Did the Authority fail to discharge its function of review?
20 The basic principles governing this appeal are not in issue. They are encapsulated in the following quote from Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [45]-[47] (French, Sackville and Hely JJ):
The critical question which ordinarily will have to be addressed in applying this criterion [the refugee criterion] is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
21 There is no reason why these observations concerning the duty of the Refugee Review Tribunal should not also apply to the Immigration Assessment Authority under s 473CC of the Migration Act 1958 (Cth) to review a fast track reviewable decision that is referred to it: see the discussion in FIG17 v Minister for Home Affairs [2019] FCA 1105 at [83]-[88].
22 The appellant relied chiefly on NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1, where at [63] Black CJ, French and Selway JJ observed:
It is plain enough, in the light of Dranichnikov [v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389], that a failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.
23 The appellant also relied on NABE at [58] for the proposition that a claim need not be expressly articulated if it arises squarely on the materials before the decision-maker, and it does not arise squarely if its exposure depends on constructive or creative activity by the decision-maker.
24 However, in my view the claim that is the subject of the present case, that the appellant would suffer harm as a result of expressing his political views after returning to Vietnam, was clearly articulated in the submission to the Authority of 11 January 2017, which is set out above. The appellant's agent said that if the appellant were to return to Vietnam, he would not be able to suppress his deeply held views in relation to issues such as the Formosa environmental disaster. The Authority took the submission into consideration on the basis that it was a 'discussion' which 'reiterates and addressed claims made by the applicant during the protection application process' and not new information. If it had been the latter, there would have been restrictions on whether the Authority could consider it: s 473DD.
25 So there was a claim before the Authority that the appellant feared harm on return to Vietnam because he would express his political views after his arrival there. That claim was distinctly put. The issue of whether it was unarticulated, but arose squarely on the materials, does not arise. And it was a claim which, if it were to be accepted, in conjunction with the country information which the appellant's representative put to the delegate, would justify concluding that the appellant was entitled to Australia's protection as a refugee. This goes further than an item of evidence which might lead to a different finding of fact.
26 There was some debate between the parties as to whether the Minister was entitled to assert on the appeal that the claim was not raised, since the appellant said that the Minister did not take that point before the primary judge. The Minister submitted that he was not bound by how the case was conducted below. No authority was cited for that surprising proposition, which is inconsistent with well-known authorities such as Water Board v Moustakas (1988) 180 CLR 491 at 497. The Minister might have relied on that case to say that here, all the facts have been established beyond controversy so that the court may find it expedient and in the interests of justice to entertain the point, but that submission was not made.
27 The Minister did submit that in any event, it was open to him to argue that findings made by the primary judge were correct. But it is not clear from his Honour's reasoning, which is set out above, that he found the claim about the appellant's future conduct in Vietnam was not made at all. Rather, his finding was that there was no claim that required a finding of fact about the appellant's views in respect of the pollution caused by Formosa. When his Honour later in the paragraph says '[n]o such claim fairly arose on the material before the Authority', he may have been referring to the somewhat different claim, described in the immediately preceding sentence, as to the consequences of the appellant joining the Viet Tan. I do not consider that the primary judge's brief reasons provide a firm foundation for the Minister to now assert that the relevant claim was not made at all.
28 However, the transcript of the Federal Circuit Court hearing was not before this court, and the primary judge does not record the Minister's position on the point in his reasons. The only material this court has to go on is the Minister's outline of written submissions in the Federal Circuit Court. They described the relevant claim made by the appellant as 'that he would have joined the march whether he was in Vietnam or Australia' (emphasis added). That is not an unqualified acceptance by the Minister that the appellant expressly claimed that if he were to return to Vietnam in the future, he would continue to express his political views. In my view it is open to the Minister to say now that a claim to that effect was not made.
29 Nevertheless, as I have said, I find that the claim was made to the Authority. But that does not mean that the ability of the Minister to take the point is academic. That is because it still permits agitation of the issue on which this appeal ultimately turns: whether the claim that was articulated was based on sufficiently probative material.
30 Before turning to that issue, I will address what counsel for the Minister described as her client's primary argument, namely that the Authority did deal with the claim. The Minister submitted that the Authority did consider and dispose of the appellant's claim to fear harm as a result of his actual or imputed political opinion. Counsel submitted that, given the Authority's other findings, it did not need to make a specific finding about any claim that might have been raised that the appellant would in future join Viet Tan. That claim was subsumed into findings of greater generality, as to which see: Applicant WAEE at [47] which is quoted above. The findings on which the Minister relied were the Authority's acceptance that the appellant had attended one demonstration in Australia for the reasons he gave, but was not a member of Viet Tan and had not engaged in the sorts of activities which country information indicated led to a risk of harm at the hand of the Vietnamese authorities and the appellant's level of participation would not be viewed adversely by the Vietnamese government.
31 The difficulty with this submission is that, as the passage from the Authority's decision quoted at [16] above shows, the Authority considered all of these matters in determining whether the appellant's past activity, namely participating in one demonstration in Australia, exposed him to a risk of harm if he were to return to Vietnam. It did not go to the different question of whether he would be outspoken or engage in political activity after his return. The Minister relied on the statement in the Authority's conclusion, quoted above, that it was not satisfied that the appellant would face a real chance of harm on his return to Vietnam 'in the reasonably foreseeable future'. But in context, that was only a reference to harm that would arise in future because of his past activities. It cannot be read as encompassing a finding about the consequences of his future activities. I find that the Authority did not address in its reasons the appellant's claim to fear harm by reason of political activity in which he was likely to engage after any return to Vietnam. No finding on that claim was subsumed in any finding of greater generality.
32 Which brings the analysis to the issue which, in my view, is determinative. In order to be a claim that the Authority was required to deal with in order to discharge its statutory function of review, the claim needed to be not only articulated on the appellant's behalf, but supported by probative material. The authorities on that point are summarised in FIG17 at [86]-[90] and I need not repeat the survey here; it was common ground that the Authority would not fall into error solely because it failed to address in its reasons a bare claim unsupported by such material.
33 It is however necessary to add three points to that. The first is that in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]-[112], Robertson J said:
In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [[2004] FCA 545] at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [[2005] FCAFC 117] at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant's claims. To the extent that the Minister's submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal's reasons I do not agree.
34 A Full Court (Katzmann, Griffiths and Wigney JJ) explained and endorsed these observations in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [53]-[54]. After referring to a number of cases in which, the Minister submitted, the distinction between evidence and claims was observed, their Honours said (at [54]):
It may be accepted that the authorities referred to by the minister remain good law. Certainly they have not been overruled. It may be accepted, too, that the distinction between ignoring evidence and ignoring a claim can be useful. So much was accepted by Robertson J when his Honour described it (at [111]) as a 'tool of analysis'. His Honour did not suggest that the previous authorities which had drawn the distinction were wrongly decided. The point his Honour was making was that it is too narrow an approach merely to ask in a case such as this whether the ignored material is a claim or part of a claim on the one hand or evidence on the other. Such an approach may provide the answer in some cases, but not in all. That is because, as his Honour also pointed out (at [98]), the tribunal can fail to exercise its jurisdiction or fail to consider a claim in a number of different ways, including by ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction. Some cases, including the category of case just referred to, may not comfortably fall on either side of the supposed claims/evidence divide, yet the error in ignoring the material may be serious and go to the exercise of the tribunal's functions. We respectfully agree with Robertson J's analysis.
35 These observations were directed towards a different point to the one I am considering here; they concerned an argument that if something is only an item of evidence, and not a claim or the integer of a claim, it is not a jurisdictional error to disregard it. But in my view they still apply in the present context. It is misconceived, in a review of an administrative decision, to draw too sharply the line between what in a court of law might be called submissions and evidence. The fundamental question is, was the material that was ignored of such importance that a decision-maker who fails to consider it falls into jurisdictional error? Put that way, the question risks circularity, but it expresses the reality that it is an evaluative judgment for the court on the facts of each case. That is consistent with the High Court's exposition of the concept of jurisdictional error, as found in cases such as Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [64] and Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [18]-[25] (Kiefel CJ, Gageler and Keane JJ). And the question will not be answered at large, but will be guided by the principles set out in cases like Applicant WAEE and NABE.
36 The second point to be added is that the question of the cogency or importance of a matter that has been ignored can arise at three different stages in the analysis. The first is the one I have already described. The second is the question of whether the matter was raised in such an insubstantial way as to support an inference that the decision-maker decided that it did not warrant mention in its reasons: see e.g. Applicant WAEE at [47] and ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228 at [14]. The third is whether the error, if there be one, is material in the sense that it could realistically have resulted in a different decision: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]. The considerations relevant at each of these stages may overlap; administrative law is not conducive to tidy categorisation: see SZRKT at [77].
37 The third point to add concerns the limited review function of the Authority, which in one respect at least sets it apart from the other tribunals which many of the authorities cited above concern. Section 473DB(1) of the Act provides:
Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
38 Section 473DD provides that for the purposes of making a decision in relation to a fast track reviewable decision, the Authority must not consider any new information unless it is satisfied of certain things, including that there are exceptional circumstances to justify considering the new information: s 473DD(a). 'New information' is defined in s 473DC(1) to mean any documents or information that were not before the Minister when the Minister made the decision under s 65 (here, this refers to the decision of the delegate to refuse to grant a protection visa), and which the Authority considers may be relevant. This statutory regime has been described as meaning that, subject to limited exceptions, the review to be conducted by the Authority must be conducted on the papers, being the review material provided to it by the Secretary of the Department, without accepting or requesting new information or interviewing the appellant: BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; (2018) 261 FCR 35 at [31].
39 It follows that unless the Authority exercises its discretion to receive a submission as new information, it cannot consider the submission on that basis. So the Authority would potentially fall into error if it were to treat a submission which does not form part of the materials provided by the Secretary of the Department as having some probative value for the purposes of its review.
40 Here, the Authority accepted the submission of the migration agent on 11 January 2017 as a submission, and did not consider it by way of its discretion to admit new information. So while the submission put the Authority on notice of the relevant claim, it cannot be taken to have given any probative force to the claim. In order to resolve the issue I have described as determinative, I will therefore focus on the material that was before the delegate. It is to be expected that this material, including the recording of the delegate's interview of the appellant, was forwarded to the Authority under s 473CB(1)(c) as material that the Secretary considered to be relevant to the review, and references to the interview in the Authority's reasons confirm that it was forwarded.
41 The passages from the interview and subsequent submissions set out above establish the following when they are read in context, and as a whole:
(1) The delegate asked the appellant whether there were any other reasons why he was seeking protection in Australia.
(2) The appellant answered by referring to the Formosa incident in close connection with the subjects of political repression in Vietnam, and activism in Vietnam and violent repression of that activism, including a lack of protection of human rights in the future.
(3) That was the appellant's initial response to the delegate's question about further protection claims. He did not mention his activities in Australia until the next question from the delegate. So up to that point, the appellant was conveying his fear of repression as a result of activism taking place in Vietnam.
(4) Then, after the delegate's next question, the appellant referred to his attendance at the Viet Tan demonstration in Australia.
(5) The appellant did not profess any great knowledge of or affinity with Viet Tan. I accept the Minister's submission that, despite the fact that the appellant (through an interpreter) is recorded as saying he 'will apply to be a member of Viet Tan', in context that was qualified by the statements that he was 'a little bit too busy' and needed to learn more about them, so it is not a categorical statement of his intention to join Viet Tan. Also, the delegate's question about joining Viet Tan, taken in context, seems to have been directed to whether the appellant would join and carry out further activity in Australia.
(6) So I accept that the appellant was lukewarm about joining Viet Tan. But it is important to recognise that the claim he made went beyond that.
(7) The delegate acknowledged that the appellant felt strongly about the Formosa issue. The appellant may have displayed strong emotions on the subject in ways that are not captured in the transcript.
(8) At that point the appellant said he accepted the invitation to join the protest because in Vietnam there were a lot of people suffering from the situation caused by Formosa and he wanted to support his family and people in Vietnam.
(9) Later, in the appellant's presence (although whether it was interpreted to him it is not clear), his representative said that the appellant is passionate about working to protect Vietnamese people and 'if he was still living in Vietnam he would have done exactly the same thing … and he would have been wanting to tell the Vietnamese government how angry he was about it.' It is relevant, however, that the representative was putting this in response to the suggestion that the appellant's activities in Australia were motivated purely by a desire to enhance his protection claims.
(10) The similar statements in the post interview written submission by the representative were also confined by that context, in that they were directed towards the appellant's activities in Australia. But they still conveyed that the appellant held strong views.
(11) In her decision the delegate accepted that the appellant did not participate in the demonstration in Australia solely to embellish his claims for protection. She found he had the motive of supporting people in his home area in Vietnam who rely on fishing for their income.
42 It is not the function of this court to engage in merits review by reaching a conclusion as to the soundness of the appellant's protection claims on the basis of the above material. The purpose of examining the material is to show that it conveyed that the appellant had strongly held political views, that it was possible that he would express them in Vietnam, and that he claimed protection as a result. That was not implausible or speculative and, coupled with the delegate's acknowledgment of the views in the interview, and her findings in her reasons, there was no basis to dismiss it out of hand.
43 It may be accepted that all of this only emerges after close scrutiny of the materials. By itself, it might not have been clear enough to require the Authority to consider the relevant claim. But when the materials before the delegate are coupled with the clear articulation of the claim in the submission that was put to the Authority, that was enough, in my view, to raise a matter of sufficient importance that the Authority was required to address it in order to discharge its statutory function of review. In failing to do so, it fell into jurisdictional error.
44 The same result follows at the second stage of analysis I have mentioned above. That is, the claim was sufficiently important that it speaks against an inference that the Authority considered it and discarded it as not worthy of mention. To apply an observation from Applicant WAEE (at [47]), it was not even 'identified at some point'. In my view, the better explanation, with respect, is that the Authority overlooked the claim, even though it was distinctly made, at least in the representative's submission to the Authority.
45 The Minister did not contend that the error, if made, would not be material in the sense explained in SZMTA, so there is no need to consider that third stage in the analysis.
46 It follows from this conclusion that, with respect, the primary judge erred. The Authority's adverse findings about lack of persecution due to the appellant's political opinion were confined to the consequences of his activities in Australia. But there was, to adopt the term his Honour used, an integer of the appellant's claim about future activities on return to Vietnam. That integer went beyond the question of whether he would join Viet Tan. His Honour placed emphasis on whether the Authority made a finding about whether the appellant would need to suppress his political views, but that was not to the point; the true problem was that the Authority did not make any finding about whether he had a well-founded fear of persecution because he would express those views in Vietnam.