only approached the evidence of [the mother’s] political activities in relation to those activities which oppose the expansion of China into Vietnam’s special economic zone”. The Tribunal’s questions to [the mother] were directed towards eliciting an explanation as to why these activities, conducted in Australia might expose her or the applicants to the risk of persecution, when the views articulated by these activities appear to have popular support in Vietnam. In view of the country information that any official suppression of the public articulation of these views in Vietnam was directed at those identified with leading or participating in localised violent disorder, I cannot be satisfied that her peaceful expression of similar views in Australia gives rise to a well-founded fear of persecution by reason of imputed political opinion on the part of the applicants. For the same reason I also cannot be satisfied that there is well-founded fear of persecution of the mother by reason of her imputed political opinion that would result in persecution of, or the risk of serious harm to, the applicants.

30    The Applicants claim that this conclusion was infected by the consideration of the mother’s claims and the finding made pursuant to s 5J(6). The Applicants claim that this conclusion was made through the lens of the irrelevant consideration. The Applicants claim that this preoccupation with the consideration of the claims of the mother could not be quarantined from what it was that the AAT had to do with the application of the children.

31    I cannot agree with this submission. If the Tribunal were truly equating the claims of the mother with the claims of the children, (such that a finding adverse to the mother on s 5J(6) was a finding against the children), then, having made the conclusion at paragraph 61, the Tribunal would have ceased any further consideration because it now was able to discount those claims. But it did not do that. It went ahead and looked at the claims of the children.

32    It must be remembered that the claim was that the mother’s political activity would affect the children because they would be perceived as having the same political outlook as the mother, and, if the mother were imprisoned because of her political outlook, the consequences for the children would be dire and devastating. In those circumstances it was incumbent upon the Tribunal to assess the political activity of the mother. In assessing the activity, the Tribunal needed to look at whether the activity was genuine.

33    The Tribunal came to the conclusion that the activity was not genuine; nevertheless, the mother had still engaged in that activity. The fact that the mother had engaged in the activity was an essential part of the claim of the children. Whether that engagement was genuine or not, the Tribunal had to assess whether the children would be imputed with the same political conviction and whether the mother would suffer consequences that would have dire effects upon the children.

34    Given that the activity of the mother was not genuine, the Tribunal had to assess the children’s claim in light of that finding; this is what it did at paragraph 63 of their reasons. The Tribunal then went further, in paragraphs 65, 66 and 67, as to with what political opinion the children would be imputed. After detailing what the Applicants’ post-hearing submission was, the Tribunal said this at paragraph 65:

65.    In my view, this submission is misconceived. In CAH17 v the Minister for Immigration and Border Protection [2019] FCA 119 at [19], Flick J held “the claims made by the son necessarily had to be resolved by reference to the evidence given by the mother on his “behalf”, together with such other evidence as there was available. The adverse finding made by the Tribunal as to the “credibility” of the mother’s evidence could not be divorced from such evidence as she gave on her own behalf and that given on behalf of her son”.

66.    I have taken into account the evidence that shows the applicants present at political rallies but, given their very young ages and the extremely limited amount they were able to tell the Tribunal, consider that their presence could only have been at the behest of the mother. In light of the approach taken by the Federal Court in CAH17, I am not prepared to accept a submission that the Tribunal is bound to find that the applicants have a better claim to an imputed political opinion than that of the person who expressed the opinion.

67.    For the reasons in paragraph 60, I am not satisfied that [the mother’s] claims of political activism are motivated for reasons other than strengthening the visa application. I do not consider that her claimed political activity is other than contrived. Having regard to that finding and to the DFAT country information report at chapter 5.29, that returns to Vietnam are usually done on the understanding that the individuals in question will not face charges as a result of making an application for protection, I do not consider the political activities in which she has engaged would be of any interest to the Vietnamese Authorities. Therefore, I am not satisfied that there is a real chance of harm to her or the applicants on the grounds claimed. Accordingly, I am not satisfied there is any evidence for a well-founded fear of persecution on the part of [the pseudonym] and [the pseudonym] on the grounds of imputed political opinion.

35    I am of the view that the conclusions that the AAT made about the genuineness or otherwise of the mother’s political activity was not an irrelevant consideration; it was needed to be made to understand what it was that the children would necessarily be, or could potentially be, imputed with. That would be the end of this ground. However, even if I were incorrect and this matter of the mother’s political beliefs were an irrelevant consideration, the Applicants have not persuaded me on the balance of probabilities that it was material to the outcome.

36     Other than to say that the irrelevant material must have made a difference or “how could it not have made a difference” is simply insufficient to prove to me on the balance of probabilities that it was material to the outcome. The AAT has made a finding that the children would not be imputed with the supposed political opinion of the mother and that the children would not suffer from anything that would happen to the mother upon her return to Vietnam because nothing, according to the AAT, would happen to the mother. For those reasons grounds one and two, therefore, fail.

24    Having regard to [35] of his Honour’s reasons, I am persuaded that his Honour was in error insofar as the portion of that paragraph in which his Honour states it needed to be made to understand what it was that the children would necessarily be, or could potentially be, imputed with.

25    His Honour had earlier stated, with respect, correctly, the fact that the mother had engaged in the activity was an essential part of the claim of the children. See paragraph 33. Also correct was his Honour’s further understanding expressed in the following sentence in [33]:

…whether that engagement was genuine or not, the Tribunal had to assess whether the children would be imputed with the same political conviction and whether the mother would suffer consequences that would have dire effects on the children.

26    These paragraphs in his Honour’s reasons were responsive to a submission that [63] of the Tribunal’s reasons had been infected by an error made by the Tribunal in relation to the impact of s 5J(6) on the children’s claim for a protection visa. At [31], correctly, in my respectful view, his Honour found that if the Tribunal were truly equating the claims of the mother with the claims of the children, such that a finding adverse to the mother on s 5J(6) was a finding against the children, then, having made that conclusion at [61], the Tribunal would have ceased any further consideration because it was able to discount those claims, but it did not do that.

27    On its face, s 5J(6), insofar as the appellants’ relied in their claim of a real chance of persecution on imputed conduct of the mother, had no application to the children. The “person” in s 5J(6) is the same person throughout that subsection. The only application that s 5J(6) could possibly have in relation to the children’s claims was in respect of any separate activity personally undertaken by them. As to that, the Tribunal expressly addressed that subject in [66]. It discounted that separate activity on the basis of their very young ages and the:

…extremely limited amount they were able to tell the Tribunal.

28    The Tribunal made a finding that their presence could only have been at the behest of their mother. It is not suggested that there is any jurisdictional error to be found in the discounting of the children’s separate conduct by the Tribunal, as set out in [66] of the reasons. The concern, though, in respect of the approach of the primary judge is in respect of not s 5J(6), but rather a view which his Honour had that the genuineness or otherwise of the mother’s political activity was an irrelevant consideration.

29    In public law, a consideration will only be irrelevant if it is one which the legislation, or other provision authorising the making of a decision, either expressly or by necessary implication forbids the decision-maker to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. The point made for the Minister as to genuineness of the mother’s political activity is that there is nothing in the Act which forbade, either expressly or by necessary implication, the Tribunal taking into account whether or not that was genuine.

30    It is a quite separate subject as to whether genuine or not, if the activity were known to authorities in Vietnam, there was material which could lead to satisfaction that there was a real risk of persecution. As it happens, his Honour stated, as is apparent from the last sentence of [35], that it had not been shown that the genuineness or otherwise of the mother’s political beliefs, and the ramifications in terms of satisfaction as to a real chance of her persecution, was material. That, in my view, is borne out by the Tribunal’s reasons.

31    The Tribunal has squarely confronted whether, on the basis of the activities in which the mother engaged in Australia, the Tribunal was satisfied there was a real chance of persecution and, thus, that the children might derivatively face persecution. Further, as was, with respect, correctly conceded by the Minister, the Tribunal made at [61] of the Tribunal’s reasons a finding which is consistent only with a view that s 5J(6) had application. Ultimately, again, as the reasons read as a whole reveal, the Tribunal has addressed, even though the activities were not genuine, in its view, what ramifications those activities might have in terms of satisfaction as to a real chance of persecution.

32    What follows from this is that I do not see that there is any substance in grounds 1 and 2.

33    The real difficulty with this case is in respect of ground 3. The Tribunal’s reasons, if one reads [67] in isolation, might be thought to have a quality of illogicality or unreasonableness about them. If one, in turn, reads the paragraph of the Department of Foreign Affairs and Trade country information document (DFAT Country Report) at [5.29] in isolation, illogicality or unreasonableness could be found in the making of a material finding of fact without any supporting evidentiary basis.

34    By evidentiary basis, I do not mean, of course, that which is admissible in evidence if the proceeding were in a court of law, but simply material which, in the context of administrative decision-making, is reasonably supportive of the reaching of a particular factual conclusion. When one looks to the DFAT country report, [5.29] is a sequel to an earlier discussion in [5.28], each under the general heading Conditions for Returnees. Those two paragraphs state:

5.28    Articles 120 and 121 of the Penal Code state that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is a criminal offence. Organisers of such movements face imprisonment of between five and 15 years, and those found to have committed particularly serious crimes can be imprisoned for 12 to 20 years, or life. Individual travellers face imprisonment of between three and 12 years, or between 12 and 20 years in serious cases.

5.29    DFAT is unaware of any cases where these provisions have been used against failed asylum seekers returned from Australia. Returns to Vietnam are usually done on the understanding that the individuals in question will not face charges as a result of making an application for protection. In 2016, a Memorandum of Understanding was signed between the Australian Department of Home Affairs and the MPS, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.

35    The point which the Tribunal seems to have derived from this country report, in [67], is that organisers of particular anti-government political activities may face prosecution on return. In turn, the Tribunal has read these paragraphs as indicating that, where there is such a contingency, the individuals concerned will not be returned to Vietnam. In other words, the Tribunal has read the sentences:

DFAT is unaware of any cases where these provisions have been used against failed asylum seekers returned from Australia, and returns to Vietnam are usually done on the understanding that the individuals in question will not face charges as a result of having made an application for protection, as referrable to charges of the kind referred to in paragraph 5.28.

36    It appears to me that that is a view reasonably open of what is stated in paragraphs 5.28. In turn, if one reads [67] in conjunction with the whole of the Tribunal’s consideration of the subject of the mother’s political activities in Australia as excerpted above, one sees, in my view, that the Tribunal has accepted particular material which indicates persons who have a very particular high profile may, indeed, on return face persecution on the basis of very particular anti-Vietnamese Government activity abroad.

37    When all is said and done though, this portion of the Tribunal’s reasons is explicable, and rationally so, on the basis that the Tribunal was just not satisfied in respect of the appellant’s mother’s activities, genuine or otherwise, that there was any real chance of persecution. The material before the Tribunal did not demonstrate or provide even a basis for a conclusion that any anti-government activity whatsoever necessarily sounded in persecution upon return to Vietnam. Read as I consider open, [5.28] and [5.29] of the DFAT country report admitted, as the Tribunal found, of satisfaction that there was no real chance of persecution. That being so, the Tribunal did address an integer of the claim and did so in a way which was not illogical or irrational.

38    The Tribunal also made reference to a judgment of Justice Flick in CAH17 v Minister for Immigration and Border Protection [2019] FCA 1129. As is apparent from his Honour’s reasons for judgment, his Honour’s observations concerning the derivative quality of a child’s claim for a protection visa based on a parent’s activities may necessarily see a child’s claim fail where a parent’s evidence is not regarded as credible. That does not relieve the Tribunal from separately considering claims made by a child, but if the only evidence in support of those claims is reliant upon acceptance of a claimed persecution by a parent having a derivative impact on a child then an absence of credibility found in respect of the parent’s claim will necessarily translate into a deficiency in the claim of the child.

39    That would not relieve the Tribunal from considering a claim separately made on behalf of the child which had no derivative quality. An example of that in this case was the presence of the children at demonstrations, but the Tribunal did, as I have mentioned, address that in [66]. Further and for example, each of the children quite separately from their parent were and are adherents to the Roman Catholic branch of the Christian faith. But again, that aspect or integer of their claim was separately considered in respect of them by the Tribunal. I note that that separate aspect is not the subject of any alleged error on the part of the primary judge. For these reasons, I do not see that ground 3 has any merit.

40    It necessarily follows from the foregoing that the appeal must be dismissed with costs.

Associate:    

Dated:    1 February 2024