Federal Court of Australia

CVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1046

ORDERS

THE COURT ORDERS THAT:

1.    The appellants have leave to adduce in evidence on the appeal the transcript of the hearing before the delegate annexed to the affidavit of Kate Khanh Hoang dated 23 May 2022.

2.    The appeal is dismissed.

3.    The appellants pay the first respondent's costs of the appeal to be fixed on a lump sum basis by a registrar of this Court if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

Introduction

1    The appellants are Vietnamese nationals. The first appellant arrived in Australia by boat without a visa in July 2013 with the second appellant, who is the first appellant's niece. The first appellant was eight months pregnant at the time of her arrival and subsequently gave birth to the third appellant.

2    In April 2017 the appellants applied for protection visas. The applications were refused by a delegate of the responsible Minister. That refusal was subsequently affirmed by the Immigration Assessment Authority. The appellants applied for judicial review of the Authority's decision in the (former) Federal Circuit Court of Australia (FCCA). The FCCA dismissed the application: CVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1990 (PJ). By this application the appellants appeal the primary decision.

3    The second and third appellants rely entirely on the claim of the first appellant. Any further reference to the appellant in these reasons is to the first appellant.

4    For the reasons set out below, the appeal should be dismissed.

Factual background

5    Each of the appellants are an 'unauthorised maritime arrival' as defined in s 5AA of the Migration Act 1958 (Cth). On 19 July 2013 the appellant took part in an arrival interview, during which an officer of the Department of Immigration and Citizenship recorded information about the appellant's background and her arrival in Australia. The record of the arrival interview states her reason for leaving Vietnam was verbal and emotional abuse from her mother-in-law. She did not at that stage make claims she would later make about physical and sexual abuse from her husband.

6    The appellant's brother took part in a separate arrival interview at the same time. This fact becomes relevant as some inconsistent information was provided by the appellant and her brother in those interviews.

7    In April 2017 the appellants applied for protection visas. The appellant claimed in her supporting statutory declaration dated 24 March 2017 that she was seeking protection because she feared harm from physical and emotional abuse from her husband and his family and she feared harm from the Vietnamese police because of her political activity.

8    In her statutory declaration, the appellant claimed her husband and his family subjected her to physical and sexual abuse, beginning at the time they were married and continuing until she departed Vietnam. She claimed that was a period of approximately six months. She said that during the first two months of the marriage she lived with her husband and his family at their home and during the remaining four she lived with her parents. She said that her husband has a severe drinking and gambling problem. She described that soon after their wedding he demanded money from her, and when she refused, he held a knife to her throat and threatened to kill her. She said he would come home drunk, wanting to have sex and for her to do specific sexual things, and would strike her if she refused. She detailed in the statutory declaration a number of particular instances of abuse as follows:

[19]    Another specific incident includes one that occurred a few days after I had received a note from the Police to attend the Police station because of my involvement in the organisation of the protest (which is detailed below). My husband organised a party and invited his friends over to his family's home. They were all drinking alcohol. My husband treated me like an animal and allowed his friends to rape me. I can't remember how many people did this to me. After a while, I managed to escape to my mum's house. I was in a lot of pain. I was also approximately 6/7 months pregnant by this stage.

…

[22]    … On a few occasions, I would escape my husband's family's home and would run away to my parents' home. At times they would find me and they would force me to return to their home. A specific example of their abusive nature includes when my husband's family found out that the police had sent me a note requesting me to attend the police station because of my involvement in the organisation of the protest. I went to stay at my parents' home and his family forced me to return to their home. When I did, they then beat me and locked me in the room. …

The police note referred to is given context later in the statutory declaration as follows:

[22]    … I participated in a protest which was against the Chinese government who prohibited the local Vietnamese fishermen from fishing in Vietnamese waters. This occurred on or around June 2013 … the Police then sent me an unofficial small note to attend the Police Station. I didn't attend the police station because I was scared of being arrested and beaten because of my involvement.

9    On 1 August 2017 the appellant took part in a protection visa interview with a delegate of the Minister. As is addressed below, a transcript of that interview was before the Authority but was not before the primary judge. The appellant seeks leave to adduce that evidence in this appeal.

10    Relevantly, the transcript of the protection visa interview records the appellant had the following exchanges with the delegate:

What was the worst incident that happened?

He invite his friend to come to my house and have a drink and then he let his friend to rape me. He also locked me in the room and he threatened me with a knife. It was an assault for me.

…

Then, after a break:

Is there anything you'd like add?

I want to tell you that I'm very worried if I have to go back to Vietnam. Firstly, I'm worried about my husband. In the past he has beaten me up and he also threatened me with a knife. And he tied me up therefore I'm concerned that if I have to go back to Vietnam I will receive the same treatment from my husband, and also from his family.

Can you tell me who [redacted] is?

I don't understand.

There's information before the Department that a [redacted] send ID documents to you from his email address.

…

Are you still Facebook friends with your husband?

He's not on my new Facebook account.

All right, this is all the questions that I have then in regards to your claim. Is there anything else that you would like to add before I finish the interview and call your brother?

Can I tell you more about my story in Vietnam?

Mm-hmm, yes.

The police came to see my husband and told him that I encouraged all the people to participate in demonstration. My husband forced me into a room and beat me up. He hit me in my stomach with his hand and his leg. And then he drank alcohol and invited his friend to come to my house.

We've already talked about this.

I have tried to escape many time but after that he brought me back. And then when I arrive in Australia the police came to my husband house and my husband got angry and he came over to my parent house.

There's information before the Department that you're still Facebook friends with your husband …

11    On 18 October 2017, the delegate determined the application, refusing to grant the visas on the basis that the appellant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) and s 36(2)(aa) of the Migration Act.

12    After the usual automatic referral to the Authority for fast track review, in January 2018 the Authority affirmed the delegate's decision.

13    The appellant then filed an application for judicial review of the Authority's decision. The FCCA remitted the matter to the Authority by consent in April 2020 on the basis that the Authority had regard to new information (a record of the arrival interview with the appellant's brother) without considering whether it was satisfied exceptional circumstances applied, pursuant to the requirements of s 473DD of the Migration Act.

14    On 18 May 2020 the Authority, differently constituted, again affirmed the decision not to grant the appellants' protection visas.

15    On 15 June 2021 the appellants filed an amended application for judicial review in the FCCA, which was dismissed by the primary judge on 19 July 2021.

16    Before turning to the reasons of the primary judge, it is appropriate to examine the Authority's decision.

Authority's decision

Preliminary - statutory context

17    The basis of the appellant's protection claim has two main limbs. The appellant claimed that if she returns to Vietnam, first she fears she will suffer serious harm from her husband and his family; and second, she fears she will face persecution by the Vietnamese government for her political activity in Vietnam and Australia.

18    The conduct of fast track reviews by the Authority is governed by Part 7AA of the Migration Act. The general provisions and operation of Part 7AA is well understood and needs no repetition here: see BDV17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [3]-[17] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). In short, the Authority is generally required to review decisions 'on the papers', without obtaining or considering new information. However, s 473DC provides the Authority a discretionary power to obtain new information:

473DC    Getting new information

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

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

(b)    the Authority considers may be relevant.

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

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

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

Authority's invitation to provide information

19    The Authority commenced its reasons by stating that it had regard to the materials provided by the Secretary under s 473CB of the Migration Act.

20    By way of a first set of written submissions received by the Authority on 6 May 2020, the appellant through her legal representative provided and sought to rely on new material in the form of certain country information and information about her political activity in Australia. In light of the remittal of the matter back to the Authority and consistently with s 473DC, the Authority wrote to the appellant on 6 May 2020 inviting her to provide further written submissions. As the Authority explained:

[16]    Despite being the basis of the remittal, I note that the submissions received on 6 [May] 2020 did not specifically refer to [the arrival interviews of the appellant and her brother]. Accordingly, on 6 [May] 2020, I wrote to the applicants and invited their comment in relation to information arising in the records of those two arrival interviews. To avoid any further uncertainty, I invited comment in relation to both her brother's arrival interview, as well as her own.

21    The 6 May letter from the Authority set out the following:

You are invited to comment on the following information …

•    Your arrival interview [appellant] on 19 July 2013

In an interview before an officer of the Department, on 19 July 2013, you [appellant] provided some background and your reasons for leaving Vietnam.

Relevantly to this matter, you stated that you left Vietnam because of emotional/verbal abuse from your mother-in-law. You did not state any other reasons for leaving Vietnam.

You did not indicate that you, your brother [initials] or the members of your family were politically active or involved in protests, or had been targeted by the authorities. You indicated that your older brother [initials] was in Vietnam. Your evidence was that he was living with your parents. You did not indicate that he was deceased.

•    Arrival interview of your brother before an officer of the Department on 24 July 2013

In an interview before an officer of the Department, on 24 July 2013, your brother [initials] provided some background and his reasons for leaving Vietnam.

Relevantly to this matter, he claimed that he left Vietnam because it was very dangerous. He said he, your family and people from your village participated in a protest against Chinese occupation of fishing areas in June 2013. He claims your older brother [initials] was hit by a policeman and killed during this protest. He also claims he was hit during this protest.

He did not claim he was detained in connection with this protest, or at any other time. He did not claim you were specifically active or involved in the protest. He did not refer to your family dispute with your husband or mother-in-law as being a reason you left Vietnam.

This information is relevant to your review because both you and your brother have provided inconsistent accounts regarding your family's political involvement, the death of your older brother [initials], your brother's detention, your family dispute, and your reasons for leaving Vietnam. Subject to your comments, this may lead the [Authority] to find these claims are not credible, and may lead the [Authority] to conclude that you are not a refugee or owed complementary protection. As a result, the [Authority] may affirm the decisions not to grant you or your family members protection visas.

You are invited to give comments on the above information in writing …

22    The Authority explained that the appellant did not specifically respond to the invitation contained in the 6 May letter, although she did provide through her legal representative a second set of written submission on 14 May 2020. Those submissions referred to the new information provided to the Authority previously on 6 May 2020 and addressed the criteria that must be satisfied for the Authority to consider the new information under s 473DD of the Migration Act. The Authority took into account some of the information referred to, and those matters are not in issue.

23    However, in the context of having received those submissions, the Authority decided to take no further steps to communicate with the appellant about the 6 May letter, explaining as follows:

[17]    No specific response was received in relation to the [Authority's] invitation, however the 'new information submission' discussed above was received on 14 May 2020 (being the due date for a response to the invitation to comment).

[18]    It is not apparent why the applicant has provided no response to the invitation. As the arrival interviews were considered in the previous [Authority] reviews, and the arrival interview of the first named applicant's brother formed the basis of the remittal to the [Authority], I am satisfied the applicants and their representative were alive to the relevance of these matters. I am satisfied the applicants have had a fair opportunity to respond to those concerns. As no response (or explanation) was received, I have decided not to take any further action to obtain the applicant's views on the information. In terms of the records of these interviews, I am satisfied the information is highly material, and given the history of this matter, the appropriate thing to do is to weigh this evidence. I am satisfied there are exceptional circumstances to justify consideration of the new information.

24    The Authority went on to explain that in the circumstances, it considered it reasonable to rely on the appellant's arrival interview in assessing her claims. It noted that arrival interviews should generally be approached with caution and weighed reasonably, and that the appellant was pregnant at the time of the interview. It also noted, however, that the appellant was advised of the importance of answering questions, providing true and correct answers to the questions asked, and that inconsistency in her claims could affect the credibility of those claims. In that context the appellant had agreed to proceed with the arrival interview.

Summary of factual claims

25    The Authority summarised the appellant's specific factual claims for protection, not all of which are relevant to this appeal. The claim of particular relevance to the appeal relates to her claimed abusive treatment by her husband and his family. That was said to found her claim to fear harm within the meaning of the relevant provisions of the Migration Act, being specifically harm at the hands of (relevantly) her husband and mother-in-law. She claimed she would be denied protection from the Vietnamese authorities and feared harm as a single woman and domestic violence survivor.

26    The Authority summarised pertinent parts of the abuse claim as follows:

•    A few days after their wedding day, [the appellant's husband] had lost all his money gambling. The applicant refused to give him any money and he became violent. He pushed into the bedroom, held her by the throat, held a knife to her throat, and threatened to kill her. She gave him the money and he went out to gamble. This was the first time he was violent. She was one month pregnant. She attempted to return to her parents' home, but he came to take her away. He smashed objects in the house and harassed and threatened to kill her parents.

•    Over a period of six months, he was violent to her. On a number of occasions, he would return home and assault the applicant. He would demand money from her, threaten her and sexually abuse and rape her. His family were also physically and emotionally abusive towards her. His family would force her to serve them from morning to night and if they were not pleased with her work then they would beat her. They would often lock her in a room and would regularly swear and yell at her.

•    After two months, she moved back with her parents. [The appellant's husband] was still physically and verbally abusive in the six month period they were married.

•    On another occasion, the applicant received a note to attend the local police station because of her involvement in a protest. Her husband organised a [party] and invited his friends over to the family home. They were drinking alcohol. Her husband treated her like an animal, and allowed his friends to rape her. She managed to escape to her mother's house. She was around 6 or 7 months pregnant, and was in a lot of pain.

27    The Authority rejected the specific claim related to the appellant's political activity and fear of political persecution. In particular, the Authority considered it significant in terms of credibility that the appellant only raised the question of her political views and the alleged death of her other older brother during a protest when she sought the protection visa, and had not raised such matters during her arrival interview. Rather, during the arrival interview she had not mentioned any claim to fear harm arising from her political views and gave every indication her brother was alive and living in Vietnam.

28    The rejection of the claim based on the appellant's political views is not in issue, but in coming to that conclusion the Authority rejected the appellant's claim that she was involved in a protest in June 2013 and rejected her claim that she was sent an informal note by the police to attend the police station. This alleged police note took on some importance in the Authority's reasons, the decision of the primary judge and this appeal, as it was argued that it formed part of a timeline related to the abuse claims. I will return to the police note.

Rejection of the abuse claim

29    The Authority rejected the appellant's claims relating to physical and sexual abuse by the husband.

30    It should be noted however, that the Authority expressly observed at [50] of its reasons that the claims relating to abuse 'are not easy claims to assess'. Further, the Authority observed at [53] that it may be difficult for complainants to recall traumatic events. The Authority appears to have been careful in assessing the evidence given by the appellant before rejecting the claim.

31    Having noted the difficulty in assessing such claims, the Authority continued at [50]:

Necessarily, if true, the details or timing of these claims could be understandably incomplete. However, I consider a full analysis of the evidence before the [Authority] strongly undermines any confidence I have in the truth of these claims.

32    The Authority then explained that it gave weight to the following factors in its analysis:

(1)    the appellant failed to raise claims of physical and sexual abuse by her husband in the arrival interview;

(2)    the appellant did not receive the police notice as claimed, and as such that incident could not have served as a 'catalyst' for the alleged gang rape committed by her husband and his friends;

(3)    the appellant's evidence about where she was staying and when was inconsistent with the alleged timing of the gang rape incident;

(4)    the appellant was unable to provide detail about certain aspects and the origin of her relationship with her husband; and

(5)    the appellant's evidence about contact with her husband since her departure was inconsistent.

33    The first three factors are of particular importance. The Authority dealt with them in the following way:

[51]    Firstly, I again give weight to the applicant's failure to specifically raise these claims in her entry interview. I accept the subject matter of these claims would potentially be difficult to discuss, however she did not detail claims to have faced violence or abuse from her husband in any respect. What she did detail was the emotional and verbal abuse from her mother-in-law and explained the catalyst for her animosity towards the applicant. I find the fact that she did not specifically mention her husband in this context, or refer generally to facing abuse from him, or even refer to his claimed gambling and drinking, raises serious questions about the genuineness of these claims.

[52]    Second, in terms of her claim that she was raped by the applicant and his friends in June 2013, I note that I have not accepted that she was involved in any political protests, in June 2013 or otherwise. It follows that I do not accept she received any notice from the police, or that her husband was visited by the police about her involvement, therefore I do not accept this was a catalyst for her husband to detain her, and subject to her gang rape with his friends sometimes in June 2013 (after the protest).

[53]    Thirdly, putting to one side any notice or visit from the police, I also consider her timeline of the specific claims related to the gang rape is at odds with her other evidence. In her written statement, she claims that she left her husband's family household around two months after the wedding (circa March 2013), after which she started to live with her own family. The applicant had given quite clear evidence that she was not living with her husband and in-laws at that time. In any event, I would find it difficult to accept she would have returned to their household after the attack she claimed hospitalised her in early 2013. I accept this would be a traumatic event, and she could be mistaken as to some details, however I also consider she provided a very specific timeline, and one that I do not consider is reconcilable with her other evidence.

34    As to the fourth and fifth factors, the Authority considered that the appellant provided superficial and limited responses when asked why she said she loved her husband or to elaborate on details about his life. It noted that although she claimed they had been in a relationship for two years prior to their marriage, the evidence she provided about her husband overall lacked convincing detail. Furthermore, the Authority found that the appellant first claimed in her written statement to have had no contact with her husband after leaving Vietnam, but then changed her evidence after it was put to her by the delegate that she was still Facebook friends with her husband. The Authority said it was not satisfied with the appellant's explanation that she remained Facebook friends with her husband because he threatened to harm her parents if she did not remain in contact.

35    Accordingly, and after detailed consideration, the Authority was not satisfied that the appellant met the protection visa criteria having regard to s 36(2)(a) and s 36(2)(aa) of the Migration Act.

Decision of the FCCA primary judge

36    The appellants raised two grounds of review at the FCCA proceeding. I have re-ordered the grounds of review to reflect the order of the grounds of appeal presented in this Court. The appellants contended before the primary judge that:

(1)    The Authority acted in a legally unreasonable way and/or irrationally and/or illogically in concluding that the appellant's claims to have been subject to physical and sexual assault at the hands of her husband should be rejected; and

(2)    The Authority acted in a legally unreasonable way in failing to consider whether to interview the appellant in relation to her allegations of assault, pursuant to its powers in s 473DC(3) of the Migration Act.

37    The primary judge delivered his reasons extempore. In relation to ground 1, his Honour emphasised that, considered holistically, the conclusion the Authority made was open to it and therefore not unreasonable: PJ [51]. His Honour rejected the appellant's submission that the Authority weighed negatively the appellant omitting reference to abuse from her husband in the arrival interview. Rather, in the view of the primary judge, the Authority made adverse findings from the appellant's failure to mention her husband in the context of her other claims of abuse mentioned in the arrival interview, a matter which was reasonable for the Authority to consider: PJ [44].

38    The primary judge also rejected an argument of the appellant that the Authority misunderstood the evidence by assuming there was a causal connection between the appellant's claim to have received the police note and the gang rape claim. His Honour considered that there must have been discussion during the protection visa interview (the transcript of which was not before the primary judge) that gave a basis for the Authority to understand the events in that way: PJ [45]-[46]. The primary judge said that the remainder of the Authority's reasoning concerned matters the Authority could take into consideration: PJ [47]-[50].

39    In relation to ground 2, the primary judge found that the Authority was 'very cognisant of ensuring that the [appellant] knew exactly what matters were before the [Authority]' and that the 6 May 2020 letter inviting the appellant to provide further written comments on the arrival interview precluded any reason to interview the appellant: PJ [54], [59]-[60].

40    For those reasons, the primary judge rejected the grounds of review.

Grounds of appeal

41    The appellants advance two grounds of appeal which are in effect identical to the two grounds of review raised before the primary judge, but which I include for completeness.

42    By the first ground, the appellants contend the primary judge erred in failing to find that the Authority acted in a legally unreasonable way and/or irrationally and/or illogically in concluding that the appellant's claims to have been subject to physical and sexual assault at the hands of her husband should be rejected.

43    By the second ground, the appellants contend the primary judge erred in failing to find that the Authority acted in a legally unreasonable way in failing to consider whether to interview the appellant in relation to her allegations of assault, pursuant to its powers in s 473DC(3) of the Migration Act.

44    As is apparent from those grounds, this appeal rests on contentions as to the legal unreasonableness of the Authority's determination.

Principles

45    The principles of legal unreasonableness are well recognised. For convenience, I adopt the summary of general principles given by Perry J (Bromwich and Kennett JJ agreeing) in the recent decision of BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111; (2023) 298 FCR 609:

[45]    First, legal reasonableness is an essential element of lawfulness in decision-making: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [58] (the Court). However, in determining whether an administrative decision is vitiated by legal unreasonableness, it is essential to bear in mind that the Court's jurisdiction is strictly supervisory and does not involve the Court reviewing the merits of the decision: Li at [66] (Hayne, Kiefel and Bell JJ); Eden at [59].

[46]    Secondly, where the contention is that an administrative decision is illogical or irrational, 'the correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it': Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [133] (Crennan and Bell JJ). As their Honours continued (at [135]):

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

[47]    Thirdly, it follows that the threshold for finding that the end result or fact finding leading to the end result is illogical or irrational is high. Disagreement, even emphatic disagreement, with the administrative decision-maker's reasoning is not sufficient: Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175; (2020) 280 FCR 1 at [23]-[25] (the Court) (quoted with approval by the Full Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 166; (2021) 287 FCR 328 at [22] (McKerracher and Griffiths JJ), the merits of which were not questioned when overturned by the High Court on an issue of apprehended bias: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 66 Fam LR 369 at [1] (Kiefel CJ and Gageler J)).

[48]    Fourthly, an evaluation of whether an administrative decision is legally unreasonable and therefore outside the range of possible lawful outcomes must be made having regard to the terms, scope and policy of the statutory source of the power: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [9] (Allsop CJ, with whose reasons Griffith and Wigney JJ agreed at [87] and [90] respectively).

[49]    Finally, whether a decision-maker has failed to reach a state of satisfaction reasonably is a fact specific inquiry. As Nettle and Gordon JJ observed in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (at [84]):

legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case.

(original emphasis)

46    As Perry J concluded at [50], in essence a decision is legally unreasonable if no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85], citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] (Crennan and Bell JJ). So much can be established if a decision or decision-making process lacks an evident and intelligible justification or basis: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 at [20] (Kiefel CJ, Bell, Gageler and Keane JJ); and Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ).

47    As to materiality, the extent to which an error must be material in order to constitute jurisdictional error was explained recently by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12. The plurality summarised the applicable principles as follows (at [14]):

The question in these cases is whether the decision that was in fact made could, not would, 'realistically' have been different had there been no error. 'Realistic' is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

(original emphasis, citations omitted)

Ground 1

Submissions

48    The thrust of the appellant's first ground of appeal is that it was legally unreasonable for the Authority to reject the appellant's claims of physical and sexual abuse on the basis of adverse credibility findings against the appellant, and the primary judge erred in not finding to this effect.

49    As to the applicable principles relating to the assessment of credibility, the appellant emphasised the general observations made by Beach J in BEL16 v Minister for Home Affairs [2019] FCA 1678 at [16]-[21] with respect to credibility, in that case in the context of reviews by the Administrative Appeals Tribunal. I will not quote the observations in full but I will address below certain extracts which were relied upon by the appellant.

50    The appellant referred to a number of aspects of the Authority's reasoning in support of her submissions. The submissions can be grouped into five categories.

51    First, the appellant submitted there was no basis for the Authority to attribute weight against the physical and sexual abuse claims because the appellant did not raise them in the arrival interview. The appellant contends the Authority should have placed no weight at all on the arrival interview, since it occurred only a few days after her 16-day boat trip and while she was eight months pregnant. The appellant cites MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436 at [56] (North, Bromberg and Mortimer JJ) in which the Full Court expressed that caution should be exercised by decision-makers in relying on omissions made by persons in arrival interviews, given the challenging circumstances of arriving by boat. The appellant submitted that although the Authority purported to acknowledge the difficulties of relying on the arrival interview, it ultimately made a blanket assessment of its utility, regardless of whether it was being weighed against the political claims or abuse claims.

52    Further to that submission, the appellant draws attention to a statement of the Authority, in the context of addressing the arrival interview and the appellant's subsequent evidence, that the appellant's evidence relating to her abuse 'again shifted significantly in her later claims and evidence'. The appellant contends that no such shift existed - the abuse claim was understandably not made at the arrival interview, and made properly at the next available opportunity. The appellant submitted that should not be understood as inconsistency, citing the following passage from BEL16:

[19]    … to mention a claim to the Tribunal not having mentioned it to the delegate or vice versa may be relevant to credibility, but may also be reasonably explicable. Further, giving more detail on one occasion than another, or emphasising different matters at different times, may be reasonably explicable by the context or the different stage of the relevant inquiry in a way that does not invite an adverse credibility finding.

53    Second, the appellant contends that the Authority fundamentally misunderstood an important issue when it stated the appellant participating in a protest and receiving the police note was a 'catalyst' or causally linked to the gang rape claim. The appellant submitted that, properly understood, her evidence indicates the police note was simply part of the description of the timing of the gang rape, rather than being a necessary condition or reason for the gang rape. That is, the appellant contends, the police note evidence simply provided a timeline to the effect that it preceded the gang rape.

54    The primary judge took a particular view about the relevance of the police note evidence, which it is necessary to set out in full:

[30]    The Applicant points to the evidence in the statutory declaration in that it does not link the notice from the police to that attack, other than providing a temporal particular so that one could give some context as to when this happened. There was nothing in the statutory declaration that talked about the husband being visited by police about her involvement. It is true that those things are not in the statutory declaration. All that is said in the statutory declaration is that the family, once they had heard that the Applicant had been given a note, forced her to return from her family's home to their home, and they beat her and locked her in the room.

[31]    The problem that I have with this is that there is obviously, or has obviously, been some discussion of this incident in the interview with the Delegate. Having a look at the Delegate's decision gives the Court nothing by which to understand how the Delegate dealt with this matter. All the Delegate's decision does, is note that the gang rape was an allegation that the Applicant had made and that the Delegate made a finding that the Applicant had not been subjected to domestic violence, such that she came to Australia to escape it. There is a dearth of information with regard to this aspect, to what else was said at the interview, but given the thoroughness with which the [Authority] reviewer has looked at these matters, it would seem strange that the [Authority] reviewer would say as they have said, that her husband was visited by the police and that this was a catalyst for her husband to detain her unless there was something that was said.

(emphasis added)

55    The appellant relies on admission into evidence of the protection visa interview transcript to demonstrate that, contrary to the view of the primary judge, there was no reference in that interview to a causal connection between the police note and the gang rape. I address the issue of admission of the transcript below.

56    The appellant says that in the absence of a notice of contention from the Minister, this reasoning of the primary judge is that which is relied upon, and the transcript reveals that it is in fact erroneous. Counsel for the appellant submitted that in none of the material provided by the appellant, either in the statutory declaration or during the protection visa interview, did she indicate her receiving the police note was causally linked to the gang rape claim.

57    Third, the appellant relies on what she describes as a number of unwarranted assumptions made by the Authority in its reasons in relation to the physical and sexual abuse claims, each of which have no basis.

58    In this regard the appellant relies on a passage from SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (Flick J) in which his Honour said (at [22]):

Unwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54].

59    The statements of the Authority the appellant refers to are that:

(1)    it is 'difficult to accept' that the appellant would return to her husband's home after the attack that she claimed hospitalised her in 2013;

(2)    'on one level' it was 'concerning' that the appellant would remain in any form of contact with her husband given the claims of abuse; and

(3)    the fact that the appellant remained Facebook friends with her husband is 'likely an indication that they are not in conflict'.

60    Fourth, the appellant submitted the Authority did not explain how the appellant's evidence about her husband's background and the history of their relationship was relevant to its assessment of her credibility. The appellant says that is an example of what Beach J referred to in BEL16 as identifying supposed inconsistences or discrepancies in the evidence without having regard to the peripherality of those matters to the core issues in dispute.

61    Fifth, the appellant submitted that the delegate, in making their original decision, did not rely on the appellant's answers relating to her ongoing contact with her husband on Facebook. Nevertheless, that was a matter the Authority relied on in finding supposed inconsistences in the appellant's account. The appellant contends that approach by the Authority is inconsistent with the principle in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35]-[36] to the effect that the appellant is entitled to assume that issues considered dispositive by the delegate are the issues that will be considered by the Authority, unless the Authority takes steps to bring new issues to the appellant's attention. The appellant submitted it is legally unreasonable for the Authority to rely on alleged inconsistencies in her evidence when it did not seek further information from the appellant, citing AYT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 597. In that decision, Moshinsky J decided that it was unreasonable for the Authority not to interview an applicant in relation to alleged discrepancies about the applicant's place of birth, given the delegate made no adverse finding on that issue in their original decision (at [28]-[32]).

62    I will deal with relevant aspects of the Minister's submissions in response when considering these various arguments below. However, it is appropriate to first address the appellant's application to rely on new evidence.

Leave to adduce new evidence

63    The appellant seeks leave to adduce evidence that was not before the primary judge, being a transcript of the appellant's interview with the delegate conducted on 1 August 2017 in relation to her application for a protection visa. The respondent opposes the application. I indicated during the hearing I would deal with the application in these reasons.

64    The Court has discretion to admit new evidence on appeal through s 27 of the Federal Court of Australia Act 1976 (Cth). The principles governing exercise of the Court's discretion under s 27 were summarised in Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16] (Griffiths and White JJ). Although the discretion is unfettered, three relevant considerations in this context are whether the result at first instance would very probably have been different with the evidence admitted, whether the appellant could with reasonable diligence have produced the evidence below, and any prejudice to either party. The parties were in agreement as to the principles and addressed me on these considerations.

65    As to the first consideration, the parties did not agree that provision of the transcript would have led to a different result. For reasons that will become apparent, the fact that the primary judge drew an inference about what may have been said does not mean that there was error in the result. However, where there is clearly a dispute about the significance of the evidence which is not easily resolved without resolving the appeal itself, to my mind the other considerations are more relevant. They tend in favour of a grant of leave.

66    As to the second consideration, the appellant's lawyer provided an affidavit in which she deposed that she only came onto the record some two months before the hearing and made attempts to source the transcript from the appellant's previous lawyers. The primary judge delivered reasons extempore. It was only after the hearing that she received a response from the previous lawyer. The lawyer confirmed they did not have a copy. The appellant's lawyer ultimately obtained a copy of the transcript through a freedom of information (FOI) request. Counsel for the appellant submitted that the recording of the interview was available to the Minister and should have been provided to the appellant in the court book.

67    The Minister submitted that the appellant failed to undertake reasonable diligence, in that through her representatives she could have made further contact with the appellant's previous solicitor, contacted the Minister's solicitor or made the FOI request sooner.

68    However, the Minister conceded that admission of the transcript posed no real prejudice beyond making the proceedings below effectively a preliminary 'stoush'.

69    The authorities provide some assistance. Counsel for the appellant referred to MZYSU v Minister for Immigration and Citizenship [2012] FCA 1073 (Dodds-Streeton J). In that case, the appellant sought leave to tender a transcript of an interview, where it was agreed that its admission posed no prejudice and that it was important evidence, although the respondent opposed leave. Leave was granted on the basis that although it was apparent in hindsight the appellant could have adduced the evidence earlier, that did not constitute a lack of reasonable diligence: at [125].

70    The appellant also referred to CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2190; (2019) 272 FCR 513 (Stewart J). Stewart J granted the appellant leave to tender a transcript that had not been before the primary judge, noting at [84] that it was 'not controversial and arguably should in any event have been included in the court book before the [primary judge]'. The appellant contends that the same circumstances apply in the present case.

71    Turning to this case, it is easy to assert in hindsight that further steps should and could have been taken on behalf of the appellant to obtain the transcript. It is also easy in hindsight, having regard to the primary judge's assumption as to what occurred at the interview, to appreciate that the transcript may have been significant. Having regard to the grounds of review, the Minister and the appellant should have been aware that any consistency or inconsistency between what was said in the arrival interview and the protection visa interview would at least be topical, and so ensured that the transcript was before the primary judge. It is important not to encourage any reluctance or procrastination on the part of an applicant to fully engage with the process of adducing evidence before the primary judge. An appeal is not a second chance to put on evidence that should have been adduced previously. However, in the present case the appellant's lawyer made some attempt to secure the transcript, and there is no real prejudice to the Minister in permitting the appellant to adduce it. I am persuaded that it is appropriate to grant leave in the circumstances of this case. As it happens, this decision does not alter the outcome, as will become apparent.

Consideration - the appellant's five categories of submissions

First category - failure to refer to abuse by husband in entry interview

72    On a careful reading of its reasons, it is apparent that the Authority did not weigh the failure of the appellant to mention her abuse claims in the arrival interview without regard to other matters or make a blanket assessment of the appellant's claims as a result. Having acknowledged the vulnerable circumstances of the appellant, noted that the appellant was appropriately cautioned, and noted the difficulty of assessing such claims of abuse, the point made by the Authority was that the appellant had in fact raised claims based on abuse in her entry interview, but only in relation to the conduct of her mother-in-law. She did not refer to conduct of her husband. It was the failure to refer to the claimed abuse by her husband in this context that the Authority considered significant, as explained at [51] of its reasons, extracted above.

73    The particular context is always important. Whilst it is appropriate to take into account the caution expressed in MZZJO against a decision-maker's over-reliance on arrival interviews, the observations of the Full Court in DWA17 v Minister for Immigration and Border Protection [2019] FCAFC 160; (2019) 272 FCR 152 are also relevant:

[32]    We agree that decision-makers would do well to apply the caution expressed by the Full Court in MZZJO at [56]. But it is just that - a caution. It is something which often, but not always, should be borne in mind in order to reach the correct decision.

[33]    We also accept that in some circumstances, a decision-maker may rely on an interview record in such a way as to indicate a misunderstanding of the statutory task, or illogicality or irrationality, and thereby to fall into jurisdictional error. But jurisdictional error is notoriously dependent on the facts of the particular case and the proper construction of the statute. MZZJO does not stand for any proposition that, regardless of the circumstances, relying solely or primarily on the absence of claims from an entry interview is a jurisdictional error.

74    Further, the Authority's reference to the appellant's evidence having 'again shifted significantly' must also be placed in context.

75    Between [35] and [45] of its reasons, the Authority addressed the appellant's claim related to her attendance at, relevantly, the June 2013 protest. At [39] of its reasons, the Authority said that the appellant's evidence about her politics shifted at the visa interview. The reference at [49] of the reasons, in the section dealing with the abuse claims, to the appellant's evidence 'again' shifting, read sensibly, references this shift described at [39]. The appellant appears to challenge the Authority's use of the expression in [49] on the basis that the evidence in the statutory declaration of abuse by her husband was not a 'shift' but a disclosure of the abuse by her husband in the protection visa application process. There is nothing untoward in the Authority's use of the words 'again shifted' or similar words. Even if there was a late disclosure of evidence that until then had been withheld, objectively there was the provision of further information, or a change - or shift - in the appellant's evidence. The Authority was entitled as part of its reasoning process to refer to such changes or inconsistencies in assessing the appellant's evidence and no error is shown in its approach. As acknowledged by Beach J in BEL16, such matters are relevant to the assessment of credibility, even if they do not of themselves invite an adverse credibility finding.

76    On the facts of this case, the Authority decided that the appellant's omissions to disclose the claimed abuse by her husband, in the context in which that omission occurred, weighed against the genuineness of her claims. It considered there were 'uneven and inconsistent' accounts of abuse. The Authority did not reach a conclusion based on the 'shift' alone but upon then undertaking (in the paragraphs that followed [49] of its reasons) a 'full analysis of the evidence'. That approach does not reveal illogicality or irrationality.

Second category - the police note as a 'catalyst'

77    I accept the primary judge perhaps assumed that something more specific was said in the protection visa interview as to a causal link between the police note and gang rape claim than was in fact the case (having regard to the transcript), but there were matters said in the interview that are clearly relevant. The transcript includes statements which on balance are suggestive of such a causal link and reasonably found a basis for such an inference (noting it should not be assumed that evidence is given in strict chronological order). For example:

He invite his friend to come to my house and have a drink and then he let his friend to rape me. He also locked me in the room and he threatened me with a knife. It was an assault for me.

…

The police came to see my husband and told him that I encouraged all the people to participate in demonstration. My husband forced me into a room and beat me up. He hit me in my stomach with his hand and his leg. And then he drank alcohol and invited his friend to come to my house …

78    In these circumstances I am not satisfied that this aspect of the primary judge's reasoning in relation to ground 1 reveals appealable error.

79    The appellant submitted (raising it for the first time at the oral hearing) that if the Minister wished to submit that the primary judge, regardless of what may have been said at the protection visa interview, should have inferred there was a causal link between the police note, a visit by the police to the husband and the gang rape, then it should have filed a notice of contention. I observe that the Minister's written submissions addressed the evidence that connected the political protest and the gang rape in detail (at [19]-[24] of its submissions) and disclosed clearly that it asserted such evidence supported the findings of the Authority, regardless of the nature of the inference made by the primary judge. However, in light of my finding at [77]-[78] above, the question of whether a notice of contention was required in relation to this part of ground 1 falls away.

80    Furthermore, the Authority's conclusion, with or without the protection visa interview, was open to it on the evidence. It is to be recalled that the Authority's reasons at [52] and [53] (extracted at [33] of these reasons) are phrased in the alternative.

81    Dealing first with the reasons at [52], I am of the view that the Authority's reasoning, whilst apparently based on inference, does not lack an evident or intelligible basis. Central to this part of the reasoning is the fact that the gang rape was said to have occurred at her husband's home and after both the appellant's claimed involvement in the protest (June 2013) and the claimed receipt of the police note. By the time of each of those events, according to her statutory declaration, the appellant was not living at the husband's home, but at her family's home, having returned there some three to four months earlier. The statutory declaration includes two statements that when read together leave open the making of the inference drawn by the Authority. First, as also extracted above, the appellant said the following in one part of the statutory declaration, when referring to the abusive conduct of her husband's family:

A specific example of their abusive nature includes when my husband's family found out that the police had sent me a note requesting me to attend the police station because of my involvement in the organisation of the protest. I went to stay at my parents' home and his family forced me to return to their home. When I did, they then beat me and locked me in a room.

82    In another part of the statutory declaration the appellant said:

Another specific incident includes one that occurred a few days after I had received a note from the Police to attend the Police station because of my involvement in the organisation of the protest (which is detailed below). My husband organised a party and invited his friends over to his family's home. They were all drinking alcohol. My husband treated me like an animal and allowed his friends to rape me. I can't remember how many people did this to me. After a while, I managed to escape to my mum's house. I was in a lot of pain. I was also approximately 6/7 months pregnant by this stage.

83    In my view those matters are a logical basis for forming the view that there was a causal connection between the appellant receiving the police note and the gang rape taking place. The appellant was residing with her family from about March 2013; she participated in the organisation of the protest in June 2013; a police note was issued to her after the protest; the husband's family found out about the police note and forced her to return to their home; when she was at their home they beat her and locked her in a room; when she was at their home she was gang raped.

84    I accept that in no material did the appellant explicitly assert there was a causal link between the police note and the gang rape. However, on the appellant's own evidence, it is apparent that the police note set off a chain of events that led to her being forced to return to the husband's home. Sometime after the issue of the police note and when she had been forcibly returned to the husband's home, she was gang-raped. Reasoning that is premised on the police note setting off that chain of events is clearly open on the evidence.

85    Separately, and in any event, the Authority expressed in [53] of its reasons that, leaving the police note or visits to one side, the appellant's assertion in the statutory declaration that she spent the last four months prior to her departure at her parents' house is on its face inconsistent with the allegations that she was detained and gang raped at her husband's family's home. The Authority acknowledged that the claimed events would be traumatic for the appellant and she could be mistaken as to some details, but regardless formed the view that the appellant had provided a clear time line about the six month marriage and that the circumstances of the alleged gang rape did not fit within that timeline. That reasoning does not exhibit irrationality or illogicality to the extent that no reasonable decision-maker could have formed it.

Third category - 'unwarranted assumptions'

86    With respect to the impugned 'assumptions', I accept the Minister's submission that, when read as a whole, the Authority's reasoning is reasoning that a reasonable decision-maker could have undertaken.

87    That reasoning as a whole reveals a balanced and considered account of matters that logically formed a basis for the Authority to form its conclusions. Its statement at [53] of its reasons that it is 'difficult to accept' the appellant would return to her husband's home after experiencing abuse was qualified with recognition that it would have been a traumatic event and she could be mistaken about some details. Likewise, its statement at [58] of its reasons that the Authority was concerned the appellant would remain in any form of contact with her husband was qualified with a statement that the Authority understands that persons can remain in communication in such relationships out of fear of further harm. The statement that the appellant remaining Facebook friends with her husband is likely an indication they are not in conflict was said in the context of not accepting her other evidence. While arguably that finding on its own might have been stated too highly, it does not lack an evident or intelligible basis, and was taken into account by the Authority only in the context of also taking into account other matters relating to the inconsistency of the appellant's evidence.

88    I accept these assumptions were made. However, they were made in the course of the Authority's detailed assessment and consideration of the evidence and it is apparent that the Authority regarded them as qualified. The Authority did not, in the language of SZVAP, fail to consider the questions raised on the material before it. It was the 'shifts' in evidence that the Authority described as 'more concerning'. It observed at [57] of its reasons that the appellant's evidence about her Facebook status with her husband shifted. The appellant initially claimed they were not Facebook friends but later admitted that she had stayed friends with him on Facebook, stating that her husband threatened her via Facebook and also demanded she post photos of her son.

89    The Authority observed that her evidence about contact with her husband shifted. She initially gave 'clear evidence' that she had not been contacted by her husband since she arrived in Australia and, contrary to later assertions, did not indicate that there had been ongoing threats from him.

90    The Authority's conclusion is important. Its reasoning must be understood in context and as a whole. The 'assumptions' the appellant complains of were discussed by the Authority in the context of addressing other alleged problems in the appellant's evidence. It summarised its considerations at [59] of its reasons, stating:

I acknowledge that aspects of her account are broadly consistent with country information about the barriers faced by victims of domestic violence in Vietnam. Also at the forefront of my mind in this assessment are the difficulties faced by victims in raising claims such as this, and the stigma they fear that may prevent them from putting forward their experiences. However, I have also identified a number of serious issues within her evidence across time. I do not consider these considerations and sensitivities explain or outweigh what I consider to be significant omissions, inconsistencies, and variances in her evidence across the duration of this application. When all of these factors are considered together, I am satisfied they reveal an account that is not credible or genuine.

91    It is also important to acknowledge that the Authority accepted there was likely some truth to aspects of her evidence. For example, it considered it plausible that the appellant left the husband's household after a couple of months of marriage and that she faced emotional and verbal abuse from her mother-in-law (at [60] of its reasons).

92    Viewed in total, the Authority's approach to assessing the credibility of the abuse claims, even taking into account the various assumptions referred to in the appellant's submissions, do not reveal findings that are without basis or are otherwise illogical, irrational, or unreasonable. There was a careful identification of the facts, the context and the significance of the inconsistences.

Fourth category - lack of knowledge about her husband

93    I do not accept the appellant's submission to the effect that the Authority did not explain or had no basis to negatively assess the appellant's credibility based on her evidence about her husband's background and the history of their relationship.

94    The Authority explained at [55] of its reasons that it considered the evidence the appellant gave about her husband and his background was superficial, given it was the appellant's evidence they had been together for two years before their marriage. It specified in that context that it found her evidence about him lacked convincing detail. I disagree with any suggestion of the appellant that, in the language of BEL16, her husband's background is a peripheral matter. As the alleged perpetrator, her husband is a central part of her abuse claims. Any considered discrepancies or inconsistencies, or perceived lack of detail, may reasonably be used by the Tribunal to find against the credibility of the appellant's claims. Such reasoning is not illogical or irrational.

Fifth category - consideration of Facebook friends issue

95    The complaint on the part of the appellant appears to be that the delegate did not appear to rely on the inconsistency in information before it as to whether she remained Facebook friends with her husband, but the Authority did so.

96    In that context, as I understand the appellant's submission, the question is whether it was unreasonable for the Authority to rely on the alleged inconsistency in rejecting the appellant's account, at least in the absence of seeking further information from the appellant.

97    I accept the Minister's submission that the decision in SZBEL, relied upon by the appellant, was concerned with a denial of procedural fairness, not legal unreasonableness. The Minister referred to DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 (Reeves, Robertson and Rangiah JJ) at [72] for the proposition that the Authority is not required, by the constraints of legal reasonableness or otherwise, to notify the appellant of it taking a different view of material considered by the delegate. The Minister also referred to DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222; (2018) 267 FCR 69 (Collier, Middleton and Rangiah JJ) at [74] for the principle that the Authority is not compelled to invite an applicant to interview merely because his or her credibility is called into question.

98    I accept the Minister's submissions that those authorities demonstrate the Authority is not by default under an obligation to notify or seek new information from an applicant where it seeks to depart from the reasoning of the delegate. Inherent in that principle is that the Authority may rely or make findings on material that the delegate did not rely or make findings on. As much is consistent with the provisions of Part 7AA, which contemplate that the Authority will evaluate for itself the material considered by the delegate: DGZ16 at [72].

Ground 1 conclusion

99    Having regard to the above matters separately and cumulatively, I am not persuaded that the Authority acted in a manner that was legally unreasonable.

100    The primary judge concluded his assessment of the equivalent ground as follows:

[50]    So when it is that the [Authority] ended up coming to the conclusion that they are satisfied that the Applicant has given an account that is not credible or genuine, it is not just because of the arrival interview. It is not just because of what has happened with regard to the information given by the police to the husband, or the receiving of the note. It is not just because of the timeline. It is not just because the Applicant has no real knowledge of details of her husband, it is not just because she told fibs about Facebook, or fibs about the contact that they had had.

[51]    It is, when one looks at all of those matters together, that they do form the rope [from threads] that has allowed the [Authority] to come to the conclusion that they made in the last sentence of paragraph 59 of their reasons. That conclusion is a conclusion that is open to them and therefore, it is not unreasonable. For those reasons, ground 2 fails.

101    It follows that I consider the primary judge reached the correct conclusion in dismissing this ground of review, and no error is established.

Ground 2

Nature of claim

102    The appellant contended that given the gravity, importance, and ambiguity surrounding her claims of abuse, it was legally unreasonable for the Authority to not consider interviewing her about those claims pursuant to its powers in s 473DC of the Migration Act.

103    The principles in this regard are well-settled. There is a distinction between an allegation that it is legally unreasonable for the Authority not to consider the exercise of the power in s 473DC and an allegation that it is legally unreasonable for the Authority not to consider and exercise the power in s 473DC: CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199 at [73] (Besanko J). The Authority is under no obligation to give reasons for the exercise or non-exercise of its procedural powers. Absent an admission, it may often be difficult for the applicant, who carries the onus, to prove that the Authority did not consider exercising the power: BDV17 at [38]-[40].

Submissions

104    In written submissions, the appellant said that it was 'plain' that the Authority did not consider whether to invite the appellant for an interview. During the hearing, the submission was refined to one that acknowledged the contents of the 6 May letter, but suggested any consideration of the Authority's powers evidenced by the letter did not relate to the abuse claims, since the letter only dealt with the political claims. The appellant submitted that the 6 May letter indicated that if the Authority considered the exercise of its powers in relation to the abuse claims, it would have said so.

105    The appellant said a number of factors made the Authority's (inferred) failure to consider interviewing the appellant unreasonable: the appellant's allegations are of a very serious nature; the circumstances of the appellant are vulnerable; both the interpreter and delegate interviewing the appellant in the protection visa interview were male; and the appellant was specifically told in the protection visa interview to only tell the interviewer what she felt comfortable telling him.

106    Counsel relied on the reasoning of Kiefel CJ, Bell, Gageler and Keane JJ in ABT17, in which the Court considered any obligation of the Authority, within a legal unreasonableness context, to exercise its powers in s 473DC. It described how, where audio recording of an interview with the delegate is passed on to the Authority without the corresponding video recording, an information gap may occur, and that such a gap has the potential to impact the Authority's ability to assess credibility through demeanour (at [13]-[15]). In that context, their Honours said that the Authority is not required to invite an applicant to an interview merely because credibility is in issue. However, the Authority will act unreasonably if, without good reason, it decides not to take the opportunity to gauge an applicant's demeanour by interview before rejecting a claim made by the applicant in an interview with a delegate where the delegate broadly accepted the claim based on the applicant's demeanour (at [24]-[25]).

107    As the Minister submitted, and counsel for the appellant conceded, the factual setting of ABT17 is different to the present case. I interpolate to observe that in the present case, the Authority rejected the appellant's claims relating to physical and sexual abuse in a manner consistent with the decision of the delegate. Although the Authority did not have its own impression of the appellant's demeanour, it had material before it that provided a basis for it to reject the credibility of the appellant's claims - being the alleged inconsistency of the appellant's claims spread across the arrival interview, statutory declaration and protection visa interview. As was specifically expressed by the Court in ABT17 at [24], the Authority is not required to interview a referred applicant merely because the credibility of certain claims is in issue. As much is entirely consistent with the process of 'on the papers' fast track review established by Part 7AA of the Migration Act.

108    Regardless, the appellant submitted that an information gap arose in her circumstances, due to the uncertainty around the appellant's abuse claims; the conduct of the delegate during the protection interview in telling the appellant to only give as much detail she was comfortable with; and the delegate's conduct in 'shutting down' the appellant attempting to raise those issues in the protection visa interview.

109    The appellant submitted that the primary judge erred in concluding in effect that the Authority's letter to the appellant inviting further written submissions discharged any need to consider interviewing the appellant, asserting that in the circumstances such claims should have been explored in an interview, and not in writing.

110    It was the Minister's position that the Authority can be seen to have considered whether or not to interview the appellant, but that in any event, it was not legally unreasonable for it not to consider doing so.

Some further relevant cases

111    There is an established line of cases that confirm that the discretionary power contained in s 473DC is conferred with the implied condition that it must be considered and, where appropriate, exercised by the Authority within the bounds of reasonableness: ABT17 at [3] (Kiefel CJ, Bell, Gageler and Keane JJ). Having regard to the detailed and careful submissions made on behalf of the parties, I summarise some of those cases here.

112    In Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475, to which the Minister referred, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant in that case a safe haven enterprise visa. It did so on a basis different to and not considered by the delegate, being that the applicant could reasonably relocate to Beirut where he would not face a real risk of significant harm. The Full Court (Robertson, Murphy and Kerr JJ) decided it was legally unreasonable for the Authority to not consider getting documents or information from the applicant pursuant to s 473DC, because the Authority knew that it did not have, and the applicant was likely to have, information on the possibility of him relocating to Beirut. The Authority's failure to consider the exercise of the discretionary power meant that it disabled itself from deciding the issue of relocation on a reasonable basis: at [82]. Although not contested on appeal, the Full Court agreed with the primary judge's finding that the Authority did not in fact consider exercising its power under s 473DC, because there was no reference to considering the power in the Authority's reasons: at [75].

113    Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526 (Robertson, Murphy and Kerr JJ) was decided in a similar way. In that case there was an issue as to whether the applicant could relocate to avoid risk of harm. A delegate of the Minister had discussed with the applicant possible relocation to Kabul, but not relocation to Mazar-e-Sharif. On review, the Authority had received new country information relevant to the applicant potentially being able to relocate to Mazar-e-Sharif. It wrongly considered that it had a duty under s 473DE of the Migration Act to invite the applicant to give comments on that country information and wrongly imposed time limits for the applicant's response. In those circumstances, the Full Court held the Authority had acted legally unreasonably in failing to consider exercising its power in s 473DC to get new information from the applicant: at [79]-[81]. It was 'common ground' that the Authority did not consider acting under s 473DC, because it had mistakenly considered it was under a duty through s 473DE to invite the applicant to give comments: at [79].

114    In DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134, to which the appellant referred, an applicant had made claims that he had been tortured and sexually assaulted in his country of origin. A delegate of the Minister accepted those claims, but decided on other grounds not to grant the applicant a protection visa. The Authority affirmed the delegate's decision, but in doing so rejected the applicant's claims of sexual assault and as such differed from the reasoning of the delegate. The Full Court held that the Authority's failure to consider obtaining more information about the sexual assaults pursuant to s 473DC was legally unreasonable. It would have been evident to the Authority that the delegate's acceptance of the sexual assault claims was based on a positive assessment of the applicant's demeanour and credibility. In that context, and lacking its own evidence as to demeanour, the Authority failing to obtain information to make its own assessment of the applicant's demeanour was legally unreasonable: at [46]. The Minister conceded that the Authority had in fact not considered exercising its power in s 473DC: at [44].

115    Those decisions share the common feature that it was conceded or not disputed that the Authority in fact failed to consider exercising its power in s 473DC. As I have noted, absent such a concession, the High Court observed in BDV17 that given the nature of the Authority's discretionary powers within the context of Part 7AA, it may be difficult to prove by inference the Authority failed to consider exercising any one particular power.

116    In ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [47]-[49] the Full Court rejected the appellant's argument that the Authority did not consider exercising its power in s 473DC. As the Court explained:

[47]    The appellant did not point to any positive evidence to suggest there had been such a failure. The Court was asked to infer the failure from the absence of anything in the Authority's reasons which referred to consideration of the exercise of power.

[48]    In this case, we do not consider the Authority's reasons are entirely silent on this issue. There is an indication in the Authority's reasons that it may well have considered whether to exercise the power. That indication is found in [3] of its reasons, where the Authority states:

No further information was obtained or received.

[49]    The use of the word 'obtained' may suggest the Authority member turned her mind to whether or not to exercise the power in s 473DC. In the absence of any other evidence to support the inference for which the appellant contends, and in the absence of concession by the Minister, we consider the way in which [3] is expressed is a sufficient basis to conclude the appellant has failed to prove it is more likely than not that the Authority did not give any consideration to whether or not to exercise the power in s 473DC.

(original emphasis)

117    The similarities between the circumstances in ASB17 and the present case are apparent.

Consideration

118    Ground 2 is to my mind resolved by close attention to both the 6 May letter and what was said by the Authority at [18] of its reasons. I have included at [20]-[23] above the relevant facts and reasons of the Authority that assist with this issue.

119    On any fair reading, the 6 May letter is not limited to inviting comment on the appellant's political claims. The 6 May letter expressly refers to the arrival interview and the appellant's claims that she left Vietnam because of emotional and verbal abuse from her mother-in-law. The letter referred to the fact that the appellant's brother did not refer to the appellant's family disputes with her husband or mother-in-law as being a reason she left Vietnam. Inconsistencies in accounts about disputes with her husband and mother-in-law were expressly foreshadowed by the letter. It is evident or at least open that the Authority was considering both the political and abuse claims of the appellant, and as such considered exercising its powers in s 473DC with regard to both of those issues.

120    The Authority specifically invited further comment on all the matters referred to in the letter.

121    Further, it is not possible to properly draw an inference from the content of the letter that the Authority failed to consider exercising its powers to invite the appellant to an interview, rather than invite a response in writing. It had self-evidently considered its powers under s 473DC and determined to exercise them in a particular way. No inference can safely be drawn that it ignored or overlooked the potential under s 473DC to invite the appellant to participate in an interview.

122    The Authority recorded in its reasons that the appellant had failed to respond in terms to its invitation in the 6 May letter to provide written submissions. It said that it 'decided to not take any further action to obtain the [appellant's] views on the information'. This comment also reveals that the Authority actively considered options available to it to take further action. Again, in light of this comment it cannot safely be inferred that it overlooked or ignored the potential to interview the appellant.

123    Furthermore, it can be inferred that the Authority proceeded in the manner it did cognisant of the circumstances of the arrival interview. That included the need to approach reliance on such interviews with caution, the appellant's pregnancy, the fact that she was cautioned about the significance of the evidence she was to give, and the fact that the appellant indicated she understood what had been said to her. As already noted, the Authority recorded such matters in its reasons (at [32]-[34]). The Authority also recorded its cognisance of the difficulties that visa applicants might find in recalling traumatic events (at [53]). The Authority on this occasion appears to have taken some care, on the face of its reasons, to consider the particular claimed circumstances of the appellant. There is no reason to assume it did not have regard to such matters in deciding that it would proceed to seek further comments by way of inviting a response in its 6 May letter. Nor is there any reason to infer that, having failed to receive a response, it did not have regard to such matters in deciding to then take no further action in that regard. The appellant has not persuaded me that inferences should be drawn to the contrary.

124    Further, and in any event, I am not satisfied that there was an 'information gap', as the appellant contends, such that the only reasonable course for the Authority was to clarify the position by an interview. This case is far removed from the circumstances in CRY16 and DZU16 where the relevant applicants had provided no information on a particular issue which ultimately formed the basis of decisions of the Authority. Here, in addition to the arrival interview, the appellant had provided a statutory declaration. The appellant had been expressly given an opportunity to comment on inconsistencies that arose on the evidence, before the Authority determined its assessment.

125    As was described by the High Court in Li, a decision-maker is not under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. It may decide, in appropriate cases, that 'enough is enough': Li at [82] (Hayne, Kiefel and Bell JJ). Although the Court made those comments with respect to the then Migration Review Tribunal, in light of the authorities above, including ABT17, there is no apparent reason that the same cannot be said to apply to the Authority conducting its review under Part 7AA.

126    In conclusion, it follows that I agree with the primary judge's conclusion that the appellant has not established that an inference should be drawn that the Authority failed to consider exercising its power to invite the appellant to participate in an interview. No legal unreasonableness on the part of the Authority in this regard is established. The primary judge's conclusion was correct and no error is established.

127    For completeness I note that the Minister submitted that the appellant has not shown that any expansions on the appellant's claims of physical and sexual abuse would constitute 'new information' as required to enliven s 473DC. It is not necessary to develop this further in this case, as I have decided in any event that ground 2 is to be dismissed. However, I note that this should not be assumed to be so. As the High Court explained in ABT17 at [16], the Authority's own visual impression of a person's articulated claims necessarily constitutes new information as defined in s 473DC.

Outcome

128    It follows that neither ground of the appeal is upheld.

129    Should either of the grounds have been made out, in light of the decision in LPDT I would have found such an error material. As explained in LPDT at [6] (citing MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [33]), if a decision-maker arrives at a conclusion that is legally unreasonable, materiality is likely inherent in the nature of the error. I consider that reasoning would apply in this case. Both grounds concerned rejection of the appellant's abuse claims. Those claims were of central importance to the appellant's protection visa application. The abuse claims were one of the two main bases by which the appellant claimed entitlement to a protection visa under s 36(2)(a) and s 36(2)(aa) of the Migration Act. Assuming the error alleged by each ground did occur, without those errors it is possible the abuse claims would not have been rejected and the outcome of the Authority's decision could have been different.

130    There will be orders dismissing the appeal.

Associate:

Dated:    12 September 2024