CHB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

GREENWOOD J: 1 These proceedings are concerned with the question of whether the Immigration Assessment Authority (the "IAA") engaged in jurisdictional error by deciding that it could not be satisfied that "exceptional circumstances" existed to justify, for the purposes of s 473DD of the Migration Act 1958 (Cth) (the "Act"), consideration of particular information described at paras 5 to 7 of the IAA's decision and described as "new information" for the purposes of the discussion in those paragraphs. Those paragraphs are said by the appellant to reveal legal errors in the method of analysis undertaken by the IAA (required when considering and applying, in particular, ss 473DC and 473DD of the Act) resulting in jurisdictional error. 2 There are now many authorities of the High Court which address the construction of the provisions of Part 7AA of the Act: see particularly Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 ("Plaintiff M174/2016"), Gageler, Keane and Nettle JJ at [13] to [38]; AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 ("AUS17"), Kiefel CJ, Gageler, Keane and Gordon JJ at [2] to [12]; Edelman J at [23] and [24]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 ("ABT17"), Kiefel CJ, Bell, Gageler and Keane JJ, generally; and BDV17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091, Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ at [3] to [17]. 3 The present question arises in the context of an appeal from a decision of the Federal Circuit Court of Australia (now described as the Federal Circuit Court and Family Court of Australia (Division 2)) (the "primary court") constituted by his Honour Street J (the "primary judge") dismissing an application for the grant of the constitutional writs under s 476 of the Act concerning the decision of the IAA to affirm the decision of the Minister's delegate to refuse the grant of a "Safe Haven Enterprise (Subclass 790) visa" (the "visa") to the appellant. 4 Before examining the method of analysis required of the IAA by the authorities mentioned at [2] of these reasons and the analysis undertaken by the IAA in the circumstances reflected at paras 5 to 7 of its decision, the following matters ought to be noted. 5 The appellant arrived in Australia on 17 June 2013 as an "Irregular Maritime Arrival". He is a citizen of Vietnam. In his arrival interview he was asked a series of questions concerning his circumstances including why he had left Vietnam. He said that he had not "[had] a chance to go to school and we heard the news about over here, my family secured a loan from [a] bank with the [hope] of me coming here and supporting them financially". He said that he was a member of the Catholic faith and would "go to Catholic meetings to do the prayers". The appellant lodged an application for the visa with the assistance of the "Humanitarian Group", described as a "non-profit community legal centre". The application attaches a six page written statement setting out the appellant's claims. In his statement he says these things: 22. I left Vietnam because I was scared. I was scared because I am Catholic. 23. I am a practising Catholic. I go to church every week, on a Sunday. From time to time, I also went to church on other days. When I was in Vietnam I attended the [nominated churches] in the [nominated] parish. 24. On 22 May 2013 I was travelling to attend [nominated] church. On this particular day we were going to pray for the freedom of other young Catholics who had been arrested. I had made a banner for the occasion. 25. Two men came up and stopped my brother [ABC's] motor scooter in front of the church. ABC and I were on the scooter. 26. We were carrying my banner. The slogan on the banner said "Asking for freedom, truth and legal rights". It refers to the people in the Church and Catholic friends who had previously been arrested. It was a banner asking for a revolution. I made the banner, and wrote the slogan myself. The two men tried to take the banner. The people around us supported my brother and me. 27. I was stopped from entering the church by the two men. I did not recognise the men. I later found out they were policemen from the [nominated] province. The men asked me where we were going, and for our ID cards. I did not give them my ID because I did not recognise them. They were wearing plain clothes. I was able to push past them to go into the church. I attended the mass, which lasted about an hour. 28. After the mass many people were arrested. I do not know why the police did not follow people into church to arrest them. I assume it was easier for them just to wait outside. There was an altercation. People around us came to see what was happening. Some people were assaulted by those men. They then introduced themselves as police officers. During the altercation the boot of their motor scooter was opened and there were weapons inside. There was a baton and some pepper spray. 29. Since all the surrounding people came to help my brother and me, the policemen were beaten and taken into the church. This gave me an opportunity to leave the church and go home. 6 In the statement, the appellant says that the day following the incident described above, the police came looking for him. His eldest brother answered the door and was handed a summons requiring the appellant to go to the local government office the next day to discuss the altercation. The appellant packed his clothes that night and left for Saigon. The appellant says that a further three summonses issued after the first summons although the appellant has never received any of those summonses. He says that a fifth summons was issued to him on 5 June 2013, and that summons was posted to the appellant by a family member after he arrived in Australia. The appellant says that having regard to all of these circumstances he feels for his safety. 7 The visa application also attached English translations of a summons dated 23 May 2013 and another summons dated 5 June 2013 requiring the appellant to attend a police station (at different addresses) to answer questions. Pages 87 to 96 of the Appeal Book ("AB") comprise documents under the name "Humanitarian" with a footer "Community focused legal services for people new to Australia" including eight schedules all of which seem to have been completed by the appellant in handwriting and returned to the person at the Humanitarian Group assisting the appellant. The schedules are concerned with the appellant's family members, educational and employment history and other matters. These documents (commencing at AB 87) have a handwritten note: "received 27/1/17" which seems to be a note made by the appellant's adviser at the Humanitarian Group. At AB pp 97 to 101, there are five photographs. They seem to be part of the material provided to the Humanitarian Group by the appellant. The photograph at AB 97 is a photograph of people gathered in a street or open area with what appears to be police with shields, helmets, vests and perhaps in some cases, a baton. The photograph has a handwritten note: "All pics [presumably a reference to all five photographs] of incidents at same church after client departed Vietnam". The photograph at AB 98 is a line of police officers with helmets and shields. There is no writing with the photograph. The photograph at AB 99 is a photograph of a banner in Vietnamese held by two people and the note is: "Friends of Client. Banner is similar to one in his claims". The photograph at AB 100 is a photograph of a banner in Vietnamese suspended between trees. It has a date across it of "30/07/2013 11:59" and has a handwritten note "Banner". The photograph at AB 101 includes a photograph of police and people lying injured on the ground. The note is: "Same church". The handwritten notes seem to be those of the community legal adviser. The handwriting is the same in each case with two of the notes referring to the "client". 8 It is not clear when these photographs were provided to whoever they may have been provided to. However, I proceed on the basis that they were received by the community legal adviser on or about 27 January 2017 and provided by the adviser to the delegate. The application for the visa was lodged on 6 October 2016 (stamped as received on 7 October 2016). The delegate's decision to refuse the visa was made on 20 February 2017 and in the letter of that date, the delegate advised the appellant that his case had been "automatically referred" to the IAA. 9 On 23 February 2017, the IAA, by letter, advised the appellant that the refusal decision of the delegate had been referred to it. The IAA advised the appellant that all material provided by the appellant to the departmental officer (the delegate) had been provided to the IAA and a decision would be made on the basis of the referred material "unless we decide to consider new information" and "we can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction". The letter directs the appellant's attention to certain steps he needed to take and again requests him to have regard to the attached information sheet and the Practice Direction for further information. The letter has three attachments. They are an English and Vietnamese version of a document headed "What you need to know about the IAA" and, in English, a "Practice Direction for Applicants, Representatives and Authorised Recipients". 10 The circumstance that engages the question at the centre of this appeal is an email sent by the appellant to the IAA on 3 May 2017 attaching "a letter and new evidence for your consideration of my application". The email attached a four page letter and 10 jpg images. 11 As to the letter, the appellant says that he "would like to supply further evidence" for the IAA's consideration. He says that he could not provide this evidence previously because he "did not know" that the evidence was "relevant at the time". He says that "some of the evidence" is "new evidence" which he believed was "extremely important" as proof of "real harm" should he return to Vietnam. He then identifies the harm he believes he would face, in this way: I believe that I will be arrested if I return to Vietnam because other than my involvement in the taking part in the demonstration and fleeing the country, I have also been openly engaged in activities that are considered to be anti-government by the police in my town. I am now a target of the police in my country town and I will present the evidence as below. 12 He then says this: The assessor from the Department mentioned that I do not fall [within] the profiles of an activist primary target by police because I have not claimed that I would undertake such activities now or in the future. However, this is only an assumption as I was never asked about it. [emphasis added] 13 Notwithstanding the proposition that he was never asked about his profile as an activist, he says, as to the fact, had he been asked about it, he would have said this: As a matter of fact, I have been very active about posting and sharing critical news and thoughts about the Vietnamese government on my Facebook Page. I have been doing this since I arrived in Australia. The link to my Facebook's page is [link quoted]. I have 1,672 friends. Amongst these are my friends, family and relatives from Vietnam. [emphasis added] 14 At this point, no doubt because the appellant is focused on his information about posting and sharing thoughts critical of the Vietnamese government, there is no reference or emphasis given to his earlier concerns about the difficulty and harm he would face arising out of the practice of his Catholic faith should he return to Vietnam. 15 As to his posts and the sharing of news and thoughts critical of Vietnamese government, the appellant gave this additional information: From the beginning, I only posted information critical of the Vietnamese communist regime roughly once a month (please see attachment regarding some of the past posts I have made [Image 1, 2, 3, 4 attached]). The frequency of these activities increased over time due to the growth in the number of human rights abuse[s] by the government of Vietnam. [The italics and words in square brackets are the original italics and square brackets] 16 The appellant then said this: The incident that had a major impact on me and made me want to engage in more online activities was the oppression of the protesters in Saigon during a demonstration on the 01/05/2016. Many people were beaten, detained and jailed as a result of taking part in a peaceful protest demanding the government to investigate the company Formosa over the deaths of tonnes of fish along the sea of the Province of Har Tinh. The livelihood of the people [was] affected and instead of listening to their concerns, the communist government ordered the undercover police to attack them. … 17 In the context of those remarks, the appellant also said that the incident quoted above was similar "to what [had] happened to me in the past". He says that it was the very reason why he fled the country and he was scared for his own safety as the communist regime is extreme in taking measures to stop anyone who does anything said to be against the interests of the government. 18 As to the consequences of his posts, he says this: As a result of my posts on Facebook, my father and brother told me that the police have been visiting our house more often these days. And on the 30/03/2017, the police came to our house again with a letter of request from the police demanding my father to come to the district office for an interview regarding my online activities. My brother notified me of this news through a mobile phone text (Image 5). He also sent me a picture of the letter of request that was hand delivered by the police (Image 6). 19 He then says this: My father told me that the police asked him many questions during the interview. They asked why I have dared to criticise the Vietnamese government and whether I am intending to get people to overthrow the government? They further told my father that I have committed serious crime because I have falsely accused the Vietnamese government of human rights abuse and corruption. They claimed that I have directly incited people to commit illegal acts against the government by calling people to speak out against the government and telling them to take part in the protest and signing a petition. I believe they were referring to my posts on 2/03/2017 (Image 7) and 30/03/2017 (Image 8). … As for the 30/03 post, I was inviting people to sign a petition to help the victims of the Formosa's waste dumping incident in Har Tinh. … My family is scared and so am I. I have also received threats on my Facebook. One substantial threat came from a local police [officer] following the publication [on 29 April 2017] of my personal thoughts on the ruling of Vietnam since the Fall of Saigon (Image 9). This police [officer] threatened to arrest me if I return to Vietnam (Image 10). 20 At the end of the letter, the appellant summarised his position in this way: Following the constant harassment of the police to our house in Vietnam, the letter of request along with the interview of my father regarding my Facebook's post and the threats I received from the local police on my page, I believe I am now a police target in my district. With the high number of arrest and detention of dissidents and failed asylum seeker, I believe there is a real chance that they persecute me if I return. 21 Taking the images in the order in which they appear in the Appeal Book, they can be described as follows. 22 Image 1 at AB 127 is text in Vietnamese under the name "Tony Aba" next to a small image of a person (presumably identifying the person described as Tony Aba making the post). Underneath the text is two photographs of many police officers wearing helmets and possibly with shields. 23 Image 2 at AB 128 comprises posts bearing dates 20:08, 20:54, 2:14 and 10:12. Two of them are under the name "Tony Aba" (some of the others may or may not be references to Tony Aba). 24 Image 3 at AB 129 is a post under the name "Tony Aba" next to the same small image of someone. The text is in Vietnamese under the Tony Aba name. It also shows a large image of many assembled people and across the centre of the image is "NGAY 5-3-2017". 25 Image 4 at AB 130 is a post under the name "Tony Aba". The text is in Vietnamese. The post shows a photograph of a person at the water's edge holding five dead fish. There seem to be three other posts in this image one of which is under the name "Tony Aba". 26 Image 5 at AB 131 is another post under the name "Tony Aba" with three photographs. The first depicts a banner in Vietnamese. The second is a person carrying baskets and the third appears to be a candlelight assembly of people. 27 Image 6 at AB 132 is another post under the name "Tony Aba". The reasonably lengthy text is in Vietnamese. The image shows a photograph of a protester with clenched fist in the air in front of a row of police with helmets and shields. 28 Image 7 at AB 133 is another post under the name "Tony Aba" (but dated in English "May 12 2016 Denmark, WA"). The text is in Vietnamese. Underneath the text is another image of a coastal landscape showing a dead sea animal. 29 Image 8 at AB 134 is another post under the name "Tony Aba" bearing the date December 28, 2016. It displays a photograph of what appears to be a person lying down in the street (although the image is very unclear). 30 Image 9 at AB 135 is a post with no attribution. It displays an image under the time "20:57". The text of that image is in Vietnamese and is almost impossible to see. The text underneath the particular image is also in Vietnamese. 31 There does not appear to be an Image 10 in this sequence in the Appeal Book. 32 It will be necessary to return to a reconciliation schedule concerning these images at these pages of the Appeal Book and the references to the images in the appellant's letter and email of 3 May 2017. 33 On 5 May 2017, the appellant sent the email of 3 May 2017 and the same attachments to the IAA again and he did so again on 8 May 2017. The appellant filed an affidavit dated 5 June 2020 before the primary court in support of his application for a remedy under s 476 of the Act. In that affidavit, the appellant explains that although he received the IAA's letter of 23 February 2017 and attachments (including the Practice Direction although only in English), he was in a remote area of Denmark in Western Australia with no access to legal assistance. He says that he cannot read or write English. In April 2017, he spoke to Ms My Nguyen who is fluent in English and Vietnamese. She suggested that he contact the IAA as the nominated 21 day period for lodging new information (as described in the other English and Vietnamese attachments to the IAA's letter) had elapsed. He contacted the IAA. He says that he was advised by the IAA officer that although the 21 day period had expired, he could submit new information but "it should be done on an urgent basis before the IAA makes the decision". Ms Nguyen and the appellant "hurriedly prepared and emailed the submission and new information" together with the explanation for lodging new information (as recited in the letter) on 3 May 2017. He says that because he received no acknowledgement from the IAA, he emailed the material again on 5 May 2017 and again on 8 May 2017. He says that on 8 May 2017, having called the IAA, he was advised that it had received all three emails. The appellant annexes to his affidavit a translation of the Facebook pages which were sent untranslated to the IAA as attached to his emails. An annexure to his affidavit has each of the images as sent to the IAA in the emails with a translation of the Vietnamese text (although the translations were not before the IAA). 34 It is necessary to reconcile the images by identifying each of the posts/images described as 1-10 by the appellant in the email of 3 May 2017 as put to the IAA with the corresponding image in the appellant's affidavit of 5 June 2020, as well as reconciling that material to the English translation of the text in the relevant post/image and also with the description of the posts/images as they appear in the Appeal Book at AB 127 to 135. That reconciliation schedule is set out below: The appellant's email of 3 May 2017 (AB 122) attaching the jpeg images described by him as Images 1-10 The AB page reference Corresponding AB page reference of N1 of the appellant's affidavit of 5/6/2020 filed before the primary court Corresponding AB page reference to the English translation as annexed to the appellant's affidavit of 5/6/2020 Description set out in these reasons of the particular image Image 1 131 167 166 [26] Image 2 132 Does not appear in affidavit. 168 [27] Image 3 134 170 (top) 169 [29] Image 4 133 170 (bottom) 169 [28] Image 5 135 172 171 [30] Image 6 Does not appear in AB separately but a further copy of the image appearing at AB 135. 174 173 [30] again Image 7 129 176 175 [24] Image 8 130 178 177 [25] Image 9 127 180 179 [22] Image 10 128 182 181 [23]

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Judgment (4 paragraphs)

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