BSE17 v Minister for Home Affairs

Background facts 5 In May 2013, the appellant, a citizen of Vietnam, arrived in Australia by boat. 6 On 11 June 2014, the appellant applied for a Protection (Class XA) visa. 7 On 16 December 2014, a delegate of the Minister refused the application for the visa. 8 On 1 April 2015, the RRT affirmed the decision not to grant the appellant a protection visa. 9 An application for judicial review of the decision of the RRT was dismissed by the Federal Circuit Court. The appellant appealed to this Court. Orders were made by this Court by consent setting aside the decision of the RRT and remitting the matter for reconsideration by the Administrative Appeals Tribunal (referred to in these reasons as the "Tribunal"). 10 The appellant appeared and gave evidence at two hearings before the Tribunal. (The first hearing took place in two parts due to the appellant seeking an adjournment.) 11 On 12 April 2017, the Tribunal decided to set aside the decision to refuse to grant the appellant a Protection (Class XA) visa and to substitute a decision to refuse to grant the appellant a Protection (Class XD) visa. (As explained in the Tribunal decision, by operation of s 45AA of the Migration Act 1958 (Cth) and reg 2.08F of the Migration Regulations 1994 (Cth), from 16 December 2014, an application for a Protection (Class XA) visa was taken to be, and to have always been, an application for a Protection (Class XD) visa.) 12 The Tribunal summarised the appellant's claims at [38] of its decision. The appellant claimed that: he fled Vietnam because, while visiting his parents he clashed with government employees and police who were trying to excavate a cemetery in his home town; being summonsed by the police on the following day, he chose not to attend for fear of what would happen to him and instead he returned to his place of residency and work in the capital city of the province; he lived in fear during this period and moved around a lot; he then found work and he led a solitary life fearing being found by the police who he was told were still looking for him; and seeing no future in such a life he decided to pay people smugglers to take him across the border and then to Australia. 13 At [41]-[59] of its decision, the Tribunal made a number of findings of fact. Relevantly for present purposes, at [42], the Tribunal described the appellant's claims in relation to a "melee" with security forces in 2007. As set out in that paragraph, the appellant claimed that: in November 2007, when he was returning to his home town, he saw a group of people having arguments next to the parish cemetery; there were two trucks with people digging up the tombs; angry that this was occurring, he went to get more people and tried to stop the tomb dig; together with others, he confronted the workers and asked why they were digging up the tomb; in the process, they entered into an argument that led to a physical confrontation; despite the confrontation, the work continued and civil forces along with the police and some thugs were brought in to help protect the workers; there were 100 protestors and about 70 on the side of the government; there were arguments and fighting; the government used poles and sticks and the protestors used tree branches; he was badly hurt as a result of being beaten; and after that, he escaped. The Tribunal accepted that these events occurred and that the appellant was involved in a melee with security forces. 14 As set out in [43] of the Tribunal's decision, the appellant claimed that he received a summons the next day. The Tribunal accepted that this occurred and that the document presented to the Tribunal was legitimate. 15 The Tribunal then noted, at [44], that: other protestors also received summonses and some of them presented to the police station; and the appellant claimed that, as none of them returned by the afternoon, he feared going to the police and instead fled to Vinh City. 16 The Tribunal found the appellant's testimony regarding the other protestors' fate to be "at times contradictory". After discussing this evidence (which included evidence to the effect that some of the other protestors were arrested, beaten and sent to a re-education camp), the Tribunal stated at [44]: … I consider that were others arrested, beaten and sent to a re-education camp it would be a major element of the applicant's concerns. I believe that it would not be an easily forgotten piece of evidence. As the representative has noted in a submission following the first hearing, the applicant's mental health and the long term detention could contribute to inconsistencies as the events are a significant time in the past. This leads me to add greater weight to earlier submissions untainted by the passing of time and the applicant's deteriorating mental health status. Because of the contradiction between the narratives presented at this Tribunal's hearing with earlier evidence, having reviewed earlier information provided by the applicant and considering country information, I accept that some people were requested to attend the police station including the applicant. I do not accept that any were beaten or sent to re-education camps. While some may have been detained, I do not accept that any were charged and convicted because were that the case then the applicant, his father and the applicant's friends would have known and this would have appeared in his statements. 17 The Tribunal noted, at [45], that at the resumed session of the hearing the appellant had claimed that during the melee he hit a policeman. The Tribunal accepted this evidence. Further, at [52], the Tribunal stated that it had found that "there was no harm committed against any who may have responded to the request to attend the police station". 18 After making a number of other findings of fact, the Tribunal considered the appellant's claims, including: (a) the appellant's claims based on his Catholic faith (at [60]-[64]); and (b) the appellant's claims based on fear of being sought by the Vietnamese authorities (at [65]-[70]). 19 In the section dealing with fear of being sought by the Vietnamese authorities, the Tribunal noted, at [65], that the appellant's claims rested upon a fear that the Vietnamese authorities were pursuing him for having participated in "a violent melee in which he had hit a policeman" and were he to return he would be harmed. In relation to this claim, the Tribunal stated as follows at [65]: … As findings of fact I have reached the conclusion that following the melee that there is no evidence to suggest that the people who were requested to attend to the police station were harmed, that the applicant continued to work in the same job with the same employer for three subsequent years without the employer being approached by the authorities despite the authorities knowing of the employer as it was the uncle who had for the prior seven years been renewing the applicant's temporary registration permits and that upon his return from Mali he lived for over a year in the same province twenty kilometres from where the incident occurred without problems. I have also found that his parents were not visited by the police throughout the period of his time in Vietnam. 20 At [68], the Tribunal stated that it had previously accepted that the appellant received a summons in 2007 "and that no harm befell those others who presented to the police following a similar summons". 21 After further discussion, the Tribunal concluded this section of its decision at [70] as follows: Based upon the lack of any evidence that any level of police are pursuing him for not attending the local police station following a request to attend or for reasons of a vendetta, noting that the applicant acknowledged that no arrest warrant was created upon which other police would pursue him I find that the applicant does not face any chance of serious harm in the reasonably foreseeable future were he to return to his village in Vietnam or any risk of significant harm as a necessary and foreseeable consequence of returning to his village in Vietnam for the claimed reason of being a person of interest to the police. 22 The Tribunal then considered a number of other claims raised by the appellant. One of these claims, considered by the Tribunal at [103]-[110], was that the appellant claimed to fear harm as a failed asylum seeker. In rejecting this claim, the Tribunal relied on country information, specifically the following report: Department of Foreign Affairs and Trade, "Treatment of failed asylum seekers on return to Vietnam", 24 July 2013, CX311927. The Tribunal concluded, at [110], that it did not consider that the appellant (if returned to Vietnam) would be detained for any extended period, but would be released shortly after being interviewed without being harmed. As such, the Tribunal found that the appellant's fear of persecution for the Refugee Convention reason of membership of a particular social group, namely failed asylum seekers of Western countries, did not meet the real chance test; nor did the Tribunal accept that the appellant faced a real risk of significant harm relating to seeking asylum in the reasonable and foreseeable future were he to return to Vietnam.

The proceeding in the Federal Circuit Court 23 The appellant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. Both the appellant and the Minister were represented by counsel at the hearing in the Federal Circuit Court. The appellant relied on two grounds as set out in his amended application. 24 Ground 1 in the Federal Circuit Court was as follows: 1. The Tribunal erred by making findings of fact that were not supported by any evidence. Particulars a. In relation to the applicant's claim that other persons involved in a melee with local police were charged and convicted over the events, the Tribunal made a finding that those others were not charged and convicted because, were that the case, then the applicant, his father and the applicant's friends would have known and this would have appeared in his (meaning the applicant's) statements. b. That reasoning was impermissible. c. Having rejected the applicant's positive evidence about what happened to those others, the Tribunal was required to make findings of fact about whether the applicant's fear of harm arising from a summons to attend the police station was well-founded. d. The Tribunal was not entitled to make a positive finding of fact from the absence of any evidence as to the fate of those others. Further, the question of what happened to those others does not answer the question of whether the applicant's fear of harm was well-founded. e. The Tribunal constructively failed to exercise its jurisdiction. 25 The primary judge considered this ground at [15]-[20] of the reasons. The primary judge rejected this ground. The primary judge stated, at [19], that: the Tribunal did not need to make positive findings with respect to the other protestors; and it was sufficient that the Tribunal was not satisfied that harm befell the other protestors, to undermine the basis of the claim of fear of attending on the police. 26 Ground 2 was as follows: 2. The Tribunal erred by failing to consider an integer of the applicant's claim and/or by failing to take into account relevant information. Particulars a. The Tribunal failed to consider whether the general approach of the Vietnamese authorities to failed asylum seekers is different to those classes of failed asylum seeker in relation to whom the Vietnamese Government has specific information about the nature and content of the protection claim. b. The Tribunal failed to have regard to country information that showed that failed asylum seekers are liable to imprisonment on return to Vietnam in conditions that constitute serious harm. 27 This ground was argued on the basis that it contained two limbs, reflecting the two paragraphs of the particulars. Only the second limb is relevant for present purposes. This was considered by the primary judge at [27]-[38] of the reasons. The appellant contended that certain country information had not been taken into account by the Tribunal. Specifically, the appellant contended that the Tribunal had failed to have regard to the terms of the Vietnamese Criminal Code and an ABC News article, which were referred to in the appellant's submissions to the Tribunal. The primary judge stated, at [28], that while the Tribunal did not specifically refer to the ABC News article, it was not apparent that it was relevant to the appellant's particular circumstances, as the Tribunal concluded that the appellant was not a people smuggler and had left Vietnam legally. The primary judge held, at [29], that as the material did not bear directly on the appellant's individual circumstances, the primary judge was not persuaded that the absence of specific reference to the material indicated error. 28 The primary judge dismissed the application for judicial review.

The appeal to this Court 29 As already noted, the hearing was conducted by reference to the draft notice of appeal received by the Court on 2 March 2018. This document contains the following three grounds: 1. The learned Federal Circuit Court Judge erred by failing to find that the Administrative Appeals Tribunal acted without evidence, or illogically and in finding that the findings that the Tribunal made were open to it on the evidence. Particulars 1. The Federal Circuit Court found that the Administrative Appeals Tribunal did not err when it made a positive finding of fact that persons involved in a melee with local police were not charged and convicted over the events, on the basis that, if they had been, then the applicant, his father and the applicant's friends would have known of that fact and the applicant would have provided that information in the statement accompanying his application. 2. That reasoning was impermissible. Having rejected the applicant's positive evidence about what happened to the other persons involved, the second respondent was required to make findings of fact about whether the applicant's fear of harm arising from a summons to attend the police station was well-founded. 3. The second respondent was not entitled to make a positive finding of fact from the absence of any evidence as to the fate of other persons. Further, the question of what happened to those others does not answer the question of whether the applicant's fear of harm was well-founded. 4. Contrary to the findings of the trial judge, the Tribunals findings were not open to it. 2. The learned Federal Circuit Court judge erred by holding that it was sufficient that the Tribunal was not satisfied that harm befell others to undermine the basis of the claim of fear of attending on the police. Particulars 1. The Federal Circuit Court found that it was sufficient that the Tribunal was not satisfied that harm befell others to undermine the basis of the claim of fear of attending on the police. 2. That was an error because, absent the positive finding of fact challenged under Ground 1, the Tribunal was not permitted to reason from the absence of evidence without having regard to relevant country information. 3. The learned Federal Circuit Court Judge erred by failing to find that the Administrative Appeals Tribunal failed to consider an integer of the applicant's claim and/or by failing to take into account relevant information. Particulars 1. The Administrative Appeals Tribunal failed to have regard to country information that showed that failed asylum seekers are liable to imprisonment on return to Vietnam in conditions that constitute serious harm. 2. The Federal Circuit Court Judge concluded that it was permissible for the AAT to rely on certain country information and to draw conclusions from it. That was an error because it was not open to the AAT to do so without taking into account country information presented by the applicant. 30 Both the appellant and the Minister were represented by counsel at the hearing in this Court. Both sides filed an outline of submissions in advance of the hearing, addressed to the above grounds.

Grounds 1 and 2 31 Consistently with the approach of both parties, I will consider these two grounds together. 32 The appellant's submissions in support of grounds 1 and 2 can be summarised as follows: (a) The appellant claimed that in 2007 he was involved in an altercation with local police. He claimed that, the day after the melee, he received a summons to attend the local police station. Both of these claims were accepted: Tribunal decision at [42]-[43]. The appellant also claimed that others involved in the altercation were "beaten up", placed in custody or sent to a re-education camp. That claim was rejected: Tribunal decision at [44]. (b) The Tribunal went on to find that no person involved in the altercation was charged or convicted because "were that the case then the [appellant], his father and the [appellant's] friends would have known and this would have appeared in his statements": Tribunal decision at [44]. (c) At first instance, the appellant alleged that the Tribunal erred in making this finding, because it was not open to the Tribunal to infer that no harm came to those who responded to the summons in the absence of any evidence to this effect. The Federal Circuit Court found that the Tribunal did not err when it made that finding: at [19]. The appellant submits that this finding was in error. (d) The Tribunal accepted that the appellant had been in an altercation with local police and that he had been summonsed to attend the local police station as a consequence. Central to the appellant's claim to protection was his fear of the consequences that would befall him if he attended the police station in response to the summons: Tribunal decision at [38]. The task before the Tribunal was to determine whether that fear was well-founded. (e) Having rejected the appellant's positive evidence about what happened to the other persons who attended in response to the summons, the Tribunal was required to make findings of fact about whether, nonetheless, the appellant's fear of harm if he attended the police station in response to the summons was well-founded. As part of its process of reasoning, the Tribunal member stated at [44]: While some may have been detained, I do not accept that any were charged and convicted because were that the case then the applicant, his father and the applicant's friends would have known and this would have appeared in his statements. (f) That is, the Tribunal reasoned from the lack of any evidence that no harm had befallen those that attended the police station in response to a summons. That finding was not open to the Tribunal. The Tribunal having rejected the appellant's evidence of what did in fact befall the other protestors, there was no evidence at all of the fate of those persons. There was, in fact, a complete absence of evidence. (g) The Tribunal reasoned that if anyone had been charged or convicted, it would have been known to the appellant and the appellant would have referred to those events in his statements. That overlooks that the appellant did give positive evidence of what occurred to those who presented in response to the summons, and that evidence was rejected. In such circumstances, it was not permissible to conclude that there were no adverse consequences for those involved. (h) In considering this claim, the Federal Circuit Court held that if "there were no evidence of adverse consequences in circumstances where one would reasonably expect him to be aware of them, the inference is open that no adverse consequences came to pass": at [18]. The Federal Circuit Court erred in failing to hold that the Tribunal's reasoning was illogical, or unreasonable. (i) Further, the question of whether the appellant's fear of harm from the local police was well-founded is not to be answered solely by reference to the appellant's knowledge of what occurred to other protestors who were summonsed to attend the police station. What befell others who attended the police station may inform the question of whether the appellant's fears were well-founded, but it does not answer that question. The fate of others is one consideration bearing on the question. Other matters, such as country evidence, will be relevant to the enquiry. The Tribunal failed to take any other considerations into account. (j) The conclusion of the primary judge at [19] of the reasons was in error. The point was that the Tribunal had to make positive findings about whether the appellant was at risk of harm. That question could not be answered solely by reference to the question of whether anyone else had suffered harm. All the relevant circumstances were to be looked at, including the relevant country information about the behaviour and conduct of the local police. As such, the primary judge's conclusion that it "was sufficient that the Tribunal was not satisfied that harm befell others to undermine the basis of the claim of fear of attending on the police" was in error. 33 There is no issue between the parties as to the applicable principles, which may be briefly stated as follows. The "no evidence" ground cannot be made out unless it is established that there was no evidence capable of supporting the impugned finding or inference. Even a skerrick of evidence will mean that an allegation of jurisdictional error premised on this basis will fail: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59]. Further, evidence to support a finding or inference need not be direct, but may be found in material that permitted the decision-maker reasonably to infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [39]-[41] per Gummow and Hayne JJ; see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J. 34 While the Tribunal, at [44], simply did not accept that the other protestors had been beaten and sent to re-education camps, the Tribunal at other places in its decision appears to have made a positive finding to the effect that no harm had befallen the other protestors who had attended the police station: see, eg, [52] and [68] of the Tribunal's decision. These findings, at least arguably, formed part of the Tribunal's reasoning in rejecting the appellant's claim based on a fear that Vietnamese authorities were pursuing him for having participated in the violent melee in which he hit a policeman. Insofar as the Tribunal made such a positive finding, I consider that it was open to the Tribunal to make such a finding. The Tribunal reasoned that, had the other protestors who attended the police station been beaten and sent to re-education camps, this is likely to have been known by the appellant, and evidence to this effect is likely to have appeared in the appellant's statements submitted as part of the visa application and review process. However, in the appellant's statutory declaration accompanying his protection visa application, he did not mention anyone else being arrested, beaten or sent to a re-education camp: see the Tribunal decision at [44]. Further, in the appellant's second statutory declaration, which was submitted after the delegate's decision, he did not mention anyone else being arrested, beaten or sent to a re-education camp: see the Tribunal decision at [44]. In the appellant's representative's letter to the RRT hearing, which discussed the protest, there was no mention of arrests of other protestors and no statement that they were beaten or sent to re-education camps: see the Tribunal decision at [44]. At the hearing before the RRT, the appellant did not mention arrests of other protestors and did not state that they were beaten or sent to re-education camps: see Tribunal decision at [44]. In light of the matters referred to above, it was open to the Tribunal to find that no harm had befallen the other protestors who had attended the police station. 35 It is true that the appellant gave evidence to the Tribunal to the effect that the other protestors who attended the police station had been beaten and sent to re-education camps. However, the fact that the appellant gave this evidence does not make it illogical to reason in the way indicated above, namely to reason that if the other protestors who attended the police station had been beaten and sent to re-education camps this is likely to have been known by the appellant and evidence to this effect is likely to have appeared in his statements submitted as part of the visa application and RRT review process. 36 Further, although the Tribunal in some places (eg, [52] and [68]) appears to have made a positive finding as discussed above, there is a question whether, in substance, the Tribunal made a positive finding or merely did not accept that the other protestors who attended the police station had been beaten and sent to re-education camps. The most detailed treatment of this issue was at [44] of the Tribunal's decision. That paragraph is expressed in terms of non-acceptance of the evidence that the other protestors who attended the police station had been beaten and sent to re-education camps: see also [65]. It would seem to have been sufficient for the Tribunal to have not accepted the evidence that the other protestors who attended the police station had been treated in that way. Reading the decision as a whole, I incline to the view that, as a matter of substance, the Tribunal merely did not accept that the other protestors who attended the police station had been beaten and sent to re-education camps. On this further basis, I do not consider there to be any error in the way that the Tribunal considered the relevant claim at [65]-[70] of the decision. Contrary to the appellant's submissions, the Tribunal considered and made findings of fact about whether the appellant's fear of harm arising from the summons to attend the police station was well founded: see [65]-[70] of the decision. 37 It follows from the above, that I do not consider that the Tribunal reached a state of satisfaction that was illogical or not based on findings or inferences of fact supported by logical grounds in the sense discussed in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. 38 For these reasons, no error is shown in the conclusions of the primary judge in relation to the corresponding ground below, and grounds 1 and 2 are not made out.

Ground 3 39 By ground 3, the appellant contends that the Federal Circuit Court erred by failing to find that the Tribunal failed to consider an integer of the appellant's claim or by failing to take into account relevant information. 40 This ground relies on a submission on behalf of the appellant to the Tribunal dated 2 March 2017 (CB 839). At page 25 of the submission, under the heading "Illegal exit from Vietnam", it was stated that: Vietnamese nationals who illegally exit Vietnam are arrested on return; the "Vietnamese Penal Code criminalizes fleeing abroad or defecting to stay overseas with a view to opposing the people's administration and imposes a three and twelve years of imprisonment, for each respective offence"; and since 2015, at least eight failed asylum seekers had been imprisoned for attempting to journey to Australia. A footnote to the last proposition provided details of an ABC News article. Pages 26-27 of the submission set out details of prison conditions in Vietnam. 41 The appellant submits that: these pieces of country information were not referred to in the Tribunal decision; it should be inferred that the Tribunal did not have regard to the information; and, accordingly, the Tribunal erred by failing to have regard to relevant information. 42 The applicable principles in relation to a contention such as this were discussed by Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]-[115] and [122]. 43 I do not consider this ground to be made out. The section of the submission dated 2 March 2017 at p 25 was headed "Illegal exit from Vietnam". This section was concerned (or at least conveyed the impression that it was concerned) with Vietnamese nationals who exited Vietnam illegally, as indicated by the heading to the section and the first sentence: "Vietnamese nationals who illegally exit Vietnam are arrested on return". In circumstances where the Tribunal found that the appellant had not departed illegally (see [103] of the decision) it was not incumbent on the Tribunal to have regard to the material referred to in this section of the submission or the section at pp 25-26. In considering whether the Tribunal erred by failing to refer to a submission or material (which may support an inference that the Tribunal did not have regard to the submission or material), the way in which the submission or material was presented is important. Here, the submission or material formed part of a contention that the appellant feared harm on the basis that he had departed Vietnam illegally. 44 The submissions in support of this ground do not challenge the Tribunal's finding that the appellant departed Vietnam legally. The submission is that the material was not taken into account in considering the claim based on being a failed asylum seeker. For the reasons given above, the material was not presented in support of this claim, or at least was presented on a narrower basis, namely that the appellant feared harm on the basis of being a failed asylum seeker who had departed Vietnam illegally. 45 Apart from the matters discussed above, the appellant does not suggest any other error in the way the Tribunal dealt with the claim based on being a failed asylum seeker. The Tribunal's decision makes clear that this claim was considered. 46 For these reasons, I reject ground 3.

Conclusion 47 It follows from the above that the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will also order that the appellant pay the Minister's costs, to be fixed by way of a lump sum. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.