ABAR15 v Minister for Immigration and Anor (No.3)

[2019] FCCA 540

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABAR15 v MINISTER FOR IMMIGRATION & ANOR (No.3) [2019] FCCA 540

Catchwords:
MIGRATION – Visa – protection visa – whether Tribunal failed to put applicant on notice of dispositive issue – where Tribunal determined review on different basis to delegate and an earlier Tribunal – insufficient notice of dispositive issue – jurisdictional error demonstrated – writs issued.

Legislation:
Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2A), 36(2A)(a) and (d), 425, 430 and 476

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1
AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494
MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154
ABAR15 v Minister for Immigration and Border Protection and Another (No.2) [2016] FCA 721
Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285

Applicant: ABAR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 27 of 2017

Judgment of: Judge Heffernan

Hearing date: 4 April 2018

Date of Last Submission: 4 April 2018

Delivered at: Adelaide

Delivered on: 6 March 2019

REPRESENTATION

Counsel for the Applicant: Mr S Ower SC

Solicitors for the Applicant: Tern Visa and Migration Lawyers

Counsel for the Respondents: Ms H Stanley

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. There be an order in the nature of certiorari that the decision of the Administrative Appeals Tribunal dated 23 December 2016 affirming the decision of the delegate of the first respondent made on 21 November 2014 rejecting the applicant’s application for a Protection (Class XA) visa is quashed.

2. There be an order in the nature of mandamus that the Administrative Appeals Tribunal review according to law the decision of the delegate of the first respondent dated 21 November 2014 rejecting the applicant’s application for a Protection (Class XA) visa.

3. The first respondent is to pay the applicant’s costs of the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 27 of 2017

ABAR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review pursuant to s.476 of the Migration Act1958 (Cth) (‘the Act’) of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 23 December 2016. That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (‘the visa’). This matter proceeded before me on the basis of an Amended Application filed on 14 March 2018. The two grounds of review are as follows:

   “1.The second respondent failed to conduct a review of the delegate’s decision, and/or failed to have regard to all the information before it, and/or acted in a manner that was legally unreasonable, and thereby committed jurisdictional error.

   Particulars

   1.1The second respondent, in making the decision dated 23 December 2016, failed to have regard to its earlier decision dated 24 February 2015 (particularly the reasons for the earlier decision, and the findings on material questions of fact), or the basis upon which that decision was quashed, and the second respondent did not have a reasonable basis to do so.

   2. Further or alternatively, the second respondent did not afford the applicant procedural fairness and failed to comply with s. 425 of the Migration Act 1958 (Cth), and thereby committed jurisdictional error.

   Particulars

   2.1The second respondent did not advise or alert the applicant that it did not propose to have regard to its decision of the second respondent dated 24 February 2015 (including the reasons for the decision, and the findings on material questions of fact).

   2.2The second respondent did not advise or alert the applicant that the central and determinative issues on review were the credibility of her evidence as to past violence at the hands of her husband and the genuineness of her fear of future persecution.

   2.3The second respondent did not advise or alert that the central and determinative issue on review was not whether the content and practical implementation of the Vietnamese law in the applicant’s particular circumstances was such that the chance of her suffering significant harm was remote, insubstantial or far-fetched.”

2. The background to this matter requires some explanation. 

3. With respect to the applicant’s personal background and claims, she is a Vietnamese citizen who originally came to this country in August 2008 on a three month visitor’s visa.  The visitor’s visa expired in November 2008.  She stayed in this country as an unlawful non-citizen until April 2014 when she was taken into immigration detention. 

4. The visa application was lodged on 23 April 2014 and the applicant claimed to be at risk of serious harm from her husband and people associated with him because of her political beliefs.  In addition, she asserted that the government of Vietnam would not protect her and that her political beliefs might result in her being sent to gaol.  Her beliefs make it impossible for her to obtain employment in Vietnam. 

The delegate’s decision; the Refugee Review Tribunal’s decision; and judicial review and appeal

1. The summary below has been taken from the first respondent’s outline of submissions.

2. On 21 November 2014, the Minister’s delegate refused the application for the visa. On 1 December 2014, the applicant made an application for review of the decision before the Refugee Review Tribunal (‘the RRT’). The hearing was conducted on 20 February 2015. The RRT affirmed the decision not to grant the applicant a visa. On 27 February 2015, the applicant applied for judicial review in this Court. On 24 March 2016, the Court dismissed the application. The applicant appealed to the Federal Court and the matter was remitted to the Tribunal to be determined according to law.

The Tribunal’s Decision

1. A further Tribunal hearing was conducted before the Administrative Appeals Tribunal on 1 December 2016, the RRT having had its functions devolved to that body.  On 23 December 2016, the Tribunal affirmed the decision not to grant the applicant a visa.

2. The Tribunal accepted that the applicant was vulnerable but that she was able to fully participate in the Tribunal hearing and to understand and respond through the interpreter to the questions that were being asked of her.  It further accepted that she had experienced family violence perpetrated by her husband during their relationship.  It did not accept that there was any political motivation behind his conduct.  It did not accept that she would be at risk of harm from Vietnamese authorities by reason of her actual or imputed political opinions.

3. The Tribunal did not accept that the applicant’s husband was prominent in the Communist Militia or that his role with local authorities or his membership in the Communist Party had brought her to the attention of the Vietnamese authorities.  The Tribunal did not accept that she had publicly opposed communism or expressed dissent to anyone other than her husband.  It did not accept that she would be publicly opposed to communism or engage in any form of political protest or dissent in the future.  The Tribunal was not satisfied that she genuinely feared harm for reason of her political opinion or imputed political opinion, or that her fear of harm from the authorities was well-founded.

4. With respect to the question of family violence, although the Tribunal accepted that the applicant had experienced family violence perpetrated by her husband in the past, it did not accept that there was a real risk that she would suffer any kind of harm of that nature in the future. The Tribunal found that the applicant had exaggerated and embellished her claims of past harm in order to bring her profile within those persons to whom Australia has protection obligations and also to suggest that there was a real risk that she would suffer similar harm in the future if she returns to Vietnam.

5. The Tribunal found that the applicant separated from her husband 10 years prior to travelling to Australia as a visitor in 2008.  It did not accept that she sustained a head injury inflicted by her husband during the period subsequent to their separation in 1999.  It afforded little weight to general claims to have experienced family violence of any kind from her husband post-separation.  The Tribunal did not accept that the applicant’s husband visited her after she moved to Bac Lieu or that he moved into her home in 2008 and, therefore, did not accept that she had lived with her husband in the years prior to her departure from Vietnam.  The Tribunal did not accept that the applicant’s husband had threatened her with future harm as claimed.

6. The Tribunal found that the lengthy delay on the part of the applicant in seeking a protection visa was inconsistent with her claim to fear serious harm in Vietnam.  It took that delay to suggest that she had constructed her evidence in order to try and bring herself within the scope of Australia’s protection obligations.

7. The Tribunal considered the totality of the applicant’s claims and her circumstances and found that she did not face a real chance of serious harm if she were to return to Vietnam and, therefore, did not meet the requirements of s.36(2)(a) of the Act. For the same reasons it was not satisfied that she faced a real risk of significant harm in Vietnam and concluded that there were not substantial grounds for believing that as a necessary or foreseeable consequence of her being removed from Australia to Vietnam there was a real risk of significant harm as contemplated by s.36(2A) of the Act. For that reason it found that it did not have protection obligations to the applicant by virtue of ss.36(2)(a) or 36(2)(aa) of the Act. As a result it affirmed the decision not to grant the applicant a protection visa.

Submissions

1. Mr Ower SC, for the applicant, focused his submissions primarily on ground two and I will summarise his submissions with respect to that ground first. He accepted, as well-established, that in conducting the review the Tribunal was not confined to the issues considered by the delegate. He submitted that in this matter, the Tribunal did not put the applicant on notice that an issue or issues other than those regarded by the delegate as being dispositive would be the subject of the review. In this matter, unlike the delegate, the Tribunal found that the claims with respect to past domestic violence had been embellished and exaggerated. Ordinarily, an applicant is entitled, in the absence of some form of notice to the contrary, to assume that the issues on review are those found by the delegate to be dispositive. It was submitted that that consideration applied with even greater force because there had been an earlier Tribunal hearing before the RRT which accepted the applicant’s claims to have been subjected to domestic violence by her husband and had made no findings of embellishment or exaggeration. For that reason, the applicant was entitled to assume that the issues arising on the decision under review were confined to the nature and effect of Vietnam’s ability and willingness to protect victims of domestic violence.

2. It was submitted that the delegate’s decision did not raise an issue about whether she had experienced the level of violence from her husband as claimed, whether she had a subjective fear of violence from her husband in the future, or whether there was a prospect that her husband would harm her in the future. In other words, nothing to put the applicant on notice that her overall credibility was in issue. Nor could it be said that those issues arose from either the RRT decision or the decision of the Federal Court.

3. With respect to ground one, it was submitted that the Tribunal simply chose not to take into account the previous findings of an earlier constituted Tribunal.  It failed to set out the RRT findings or even to refer to them.  Whilst it was open to the Tribunal to make its own and different findings, its failure to take the RRT findings into account, and as a result the manner in which it conducted the hearing, was unreasonable in the relevant legal sense.

4. For the first respondent, Ms Stanley submitted that whilst the Tribunal has to put the applicant on notice of the determinative or dispositive issues in the review, there was no requirement that it do so in advance of the hearing.[1] Further, where the dispositive issues are the same as before the delegate, an applicant is taken to be on notice of them. It was submitted that the Tribunal had complied with its obligations under s.425 by virtue of the fact that it had invited the applicant to attend and participate to give evidence and present argument and she did so. Further, contrary to the submission of the applicant, the question of whether she was a credible witness and the veracity of her claim to fear harm at the hands of her husband were both clearly issues of which she had notice as a result of the delegate’s decision. It was also submitted that, contrary to the contentions of the applicant, the Tribunal did squarely raise with her during the course of the hearing the issue of whether she genuinely feared harm at the hands of her husband. That provided her with an opportunity to expand on her account and explain why it should be accepted. It questioned her and asked her to expand on the evidence about having separated from her husband in 1999 and about her claims to having experienced subsequent episodes of domestic violence.

   [1]     SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at para [44].

5. As to ground one, the Minister submitted that the Tribunal expressly referred to the reasons of the RRT, dated 24 February 2015, and the fact that the previous decision had been remitted to be determined according to law. Further, the question for the determination of the Tribunal was whether the delegate’s decision was the correct or preferable one on the material before the Tribunal and not the material before the delegate or the previously constituted Tribunal. In that context the task of the Tribunal was to consider for itself whether it was satisfied that the applicant met the prescribed criterion for the protection visa. Further, the Tribunal’s obligation under s.430 of the Act to prepare a statement of reasons did not require it to identify or discuss each item of evidence to which it had regard. Insofar as there were matters not mentioned in the reasons, the Court could infer that they were not considered to be material. For those reasons it was submitted that the decision of the Tribunal could not be regarded as unreasonable in the relevant sense. This was irrespective of the fact that another decision-maker had adopted a different course.

Consideration

Ground two

1. Pursuant to s.425 of the Act, the Tribunal was required to give the applicant an opportunity to give evidence and present arguments with respect to the issues arising from the decision under review. The issues arising from the decision under review are those issues which were found by the Tribunal to have been determinative or dispositive of the review. The Tribunal was not bound by the decision of either the delegate or the RRT which undertook the first merits review. It was open to the second Tribunal, namely the subject Tribunal, to form its own views either as to the matters found in favour of the applicant or matters found against her. As counsel for the applicant and the first respondent accepted, it is well-established that an applicant is entitled, in the absence of notice to the contrary, to assume that the issues arising with respect to the decision under review are the same as those considered dispositive by both the delegate and the first Tribunal.[2]

   [2]     SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1; AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494 at paras [41], [99] – [102].

2. Notwithstanding the decision of the RRT had been found to be affected by jurisdictional error, it was open to the Tribunal in the subject merits review to have regard to the earlier decision of the RRT. As counsel for the applicant pithily submitted, the decision of the RRT was not to be treated as if it had never occurred, a proposition for which he cited the following passage from MZZZW v Minister for Immigration and Border Protection:[3]

   “… In SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1; 100 ALD 575; [2008] FCA 390 at [20] (SZDFZ) — to which we refer below — Flick J spoke of a reconstituted tribunal being called upon to “resolve afresh the claims made”. That does not mean the merits review decision-maker considers matters uninstructed by what has gone before, whether at first instance or in other review applications which have not finally determined the merits review process. In our opinion “afresh” is simply a shorthand way of saying “with fresh eyes”, and is intended to encapsulate the essence of merits review, and indeed its strength in any robust process of administrative decision-making: namely, that within the limits of the applicable law, a new decision-maker brings her or his own perspectives, approach and reasoning to the claims made by an applicant for review.”

   [3] (2015) 234 FCR 154 at para [60].

3. Whilst it is necessary for the applicant to be properly on notice of the dispositive issues, it is also well-established that such notice can be given in a variety of ways.  It can be given by clear statements in the letter inviting the applicant to attend.  It can be given orally by a sufficiently clear indication at the time of the hearing.  It can also be given by the very nature of the questions asked by the Tribunal member and the opportunities or invitations given by the Tribunal to expand upon or clarify certain aspects of the applicant’s claims.[4]

   [4]     AZAAD, op cit at paras [62] to [63] and [103].

4. In determining what can objectively be regarded as the dispositive issues on the subject review it is instructive to consider the findings of both the delegate and the RRT.  The delegate considered the credibility of the applicant in the context of each of her claims.  In the context of the “Applicant’s relationship with her husband”[5] the delegate noted a few matters that might have had some bearing on her credibility.  Firstly, he noted that whilst she referred to her husband answering the phones of her children when she called them in 2013 and 2014, she could not provide dates for those calls.[6]

   [5]     CB, pp 118 to 119.

   [6]     Court Book (‘CB’), p 119 at para [3].

5. The delegate also found that the applicant did not “adequately explain” why her children would choose to live in close proximity to her husband given the violence he had directed towards her and of which they were aware.[7]

   [7] CB, p 119 at para [4].

6. Significantly, the delegate’s decision records the following:

   “I put to the applicant it does not appear that her husband is still looking for her.  The applicant said he threatened to kill her when he beat her…”[8]

   [8] CB, p 119 at para [6].

7. The delegate had some concerns about the applicant’s failure to relocate or seek help from the authorities.[9]  He also accorded little weight to the statutory declaration from her children because of an inconsistency as to when she left her home.[10]  The delegate then made the following finding:

   “It is difficult to determine the extent of the domestic abuse the applicant claims to have experienced from 1989 to 2008 and the applicant cannot be expected to recall details of all relevant events over such a long period.

   I consider it appropriate to accept the applicant’s claims of being domestically abused by her husband, given that country information supports the widespread issue of domestic violence in Vietnam.”[11]

   [9] CB, p 119 at para [7].

   [10] CB, p 119 at para [8].

   [11] CB, p 119 at para [9].

1. There was no qualification to that finding and no specific adverse finding about the applicant’s claim to fear harm at the hands of her husband. 

2. The decision record then addressed the other aspects of the applicant’s claims. The delegate rejected them. Having considered the timing of the application for a protection visa, the delegate made the following finding:

   “I believe the applicant applied for protection because she was located by departmental officers.  I find that the delay in claiming protection raises serious credibility concerns about the protection claims presented.”[12]

   [12] CB, p 123 at para [9].

3. That generalised finding can logically only relate to those aspects of the applicant’s claims that had been rejected.  It did not detract from the earlier generalised finding of accepting her claims as to domestic violence.  The above passage was immediately followed by findings based on the “applicant’s demeanour” which concluded with the sentence, “I do not find the applicant to be a credible witness”.[13]

   [13] CB, p 124 at para [9].

4. That was another generalised finding that cannot be regarded as absolute.  It is inconsistent with the acceptance of the applicant’s claims of being domestically abused by her husband, which was based substantially on her own evidence and with respect to which the delegate had found her to be credible.  A fair reading of the delegate’s decision shows that the adverse credibility findings of which she would have been on notice related to the other aspects of her claims.  That is clear from the “overall credibility” finding:

   “Based on the information supplied by the applicant since she was located by departmental officers and in her PV application and interview, I do not accept that the applicant has a profile as an anti-Communist Government dissident in Vietnam and therefore do not accept that she would [sic] targeted by the Vietnamese Government.

   I will however proceed with an assessment of the claimed mistreatment from the applicant’s husband.”[14]

   [14] CB, p 124 at para [9].

5. The delegate then proceeded to find that because the applicant had demonstrated freedom of movement in Vietnam and had financial support from relatives, the state machinery in Vietnam would be available to address her claimed domestic violence sufficiently to mean that she would not face a real chance of domestic violence in the future. That finding was in the context of the complementary protection criterion. The delegate identified that the feared harm was significant harm for the purpose of ss.36(2A)(a) and (d) of the Act. Complementary protection obligations were found not to arise because of the availability of state protection, not because the domestic violence claims were unfounded.

6. At the conclusion of the delegate phase of her visa application process the applicant can objectively be regarded to have been on notice that her claims to domestic violence were accepted, her other claims were rejected and that, accordingly, the dispositive issues before the RRT would be the validity or otherwise of her rejected claims and the adequacy of state protection in her circumstances.

7. That situation did not change much, if at all after the RRT had determined her review.  Relevantly, the RRT found:

   “I accept that the applicant fears harm at the hands of her husband and has suffered from domestic violence at his hands while living with him in Vietnam.  I note the supporting evidence from members of the applicant’s family in Australia to this effect, and was also able to observe that the applicant became visibly distressed when the topic of the hearing turned to discuss domestic violence.  Country information I have referred to below indicates that domestic violence is commonplace in Vietnam.”[15]

   [15] CB, p 137 at para [42].

8. The RRT then proceeded to reject the applicant’s claims as to her husband having been motivated in his violence by political considerations; her reputation for political dissent; that she was a person of interest to the authorities; that she genuinely feared persecution at the hands of the authorities; and her fear that the authorities would not protect her.[16]

   [16]    CB, p 138.

9. In considering complementary protection obligations the RRT made explicit what appears to have been implicit in the findings of the delegate when it found:

   “In this regard, and as mentioned above, I accept the applicant’s evidence that she was the victim of violence at the hands of her husband, and accept that she holds a genuine fear of violence from her husband should she return to Vietnam.”[17]

   (emphasis added)

   [17] CB, p 139 at para [52].

10. The RRT then affirmed the delegate’s decision finding that no protection obligations arose under s.36(2)(aa) and that there were no obligations with respect to complementary protection because of the adequacy of state protection in Vietnam.

11. When the appeal was upheld in the Federal Court, it was on the basis of unreasonableness as to the findings with respect to the state protection issue.[18]

    [18]    ABAR15 v Minister for Immigration and Border Protection and Another (No.2) [2016] FCA 721.

12. To summarise, at the time of the subject Tribunal hearing, the applicant was on notice that significant findings had been made as to her credibility but that the dispositive issues related to her non-domestic violence claims and the adequacy of state protection.  She had been accepted as to the essential foundations of her claim to have experienced domestic violence at the hands of her husband in the past and her genuine fear of similar violence from him in the future should she return to Vietnam.  It is not a sufficient answer to this to speculate that, given the other significant adverse credit findings, the applicant must have known that every aspect of her credit, including as to the matters on which she had previously been accepted, would be in issue.

13. The letter from the Tribunal inviting the applicant to attend the subject hearing was clearly a template form letter and did not advise the applicant of any specific matter with respect to which it held concerns beyond those previously found to be dispositive by the delegate and the RRT.[19]

    [19]    CB, p 336.

14. I note that the submissions provided by the applicant’s solicitor prior to the subject hearing focused on domestic violence, doing so primarily by reference to the situation for victims of domestic violence in Vietnam in light of current local legislation and policies rather than emphasising in any detail the specific claims of the applicant.[20]

    [20]    CB, pp 237 to 254.

15. The solicitor for the applicant also provided the Tribunal with statements from relatives of the applicant corroborating that she had suffered domestic violence at the hands of her husband.[21]

    [21]    CB, pp 255 and 257.

16. At the hearing before the Tribunal, the applicant also introduced telephone evidence from a witness on that matter. In submissions before me the first respondent rhetorically asked why, if the applicant believed that her credibility was not in issue on that matter and as to the extent of any domestic violence, did she call a witness to support her version?  Possibly and simply because it was a rehearing, but an applicant should not be left to surmise or guess at the nature of the issues the Tribunal would regard as dispositive.

17. The transcript demonstrates that the introductory comments made to the applicant by the Tribunal member were thorough but generic.[22]

    [22]    Affidavit of M Simmons, dated 21.3.18, Annexure ‘MTS1’ transcript, pp 1 to 3.

18. The hearing proceeded in question and answer format with the applicant responding, usually briefly, to specific questions put to her. The Tribunal member asked some questions that probed the applicant’s version of events.[23]

    [23]    For example, see Annexure ‘MTS1’ ibid, transcript, p 11, lines 21 to 23; p 13, line 1; p 16, lines 3 to 7; p 18, line 23; p 33, line 24; and p 38, line 24.

19. Generally, the questions simply called for recitation of her version of events.  At the end of her evidence the Tribunal member said:

    “I don’t have any other questions, Ms X”.[24]

    “Is there anything else that you want to talk about that we haven’t discussed?”[25]

    [24]    Name deleted.

    [25]    See Annexure ‘MTS1’ ibid, transcript, p 39, lines 12 to 13.

20. To which the applicant reiterated her domestic violence claims in very general terms.

21. The Tribunal member also asked the applicant’s solicitor if there was anything else she wanted the applicant to be asked that had not been covered.  Her solicitor indicated that she would confine herself to making submissions. 

22. As already noted, the Tribunal went on to make the findings I have outlined at paragraphs 7 to 12 above.

23. It is established that a Tribunal need not give a running commentary on its thought processes throughout a hearing.[26]  It is not necessary for a Tribunal to challenge an applicant specifically by putting them on notice that the Tribunal member believes they are lying or exaggerating.[27]  What is imperative in circumstances where an applicant has not been previously put on notice is that the Tribunal makes clear from its questions that the whole of the applicant’s claims are in issue.[28]

    [26]    Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; AZAAD op cit at para [103].

    [27]    AZAAD, op cit.

    [28]    AZAAD, op cit.

24. I am not satisfied that the Tribunal did make it sufficiently clear through its questioning that the applicant’s credit as to domestic violence claims would be a dispositive issue.  The questions I have referred to above as “probing” were not, in the context of the prior favourable findings by the delegate and the RRT, sufficient for that purpose.  Nor was the applicant directed to specific topics in such a way that it could be regarded as putting her on notice that some expansion of her account was required because of any concerns as to the essential credibility of her claims relating to domestic violence.  The final invitation to the applicant to add anything else she thought might be important was of such generality that it cannot be regarded as having done so.

25. As Reeves J observed in AZAAD:

    “… Since the second tribunal intended to decide the review on a completely different issue to that of the delegate and the first tribunal, I consider it was obligated as a matter of procedural fairness to inform the appellants that was so. The most obvious way to do that was to include a statement to that effect in the letter inviting the appellants to attend the s 425 hearing. Alternatively, it could have informed the appellants of this fact at the outset of the hearing, although such a dramatic change to the issues in the review at that late stage would probably not have afforded the appellants a sufficient opportunity to give evidence and present arguments at the hearing on the new issue and would most probably have led to an adjournment. In either situation, I cannot see how such a notice would interfere unduly with the review process, or place any onerous obligation on the tribunal, or require it to disclose any of its thought processes.”[29]

    [29]    AZAAD, op cit at para [108].

26. I am of the view that the Tribunal was obligated to clearly put the applicant on notice that the political claims and the issue of state protection were no longer the central and determinative issues on the review and that a central issue would also be her credit as to the nature and extent of any past domestic violence at the hands of her husband, and whether she had a genuinely held fear of violence from him in the future were she to return to Vietnam. I am satisfied that ground two has been made out, that the Tribunal failed to afford the applicant procedural fairness, that it failed to comply with s.425 of the Act, and that it thereby fell into jurisdictional error.

Ground one

1. With respect to ground one, I am not satisfied that it has been demonstrated that the Tribunal failed to have regard to the earlier decision of the RRT dated 24 February 2015.  I dismiss ground one. 

2. Accordingly, I make the orders to be found at the beginning of these reasons.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  6 March 2019