The s 5J definition of well-founded fear of persecution deems that no such fear exists if it is reasonable to modify behaviour to avoid the harm: s 5J(3). This effectively reverses S395 (see Minister for Immigration and Border Protection v SZSCA at  per Gageler J).
Whether a person can take reasonable steps to modify behaviour to avoid the harm is not the same as whether a person has (already) modified his behaviour to avoid harm due to a Convention reason.
See for example, ESD17 v Minister for Immigration and Border Protection  FCA 1716 at - where Rangiah J explains the difference in the context of a person who had suffered sexual abuse and remained silent because of that abuse. That is not the same as a person who has suffered sexual abuse and the decision-maker purports to apply s 5J(3) to arrive at the conclusion that it is reasonable for the person to stay silent forever about the abuse and in that way, avoid harm.
The distinction was the subject of an argument in DQU16 at .
See eg ABAR15 v Minister for Immigration and Border Protection (No 2)  FCA 721; 242 FCR 11 at  and - and .
- The statement in the 2011 UN Report to the effect that police and legal aid providers mostly investigated serious cases of domestic violence cases is consistent with the statement in the 2013 USDOS Report to the effect that authorities treated domestic violence cases as civil ones unless they involved injury to more than 11 percent of the victim’s body. These statements qualify the remaining portions of the reports concerning the existence of domestic violence laws in Vietnam and the commitment of the Vietnamese government to address the issue. The qualifications were of great importance in the application of the statutory criteria to the circumstances of the appellant’s case such that the Tribunal was not entitled to ignore them. The qualifications precluded any reasonable inference that might otherwise have been drawn from the reports to the effect that domestic violence laws in Vietnam were effectively implemented and practically protective.
- As I have mentioned, the written submissions of the appellant’s migration agent contained an extract from the 2013 USDOS Report which the Tribunal states it had considered. Given that the Tribunal had read the submission, and given its statutory obligation to include in its reasons for decision the evidence upon which it based its material findings of fact, I infer that the Tribunal considered the statement contained in the 2013 USDOS Report to be irrelevant to the material findings of fact it was bound to decide: see subs 430(1)(c) and (d) of the Act and the principles stated by the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431;  FCAFC 114 (at  – ). That inference is supported by the absence in the Tribunal’s reasons of any reference to the very similar paragraph from the 2012 USDOS Report, notwithstanding that the Tribunal extracted or paraphrased all other relevant parts of that report in so far as it concerned the treatment of women in Vietnam (except in relation to rape).
- In light of the observations I have made above, the Tribunal’s statement at  of its reasons that “the reports are varied on [the law’s] effectiveness” has no support in the country information materials the Tribunal considered: none of the information contained any statement or opinion to the effect that the laws were effectively implemented by the Vietnamese authorities. Nor was there contained in the country information any statistics from which the Tribunal could independently and indirectly infer that domestic violence laws in Vietnam were effectively implemented. The country information relied upon by the Tribunal states that the Vietnamese Government did not publish statistics recording the incidence of arrest, prosecution and conviction of perpetrators.
- Generally speaking, it may be open to the Minister (or, on review, the Tribunal) to cherry pick from among various sources of country information so as to form, by its own evaluation of the selected material, its own conclusions of fact. It may also be accepted that, as a general rule, an administrative decision that involves the weighing and evaluation of countervailing considerations is not a decision amenable to interference by a Court on judicial review merely because the Court might evaluate the considerations differently or accord different considerations more or less weight than that accorded by the Tribunal.
- However, the material before the Tribunal did not contain conflicting statements as to the effectiveness of domestic violence laws in Vietnam so that the Tribunals’ decision could properly be viewed as one involving the preference of one body of evidence over another. The statements and opinions expressed in the reports concerning the effectiveness of the law were consistent, not countervailing. They were not contradicted by any other material to which the Tribunal referred.
- As I have mentioned, the Tribunal stated to the appellant, in the course of its hearing, that there was “no evidence” that the Vietnamese police do not act on reports of domestic violence. The conclusion ultimately reached by the Tribunal indicates that it reasoned from that premise to a conclusion that the Vietnamese authorities could and would act on reports of domestic violence (including threats of domestic violence) that might be made by the appellant. It may well have been open to the Tribunal to refer to the contradictory material and give a reasoned explanation for rejecting it, but that is not what it has done. It instead proceeded upon the false premise that there was no evidence contradicting its conclusion at all.
Latoudis v Casey is the typically-cited case for the awarding of costs to a successful defendant. There are however a number of passages that highlight the misconceived nature that costs follow the event in criminal proceedings (especially when a prosecutor seeks costs after a finding of guilt).
At  of the judgment of Mason CJ (who agreed that costs in that case should be awarded to the successful defendant):
I am not persuaded that there is a complete analogy between the discretion to award costs in summary proceedings and the power to award costs in civil proceedings. For that reason I would not be prepared to accept that in summary proceedings there should be a general rule that costs follow the event. As I have noted, the making of separate provision in s.97(a) and (b) is not without significance. The differences between criminal and civil proceedings are substantial, not least of them being the absence of pleadings, the different onus of proof, the defendant’s inability in criminal proceedings to enter into a compromise and the possibility that the charge, if proved, may affect the defendant’s livelihood and reputation.
At  of the judgment of Dawson J (who dissented):
For all of these reasons, a successful defendant in summary proceedings for an offence can, in my view, have no expectation as a general rule, unlike a successful party in civil proceedings, that costs will be awarded in his favour.
In ATP15 v Minister the Full Federal Court divided on whether information obtained in one review could be used in another review, without going through the puttage requirements in s 424A.
Section 424 provides:
Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) A written invitation under subsection (2) must be given to the person:
(a) except where paragraph (b) applies–by one of the methods specified in section 441A; or
(b) if the person is in immigration detention–by a method prescribed for the purposes of giving documents to such a person.
The majority (Tracey and Griffiths JJ) considered that if the Tribunal ‘gets’ information in the course of one review, it is not information that the Tribunal ‘gets’ in the course of another review. Therefore, even if that evidence would be corroborative of the claims in the second review, the Tribunal is not required to have regard to it: .
Not only that, the majority considered that there was no obligation for the Tribunal to provide the second review applicant a copy of the information obtained in the first review: .
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR
(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED
In Fair Work Ombudsman v Rainbow Paradise Preschool  FCCA 1652 the Court held that the fact a respondent might be forced into insolvency as a consequence of a penalty for a breach of industrial law is not a relevant consideration in setting the amount of the penalty.
See von Reisner v Commonwealth of Australia (No 2)  FCAFC 172 for a discussion of the ‘Chorley exception’ to the rule that self-represented litigants do not get costs for their own time.
While the Chorley exception still appears to apply, it has been criticised by the High Court.