ABAR15 v Minister for Immigration
[2016] FCCA 638
•24 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABAR15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 638 |
| Catchwords: MIGRATION – Application for judicial review of decision of the Refugee Tribunal – applicant claims complementary protection on the basis that authorities in Vietnam will not provide protection from family violence – jurisdictional error – alleged failure to exercise jurisdiction – ignoring of evidence – conclusion that state based protection available in Vietnam not supported by country evidence available to Tribunal – conclusion irrational and illogical – denial of procedural fairness. |
| Legislation: Migration Act 1958 (Cth), ss.36(2); 65; 91R; 417; 422B; 424A; 425(1); 474, 476; 477 |
| S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 Chan v Minister for Immigration (1989) 169 CLR 379 Minister for Immigration v Guo (1997) 191 CLR 559 Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505 Minister for Immigration & Citizenship v MZYYL (2012) 207 FCR 211 Craig v South Australia (1995) 184 CLR 163 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1. Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 SZUWX v Minister for Immigration & Border Protection [2015] FCA 1389 Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 66 ALR 299 VEAL v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 Re Minister for Immigration & Multicultural Affairs: ex-parte Lam (2003) 195 ALR 502 |
| Applicant: | ABAR15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 66 of 2015 |
| Judgment of: | Judge Brown |
| Hearing date: | 24 November 2015 |
| Date of Last Submission: | 24 November 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 24 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms O’Connor SC with Ms Riggs |
| Solicitors for the Applicant: | Camatta Lempens Lawyers |
| Counsel for the First Respondent: | Ms Stokes |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed
The applicant pay the first respondent’s costs fixed in the sum of $6,646.00.
The name of the second respondent be substituted with Administrative Appeals Tribunal.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 66 of 2015
| ABAR15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for the issue of a prerogative writ to quash a decision of the Refugee Review Tribunal “the Tribunal” not to grant the applicant a protection (class XA) visa, pursuant to the provisions of the Migration Act 1958 (Cth) “the Act”.
The applicant is a citizen of Vietnam, where she was born on 6 August 1961. She married in 1981. She has four children, who are now each adult and who continue to live in Vietnam.
The applicant claims that her husband is a member of the Communist Party, who was appointed to the local militia of the hamlet in which they both formerly lived. The applicant further claims that she did not accept her husband’s communist ideology and the two frequently argued as a result. These disagreements led to the applicant being regularly beaten by her husband.
In particular, on one occasion in 2006, the applicant claims that she was beaten to such an extent that her skull was fractured, resulting in her losing consciousness. As a consequence of her injuries, she was hospitalised for a number of days.
The applicant has siblings, who reside in Australia and now hold Australian citizenship. The applicant entered Australia, pursuant to the provision of a visitor’s visa, in August 2008, under the sponsorship of her relatives.
However, she overstayed, in Australia, following the expiration of her visitor’s visa, in November 2008. Subsequently, she came to the attention of relevant authorities, in April 2014, and was placed in detention.
The applicant applied for the protection visa in question on 23 April 2014, following her detention. She claims to be fearful that, if she is returned to Vietnam, she will be either severely injured or murdered by her husband. She further claims that the Vietnamese authorities will not protect her from this violence.
In addition, the applicant claims that she has been an outspoken dissenter against the current communist regime in Vietnam. As such, she asserts that she may be imprisoned, for her political views, if returned to Vietnam.
A delegate of the Minister for Immigration & Border Protection determined, on 21 November 2014, that Australia did not owe protective obligations to the applicant. The delegate was of the view that the significant delay in the applicant bringing her application for protection raised serious concerns regarding the credibility of her claims.
On 1 December 2014, the applicant applied to the Tribunal for a review of this decision. The applicant was invited to appear before the Tribunal to give evidence before it on 20 February 2015. Prior to the hearing, on 15 February 2015 (noted as having been received on 16 February 2015) the applicant’s adviser provided a written submission, including references to country information, to the Tribunal.[1]
[1] See Case Book at pages 101 - 105
On 24 February 2015, the Tribunal affirmed the decision not to grant the applicant a protection visa. It is this decision, which is the subject of these judicial review proceedings.
Relevant provisions of the Migration Act
Pursuant to section 65 of the Act, the Minister is required to grant a protection visa, if satisfied that all relevant criteria attaching to that visa have been satisfied.
The relevant criteria are set out in section 36(2) of the Act. In particular, pursuant to section 36(2)(a), a person is entitled to a protection visa, if he or she satisfies the definition of refugee contained in Article 1A(2) of the United Nations 1951 Convention and 1967 Protocol Relating to the Status of Refugees (“Refugees Convention”), which provides that a refugee is a person who:
“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
The High Court has established that this definition has both subjective and objective elements. Does the applicant subjectively fear persecution and is that fear objectively well founded? In assessing the objective aspects, the decision-maker concerned must determine what is likely to happen to the applicant concerned, if he or she is returned to the country. Necessarily these matters are predictive in nature. They are often encapsulated under the rubric of the real chance test. In this context, the High Court has said as follows:
“The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant …
Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. …”[2]
[2] S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 478 – 479 [72] – [73]
Accordingly, in this case, the Tribunal was required to assess what was the real chance the applicant concerned in this case would suffer persecution, if returned to Vietnam. Given the manner in which the applicant framed her case, this questioned turned on not only what the applicant asserted had happened to her in the past, but more particularly hinged on what she asserted would be likely to happen to her in the future, particularly given her assertion that she had no familial support in Vietnam and the authorities in Vietnam were ill-quipped to deal with family violence.
In cases such as Chan v Minister for Immigration[3] and Minister for Immigration v Guo[4] the High Court has indicated that a fear can be well-founded, even if there is no certainty or even probability that it will be realised; or even though there is only a ten percent chance that persecution will occur. However far-fetched possibilities of persecution must be excluded.
[3] Chan v Minister for Immigration (1989) 169 CLR 379
[4] Minister for Immigration v Guo (1997) 191 CLR 559
As the High Court observed in S395, in assessing the risk of a person coming to harm, for a Convention reason, it is often apposite for a decision-maker to consider the situation of analogous classes of person in the relevant country concerned. This type of information is most usually referred to as country information. In the current matter, the applicant contends that the Tribunal failed to acquit the jurisdiction conferred upon it by failing to consider country information relevant to Vietnam.
Pursuant to section 36(2)(aa), a person is additionally entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm. Subsection (2A) defines significant harm. It includes being subject to torture; being subjected to cruel or inhuman treatment; and degrading punishment and treatment. This is known as the complementary protection criterion.
Section 91R qualifies some aspects of the Refugees Convention. In particular, it defines what is meant by persecution. Persecution must involve serious harm. Section 91R(2) provides some examples of serious harm. These include a threat to the person’s life and liberty; physical harassment and ill-treatment; and denial of subsistence.
The serious harm, to the applicant concerned, must arise for a reason relating to the race, religion, nationality, membership of a particular social group or political opinion of that person. The fear of persecution must also be well-founded.
In Minister for Immigration & Citizenship v SZQRB [5] the Full Court of the Federal Court had held that the risk threshold for complementary protection under s.36(2)(aa) of the Migration Act is equivalent to the real chance test which applies with respect to Convention obligations enshrined in s.36(2)(a) of the Act, namely that there is a real chance that the person will suffer significant harm.[6]
[5] Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505
[6] Ibid at 551 [248] per Lander & Gordon JJ and 557 [297] per Besanko & Jagot JJ
However, pursuant to section 36(2B)(b) of the Act, it is taken that a person will not be at real risk of suffering such harm, if he or she could obtain protection from an authority in the country to which it is proposed he or she be returned. In SZQRB this level of protection was characterised as being “such to reduce the risk of the applicant being significantly harmed to something less than a real risk.”
In Minister for Immigration & Citizenship v MZYYL [7] it was held that section 36 requires a consideration of the complementary protection criteria as a whole. In that case, the Full Court of the Federal Court held that it is incorrect to consider, as a preliminary question, whether an applicant faces a real risk of significant harm if removed to “a receiving country” and only then consider whether the availability of state protection reduces that risk to something less than a real one. Their Honours said:
“The section must be read as a whole. The enquiry provided for in s 36(2)(aa) necessarily involves consideration of the matters referred to in s 36(2B). The Minister does not undertake the enquiry in s 36(2)(aa) and then move to s 36(2B).”[8]
[7] Minister for Immigration & Citizenship v MZYYL (2012) 207 FCR 211
[8] Ibid at 218 [36]
The nature of these proceedings
The decision of Tribunal is a migration decision. Pursuant to section 476(1) of the Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under section 75(v) of the Constitution”.
However, this jurisdiction is qualified by section 474 of the Act, which stipulates that a wide variety of decisions, made under the Act, which are of an administrative nature are to be categorised as “privative clause decisions”.
Pursuant to the provisions of section 474 a privative clause decisions is to be regarded as final and conclusive. As such, it cannot be subject to challenge, review or appeal. The decision of the Tribunal, which the applicant seeks to review, in this case, is such a privative clause decision as defined by section 474 of the Act.
However, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by the Tribunal, which are affected by jurisdictional error; have been made in bad faith; or in denial of natural justice.
An administrative tribunal exceeds its powers and thus commits a jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a conclusion, in a way, that affects the exercise or purported exercise of the power conferred upon it.[9]
[9] See Craig v South Australia [1995] 184 CLR 163
The High Court has held that the failure of a tribunal, such as the RRT, to respond to a substantial, clearly articulated argument relying on established facts, propounded by an applicant before it, amounts to a failure to accord natural justice to that applicant, which amounts to a failure, on the Tribunal’s part, to exercise the jurisdiction conferred upon it.[10]
[10] See Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at 394, 408
It is also clear that a failure to afford natural justice may also amount to a jurisdiction error under the Act. The requirements of natural justice, pertaining to the case in question, are to be determined within the relevant statutory context, which in this case is Division 4 of the Migration Act.
Pursuant to section 425(1) the Tribunal is required to invite any applicant before it to come before it to give evidence and present argument which relate to the issues arising in relation to the decision under review. Pursuant to section 422B(3) the Tribunal is required to act in a way which is fair and just.
Section 424A deals with the obligation of the Tribunal to provide information to an applicant which is likely to be relevant to it reaching a determination confirming the relevant decision under review. The Tribunal is obligated to give the applicant concerned an opportunity to respond to such information.
However, in this context, it should be noted that this obligation does not extend to information that is not specifically relevant to the applicant concerned but is of a generic nature. The section reads as follows:
“(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.”
Background
In a number of statutory declarations, the applicant has claimed to have been the victim of her husband’s violent assaults, which have occurred consistently since 1989, which was when he became active in the Communist Party. It is her position that she was opposed to the Party because of how she observed it to deal with its opponents, through arbitrary arrest and forced re-education.
Essentially, the applicant claimed to be both a refugee and fall within the consideration contained in section 36(2)(a) of the Act and more significantly, in the context of the current proceedings to be a person to whom Australia owed complementary protection obligation pursuant to the provisions contained in section 36(2)(aa).
In this latter context, the applicant contends that she has been denied procedural fairness in the sense that she was not given an opportunity to provide evidence regarding the systemic failure of the Vietnamese authorities to implement proper policies and procedures to protect the victims of family violence.
Further the applicant contends the Tribunal has failed to exercise properly the jurisdiction conferred upon it by section 36(2)(aa) in that its operative conclusion that there was domestic protection available to the applicant because of the policies and actions of the Vietnamese authorities must be regarded as illogical, unreasonable or irrational, in the light of the country information, which was available to it.
It is the applicant’s case that the Tribunal had before it compelling country information relating to Vietnam, which clearly indicated that family violence or domestic abuse, involving husbands, deploying significant levels of violence on their wives, was an endemic problem in Vietnam, which the relevant civil and criminal authorities in that country were either ill-equipped to deal with or disinclined to sanction.
This country information was referred to in both the decision of the Minister’s delegate and in the written submission provided by the applicant’s migration agent.
The delegate referred to a 2010 United Nations report which indicated that 58% of married women in Vietnam had been victims of either physical, sexual, or emotional domestic violence. [11]
[11] See Case Book at page 88
Reference was also made to a report from the Immigration Board of Canada prepared in 2014, which indicated a societal tolerance of physical chastisement of wives by their husbands, in Vietnam, which resulted in a reluctance to report incidents of violence. [12]
[12] Ibid
In the context of this material, the delegate acknowledged that domestic violence was a problem in Vietnamese society, with many victims tolerating its abuse for the sake of domestic harmony.
However, the delegate also had reference to a United States Department of State report of 2013 which indicated the existence of both domestic and international NGO, in Vietnam, which provided some level of assistance to the victims of domestic violence. As such, the delegate considered that women victims of domestic violence, in Vietnam, did have some options for obtaining assistance or could otherwise end their marriages, through legal mechanisms.
As previously indicated, the delegate doubted the overall credibility of the applicant. In addition, the delegate noted that the applicant had continued to live with her husband following the serious incident of 2006 and had thereafter been able to move freely both within Vietnam and internationally. In all these circumstances, the delegate found as follows:
“…I find that there are options available in Vietnam for her to address her claimed domestic violence situation to the extent that she would not face a real chance of being seriously harmed by her husband on return to Vietnam.” [13]
[13] Ibid at page 89
On 15 February 2015, the applicant’s representative forwarded a written submission to the Tribunal. The representative also made reference to a number of sources of country information regarding the prevalence of domestic violence in Vietnam and its tolerance by the authorities in the country.
In particular, a 2013 United States Department of State report indicated that legislative responses to the issue were weak. In addition, a 2013 Freedom House report indicated domestic violence against women, in Vietnam to be common. Reference was also made to a 2010 Immigration and Refugee Board of Canada report, which indicated that many Vietnamese believed domestic violence to be a private, family-related matter. [14]
[14] Ibid at page 103
The applicant’s case was supported by an undated statement, allegedly provided by two of her children which indicated that they had witnessed the severe assault on their mother in August of 2006, which had resulted in her head being broken and her hospitalisation for fifteen days. [15]
[15] Ibid at page 72
The Tribunal Decision
The Tribunal made the following reference to the written submission of the applicant’s adviser:
“In written submissions of 15 February 2015 it is submitted that the applicant falls with the definition of refugee because of her political opinion. The submissions draws my attention to reports from various sources regarding domestic violence in Vietnam and I have had regard to those sources. I have also had regard to the country information referred to by the delegate in relation to domestic violence in Vietnam and the attitude of the authorities.”[16]
[16] Ibid at page 113 [24]
By necessary implication, given the grounds of review, the applicant contends that it cannot be the case that the Tribunal did have a proper degree of regard to these material because otherwise it would not have reached the conclusion, which it ultimately did. Therefore the decision in question cannot be regarded as a reasonable, rational or logical one.
The Tribunal accepted that the applicant had suffered domestic violence, at the hands of her husband, whilst living in Vietnam and remained fearful of him. It was also accepted that country information indicated that this kind of violence, against women, was commonplace in Vietnam. [17]
[17] Ibid at page 115 [42]
However the Tribunal did not accept that this violence was politically motivated for the following reasons and therefore the applicant was not to be regarded as a refugee for the purposes of section 36(2)(a) of the Act:
·The applicant’s claims of being an outspoken dissident were vague and unconvincing;
·Her claims of being fearful because of her political opinions were inconsistent with the manner in which she had left Vietnam;
·There had been a long delay between the applicant’s arrival in Australia and the making of her claim for protection;
·It was not accepted that the applicant’s husband had any sway in the Vietnamese Communist Party.
In these circumstances, the Tribunal turned to the applicant’s claim for complementary protection arising from section 36(2)(aa) of the Act. This required the Tribunal to assess whether there was a real chance of the applicant suffering significant harm, if she returned to Vietnam.
In this context, it was also necessary for the Tribunal to consider whether the applicant could obtain, from an authority in Vietnam, protection to such a degree that she would not be at real risk of suffering significant harm, if returned there.
In this context, the Tribunal made reference to United States Department of State and Canadian Immigration and Refugee Board reports, which indicated that the Vietnamese government had passed legislation, which criminalised violence against women and had assigned responsibility to government agencies to implement the law concerned.
Further reference was made to a World Health Organisation report of 2011, which indicated that the Vietnamese Government had “demonstrated its commitment to acting of gender-based violence” [18] and US State Department reports, which indicated that, whilst remaining ill-equipped, training was being supplied, by NGOs, to police, lawyers and other officials to enable them to respond better to family violence.
[18] Ibid at 118 [57]
The Tribunal also alluded to the existence of hotlines for the victims of family violence, which operated in the major cities of Vietnam. However, it was also noted that relevant country information indicated that there was “only a very limited amount of specialized services exist for acute domestic violence cases, such as shelters, hotlines or special counsellors”. [19]
[19] Ibid at 119 [61]
In this context, the Tribunal acknowledged that reports, regarding the effectiveness of measures against domestic violence imparted into Vietnamese law, varied as to how effective these laws had been. It also acknowledged that, it was apparent from country information, domestic violence issues in Vietnam were complex and difficult for the state to address because of traditional gender roles. Notwithstanding these proviso, the Tribunal reached the following conclusions:
“However, the country information in my view shows that the Vietnamese government takes domestic violence seriously, and there is identifiable support available for people at risk. I note that in some sources it is acknowledged, even where criticism is mounted of the measures taken to address domestic violence, that the government works towards improving the situation; …
In my view, the country information demonstrates that the Vietnamese authorities do not fail to provide reasonable protection to the victims of domestic violence, and I consider the Vietnamese authorities would afford the applicant reasonable protection against any threat of domestic violence posed by her husband on her return to Vietnam. I consider that the protection offered by the Vietnamese state, in the light of the information I have referred to above, reduces the risk of the applicant being significantly harmed to something less that a ‘real risk’. [20]
[20] Ibid at page 119 [63] – [64]
It is this finding which is the subject of criticism by the applicant. The finding led to the Tribunal concluding that the applicant had not satisfied the criterion contained in section 36(2B)(b) of the Act.
The grounds of review
The applicant commenced the current proceedings, within time, on 27 February 2015. Initially she drafted her own grounds for review. But more recently, on 5 June 2015, since she has been legally represented, these grounds have been amended. There are two bases for review as follows:
“2.The Tribunal committed jurisdictional error in its assessment of whether the applicant was in need of complementary protection.
Particulars
2.1The Tribunal, in finding that the applicant was a victim of domestic violence was no longer at risk of harm because of protection offered by authorities in Vietnam.
2.2The Tribunal erred in finding at paragraphs [56]-[61] that there was evidence that victims of domestic violence in Vietnam were no longer at risk because of changes to practice and policy.
2.3The Tribunal erred in finding that there would be less than a ‘real risk’ to the applicant that she would suffer harm at the hands of her husband at paragraphs [64] and [66].
3.The Tribunal erred in failing to give the applicant the opportunity to provide evidence of the failure of the Vietnamese government to implement domestic violence practices and policies that made the applicant safe from domestic violence.”
The application in a case
On 19 November 2011 the applicant’s solicitor filed an application in a case dealing with the issue of country information. In particular, the applicant sought to formally file with the court two categories of country information. Firstly information which had been explicitly before the Tribunal. This was the material which had been referred to in the submission of the applicant’s advisor forwarded to the Tribunal on 15 February 2015 and in the decision of the Tribunal itself.
Secondly and more significantly, the applicant sought to file country information, which in the submission of her senior counsel would have provided to the Tribunal, if the applicant had been advised of the country information to be relied upon by the Tribunal. Essentially, this second category of information purportedly would have been provided to rebut the Tribunal’s country information.
The application was supported by an affidavit of Emma Mary Rigg, the applicant’s solicitor. Attached to the affidavit was this country information. Firstly, documents before the Tribunal itself:
·Immigration and Refugee Board of Canada (2010), Vietnam: Domestic Violence;[21]
·US Department of State (2012), Country Reports Human Rights Practices 2011 – Vietnam;[22]
·Rasanathan & Bhusan (2011) Gender-based violence in Vietnam: Strengthening the response by measuring and acting on the social determinants of health;[23]
·United Nations Office on Drugs and Crime (2011), Research on Law Enforcement Practices and Legal Support to Female Victims of Domestic Violence in Vietnam;[24]
·Viet Nam News Experts examine domestic violence 18 December 2012;[25]
[21] Referred to in Tribunal Decision at Case Book page 117 [56]
[22] Ibid at [56]
[23] Ibid at [57] & [63] – a complete copy was tendered during the hearing of 24 November 2015
[24] Ibid at [59] & [61]
[25] Adviser’s submissions Case Book at page 103
Secondly documents which the applicant submits would have been place before the Tribunal, if she had been specifically aware of the country information on which it had placed reliance:
·OECD Development Centre (2014) Vietnam: Social Institutions and Gender Index
·Vietnam Women’s Union Domestic Violence in Vietnam population leadership program of Washington
·Vietnam Program on Gender Equality National Study on Domestic Violence on Women
·Huong Thi Thang Nguyen Influencing Health Professionals Responses to Victims of Domestic Violence
·Anonymous UN Women continue supporting Vietnam to close the gap on gender equality (2015)
·Nguyen Thu Han Australia reaffirms commitment to combat violence against women globally and promoting gender equality in Vietnam
·Phan Thao Increase in domestic violence in Vietnam (2013)
·Asian Development Bank Gender analysis (2012-2015)
·US Department of State (2013), Country Reports Human Rights Practices 2011 – Vietnam;[26]
[26] Tendered by the applicant during the proceedings on 24 November 2015 and referred to by the applicant’s adviser at Case Book page 103
The first respondent has not formally responded to the application. The material in question has been collated into an additional court book of documents. The first respondent concedes that the material is relevant to the resolution of these judicial proceedings.
Ground One
In both her written and oral submissions to the court, senior counsel for the applicant sought, in effect, to critique the Tribunal’s summary of the country information directly available to it and to argue that the conclusions reached by it did not logically flow from that material.
In assessing complementary protection considerations, in respect of domestic violence considerations in the applicant’s country of origin, Ms O’Connor submitted that the Tribunal was required to consider two inter-related matters. Firstly, did laws and related mechanisms designed to offer protection from domestic violence exist in the country concerned. Secondly, were those mechanisms capable of being properly engaged to provide the prerequisite level of protection for the applicant.
Ms O’Connor submits that a proper analysis of the country information, which was directly available to the Tribunal, were not such that it could have rationally concluded that the second consideration was met.
In particular, it is submitted that the Tribunal decision fails to allude to the references in the Immigration and Refugee Board of Canada Report that violence against women in Vietnam is a serious problem afflicting 21% of married couples and being linked to up to 70% of divorces.
In addition, reference was made to the US State Report that domestic violence, against women in Vietnam, was common and the police and legal system generally remained unequipped to deal with cases of domestic violence. On this basis, it is submitted that the Tribunal’s finding regarding the availability of state-based protection, for the applicant, from authorities in Vietnam, was completely unsupported by the evidence available to it.
As such, it is Ms O’Connor’s contention that the Tribunal’s reference, to the country information concerned, was glib and selective, rather than being properly representative of what the various reports contained.
In this context, Ms O’Connor refers to the number of domestic violence shelters in Vietnam (four) in a country of over eighty million, with 178,847 reporting of family violence, as supporting her contention that the Tribunal’s conclusion the level of state-based protection, available to the applicant in Vietnam, reduced her level of risk from family violence, to less than a real one, is not a rational one.
The starting point for Ms O’Connor’s submission, on the law, is the well-known characterisation of jurisdictional error provided by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf as follows:[27]
“The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law”.
[27] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1
It is Ms O’Connor’s submission that her analysis of the relevant country information, available to the Tribunal, indicates that it demonstrably ignored relevant material to such an extent that it failed to exercise the jurisdiction conferred upon it by section 36(2) of the Act.
In my view the submission that the Tribunal failed to exercise properly the jurisdiction conferred upon it cannot be sustained. In particular, in my view, it is clear that the Tribunal understood the matters it was required to consider in determining whether Australia owed the applicant protective obligations.
A fair reading of the decision indicates that the Tribunal was well aware that it was required to make an assessment of the chance of the applicant coming to harm, if returned to Vietnam, particularly in the context of both the capacity and willingness of the Vietnamese authorities to protect her from incidents of family violence, if returned to that country. It having found that the applicant’s accounts of having been the victim of such violence in the past were credible and serious.
The Tribunal, in its decision, referred to the correct consideration relating to the assessment of complementary protection and what was applicable level of risk of harm to be assessed. [28] It also indicated that it had considered “the law of Vietnam and the attitude and approach of the authorities in implementing it.”[29] What is clear is that the Tribunal formed a different view of the evidence to that now propounded by the applicant.
[28] See Case Book at page 117 [53] – [54]
[29] Ibid at [55]
This is not a merits review and that the characterisation of some other person’s reasons as illogical or unreasonable is liable to be no more than an emphatic way of disagreeing with those reasons.[30] I accept that the applicant trenchantly disagrees with the conclusions reached by the Tribunal from the country information available to it. I am not entitled to substitute my own findings for those of the Tribunal, if the conclusion reached by it were rationally open to it.
[30] See Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J
In this context, I am aware that I am not entitled to review the reasons of the Tribunal in an over-zealous fashion searching for error.[31] In addition, the test of whether an administrative decision maker’s determination is unreasonable is to be applied with stringency and any conclusion that a decision is unreasonable is accordingly likely to be rare.[32]
[31] See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
[32] See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at 258 at [113] per Gaegler J
The High Court has considered the issue of illogicality (and related concepts) in administrative decision-making in a number of cases. It Minister for Immigration & Citizenship v SZMDS it was said as follows: [33]
“A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.”
[33] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [135] per Crennan & Bell JJ
In this case, the country information available to the Tribunal came from a variety of sources. As Hayne J noted in Minister for Immigration & Multicultural Affairs v Jia Legeng,[34] specialist tribunals and decision-makers accumulate a great deal of generic information in respect of the type of matters, which they are called upon to determine.
[34] Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 563 [180]
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[35] the Full Court said as follows in respect of country information:
“Both the choice and the assessment of the weight of such material were matters for the Tribunal. The court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”
[35] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13] per Gray, Tamberlain & Lander JJ
As the Full Court pointed out in NAHI, the weight that the Tribunal gives to country information is a matter for the Tribunal itself, as part of its fact-finding function. The question of the accuracy of this country information is for the Tribunal, not for the court. If this court were to engage in such an exercise, it would turn these proceedings into a merits review, which is clearly beyond its power.
The country information available to the Tribunal, in the current matter, went to both the existence of domestic violence laws in Vietnam and their efficacy, given societal factors applicable to that country. In respect of this information the Tribunal noted that family violence was to be regarded as commonplace in Vietnam and its incidence condoned within families.
It also noted that legislation had been passed in Vietnam, which specifically prohibited violence against women. However, it further noted that violence against women remained normalised and the provision of the law remains weak. It also noted difficulties arising from the limited number of specialised service available in Vietnam relating to domestic violence. In particular, the Tribunal found as follows:
“I am conscious that the scourge of domestic violence and the threat it poses to those affected is complex, and difficult for the state to address. In the Vietnamese context, I note in particular the references in the country information to traditional family gender roles and the challenges faced by the Vietnamese authorities in responding to domestic violence and the low rate of reporting of offences. As to the effectiveness of the measures against domestic violence that form part of Vietnam’s law, I note that reports are varied on their effectiveness.
However, the country information in my view shows that the Vietnamese government takes domestic violence seriously, and there is identifiable support available for people at risk. I note that in some sources it is acknowledged, even where criticism is mounted of the measures taken to address domestic violence, that the government works towards improving the situation; for example, USDOS in the context of education and public awareness, and the 2011 WHO report acknowledges the Vietnamese government’s commitment to such measures as the Law on Domestic Violence.”
Accordingly, in my view, it cannot be said that the Tribunal took an illogical or irrational response to the evidence available to it. It noted difficulties and deficits regarding the situation in Vietnam vis-à-vis domestic violence, which it assessed against other information which was available to it.
At the end of this process it reached a view different to that of the applicant as advocated in these proceedings. Although the applicant disagrees with that finding, it was, in my view, reasonably open to it on the materials available.
I accept that it is an inherent requirement of the exercise of the power conferred on the Tribunal that it be exercised reasonably and if it was not so exercised, it amounts to a failure of jurisdiction. In Minister for Immigration & Citizenship v Li[36] Gageler J expressed this principle as follows:
“Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.” Citations removed
[36] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [90]
Again in Li, Gageler J considered that the authority conferred on a decision-maker by statute was subject to the deeply rooted common law principle that such authority be exercised both according to law and reason. In the case, under the heading Judging Unreasonableness His Honour said as follows:
“Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.”[37]
[37] Li (supra) at 256 [105]
Essentially, an administrative decision maker is required to provide an intelligible and reasonable explanation as to why a particular decision has been reached. In my view, there is a sufficient degree of intelligibility, to be gleaned from the Tribunal’s reasons, as to why it considered there would be a sufficient degree of state based protection, available to the applicant, if she returned to Vietnam.
The Tribunal’s finding was based on the passing of the Law on the Prevention & Control of Domestic Violence in 2007 together with the existence of processes to train police, lawyers and the legal system officials in the implementation of the law, which, in the finding of the Tribunal, evinced a commitment by the Vietnamese Government to support individuals at risk of being exposed to family violence.
Li, of course, was a case concerned with the reasonableness or otherwise of a decision of a tribunal not to adjourn visa proceedings brought pursuant to the provisions of the Act. As such, it was not a case concerned with the reasonableness or logic of the decision-making process within the jurisdiction conferred.
In SZUWX v Minister for Immigration & Border Protection [38] Griffith J summarised the High Court’s decision in Li. His Honour said as follows:
“…with the bounds of legal unreasonableness, there ‘is an area within which a decision-maker has a genuinely free discretion’. It is critical that, in exercising a judicial review function, the courts not exceed ‘their supervisory role by undertaking a review of the merits of an exercise of discretionary power’. Application of a standard of legal unreasonableness ‘does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker’.”
[38] SZUWX v Minister for Immigration & Border Protection [2015] FCA 1389 at[ 68]
In this context, it is not sufficient to ground legal unreasonableness that the reviewing court would have reached a different conclusion on the basis of the same evidentiary material. The plurality in Li (Hayne, Kiefel & Bell JJ) said as follows: is:
“In Peko-Wallsend Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that "guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion". House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.
As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.” [39]Citations removed
[39] Minister for Immigration & Citizenship v Li (supra) at [75] – [76]
In my view, the findings reached by the Tribunal, regarding the availability of state based protection, in Vietnam, for the victims of family violence, was one which was open to the Tribunal, notwithstanding the qualified nature of the material concerned. Mason J (as His Honour then was) noted in Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd:
“The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion and a decision made within those boundaries cannot be impugned.”
Just as the applicant has done, the court could also seek out aspects of the country information, available to the Tribunal, which could potentially justify a different result, so far as complementary protection is concerned. However, in my view, such a course would transform these proceedings from a judicial review into to a merits review, which is beyond their function. “[A] mere preference for a different result, when the question is one on which reasonable minds may come to different conclusion” is not sufficient reason to overturn an administrative decision on judicial review.[41]
[41] Ibid at 315
Ground Two
The second ground is based on the contention that the applicant was given no adequate opportunity to provide the Tribunal with evidence to support her contention that the Vietnamese Government would not appropriately implement its family violence legislation and related policies and projects.
The applicant, in the submission of her adviser to the Tribunal, provided evidence as to her fear of her husband and her view that legal provisions, relating to family violence, in Vietnam, were weak and its problem endemic in the country.
As such, although the submission was not tied specifically to the provision contained in section 36(2)(aa), the applicant did put her case that she was at risk of suffering significant harm, if returned to Vietnam, as the Vietnamese state would not provide her adequate protection.
The Tribunal dealt with this submission, which it rejected on the basis of country information available to it. In my view, as a consequence of the provisions contained in section 424A(3)(a) of the Act, the Tribunal was under no obligation to provide this country information to the applicant for either her comment or potential rebuttal, prior to the making of its decision.
Section 424A of the Act codifies the principal that considerations of fairness dictate that a person whose interests are likely to be affected by a particular decision should be given an opportunity to deal with any information, which is potentially adverse to the position adopted by him or her, prior to the relevant decision being made.[42] By dint of sub-section (3)(a) generic information dealing with a class or classes of person are specifically excluded from this requirement.
[42] See VEAL v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 at [19]
In any event, much of this material was, in any event, already available to the applicant. It is not the responsibility of the Tribunal to make the applicant’s case for her. This ground of review is, in my view, a post hoc attempt, by the applicant, to re-argue her case for review, given the adverse finding of the Tribunal, on the material then available to it.
Given the contents of section 424A(3)(a) and the fact that the applicant was represented at the hearing before the Tribunal and the issue of complementary protection was clearly a live issue both before and during the hearing process itself, I do not think that there has been any breach of the rules of natural justice by the Tribunal failing to adjourn the proceedings of its own volition or asking the applicant herself to seek such an adjournment so that an opportunity could have been provided to her to advance further country information, regarding Vietnam, to the Tribunal.
In Re Minister for Immigration & Multicultural Affairs: ex-parte Lam[43] the High Court (McHugh & Gummow JJ) observed that
“the particular requirements of compliance with the rules of natural justice will depend upon the circumstances. Different procedures may be required, even of the same repository of power, from one situation to the next …”
[43] See Re Minister for Immigration & Multicultural Affairs: ex-parte Lam (2003) 195 ALR 502 at [48]
In the same case, Gleeson CJ spoke of a concept he entitled “practical injustice”. He said as follows:
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
In practical terms, I do not believe that there has been any injustice accorded to the applicant. In my view, I do not consider that it can be said that injustice has arisen merely because an applicant asserts, with the benefit of hindsight, that he or she could have provided a more extensive or compelling case, if he or she had known what the ultimate result was going to be.
In my view, the applicant was given the opportunity to present the case of her choosing before the Tribunal. In these circumstances, I do not consider that the second ground of review is sustained.
It must follow therefore that the application should be dismissed and the applicant should pay the first respondent’s costs fixed in the sum of $6,646.00. I will also make an order that the name of the second respondent be substituted with Administrative Appeals Tribunal.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 24 March 2016
[40] Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 66 ALR 299 at 309
[44] Ibid at [37]
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