Federal Court of Australia

ANR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 759

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the costs of the first respondent to be taxed if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The appellant's application for a protection visa was refused. He sought review by the Immigration Assessment Authority. The Authority affirmed the refusal decision. The appellant sought review on the basis of alleged jurisdictional error in the Federal Circuit and Family Court. His review application was dismissed. He now brings an appeal. He advances a single ground of appeal (noting that a second ground was not pressed at the hearing of the appeal).

2    The appeal ground concerns whether it was legally reasonable for the Authority to make adverse findings as to the credibility of aspects of the appellant's account without exercising its power to hear from the appellant in person. The case is said to be in a similar category of case to ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439. It is founded upon a contention to the effect that the delegate of the Minister in refusing the protection visa application had accepted the appellant's account as honest and reliable.

3    For the following reasons, the primary judge was correct to find that a claim of legal unreasonableness was fact dependent, that the circumstances of the appellant's case were readily distinguishable from those that pertained in ABT17 and that there was no legal unreasonableness in the Authority proceeding without interviewing the appellant.

Relevant aspects of the nature of the review to be conducted by the Authority

4    The Authority is required to conduct a review on the papers without accepting new information or conducting an interview of the visa applicant subject to specific powers to get and consider new information (including by way of interview). Those powers 'must be considered and where appropriate exercised within the bounds of reasonableness': ABT17 at [2]-[3] (Kiefel CJ, Bell, Gageler and Keane JJ).

5    Consequently, a decision not to exercise the power to interview a visa applicant in a particular case must have an intelligible justification and must also be reached through an intelligible decision-making process: ABT17 at [20].

6    Of importance for present purposes is the following passage from their Honours' reasoning in ABT17 at [23]-[25]:

To the extent that the credibility of the referred applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate's findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant's appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant's credibility without any need for the Authority's assessment of credibility to coincide with the delegate's assessment of credibility.

The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate.

However, the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.

(footnote omitted, emphasis added)

Relevant aspects of the Authority's decision-making process

7    The appellant is a citizen of Vietnam. He was 17 when he arrived in Australia in 2012. It was not until 2016 that he was able to make his visa application. The decision to refuse his application was made by a delegate of the Minister. A period of about three years elapsed between the decision of the delegate and the decision of the Authority (noting that there was a remittal to the Authority after a successful application for judicial review of an earlier decision by the Authority).

8    The Authority received a statement of the appellant in support of his visa application that was not before the delegate. It concerned the political activities and views of the appellant. Speaking broadly, the statement was to the effect that he was still a child when he came to Australia and since then his political views had matured. In the statement the appellant said that he had come to strongly believe 'that the current communist regime in Vietnam needs to be overthrown'. He described his political activities in Australia. He said that if he was forced to return to Vietnam he would not be able to refrain from expressing his views on the current regime in Vietnam and the only reason he would not be able to do so was 'because if I did, both me and my family would face serious harm'.

9    In particular, the statement included the following:

I have changed a lot over the past three years. I am now a much more mature and more politically minded person than I was at the time the Department of Immigration and Border Protection officer interviewed me. I have changed so much, and my thoughts have developed considerably. I request that the IAA interviews me so that the next decision maker can have a clear understanding of my current political opinions or my plans for the future. I am willing to make myself available for an interview at a time which suits the IAA.

10    The Authority did not interview the appellant.

11    The Authority made a number of adverse findings concerning the claims made by the appellant as to his political beliefs and activities since being in Australia. They included findings to the following effect:

(1)    the appellant's evidence and submissions about his political involvement in Australia was 'superficial and unconvincing' (para 71);

(2)    the appellant's attendance at protests in Australia 'was superficial and designed to strengthen his protection visa claims' (para 71);

(3)    based on the appellant's Facebook evidence 'his social media activities are superficial, passive rather than activist, and low level' (para 72); and

(4)    as to the appellant's intentions if he returned to Vietnam, the Authority was 'not satisfied he would be politically active, involved or outspoken' (para 73) and was of the view that instead he would engage with his church and community and perhaps express 'his low level opinions … but not in a politically activist way' and 'this would not be a result of [him] modifying his behaviour to avoid serious harm' (para 80).

12    The Authority did find that the appellant's expression of concern at his visa interview were 'reasonably earnest and genuine' and that he was involved in a community in Australia that included politically active members (para 80). Nevertheless, the Authority found:

However, I am satisfied that the applicant’s political activities in Australia do not genuinely or credibly reflect his low level political opinions, or how he would engage politically on return to Vietnam. I find his political activities in Australia were superficial, infrequent and designed to strengthen his claims for protection. If the applicant returned to Vietnam, I find he would not be involved in political protests or any other political activities.

13    Plainly, the Authority made adverse findings as to the credibility of the evidence given by the appellant in the statement provided to the Authority. However, those adverse findings were focussed upon the appellant's account of matters that had occurred after the decision by the delegate.

The nature of the alleged legal unreasonableness

14    In written submissions, the position advanced for the appellant was that it was legally unreasonable for the Authority to have rejected the matters in his statement to the Authority without hearing from the appellant 'given that the delegate, who had interviewed the Appellant, and therefore had the benefit of assessing the Appellant's demeanour, had found him to be a reliable and credible witness' (original emphasis).

15    As was accepted by counsel for the appellant, in order for a contention of that kind to succeed it was first necessary for the appellant to demonstrate that the delegate had made a generalised finding to the effect that the appellant was an honest and reliable witness.

Relevant aspects of the delegate's decision

16    The delegate's reasons began by accepting that the appellant had provided sufficient evidence of identity which was 'consistent with their narrative and biometrics'.

17    Next, the delegate summarised the appellant's claims for protection. The claims as described were of a fear of harm in Vietnam as a result of his religion. They were based, in particular, upon an account of what had occurred during a mass where the appellant said he intervened with others when a group of people including armed government officials smashed statues and physically assaulted parishioners.

18    The reasons then set out the delegate's 'Findings of fact'.

19    Under the heading 'Religion/Protest Action against the Vietnamese Government' the delegate found that the appellant was able to speak with ease about his church and was able to answer questions specific to his religion. The delegate also found that the appellant gave 'detailed and spontaneous testimony' at his interview about the events at the Church that were relied upon to support his claim. However, the delegate concluded by finding: 'I do not accept that the applicant was a high profile religious activist'. This was a conclusion based upon a characterisation of the evidence that had been accepted rather than a rejection of the appellant's evidence to the delegate.

20    Under the heading 'Exposure to Vietnamese authorities in Australian Immigration Detention' the delegate referred to information provided by the appellant's migration agent about a visit by Vietnamese immigration officials. The delegate observed that the appellant had not personally raised any claims in relation to being visited by Vietnamese immigration officials.

21    The delegate then said:

Given the information before me I am not satisfied that the applicant's claims in relation to exposure to the Vietnamese authorities in Immigration Detention in Australia are credible or that there is real chance of the applicant being subjected to serious harm on the basis that a delegation of Vietnamese authorities visited the Immigration Detention facility where the applicant was held.

22    The Minister submitted that the above finding was based upon an adverse view being taken by the delegate of the appellant's credibility. However, in my view the finding was made on the basis that it was a claim that was raised by the migration agent that was not raised by the appellant. Therefore, I do not consider the delegate's finding to indicate an adverse finding as to the credibility of the appellant's account.

23    Then under the heading 'Political Opinion - Viet Tan Demonstrations Perth' the delegate dealt with testimony given by the appellant at interview about his involvement in political demonstrations in Australia. The delegate made findings that included the following:

Given the applicant's testimony at interview I am satisfied that the applicant did attend Viet Tan demonstrations to support those protesting in Vietnam over the Formosa environmental incident. Given the information the applicant has provided I find that the applicant was not a high profile activist, had never been involved in the party in Vietnam, and likely attended the demonstrations as support for those who rely on the income of fishing in his home area, rather than an interest in the Viet Tan group.

I therefore accept, regardless of the circumstances, that the applicant has participated in activities with Viet Tan in Australia. The applicant stated at interview that he had been 'too busy' to apply to join the group officially but that he would likely do so in the future and that he would have participated in these activities had he been in Vietnam at the time as he felt strongly about the environment and the way the Vietnamese government had handled the situation. Given this information I accept that the applicant's motive in joining the group isn't entirely based on embellishing his claims for protection in Australia.

I accept that the applicant has participated in peaceful political demonstrations with the Viet Tan group in Australia.

In light of the above I do not accept that the applicant is a high profile member of the Viet Tan in Australia, nor is he a high profile political activist.

(emphasis added)

24    The Minister relied upon the emphasised passage as an adverse credit finding. I read that sentence as rejecting any suggestion that his participation in the demonstration was to embellish his claims. I accept the submission for the appellant that it is dealing with a matter that the delegate is required to consider and accepting that it does not apply, and no more.

25    However, the difference between the formulation of the basis for the protection claim at the time the issue was being considered by the delegate and when the matter came before the Authority is very evident.

26    The delegate then summarised the factual findings in the following terms:

I accept the applicant fears harm on return to Vietnam for the following reasons:

•    Religion - Catholic - including being present at an incident in Con Cuong in 2012

•    Political Opinion - attending Viet Tan protest in Australia

•    Political Opinion - data breach

•    Political Opinion - failed asylum seeker / departing Vietnam illegally

I do not accept:

•    The applicant is a high profile political activist or religious leader.

•    The applicant was exposed to the Vietnamese authorities whilst in Immigration Detention in Australia.

27    Although two negative findings were expressed: (a) the first appears to be a conclusion by way of characterisation as to what might be concluded from the appellant's account as accepted; and (b) the second, as has been explained, was not based upon an adverse finding as to the credibility of the appellant's account.

28    I accept the submission for the appellant that the delegate then considered the application of the assessment criteria to those circumstances as found and in rejecting the claim based upon that assessment did not make any adverse credit finding.

Did the delegate make a generalised finding that the appellant was an honest and reliable witness?

29    Having regard to the above reasoning, it may be accepted that the delegate made no adverse findings as to the credibility of the account given to the delegate. However, I would not characterise the conclusions reached by the delegate as a general finding to the effect that the appellant was an honest and reliable witness. The delegate made no findings to that effect nor did the delegate reason in that way. Rather, I would say the appellant's evidence given to the delegate was accepted by the delegate. Each aspect of the claims made was considered and evaluated. At times, the reasoning relied upon corroborating evidence or assessments of the inherent credibility of the account given by the appellant. Certain aspects of the appellant's evidence were accepted on the basis of the way in which the appellant's account was given. There was no general finding to the effect that the appellant was a person who was a credible witness whose account was to be accepted for that reason.

30    Therefore, the foundation for the appeal ground has not been made out. It follows that the appeal must be dismissed.

Further difficulty for the appellant

31    Even if the appellant had established that the delegate made some form of generalised finding that he was an honest and reliable witness such that any adverse finding by the Authority as to his credibility would be contrary to that finding by the delegate, the appeal would still have failed.

32    The difficulty for the appellant was that it was not legally unreasonable for the Authority to reach a different view as to credibility to that reached by the delegate and to do so without interviewing the appellant.

33    As has been explained, the Authority was conducting a process that was required to be conducted on the papers subject to the exercise of power to do certain things, including interview the appellant. To be within the bounds of legal reasonableness as to the exercise of that power, the Authority was not required to interview the appellant merely because the Authority proposed to come to a different view as to credibility than the delegate. The Authority could proceed to reach a different view as to credibility provided there was an intelligible justification for doing so that was reached through an intelligible decision-making process.

34    In the present case, the Authority was being invited to consider a basis for a protection claim that was of a kind that had not been considered by the delegate. The evaluation was to be undertaken about three years after the delegate's decision-making. Further, on the appellant's own account he had matured and become politically active to the point where he held very strong beliefs concerning the government in Vietnam. His own case was that he was not the same person who had given his account to the delegate. Therefore, his general credibility was to be evaluated in the context of a very different claim that had not been considered by the delegate. The Authority was not considering whether to reject a claim that had been accepted by the delegate based upon the way in which that in-person account had been given. Consequently, the foundation for any general conclusion as to the credibility of the appellant that had been reached by the delegate could not be said to include the consideration of the matters that were the focus of the case before the Authority.

35    Significantly, in ABT17 the plurality explained the unreasonableness in that case in terms of the Authority deciding to reject an account of the visa applicant based on the audio record of an interview before the delegate when the delegate had accepted the account 'on the basis of its own assessment of the manner in which that account was given': at [25]. Further, it did so on the basis of reasoning that included a finding to the effect that the visa applicant in that case appeared unable to expand in any detail and at times sounded 'vague and hesitant': at [27]. It did so without suggesting anything else in the review material rendered the account inherently improbable: at [28].

36    The appellant did not explain why the Authority's reasoning in the present case as to the conclusions it reached concerning the credibility of the account of the appellant as to different factual matters would be unreasonable in the face of generalised findings as to the credibility of the appellant when giving evidence as to other matters. Even assuming (as appears to be the case) that the delegate's findings were based, in part, on observing the way in which the appellant gave his account before the delegate, it was an account about different matters given years before. As to that new account, it presented a new context in which to evaluate the appellant's credibility. Significantly, it was not suggested that the Authority reasoned on the basis of a different view to that of the delegate when it came to the evidence that was accepted by the delegate as being credible.

37    In those circumstances, legal unreasonableness has not been demonstrated even assuming the existence of the claimed generalised finding as to credibility by the delegate.

Conclusion and orders

38    For reasons that have been given the appeal must be dismissed. It was accepted that costs must follow the event. There will be orders accordingly.

Associate:

Dated:    11 July 2025