CKC16 v Minister for Immigration and Border Protection

B The Two Errors 4 The first error, which I will describe as the Religious Claims Error, was the Tribunal's finding at [31] that the appellant did not raise evidence regarding his father's position on the board of a parish of a Catholic Church until after the first Tribunal hearing. In fact, the appellant had provided this very claim to the Minister in October 2013. An affidavit was read before the primary judge which demonstrated that fact. More specifically, during his interview on 11 October 2013, the appellant said he wanted to provide specific information to support his claim and in a letter doing so, he asserted, among other things, that: By the trust of the parishioners, in 2005 my father was appointed to work on the parish religious executive board for many years. 5 The Tribunal, in its reasons at [31], turned to this issue. The error is manifest from what is set out below in bold: Nor does the Tribunal accept the applicant's claims regarding his father's alleged position within the Catholic church administration. The applicant claimed in the hearing that in 2005 his father was elected to be in the Catholic administration of the Kim Lam parish and that his father's role was as the leader of the choir in the parish. In Contrast, in the applicant's statement dated 24 April 2015, which was submitted after the hearing with the first Tribunal, the applicant claimed that his father had been appointed to the parish religious executive board in 2005 and there was no further elaboration as to what his father's role was on the board. The Tribunal notes the applicant's evidence regarding his father's alleged official position does not appear to have been raised by him until after the hearing with the first Tribunal and given the lateness of this claim, and the Tribunal's general concern about the applicant's credibility, it does not accept that the applicant's father was a member of the board of the church or the church administration. The Tribunal finds the applicant has embellished this aspect of his claims in an effort to establish a profile for his family as something more than just ordinary adherents of the Catholic faith. (Uncorrected, with emphasis added) 6 The second error, which I will call the Political Statement Error, was in some respects similar. It related to the appellant shouting a political statement which is variously recorded in the materials, but at [43] of the Tribunal's reasons, was said to be as follows: [S]ince you were born up till the time you were 20 years old if you don't like communism it means you don't have a heart but after you turn 20 onwards and if you still like communism that means you don't have a brain. 7 If these words sound familiar, that is not surprising. According to Ralph Keyes, "Nice Guys Finish Seventh: False Phrases, Spurious Sayings, and Familiar Misquotations" (HarperCollins, 1992) at 51, these words are commonly misattributed to Winston Churchill but are more likely to have first gained popularity by reference to a quote of Georges Clemenceau, which was as follows: Any man who is not a socialist at age twenty has no heart. Any man who is still a socialist at age of 40 has no head. 8 Apparently, the same or a substantially similar quote has been attributed to such various figures as David Lloyd George, the mid-19th Century historian and statesman François Guizot, Benjamin Disraeli, George Bernard Shaw and Bertrand Russell. 9 In any event, the use of a subtly different form of words which conveyed the same message, had been referred to by the appellant during his visa protection interview, and again at the first hearing before the Tribunal. Again the error is manifest. At [43] of its reasons, the Tribunal said as follows: Shouted … "since you were born up till the time you were 20 years old if you don't like communism it means you don't have a heart but-after you turn 20 onwards and if you still like communism that means you don't have a brain". The Tribunal notes the applicant made no mention about shouting this political statement until his hearing with the first Tribunal. Given the applicants evidence in the hearing was that this statement had a significant impact because he was abusing the regime, the Tribunal finds it implausible that if he had said this, that he would not have raised this either in his statement outlining his, claims, attached to his protection visa application or during the interview with the delegate (emphasis added). 10 It is useful at this point to note that the Minister, with commendable frankness, accepted the existence of the two errors to which I have made reference in its written submissions filed prior to this hearing. 11 I will return to the Religious Claims Error and the Political Statement Error and how the Tribunal deployed their relevant findings in the overall assessment of the appellant's credibility below. But prior to doing so, in order to understand the significance of the two errors, it is necessary to have regard to the context of the appellant's claims, to which I now turn. 12 This can conveniently be done by reference to the appellant's statutory declaration dated 24 April 2015, where the appellant set out matters regarding his claims, including that: (a) he has been a devout Catholic all his life who was baptised as a baby, given the Christian name Anthony, received the sacrament of confirmation, and has always regularly attended two churches and participated in church activities in his home town; (b) his father was appointed to the Parish religious executive board in 2005 and held that position for many years (as had previously been explained to the delegate in October 2013); (c) he aspired to be a priest; (d) his uncle was imprisoned for eight years for his role as a Catholic priest who had called for people to build a local church; (e) he joined the "Kim Lam Catholic Youth Group" at the age of 15 and became the Vice Chairperson when he was 18, maintaining that position until he fled Vietnam and, in that role, he distributed pamphlets and put up banners at church events; (f) since taking on the church leadership role he had been summonsed to the local police station a number of times for questioning about his church activities; (g) he was involved in an incident at Tiep Vo Church on 15 July 2012, during which, when handing out pamphlets outside the church, 10 police came to arrest him; he was beaten and injured but he got away and then went into hiding at Xa Doai Cathedral (about 40 kilometres from his home); (h) during the arrest, he made a political statement to the police (the content of which is set out above), and was thereafter summonsed to go to the police station, but fled Vietnam instead; (i) when making his visa application, in his protection visa interview and again to the Tribunal, he recounted the political statement he had said to the police.

C Approach to the Grounds of Appeal 13 It makes sense to commence by reference to the second ground advanced. It will be recalled this is that the primary judge erred by not concluding that the Religious Claims Error or the Political Statement Error constituted irrational findings that necessarily affected the Tribunal member's findings as to credit which were material to the determination of the case, thus leading to jurisdictional error. It is useful to deal with the second ground first, because the case advanced on behalf of the Minister is that if the Tribunal's erroneous findings did not affect the Tribunal member's findings as to credit, then any error of the kind contended in appeal ground one, becomes immaterial. Moreover, if it is the case that the Religious Claims Error or the Political Statement Error did constitute irrational findings that were material to the determination of the case leading to jurisdictional error, it will become unnecessary to consider the balance of the grounds.

D Relevant Principles 14 Recently, in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30], the Full Court (Kenny, Kerr and Perry JJ) set out, by reference to a number of authorities, the relevant principles concerning legal unreasonableness and findings as to credit. They explained that: (1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review. The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae. In each case it is necessary to analyse in detail what the decision-maker has decided. (2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis. (citations omitted) 15 In the light of these principles, references to a litany of cases which each turn on their own facts is not a useful exercise. It suffices to note that unwarranted assumptions or factual errors made by a Tribunal, regarding matters which are then relevant to the formation of a view on credibility, can demonstrate error. Equally, error may be found where a process of reasoning is undertaken by material reference to a false premise, which then causes a person's credibility to be assessed as wanting. See, for example, SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at 126 [37]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 648-649 [132]-[133]. 16 Before leaving the authorities, it is appropriate to remind oneself that a high degree of caution is to be exercised before finding that adverse findings as to credit expose jurisdictional error. This is to ensure that the Court does not embark impermissibly upon merits review. The Minister is correct to emphasise two matters: first, that the "overarching question is whether the Tribunal's decision was affected by jurisdictional error": see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at 517-518 [60] (McKerracher, Griffiths and Rangiah JJ), quoting Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at 221 [54]-[55] (Wigney J); and secondly, (as was explained by Wigney J in SZUXN at 221 [55]), where the impugned finding is "but one of a number of findings that independently may have led to the Tribunal's ultimate conclusion, jurisdictional error will generally not be made out".

E The Minister's Summary Contentions as to Ground Two 17 Dealing initially with the "religious claim", the Minister contends that the appellant's claim about his father's official position was only "tangentially connected" with the claimed persecution of the appellant and of such insignificance, that an error in rejecting this claim was not critical to the end result. In any event, the Minister submits that two reasons were given for its rejection. First, the purported lateness of the claim (that is, the reason given that constituted the Religious Claims Error), and second, the "Tribunal's general concern about the [appellant's] credibility". This general concern included the Tribunal's finding that the appellant was willing to provide false evidence (albeit corrected at a later date). The credibility findings are asserted to provide an independent and sufficient basis for rejecting the religious claim. 18 The "political statement claim" was dealt with in a similar fashion. The Minister again submits that two reasons were given for its rejection: first, the purported delay in raising this aspect of his claim; and secondly, the implausibility of this claim. The relevant implausibility being that the Tribunal found it "somewhat far-fetched" that the appellant, when trying to break free from the police, would stop to make what was said to be a relatively lengthy declaration. Despite the appellant later claiming that he made the relevant statement while running away, the Tribunal found that this was not consistent with his earlier evidence. These implausibility findings are asserted to provide independent support for the conclusion that the appellant did not make the political statement. 19 The Minister also draws attention to the fact that the Tribunal rejected the appellant's claims about the lead-up to this incident (see [39]-[42]), did not accept that the appellant was involved in any incident on 15 July 2012, "and more generally [found] that this raises concerns about the credibility of all his claims" ([41]). 20 It follows, it is asserted, that jurisdictional error is absent and the orders of the Court below dismissing the application were therefore correct. 21 For the reasons that follow, I reject these submissions.

F.1 The Tribunal's Decision 22 Having accurately summarised the claims set out above, in order to understand the full context of the rejection of these claims, it is regrettably necessary to set out, at some length, the Tribunal's reasoning from [29]-[33]: The Tribunal accepts that the applicant is a practising Catholic. The Tribunal has taken into consideration the sacrament certificate from the Vinh diocese confirming the applicant's baptism and confirmation in the Catholic Church. The applicant's evidence in the hearing was that he regularly attended a registered Catholic church on Sundays. The applicant also claimed to have joined a Catholic youth organisation at the age of 15. When asked if this organisation or group had a name, he stated it was just called youth organisation of the parish. The Tribunal asked the applicant what exactly did the Catholic youth organisation do. He stated that they organised a lot of prayer sessions to pray for victims of the government and they met with the poor and orphans and helped them. When asked how this group helped the poor and orphans, he explained that before major festivals like Christmas, they would use money from their fund to buy gifts to give the poor. The Tribunal asked the applicant if the group did anything other than give gifts to the poor at special times of the year. He responded that they also issued flyers and distributed them, asking people to protest and demand for freedom of religion. The Tribunal repeated the question and the applicant stated during difficult times, when someone is sick or someone has passed away, they would go and enquire after there and give them consolation. In relation to the prayer sessions which the group organised, the applicant stated that they would usually meet together for praying sessions every Saturday. He claimed about 100 people would gather together and they would pray every Saturday. They would also share all the activities they had done and guide the younger members to follow their steps in terms of the poor and orphans. The Tribunal found applicant's evidence as to his activities as a member of this Catholic youth organisation to be vague, general and limited. The applicant was unable to expand in any meaningful way about the activities of this group apart from stating that they held prayer groups on Saturdays and helped the poor and orphans by buying them gifts. The Tribunal does not accept on the evidence provided by the applicant that these regular Saturday prayer meetings were organised specifically for the victims who were oppressed and repressed by the government, as he claimed, given the frequency of these gatherings. In relation to helping the poor and orphans, which was identified by the applicant as another central activity of this group, the Tribunal finds the applicant's evidence which was essentially only about buying gifts for the poor during Christmas, lacking. While the applicant referred to making enquiries about ill people and providing consolation to those who had lost loved ones, the Tribunal does not accept that this necessarily relates to helping the poor and orphans and the applicant's inability to explain any other activities that he as a member of this group engaged in to assist the poor and orphans raises serious doubts about his association with the group. In light of the inadequacy of the applicant's evidence about the activities of this youth group, and his role as vice leader, which he described as being to guide the younger members to follow thier steps and help the poor and know God's instructions, and the Tribunal's general concerns about his credibility and that of his claims as discussed below, the Tribunal does not accept that the applicant participated in the youth organisation in his parish from the age of 15 or that he was the was vice leader of this youth group from the age of 18. Nor does the Tribunal accept the applicant's claims regarding his father's alleged position within the Catholic church administration. The applicant claimed in the hearing that in 2005 his father was elected to be in the Catholic administration of the Kim Lam parish and that his father's role was as the leader of the choir in the parish. In contrast, in the applicant's statement dated 24 April 2015, which was submitted after the hearing with the first Tribunal, the applicant claimed that his father had been appointed to the parish religious executive board in 2005 and there was no further elaboration as to what his father's role was on the board. The Tribunal notes the applicant's evidence regarding his father's alleged official position does not appear to have been raised by him until after the hearing with the first Tribunal and given the lateness of this claim, and the Tribunal's general concern about the applicant's credibility, it does not accept that the applicant's father was a member of the board of the church or the church administration. The Tribunal finds the applicant has embellished this aspect of his claims in an effort to establish a profile for his family as something more than just ordinary adherents of the Catholic faith. Similarly, the Tribunal notes the applicant's claims regarding his uncle who he claimed was a priest and had been imprisoned for eight years for his role in calling up people to help build a local church. The applicant has provided limited information regarding his uncle's detention including which years his uncle was detained. While the Tribunal accepts the applicant's uncle may be a priest, it is not satisfied on the limited evidence before it that his uncle was detained for eight years as a political prisoner as he claimed. Nor does the Tribunal accept the applicant's claims regarding his aspirations to become a priest himself given its findings above that he did not engage in any activities associated with the Catholic church apart from regular attendance at mass on Sundays at a registered church. As the Tribunal does not accept that the applicant was an active participant in the Catholic youth organisation in his parish, including in the position of vice leader, the Tribunal does not accept that the applicant participated in activities relating to politics and religion, as he claimed In the hearing, The Tribunal does not accept that the applicant issued flyers and distributed them asking people to protest and demand for freedom of religion. The Tribunal notes that despite the applicant initially claiming in the hearing that he issued these flyers and similarly in his statement attached to his protection visa application that he, along with other people, composed these pamphlets, the applicant's later evidence was that he did not get involved in physically making out the flyers and that it was the priests who were responsible for making the flyers. The Tribunal also finds the applicant's evidence that these alleged pamphlets, which were distributed twice a year, on the day of assumption on 15 August and Christmas day on 25 December, would almost always say the same thing, which was about freedom of religion in Vietnam, unconvincing. (Uncorrected)

F.2 The Process of "Independent" Reasoning 23 As can be seen from the above extract, the Tribunal found the appellant could not expand on the activities of the Catholic youth organisation apart from mutual prayer, Christian instruction, stating that the group held prayer groups on Saturdays and helped the poor and orphans by buying them gifts. With all due respect to the Tribunal, it is difficult to understand what other activities a Catholic youth organisation was likely to undertake which were not mentioned by the appellant, but which apparently should have sprung to mind. 24 Similarly, the Tribunal found, in a way that I confess is difficult to follow, that the regular Saturday prayer meetings were not organised specifically for victims who were oppressed and repressed by the government, given that they were held so frequently. Again, this reasoning tends to obscure rather than clarify with what frequency it was thought that such meetings were likely to take place. Even more curiously, to my mind, is that the Tribunal found the appellant's reference to people suffering illness and providing Christian consolation to those that were bereaved did not relate necessarily to helping orphans and the indigent, and the appellant's inability to explain further activities raised doubts about his association with the group. As Ms Costello, who appeared on behalf of the appellant, submitted, "Heaven only knows what evidence the Tribunal would have found to be adequate". In a similar vein, the Tribunal found the appellant's evidence about his role as a vice-leader was inadequate. However, the reasons are Delphic in explaining why that evidence was inadequate in circumstances where, presumably, a vice-leader of a parish youth group would engage in activities such as helping to guide younger members, assisting the poor and obtaining a familiarity with Christian teaching. 25 After finding the applicant's claims were "unconvincing and implausible" and rejecting the applicant's evidence about his father being summonsed by the police (partly because of concerns as to the applicant's credibility stemming from the applicant's concession that he had previously provided false information), the Tribunal summarised its reasoning at [50] as follows: Based on the above the Tribunal does not accept that the applicant is a witness of truth. While the Tribunal accepts that the applicant is Catholic, based on the vague nature of aspects of his evidence, inconsistencies in his evidence provided at various stages of the process and the implausibility of some of his claims, as discussed above, the Tribunal does not accept that the applicant was a member of the Catholic youth organisation or group in his parish or that he was the vice leader of this group. It does not accept that his father ever held any official position on any church board or association. The Tribunal does not accept that the applicant was involved in composing or distributing pamphlets calling for people to fight for freedom for religion or any other matters or that he produced and erected banners, posters and placards or participated in protests against the oppression and persecution of Catholics or any other wrongdoings of the Vietnamese government, including the selling off of the Sprately and Parcel Islands to China. Nor does the Tribunal accept the applicant was involved in the preparation of any protest or large prayer ceremony on 15 July 2012 during which there was an attempt to arrest him and he was beaten with batons but he managed to run away, during which he made a political statement. 26 It will be evident from what I have already said, that I am satisfied that the so-called independent reasoning processes that led to the rejection of the applicant's claims demonstrate a lack of rational or logical connexion between the Tribunal's assessment and the evidence upon which it relied to make the assessment. 27 More specifically, the reasoning reveals that its conclusions about the appellant's Catholic activities (and also the appellant's asserted aspirations to take Holy Orders) were not based on probative material or logical grounds, but rather upon the Tribunal's subjective notions about how prayer groups and youth groups behave and the devotional practices of aspiring priests. 28 The appellant's submissions that the Tribunal made findings based upon insecure assumptions about how relevant religious activities would be conducted must be accepted. It follows, leaving aside for present purposes the two admitted errors which are common ground, that there is a further irrational and illogical aspect to the Tribunal's reasoning undermining the so-called independent basis for the general credibility findings.

F.3 The Primary Judge's Reasons 29 The dispositive findings of the primary judge can be shortly stated. The first was that the Religious Claims Error was not a critical step in the Tribunal's reasons and was only one of the matters which went to the Tribunal's general concern about the applicant's credibility. It was said at [21] that the "Tribunal's Decision Record is replete with references to evidence that could not reasonably have been accepted by the Tribunal and thus was not so accepted". 30 Secondly, and similarly, at [25] the primary judge found that the Political Statement Error was not a critical step in the Tribunal's reasons, the Tribunal having "multiple and independent reasons" for rejecting the Applicant's claimed version of events. 31 Regarding both errors, at [27], the primary judge held that because of "extensive and independent findings adverse to the honesty and credibility of the Applicant, it was open to the Tribunal to find that the Applicant was not a person to whom Australia owed protection obligations". The primary judge went on to conclude that: The errors made by the Tribunal did not deprive the Applicant of a successful outcome because in respect of each finding the Tribunal made other and independent findings, logically and rationally supported by the evidence before it, in respect of the same matters. 32 As can be seen, the so-called independent grounds I have already dealt with, and the findings as to the want of creditworthiness of the applicant, were correctly identified by the primary judge as central to the decision making of the Tribunal.

F.4 Conclusion 33 In SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]-[45], I made the point that: It is [often] not realistic to put the various aspects of the appellant's evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached. The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence. As the Full Court (Hill, Sundberg and Stone JJ) observed in VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 at [79] "an assessment of credibility is not necessarily linear". Put another way, as Gleeson CJ commented in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89, "[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive." 34 Like in the very different circumstances of the error in SZTFQ, the erroneous findings here, that the appellant had recently invented his evidence about his father's role, or about the making of the relevant political statement, were not peripheral to assessing the creditworthiness of the appellant. No other fair reading of the reasons seems to me to be available. It is understandable that the Tribunal member would have serious concerns about the appellant's overall credibility, given the misapprehension held as to the Religious Claims Error and the Political Statement Error. As I noted in SZTFQ at [45]: To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 23 [81]: …decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light. 35 It follows from the above that I reject the Minister's submission that the errors in rejecting the claims were not critical to the end result. As I have explained, the independent support for rejecting the religious claims, was itself based upon an illogical process of reasoning containing unwarranted assumptions. The finding as to implausibility of the political claim as "somewhat far-fetched", provides no truly independent support for the conclusion that the appellant did not make the political statement, but is rather inseparable from the credibility findings impacted upon by the errors. Ground two is made out. 36 This is sufficient to dispose of the appeal but I will say something shortly as to ground one. It will be recalled that the contention is that that the primary judge should have approached his task on the basis that it only needed to be established that the appellant was denied of the possibility rather than the probability of a successful outcome. 37 It is well established and accepted by the parties that a denial of procedural fairness need only be proven to have deprived the appellant of the possibility of a successful outcome: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at 342-343 [60] per Gageler and Gordon JJ. 38 The appellant focuses on statements by the primary judge that the appellant could not show that a different result would have followed (see [20] and [25]). The focus of the Court's reasoning, however, was on explaining why there was no jurisdictional error as explained above. Moreover, the primary judge also stated at [27], based on finding as to immateriality, that the errors made "did not deprive the [appellant] of a successful outcome because in respect of each finding the Tribunal made other and independent findings, logically and rationally supported by the evidence before it, in respect of the same matters" (see [27]). I am not satisfied that because of the textual indications to which the appellant pointed, that the primary judge's attention was misdirected to the wrong question. The issue was whether the Tribunal's errors of fact did deprive the appellant of the possibility of a successful outcome. The error established here was the answer to that question, not the framing of it.

G Orders 39 The appellant is entitled to relief as sought in the notice of appeal. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.