CLJ17 v Minister for Home Affairs

Relevant background 3 The appellants are citizens of Vietnam and identify as Catholic. They arrived in Australia by boat on 8 April 2013. CLK17 was first interviewed by an officer of the Department of Immigration and Border Protection on 17 April 2013. CLJ17 was first interviewed by an officer of the Department on 19 April 2013. CLK17 was also interviewed by officials from the Vietnamese Ministry of Public Security - Immigration, described in the decision material and below as the "A18" officials, on 21 August 2013. This interview forms part of the appellants' challenge to the Federal Circuit Court's orders. It was also the subject of a complaint made to the Australian Human Rights Commission (AHRC) on 25 October 2013, which I return to below. 4 Each of the appellants applied for a protection visa (Class XA) on 11 June 2014. The delay between their arrival and their visa applications is not clearly explained on the evidence, but as I discuss below, CLK17 was "screened out" for about five months of this period. Each visa application was supported by a statutory declaration. CLK17 was interviewed on 14 October 2014 and was notified that his application had been refused on 28 May 2015. CLJ17 was interviewed on 15 October 2014 and was notified that his visa application had been refused on 26 May 2015. It appears each appellant was interviewed separately. 5 CLJ17 applied to the (then) Refugee Review Tribunal for review of his decision on 5 June 2015. CLK17 applied to the Tribunal for review on 9 June 2015. Both appellants were legally represented through this process. 6 The Tribunal conducted two separate hearings: one for CLK17 on 14 October 2016 and one for CLJ17 on 20 October 2016. Each brother gave witness evidence at the other's hearing. On 24 April 2017, the Tribunal affirmed the decision not to grant each of the appellants a protection visa. The appellants were granted an extension of time by the Federal Circuit Court and sought judicial review of the Tribunal's decision on 6 June 2017. 7 The Federal Circuit Court found (at [14]) the appellants' cases on judicial review were "relevantly indistinguishable" and issued one set of reasons applicable to both applications. There were some arguments about the admissibility of certain materials the appellants sought to tender on the judicial review, and the Federal Circuit Court gave rulings on those matters in its reasons. Some of the material was admitted, and some rejected. Where necessary I return to these rulings below. 8 In its reasons, from [62]-[97], the Federal Circuit Court dealt with three grounds of review which were common to both appellants. It rejected each of them. 9 From [97]-[104] the Federal Circuit Court dealt with two additional grounds of appeal raised only on behalf of CLJ17 and rejected both grounds. 10 Where necessary in order to explain my reasoning on the appeals, I refer to the Federal Circuit Court reasons below.

The appellants' arguments on appeal 11 Consistently with the way the matters had been dealt with to this point, the two appeals were heard together, and a set of submissions was filed by each of the appellants with one set of submissions on behalf of the first respondent, the Minister, covering both appeals. There were two appeal books filed, and some additional evidence which was before the Federal Circuit Court was filed separately in CLK17's appeal. 12 A somewhat unusual approach was taken in submissions on behalf of the appellants. In the written submissions for both appellants, the following introductory statement was made: These submissions are largely the submissions filed by David Blades, Counsel for CLJ17 and CLK17 at the FCCA hearing. Present Counsel sees no need to depart from them. Further, both Appellants complain that their submissions were not taken into account in the FCCA. Mr Blades consents to his submissions being used and to this document being sent electronically to this Court. 13 Save for a matter which arose at the hearing, the grounds of appeal closely follow the grounds of review before the Federal Circuit Court: hence why the appellants' submissions were able to rely so heavily on the submissions put to the Federal Circuit Court. 14 As in the Federal Circuit Court, three grounds (of appeal in this Court, of review before the Federal Circuit Court) were common to both brothers. CLJ17 then raised two additional grounds (of review and of appeal). 15 The three common grounds are: (a) Ground 1 in both appeals, which concerns a finding by the Tribunal that the purpose of CLK17's interview with the A18 officials was only to establish the identity and nationality of certain individuals (as opposed to, for example, to obtain information about any protection claims CLK17 had made or might make). The contention is that the Tribunal's conclusion was irrational or illogical (in both notices of appeal) or the finding was not supported by any evidence (in CLJ17's notice of appeal) or was not based on consideration of the evidence (in CLK17's notice of appeal); (b) Ground 2 in both appeals, which challenges certain credibility findings made by the Tribunal, on the basis that the negative credibility findings were based on a misconstruction by the Tribunal of the evidence the appellants had given; and (c) Ground 3 in CLK17's notice of appeal and Ground 5 in CLJ17's notice of appeal, which contend the Tribunal failed to consider a claim made by the appellants; namely that they feared harm as members of a particular social group, being members of the Catholic faith in Vietnam. 16 The two additional grounds of appeal raised by CLJ17 are: (a) Ground 3, which challenges another credibility finding made by the Tribunal in respect of CLJ17. The appellant contends the Tribunal misconstrued his brother's evidence and this led to the adverse credibility finding; and (b) Ground 4, which alleges the Tribunal failed to consider "relevant material", being two newspaper articles about the "brutal repression" of people in the appellants' home province, which had been sent to the Tribunal after the hearing, the Tribunal having agreed the appellant could send them in.

Entry interviews 17 At their entry interviews, each appellant made claims which on their face engaged Australia's protection obligations.

CLK17 18 CLK17's entry interview occurred on 17 April 2013. His religion was recorded as Christian (NFD). "NFD" appears to mean "not further defined". 19 In answer to the question why he left Vietnam, the following appears in CLK17's entry interview record (with minor typographical errors corrected): A: In Vietnam, many things are not free. We do not have religious freedom. Q: Did anything specifically happen to you to make you leave VIETNAM? A: Yes. Q: What happened? A: It's the discrimination against people like me, by the communist party, there are many examples of that for me to tell you. Q: Can you give.me a recent example of what has happened? A: I am working for the family church, for many years now, in different committees of the church, it happens to me that I was called into the local Government's Office, just to sit there from morning till midday, for no reason. I was just left sitting there. Q: Besides being constantly discriminated against, are there any other reasons? A: Only the religious discrimination. Q: How long has this discrimination been going on for? A: For the last three [years]. 20 In answer to the question "Have you or any members of your family been associated or involved with any political group or organisation?" the following appears in CLK17's entry interview record (with minor typographical errors corrected): A: My father has been the leader of religious breach, its name is Phan Sinh - this is a world wide branch. Q: What does that involve? A: He just invites other people for gatherings to read the bible. Q: Were you a member of this group? A: Yes. Q: What was your involvement? A: I am just a member, in those gatherings or meetings, we just pray and read the bible. Q: Where did you have those gatherings? A: It used to move from one spot to another. We had three spots, it was in [redacted]. 21 In answer to the question "Were you or any members of your family involved in any activities or protests against the government?" the following appears in CLK17's entry interview record (with minor typographical errors corrected): A: My nephew who is my brother's son is a member of the Christian's students Association. They protest against abortion. Q: Are you a member of that association? A: No, I just support them behind the stage.

CLJ17 22 CLJ17's entry interview occurred on 19 April 2013. His description of his most recent employment in Vietnam (from 2010 to the end of March 2013) appears in the following terms in his entry interview record (with minor typographical errors corrected): Volunteer Service at Church - I was a Bible Teacher for Children - And teaching them Catholic Songs. I was the driver of the local Priest to take him to gatherings that were against the authorities. The activity would take part in Anti-Abortion, Sexism, The fine for having (3) or more children. (I was fined 500 thousand and 800 thousand Dong for my children). 23 He identified his religion as Catholic. In answer to the question why he left Vietnam, the following appears in his entry interview record (reformatted and with minor typographical errors corrected): Q: Tell me the reason you left Vietnam? A: Because I had a feeling that I wasn't safe recently. Q: Not safe from who/m? A: Because I thought - I think - that people who stopped us on the way must be hired or paid or encouraged from the authority. I don't think that normal people would threaten me. They threatened to hit me and I was hit once. Q: Why? A: Because I drive the priest around as I said earlier and (they see this as) as wrong doing. Q: Where were you hit? A: About two months ago. Q: Where did this happen? A: About 30 kms away from my house Q: What day did this happen? A: I don't remember Q: What day of the week? A: Saturday - because it was mass. Q: Is that when you normally have your mass? A: Yes because I am his right hand (man). Q: Was he hit? A: No. He was threatened though - he is old - he is nearly 70 (years old). Q: Tell me exactly what happened on that day? A: That Saturday, after the Mass - I was driving him back - it was late - it was dark. Then our car was driving along a small small road and we were driving slowly. Suddenly then I saw about 4 or 5 people that were standing on the road and waving. … I stopped the car. Q: Why did you stop the car? A: (Indicates being punched) and then they said you were doing something stupid I got a punch to my stomach (one punch) and then I managed to run. Q: Where to? A: I ran about 50 metres Q: What next? A: From far away I was hiding - I saw 2 of them talk to the priest - after that it seemed they were looking for me and after awhile they left and the priest rang me on my mobile phone - I returned to the car and went home. Q: Did something else happen after that? (Rephrased) After this incident did anything happen? A: We took more precaution and would only drive during the day after that. [Question repeated.] A: No but one day I was waved by one person who I didn't know who asked me where I was going - who I had met. Q: When did you decide to leave the country? A: During that time I felt worried, unsafe and felt anything could happen to me - maybe my life and then I heard that if you go to INDO - you can go to other countries. At first my wife tried to stop me but I said let me decide. Q: The people that punched you - are they authorities? A: No didn't know who they were (no uniforms, no weapons). Q: Why didn't you report this to the authorities? A: I didn't because nobody would care. Q: Police? A: No because even if I reported it they would not (act). Q: Were the activities you were doing illegal? A: Authorities in Vietnam consider our actions against them. So they didn't like us. Q: Before this happened - had you ever been threatened? A: No. 24 On the following page of the entry interview record, there is a series of ticked boxes with further information. 25 In answer to the question "Have you or any members of your family been associated or involved with any political group or organisation" the box marked "Yes" is ticked and the follow details are recorded: I have participated as a member of my religious group in activities against the government - and my father too - he was arrested [many] times. In his time being a Catholic was oppressed. 26 In answer to the question "Were you or any members of your family involved in any activities or protests against the government?" the box marked "Yes" is ticked. The information reproduced immediately above is repeated, and in answer to the question "What kind of activities?" the following details are recorded (with minor typographical errors corrected): Anti-abortion - asking for freedom to practice religion. For example I would drive the priest to church and to other churches and the priest would do his mass to condemn the abortion - asking Catholic [people] to fight for freedom. Myself, when teaching children bible study I would teach them to fight for [the] right to be born. 27 In answer to the question "Are you a member of any particular social or religious group?" the box marked "Yes" is ticked and the following details are recorded: (1) VOLUNTEER AT CHURCH … (2) I am a member of a group called [redacted]. This group. This always pray in the church together and would also go to families and people who suffer from financial difficulty, poor health - etc - to support them financially and spiritually. 28 Under the heading "Reasons Not To Return To Country of Nationality" the following dialogue is recorded (reformatted and with minor typographical errors corrected): Q: What do you think will happen to you if you return to your country of nationality (residence)? A: I think my life won't be safe because I am person who is not treated the same already because I was doing things against them - asking for freedom of religion and against abortion and sexism and the third child fine. Q: I'll ask the question again then - what do you think will happen to you? A: I don't know. But due to my activities - the authorities will think I am against them. Q: And what happens? A: You go to prison. In Vietnamese prison there are no human right. Q: Are you saying you will be in trouble with the authorities if you return? A: Yes I was not safe. Sometime when I don't know. Q: Which authority will prosecute you? A: The police.

The claims made by each appellant 29 The delegate summarised the claims made by CLJ17 as follows: • The applicant is a devoted Catholic and volunteered for his church by teaching small children in church, assisting the priest and driving him around, leading a youth group and also being head of the choir. • The applicant helped teenagers in the church prepare banners that were anti-government. • On 6 April 2011 the applicant went with his priest and other church members to the Family Planning Minister's office and they carried anti-government banners. • After this the applicant felt he was being followed by the government and was under surveillance. • On 25 October 2011 the applicant had taken the priest to attend a prayer meeting in [redacted] parish. • Following this on the way back home the applicant's car was stopped by a group of people who beat him until he managed to escape. • After this incident the applicant received calls from private numbers threatening him to stop working for the church and to stop driving the priest. • In November 2011 the applicant's wife received a phone call stating the applicant's life would be taken if he did not stop helping the church. • In 2010 the applicant's kiosk at the market was taken away without receiving any compensation, the applicant believes this is because he is a Catholic. • The applicant is imputed with a profile as his wife's grandfather was a member of the South Vietnamese government and was accused of spying. He was arrested in 1962 and sentenced to 16 years in prison in 1967. • The applicant had two genuine passports which had expired and he departed Vietnam on a fake passport because he could not use his real name as the authorities would not give him a passport. 30 The delegate summarised the claims made by CLK17 as follows: • The applicant was a member of the [redacted] group and used to help the youth in his church. • On 6 April 2011 the applicant helped the church's priest to organise a protest which lifted anti-government banners against the head of the department of justice in their village. • The group were opposing government policies which limited couples to having two children and allowed abortion and family planning. • Undercover police were present at the demonstrations and the applicant was summoned to the police station and warned to stop his anti-government activities. • In 2011 the applicant's wife was running a wholesale business and black market dealers interfered. The applicant complained to the authorities but they did not help because they were Catholic. • In May 2012, the applicant's priest was killed and a meeting was conducted in the church to discuss the priest's suspicious death. Undercover officers attended the church and stopped the meeting. • On 2 June 2012 the applicant received a summons and attended the local police office. He was questioned about the purpose of the church meeting, which he stated was for organising a funeral but says the authorities did not believe him. • After this the applicant received calls from anonymous numbers warning him to stop his church activities. The applicant decided to flee to Bangladesh. • The applicant returned from Bangladesh hoping the situation had improved but he received another summons. He then made arrangements to leave Vietnam. • The applicant is imputed with a profile as his wife's paternal grandfather was a member of the South Vietnamese government and was accused of spying. He was arrested in 1962 and sentenced to 16 years in prison in 1967. • The applicant believes he will be banned because he is a Catholic and was heavily involved in church activities.

Screening out and CLK17's interview with the A18 officials 31 On this appeal, CLK17 submitted (and it was not in dispute) that Departmental records show that he was "screened out" on 15 May 2013 and was notified of that decision on 19 June 2013. He was later "screened in" on 19 September 2013. The process of "screening out" is apparently an administrative process, with no basis in the Migration Act 1958 (Cth). The legal authority for a Departmental officer to decide that a person such as CLK17 should not be permitted to apply for a protection visa is unclear. Nevertheless, this is what occurred. 32 As noted above, on 21 August 2013, CLK17 was interviewed by the A18 officials. This happened at Yongah Hill Immigration Detention Centre. It appears to be common ground that CLJ17 was not interviewed. That may be because he was not "screened out". The Tribunal found that the A18 officials were not aware that CLJ17 was in immigration detention at the time of their visit, or subsequently. 33 There is some dispute on the evidence about what occurred during the interview with CLK17. The evidence about the interview has changed over time. There was some information before the delegate, and then also before the Tribunal. There was further information before the Federal Circuit Court. Then in this Court, CLK17 sought to rely on a further affidavit about what occurred during that interview. It is necessary to summarise the information said to be available, and the findings made, at each stage of the process.

Delegate 34 The delegate's reasons make it clear it had some "Internal Departmental reports" about the A18 interview. The delegate then found: The applicant claims he signed an identity investigation report and … internal reports confirm this. The applicant claims that following the meeting with the A18 police the village committee called his wife and said that the applicant had escaped. The applicant states that his wife is now isolated and does not leave the house. 35 The delegate also found that CLK17 did not raise any protection claims in his protection visa application about the A18 visit. In his consideration of the A18 visit and any effect it may have had on the risks faced by CLK17 on return to Vietnam, the delegate referred to some country information, to the Department's procedural advice manual, and to an SBS report about the visit of the A18 officials during which CLK17 was interviewed. That report was referred to by the delegate as "Alarm over foreign officials in WA detention centre", Special Broadcasting Service (SBS), 13 September 2013, CXC28129413584. While the delegate accepted that the discussions between the relevant Australian and Vietnamese agencies "may have raised the profile of detainees including their real or imputed political opinion", she found CLK17 had not been involved in any political activities in Vietnam to a level which would make him of interest to the Vietnamese authorities, and there was no real chance he would be persecuted on return. The delegate also found, in any event, that Vietnamese authorities would not treat Vietnamese nationals who were in detention at the time of the visit by Vietnamese immigration officials to Australia differently from other Vietnamese nationals should they return to Vietnam.

Tribunal 36 On review, the Tribunal's findings on this issue were along similar lines. The Tribunal's view of the purpose of the A18 interview, and its scope, is apparent from the way it put to CLK17 what had happened, as recorded in its reasons at [32]: The Tribunal referred the applicant to information from the Department concerning the visit to the Yongah Hill immigration detention centre by the Vietnamese authorities known as the A18 team, and that this visit was for the purposes of assisting the Department in identifying certain applicants and that the A18 officials were not given details of the applicant's circumstances that might be used against him by the Vietnamese authorities. 37 At [35]-[36], the Tribunal summarised what CLK17 said to it about this incident: In relation to the visit by the A18 officials, the applicant said they talked to him face-to-face and forced him to write down the names of his parents. He said he did not know he could refuse to do this. He said that someone from the Department told him that if he gave the information this would speed up the processing of his application. He said that after the return of the A18 team to Vietnam, one of his children was expelled from school. He said that child was told they did not have the criteria to remain in the school. He said [that] the police also went to speak to his wife and told her they knew where he was. The Tribunal asked the applicant when the police last visited his wife, to which he replied that it was in 2013 and also 2014. The applicant then went on to say that not everyone who returns to Vietnam is treated the same way. He said the Vietnamese government harasses and oppresses and discriminates against returnees and that this is severe. He said the Vietnamese government tries to hide this from other governments and only the Vietnamese people can understand the violence of the government. 38 The Tribunal recorded the submissions of CLK17's representative about the A18 event at [39] and [42]: The applicant's representative submitted that upon arriving in Australia the applicant lacked familiarity with the immigration procedures. She said his interviews were conducted through an interpreter and that he has been in detention for a long time. In respect of the visit by the A18 officials, the applicant's representative submitted it is difficult to know if this information would be used against him and information might also undermine confidence in the process. She also submitted the applicant would be returning as the holder of a travel document and not a passport, and that having regard to the claimed the death threats, his religion and the harsh treatment of dissidents, the applicant faces a real chance of serious harm if he returns to Vietnam. … In relation to the A18 authorities in Australia, it is submitted the fact that the department allowed that authority is a serious breach of duty owed to those in detention. It is submitted the full extent of the access by the authority remains unknown. It is submitted the fact that the authority was in the detention centre would make it highly evident that the applicant had claimed asylum in Australia, and it is conceivable that they would pursue the applicant in the future in order to understand his motives for claiming protection. 39 The Tribunal's findings on this event are at [96]-[97]: The Tribunal accepts the delegate's finding that the applicant did personally meet with the Vietnamese officials which are referred to as the A18. It was submitted the fact that the department allowed the A18 access to the applicant is a serious breach of duty owed to those in detention. It is submitted the full extent of the access by the authority remains unknown and that it would be highly evident that the applicant had claimed asylum in Australia, and that it is conceivable that they would pursue the applicant in the future in order to understand his motives for claiming protection. At the hearing, the applicant claimed that following his meeting with the A18, the village committee called his wife and said that the applicant had escaped. The Tribunal has considered all the evidence on this particular claim, including the country information cited in the delegate's decision record. The Tribunal is satisfied that the purpose of the visit by the A18 was to assist the Department to identify the identity and nationality of certain applicants. The Tribunal is also satisfied that there is no evidence that the relevant officials undertook the interview process for any other purpose than to assist with such identification. The Tribunal finds that details of the applicant's protection claims were not disclosed or discussed with the A18 officials. Having regard to its findings that the applicant is not a person of adverse interest to the Vietnamese authorities, the Tribunal does not accept the submission that the Vietnamese authorities would pursue the applicant in the future to determine his motive for claiming protection, or to cause the applicant any serious harm. The Tribunal also does not accept the submission that it would be evident to the A18 officials that the applicant had claimed protection in Australia, since there may be other reasons why the applicant was held in immigration detention. Further, having regard to all the circumstances and evidence, the Tribunal does not accept that the applicant's wife was visited and questioned about the applicant following the A18 visit, or that one of the applicant's children was expelled from school for reasons of the A18's visit, or for any of the grounds claimed by the applicant.

Federal Circuit Court 40 Before the Federal Circuit Court, CLK17 sought to rely on affidavit material that was the subject of objection by the Minister. It is not necessary to rehearse all of those objections. Ultimately, the Federal Circuit Court allowed CLK17 to adduce evidence of the transcript of the Tribunal hearing, insofar as it was relevant to the grounds of review. The Federal Circuit Court allowed the objection to an affidavit deposing to the refusal of a Ministerial interview in CLK17's case. The Federal Circuit Court allowed CLK17 to adduce, over the Minister's objection, an affidavit annexing documents released under the Freedom of Information Act 1982 (Cth) which included the AHRC complaint referred to above and documents relating to that complaint. 41 The AHRC complaint dealt with an "enhanced screening" process which it contended had been applied to a large number of Vietnamese asylum seekers. The complaint then stated: We have concluded that these men were subjected to a perfunctory screening process. In late August the Immigration Department … invited officials from the Ministry of Public Security to interview 100 or so men at Yongah Hill, supposedly to check identity prior to return. This caused great distress and after these interviews one man attempted suicide and another was on a prolonged hunger strike from September 5th. The men interviewed say that they were harassed to sign statements and provide personal information about themselves and their families. The interviews were also conducted at Darwin and Villawood centres. The complaint outlines matters that point to their rights as refugees and their individual rights to dignity and respect as having been breached. Complaint 1: the process used at Christmas Island by Immigration officials to 'screen' people 'in' or 'out' and therefore preclude some from making a claim for asylum is severely compromised and has the potential to compound a range of risks to asylum seekers. Complaint 2: the interviews by MPS of people held in detention, before their claim had been assessed, was a breach of process. It has put them and their families at risk. Complaint 3: many of those MPS interviews were reported to have been conducted in a threatening and insulting manner with no intervention by Immigration staff. It is claimed that due process, fairness and rights have been severely compromised. We request that the AHRC investigate this complaint and are able to provide supportive documents if and when required if elaboration is needed. 42 The complaint went on, in detail and including direct accounts from Vietnamese participants, to outline what the Vietnamese asylum seekers claimed had occurred during the "screening" process, including before, during and after the A18 interviews - which the complaint stated were conducted at Yongah Hill Immigration Detention Centre on 21 and 23 August 2013. The complaint also described other A18 interviews at other immigration detention centres (eg in Darwin), where large numbers of Vietnamese asylum seekers were interviewed. 43 Relevantly, at [66]-[69] of the Federal Circuit Court reasons, the Federal Circuit Court records the contention made on behalf of CLK17 about the A18 interview: In debate on 7 September 2018, Mr Blades elaborated on his contentions concerning ground one. His propositions emerged in several places, so it is necessary to set them out. The first was as follows - The point is, your Honour, that the tribunal did not have regard to the record of interview with the Vietnamese authorities and nor did it have regard to any of the information that was supplied by the department to the Australian Human Rights Commission, which culminated in the commission issuing a report in May of last year ‑ ‑ ‑ The next was as follows - … All I wish to submit is that the delegate referred to internal departmental reports confirming that the applicant met with the A18 police on 21 August. So those internal departmental reports were not taken into consideration by the tribunal. So the jurisdictional error is ignoring evidence or ignoring relevant material. Then, over two pages of transcript, the following emerged - MR BLADES: Yes, your Honour. The claim was raised by the applicant to the tribunal that he feared harm as a result of the A18 visit and that the communist officials in Vietnam after that visit had visited his family and caused concern to his family in Vietnam and that his children had suffered some discrimination. So yes, you're right in saying that the authorities delineate the tribunal's role in terms of not having to speak to or address every single document that's put before it but it does have to deal with documents that are material and significant to the applicant's claims. HIS HONOUR: Right. MR BLADES: I mean, for example, there's the case of - decision of Justice Robertson in the Federal Court where the tribunal hadn't referred to a student visa - hadn't referred to a transcript of an applicant's course of study at a university in Pakistan and the tribunal didn't refer to that document and Justice Robertson held that to be a jurisdictional error on the basis that the document was relevant to the case that the tribunal had to determine. HIS HONOUR: That's not SZRKT, is it? MR BLADES: Yes, I believe that is the case. HIS HONOUR: Okay. You keep going. MR BLADES: So the other way we've put this omission by the tribunal to refer to the documents concerning the A18 visit is that the tribunal made findings that were illogical or irrational, and this is in paragraph D of the ‑ ‑ ‑ HIS HONOUR: You've got to go a bit further though. You've got to point to extreme illogicality or extreme irrationality, don't you? MR BLADES: That's correct, your Honour. So in my submission, the fact that the tribunal concluded that there was no evidence that the visit was for any purpose other than identification, in my submission, is illogical in extreme because the applicant at that stage had been screened out from the protection visa process and it was the intent of the authorities, both the Australian authorities and the Vietnam authorities, to repatriate the applicant to Vietnam. So the tribunal's conclusion that the interview process was not for any purpose other than to assist the identification, we say, is illogical in the extreme because the authorities were intent on repatriating him to Vietnam at a time when his protection visa claims had not been determined. He hadn't even applied at that stage for the protection visa due to being screened out. Your Honour, I've also filed - the applicant has also filed an affidavit annexing a transcript of the tribunal hearing. Do you have that document? Lastly, Mr Blades put the point in the following manner, then in reference to CLK17 - So what I submit that the tribunal should have inferred from that is that his - the tribunal is being told by the agent that it's difficult to know what the applicant was asked by the A18 team and what information that the A18 returned to the Communist Party officials in Vietnam that may have resulted in the applicant's wife and children being subject to adverse consequences. So now, in my submission, your Honour, this is a clear claim that was put to the applicant and by the agent to the tribunal about the significance of the A18 visit, and the tribunal should have - if it didn't have those documents before it, that is, the record of interview questions and the other information that was submitted to the Human Rights Commission, the tribunal should have taken steps to obtain that information before it give its decision. (Footnotes omitted.) 44 The Minister relied on an affidavit of a legal representative, deposing to having searched the Tribunal's file and to not having identified any documents relating to the AHRC complaint. 45 There was a further affidavit from the Minister's legal representative before the Federal Circuit Court, which deposed to having been provided with a copy of the response sent from the Department to the AHRC, dated 1 October 2014. The response was annexed to the affidavit. 46 It is clear from the chronology that this response was given prior to the delegate's decision on 28 May 2015, and well prior to the application for review to the Tribunal, on 9 June 2015. 47 The Federal Circuit Court found (at [74]) that the Tribunal was under no duty to investigate the AHRC complaint, and CLK17's obligation was to put all material he wished before the Tribunal to consider on his review. 48 The Federal Circuit Court also found (at [75]-[76]) there was no irrationality or illogicality in the Tribunal's finding about the absence of any real chance of persecution for CLK17 arising from the A18 interview. 49 For completeness, and although the AHRC report was not in evidence before the Federal Circuit Court, the AHRC's report was delivered to the Commonwealth Attorney-General sometime in May 2017; that is, after CLK17's Tribunal review was finalised by a decision on 24 April 2017.

The use by CLJ17 of the A18 interviews and claims 50 As I have noted, CLJ17 was not interviewed by the A18 officials. Nor was he screened out. The delegate's reasons contained the following relevant findings about the A18 interviews and CLJ17: The applicant claimed that the A18 police met with his brother [CLK17] in July or August 2013 in Yongah Hill Detention Centre (which internal reports confirm) and because of this the Vietnamese authorities know he has escaped. The applicant stated the authorities did not meet or see him and his brother did not tell the authorities that he was in Australian immigration detention. The applicant was then asked how the authorities would know he was in Australia and he stated that the local government knows about us, his brother's family and his own live in the same district. Given the information above I do not accept that the Vietnamese authorities were aware that he was at Yongah Hill Immigration Detention Centre when they visited in August 2013. 51 Later in the reasons, the delegate reiterated that he did not accept the Vietnamese authorities knew CLJ17 was in immigration detention because they visited the detention centre in August 2013 and spoke to his brother. Accordingly, the delegate made no further findings in relation to this aspect of CLJ17's claims. 52 The same Tribunal member decided the reviews of both CLJ17's and CLK17's claims, and on the same day. The Tribunal's reasons note (at [53]) that the A18 interviews were raised with CLJ17 and he was invited to comment. The reasons then make the following findings on this aspect of CLJ17's claims (at [119]-[123]): The applicant claims that as a result of the visit and inquiries by the Vietnamese A18 Police to the Yongah Hill Immigration Detention Centre when the applicant was being detained in that centre, that this gives rise to, or contributes to, a real chance that the applicant will face serious harm now or in the reasonably foreseeable future in Vietnam. On the evidence before it, the Tribunal finds the applicant was not personally interviewed by the A18 officials when [they] visited the Yongah Hill Immigration Detention Centre. The Tribunal accepts that the evidence indicates the applicant's brother was interviewed by the A18 Police in July or August 2013 at the Yongah Hill Immigration Detention Centre. However, it finds his brother did not tell the authorities that the applicant was in Australian immigration detention. The Tribunal has considered the country information cited in the delegate's decision record, and it accepts that the purpose of the visit by the A18 was to assist the Department to identify the identity and nationality of certain applicants. The Tribunal is also satisfied that there is no evidence that the relevant officials undertook the interview process for any other purpose than to assist with such identification. It finds that details of the applicant's protection claims were not disclosed or discussed with the A18 officials. The Tribunal finds on the evidence before it that the A18 officials were not aware that the applicant was in immigration detention at the time of their visit, or subsequently. It does not accept that the A18 officials know the reasons for the applicant's detention or the grounds for his protection [claims] in Australia. Having regard to all the evidence, and in light of its assessment that the applicant is not a person of adverse interest to the authorities in Vietnam, or to anyone else, the Tribunal finds the visit by the A18 officials to Yongah Hill immigration detention centre at the time the applicant was detained there, does not give rise to a real chance of serious harm now or in the reasonably foreseeable future if the applicant returns to Vietnam. 53 The Federal Circuit Court's reasons, under the heading "Ground One", from [62] onwards, are directed at CLK17, although there are some references to CLJ17. The findings at paragraphs [74]-[76] of the Federal Circuit Court's reasons, referred to above, appear to be findings on both CLJ17's and CLK17's judicial review applications.

Ground 1 (CLK17 and CLJ17): the interview in Australia between CLK17 and Vietnamese officials 54 At the hearing of the appeals, it became apparent that there were some gaps in the evidence about what was before the delegate, and what was before the Tribunal. The Court gave directions for additional evidence to be filed to clarify these matters. The additional evidence was referred to in submissions made in respect of both appeals, and should be treated as filed on both appeals. An order to that effect has been included in the orders made in respect of the appeals. 55 The additional affidavits dealt with the following matters: (a) The Minister's legal representative filed an affidavit deposing to having searched the Departmental file that was provided to the Tribunal for the purpose of its review. She stated: I did not identify any documents on that file relating to the content of the interview between the appellant's brother (CLK17) and Vietnamese officials on 21 August 2013. (b) The Minister's legal representative also filed a second affidavit deposing to having conducted searches and inquiries to locate copes of the country information to which the delegate referred in his decision, relating to the A18 interview of CLK17. She annexed copies of that country information to her affidavit. (c) CLK17 then filed a further affidavit, deposing to what occurred at the A18 interview. The Minister objected to this evidence being received. 56 CLK17's contentions on ground 1 of the appeal remain as they were before the Federal Circuit Court, with some additional development due to the more recently adduced evidence. The substantive contention is that the Tribunal failed to examine the then existing materials about what CLK17 was asked during the A18 interview, in particular the details indicating he was asked about "his relatives in Vietnam and information that would have clearly identified him as an asylum seeker to the Vietnamese authorities". He contends the Tribunal should have realised there were such documents because of the delegate's reference to "Internal Departmental reports" in his decision. As to the nature of the error, CLK17 contended: (a) There was a jurisdictional error by ignoring relevant material (that is, the documents available within the Department which revealed the "true circumstances" of the A18 visit, relying on the well-known passage from Craig v State of South Australia [1995] HCA 58; 184 CLR 163 where the phrase "ignore irrelevant material" is used). (b) Alternatively, by ignoring the material about the A18 visit, the Tribunal had misconstrued the evidence and its findings were therefore irrational or illogical, relying on Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611. 57 CLK17 contended: If the evidence that the Tribunal had considered included: • the completed "Declaration of interview questions" completed on 21 August 2013 (where details of the Appellant's boat journey to Australia were given and information that his passport had been "taken by Indonesian"), and • the Department's written confirmation that the purpose of the interviews was to conduct nationality and identity verification for the purpose of issuing travel documents to Vietnamese nationals with no lawful right to remain in Australia, then no rational decision maker could have reached the conclusions that there is no evidence that the relevant officials undertook the interview process for any other purpose than to assist with identification, and that it would not be evident to the A18 officials that the Appellant had claimed protection in Australia. 58 It appears essentially the same contention is made on behalf of CLJ17, although put as a "no evidence" ground. 59 In relation to CLJ17, I accept the Minister's submission that: … the Tribunal's assessment was made on the basis of the Appellant's evidence, and the absence of any evidence that the relevant officials undertook the interview process for any other purpose than to assist with identification. In the circumstances, a no evidence ground cannot succeed. (Footnotes omitted.) 60 In relation to CLK17, it is well established that, accepting the Tribunal's proceedings have an inquisitorial character, a failure by the Tribunal to make an obvious inquiry about a critical fact may mean that it has failed to perform its statutory task of review, and thus exceeded or failed to exercise its jurisdiction: see Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [25]; Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [23]. 61 In SZGUR at [84], Gummow J said: Accordingly, neither the Tribunal itself nor the primary decision-maker acts as a contradictor to a visa applicant's case. But an applicant for a protection visa must put forward the evidence the applicant wishes the Tribunal to consider. (Footnotes omitted.) 62 I accept the delegate's reasons refer to "Internal Departmental reports". The mystery of this reference has not been solved by the evidence adduced on the appeal. The evidence is there are no such documents on the file given to the Tribunal. CLK17 has not proven what inquiries the Tribunal ought reasonably to have made, nor isolated what the "critical fact" was. If the "critical fact" was that by reason of CLK17's interview with the A18 officials, and the questions asked of him, it would have been clear that he was an asylum seeker, and he had been compelled in this interview to disclose details of his family in Vietnam, and his address, the Tribunal well understood this was what was being put by CLK17: see [96]-[97] of its reasons. It had expressed its view of what the A18 interviews were for, as it set out in [32] of its reasons, and it had invited the appellant to comment on this. After a short adjournment, it had listened to CLK17's answer, as set out at [35] of its reasons. The Tribunal did not make any factual findings that these matters were not discussed with CLK17 at the A18 interview. To the contrary, it appeared to accept they were discussed. 63 I do not accept there was an obvious fact, critical to the review, which the Tribunal failed to investigate, or make inquiries about. Rather, its decision turned on its satisfaction, open to it, that CLK17 was not of interest to the Vietnamese authorities. From that flowed its conclusion that the Vietnamese authorities would not pursue CLK17 or his family on the basis he had claimed protection in Australia. That path of reasoning was open to it and is neither irrational nor illogical. 64 If these contentions are also made on behalf of CLJ17, they fail for the same reasons, and have less force in any event because he was not interviewed at all. 65 Ground 1 fails, in respect of both appellants. There was no error in the approach taken by the Federal Circuit Court. 66 Although given my conclusion it is not necessary to determine the Minister's objection to CLK17's most recent affidavit, I would have upheld the objection if necessary. Any evidence CLK17 might now give about the contents of the A18 interview cannot affect the way the Tribunal approached its review function. It is irrelevant. The Tribunal proceeded on the material it had, including evidence from CLK17. On judicial review, no further account of the underlying events can be offered.

Ground 2 (CLK17 and CLJ17) and Ground 3 (CLJ17): credibility findings 67 It is well established that the reasoning of an administrative decision-maker which leads to a finding that a visa applicant's evidence is not credible, or reliable, is not immune from scrutiny on judicial review. The basis may be "no evidence", or illogicality or irrationality, or legal unreasonableness. There may be a critical misunderstanding of the evidence which, in substance, removes any probative basis for the adverse finding. The error might be described in a number of ways, depending on the circumstances. Provided it is sufficiently material to the decision-maker's conclusions, it may be described as an error of a jurisdictional kind. None of these propositions are controversial. However, in their application to the reasons of the Tribunal, the appellants' challenge must fail. 68 CLK17 contends that, contrary to the Tribunal's findings at [67]-[68] of its reasons, CLK17 did mention in his application for protection, and in the delegate interview, his receipt of telephone threats. On the evidence, that is correct. 69 At [81] of its reasons, the Federal Circuit Court found the Tribunal's reference to CLK17 failing to mention the telephone threats in his "application" should be understood as his failure to mention the threats in his entry interview. The basis for that conclusion is tenuous at best, and involves a reconstruction and re-writing of the Tribunal's reasons. What is more relevant is that the finding about the threats was but one of several bases articulated in [67] of the Tribunal's reasons for the Tribunal's doubts about the reliability of what CLK17 had said. Paragraph 67 should be extracted in full: A number of circumstances in this case lead the Tribunal to make an unfavourable finding on the credibility of the applicant's claims and evidence. This assessment has been made in light of the credibility assessment guidance and principles outlined in the relevant cases summarised under Credibility assessment under Relevant Law above. For example, the applicant was able to depart Vietnam and travel to Bangladesh, and then return to Vietnam, using a passport issued in his own name and without being questioned or detained. The Tribunal finds this raises serious doubts about his claim to be a person of adverse interest to the Vietnamese authorities. The Tribunal also found the evidence before it of the delay between returning to Vietnam after travelling to Bangladesh and travelling to Australia, and his evidence of returning to employment during this time, does not suggest he was in hiding or in fear of his wellbeing. The Tribunal also found the applicant's evidence that he continued his church activities over this period further undermines his claims that he faced a real chance of serious harm in Vietnam. Further evidence in this case which the Tribunal finds weakens his claims and cast doubt on his credibility include his failure in his application to mention the receipt of telephone threats. For these reasons, and considering all the applicant's claims in light of relevant country information, the Tribunal finds the applicant is not a credible witness. 70 On any view, this finding did not deprive CLK17 of the possibility of a successful outcome: see Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [56], referring to Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 147. 71 In relation to CLJ17, the challenge is to [93]-[95] of the Tribunal's reasons, which are as follows: The Tribunal carefully considered all of the applicant's evidence and claims in the light of the relevant country information and in light of the credibility assessment principles summarised above (under the Credibility subheading under Relevant Law). Having done so, it formed the view that important parts of his evidence [are] not credible and that the applicant is not a reliable witness. For example, it found, as did the delegate, the applicant provided inconsistent evidence on the use of a fake passport as between his entry interview and in subsequent claims. The Tribunal also found he has not satisfactorily explained a significant delay between the time the applicant claimed his problems began in Vietnam, in April 2011, and his departure for Australia in March 2013, and that this undermines his claims to hold a genuine fear of serious harm. The Tribunal also formed the view that the applicant's claim that he had been attacked by 10 men was exaggerated and is not truthful. Furthermore, the Tribunal found the applicant's claims lacked consistency and coherency, for example where he claimed he feared harm for his religious activities but then said the government had no reason to arrest him and that it had no evidence against him. The Tribunal finds this claim undermines his claims that he is perceived as an activist for reasons of his demonstration at the family planning demonstration, or that he is perceived to be an activist or a person who is to be targeted for harm. Further, the Tribunal finds that important aspects of his claims are not supported by the weight of relevant country information. The applicant's claims and the Tribunal's detailed assessment of them are discussed further below. In relation to the oral evidence from the applicant's brother, [CLK17], the Tribunal considered this evidence, however, it does not place significant weight on it as the Tribunal found it lacked detail. It also found the witness appeared to exaggerate the risk of harm to the applicant in claiming he would face serious harm for reasons of teaching religion. When it was put to him that country information indicates that teaching religion is not a crime in Vietnam, and that the country information indicated that a person would not be targeted for serious harm for teaching religion there, the witness agreed this was the case. The Tribunal also considers, and as discussed with the applicant at the hearing, the evidence of the applicant where he claims he remained in Korea illegally and that he did not go there for protection, raises further doubt as to the applicant's credibility and character. When asked about this at the hearing, he said he did not like the things the government was doing. While that may be so, the Tribunal finds on the evidence before it that he was not at risk of serious harm in Vietnam and his action to disregard his visa obligations in the circumstances reflects negatively on his credibility and on his claims for protection. 72 The contentions put about these paragraphs invite this Court to reassess the evidence of CLJ17, in part by making findings about how country information should have been interpreted. That is no part of this Court's function on appeal, nor any part of the Federal Circuit Court's function on judicial review. 73 Further, CLJ17's submissions contend the Tribunal took an "idiosyncratic" approach during the review hearing, and further contend: The lasting impression of the Tribunal hearing is that it was more of an opportunity to cut back the Appellant's case than it was to consider his request to reverse the Delegate's decision. This was not "proper, genuine and realistic consideration". (Footnote omitted.) 74 There is no allegation of actual or apprehended bias, but this is in substance the gist of this submission. The Tribunal's approach was at times forceful and sceptical. Provided those attitudes are not so pervasive as to give rise to allegations of actual or apprehended bias, and provided the review hearing is otherwise conducted in a way that is procedurally fair, there is nothing unlawful in a Tribunal member taking a robust approach to the questioning of a visa applicant. Some Tribunal members will do this, some will not. While moderation is always desirable, some of this is a matter of the individual style of decision-makers and will not affect the lawfulness of the review, unless it crosses the lines to which I have referred.

Ground 3 (CLK17) and Ground 5 (CLJ17): failure to consider a claim 75 For CLJ17, the contention is that the Tribunal made no finding on whether the appellant was owed protection on the ground of his membership of a particular social group, in circumstances where he had claimed (in his protection visa statutory declaration) to fear harm because he is a Catholic. 76 This contention has no merit. The Tribunal considered the claim as against the Convention ground of religion. That was the appropriate basis on which to consider it. Despite the reference by the Federal Circuit Court (at [86]) to orders made by consent in that Court in another case, which appear to recognise the possibility that adherence to the Catholic faith in Vietnam might be characterised as a social group, I see no basis for the argument that the assessment of the s 36(2)(a) visa criterion would proceed on any different basis. The attribute which defines the social group (adherence to the Catholic faith) is a Convention attribute. The reason for any persecution would still come back to the adherence to the Catholic religion. The Tribunal dealt with this. 77 My reasoning differs from that of the Federal Circuit Court, but the end result is that there is no error in the orders of the Federal Circuit Court. 78 In relation to CLK17, the same argument is made and must be rejected for the same reasons.

Ground 4 (CLJ17): failure to consider relevant material 79 Relying on this Court's decision in SZOVB v Minister for Immigration and Citizenship [2011] FCA 1462; 125 ALD 38 at [43], CLJ17 contends the Tribunal made a "startling jurisdictional error" in not considering an article entitled "Nghe An Police repudiated an agreement, brutally repressed people", relating to an incident in that province, which was the appellants' province, in September 2013. This article was submitted to the Tribunal as an attachment to a post-hearing submission. 80 At [62] and [63] of its reasons, the Tribunal referred to this post-hearing submission, and to some of the country information attached to it. CLJ17's point is that, at [63], the Tribunal does not mention this specific article. That is a correct statement. 81 However, from [84]-[89], the Tribunal looks at the country information it considers relevant to the review, focusing on the Department of Foreign Affairs and Trade's reports. That focus was open to it. The extracts from those reports indicate risks to some adherents of the Catholic faith in Vietnam. For example: Broadly speaking, DFAT assesses that as long as religious practice is exercised within state-sanctioned boundaries and does not challenge the interests or authority of the Government of Vietnam - which can be broadly defined and include land use issues - religious adherence in Vietnam is tolerated, even for some religions not officially recognised by the government. There may, however, be restrictions on some activities and the freedom of individuals to travel outside of Vietnam to attend religious festivals and events … 82 At [102], the Tribunal found: Having regard to the relevant country information indicating that the Vietnamese authorities, and community in general, permits Catholics to follow their faith within the limits imposed, on the evidence before it the Tribunal finds the applicant has not by his activities developed a profile as an activist or dissident who is to be targeted for adverse attention by the Vietnamese authorities, or by anyone else. In light of all the evidence before it, the Tribunal does not accept the applicant was prevented from driving the priest at nights as he claims. 83 Thus, the Tribunal did not directly reject the proposition that there was repression of Catholics in Vietnam. Its finding was that "in general" adherents to the Catholic faith were able to practise their religion "within the limits imposed". For that reason, I do not consider its failure to expressly refer to the article relied on indicates any misunderstanding of CLJ17's claims, any absence of a probative basis for its findings, nor any overlooking of a critical fact in CLJ17's review. The Tribunal's specific finding, which led to its failure to form a state of satisfaction in CLJ17's favour, was that CLJ17 was not in the past, and would not be in the future, of interest to the Vietnamese authorities as a Catholic dissident or activist (being the categories where the Tribunal was, I infer, prepared to consider there might be risks of persecution). The Tribunal did not accept his narrative about events in the past. This reasoning is not affected by an error of a jurisdictional kind: it was open to the Tribunal to make these findings, and adopt this approach, in discharging its review task. Many of CLJ17's arguments under this ground encouraged the Court to make different findings of fact on his claims, which is no part of this Court's function.

Conclusion 84 Each of the appeals must be dismissed. The appellants should pay the first respondent's costs of and incidental to the appeals, to be fixed by way of a lump sum in each appeal. The total lump sum in each appeal should reflect the fact that while there were some individual grounds as between the appeals, many grounds were common and the appeals were dealt with together. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.