See eg ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721; 242 FCR 11 at [84] and [86]-[87] and [94].
- 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; [2013] FCAFC 114 (at [49] – [51]). 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 [62] 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.