AZAFW v Minister for Immigration and ANOR and; AZAFX v Minister for Immigration and ANOR
[2016] FCCA 500
•15 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZAFW v MINISTER FOR IMMIGRATION & ANOR and AZAFX v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 500 |
| Catchwords: MIGRATION – Application for judicial review in respect of decision not to grant protection visa – application out of time – extension of time – allegation of jurisdictional error – applicants claim protection on the basis that they are at risk of suffering serious harm as a consequence of being orphans from Vietnam – Tribunal considered primary applicant to be generally honest person, who had been traumatised – in these circumstances, Tribunal accepted the applicant’s circumstances might provide an explanation as to why she had failed to be more forthcoming about her prior circumstances in Vietnam – however Tribunal found that the applicant’s account of how she and her sister had left Vietnam to be implausible – alleged failure of Tribunal to consider whether its finding was wrong – alleged failure to consider discrete integer of claim for protection – alleged failure of Tribunal to consider how applicants could reconnect with relatives in Vietnam on a practical basis. |
| Legislation: Migration Act 1958 (Cth), ss.36(2); 65; 91R; 417; 474, 476; 477 |
| Wie v Minister for Immigration & Border Protection [2015] HCA 51 Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505 Minister for Immigration & Multicultural Affairs v Rajalingam (1999) FCR 230 |
| Applicant: | AZAFW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 48 of 2015 |
| Applicant: | AZAFX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 49 of 2015 |
| Judgment of: | Judge Brown |
| Hearing date: | 23 November 2016 |
| Date of Last Submission: | 3 December 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 15 March 2016 |
REPRESENTATION
| Counsel for the Applicants: | Mr McDonald |
| Solicitors for the Applicants: | Gaynor Sanders |
| Counsel for the First Respondent: | Mr Aleksov |
| Solicitors for the First Respondent: | Sparke Helmore |
| Solicitors for the Second Respondent: | Submitting appearance |
ORDERS
The application is dismissed.
The applicants pay the first respondent's costs fixed in the sum of $6,646.00 to be shared equally.
The Administrative Appeals Tribunal replace the Migration Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 48 of 2015
| AZAFW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
ADG 49 of 2015
| AZAFX |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants in these proceedings are sisters, who arrived in Australia together, by boat, at Christmas Island, on 5 May 2011. Both applicants are citizens of Vietnam, who claim to be orphans. Neither had any documentation, when they arrived at Christmas Island.
Each has made an application for a protection visa, pursuant to the provisions of the Migration Act 1958 (Cth) “the Act” on the basis they are at risk of suffering harm or persecution, if returned to Vietnam, because they are female, homeless orphans.
Because the applicants are seeking protection in Australia, it is necessary that their identities not be made public. The elder applicant has been anonymised as AZAFX. Her date of birth has been given as 7 May 1997. The younger applicant has been anonymised as AZAFW. Her date of birth has been given as 26 June 1999.
Because both applicants were minors, at the time of their arrival in Australia, a litigation guardian has been appointed for each of them. She is Sister Mary Symonds, a Sister of Mercy nun.
AZAFX was interviewed, at Christmas Island, on 2 June 2011. She indicated that she had previously lived in an inn at Quy Nhon, with Aunt Hoa. One day her aunt had taken her and her sister to the sea shore, where there were a lot of boats. Her Aunt Hoa had placed her and her sister on a boat. AZAFX indicated that she did not know why she had been placed on the boat. AZAFW, in her entry interview, indicated that she did not know why she had left Vietnam, other than her aunt had told her to go.
On 12 October 2011, the two applicants provided a longer joint statement. In this statement both applicants claimed their parents were deceased. As a consequence they had been placed in the care of their maternal aunt, who had mistreated them and refused to allow them to attend church. She had forced them to sell bananas on the street.
During this period they had met a kindly person called Ms Tu, who had asked them if they want a better life and an education. As a consequence of meeting Ms Tu, they had stolen some money from their aunt and Ms Tu had placed them on a boat. Each claimed to be fearful of their aunt, who was likely to harm them because of the theft of money from her.
The two formal applications for protection visas were first made on 8 October 2012 and each was supported by an individual document headed statement of claim. These were in identical terms, other than for the name of the applicant and her date of birth. These documents did not include any reference to Ms Tu.
In their more recent documents, the applicants claimed to have been born into a farming family in Lam Dong, Vietnam. Both applicants stated that their mother had died of heart failure, when they were young and their father had died, in mid-2010, from liver failure.
Thereafter they had gone together to live with their maternal aunt in Vung Tau City, Ba Ria Province in South Vietnam. They had made a living helping their aunt sell grilled bananas. Neither had attended school. During this period they claimed to have been living in an inn, with their aunt, but were now unsure of the address or indeed whether their aunt still lived there. They did not know if the inn had a telephone.
The applicants each claimed to have been placed on a boat, near their home, by their aunt, who had not told them where the boat was going but directed them to board it. Each claimed not to be aware as to whether their aunt had paid any money for their passage on the vessel.
If returned to Vietnam both applicants indicated they did not believe they would be able to locate their aunt there. Because of this, each regarded it as inevitable that they would have to live on the street, as they had no means of support in Vietnam and no other relatives. They also indicated that they did not expect the Vietnamese authorities would provide them with assistance. In these circumstances they each claimed to be at risk of coming to harm, if returned to Vietnam.
On 10 December 2012, a delegate of the Minister for Immigration & Citizenship[1] determined that neither applicant was a person to whom Australia owed obligations to provide protection. The delegate found the applicant to be evasive about their connections in Vietnam and to lack credibility about the circumstances surrounding their departure from that country.
[1] As the Department of Immigration & Border Protection was previously known.
As such, the delegate believed it was likely that both applicants had relatives in Vietnam, who had paid their passage to Christmas Island. In these circumstances, the Delegate doubted that either applicant had been neglected or abused in Vietnam and, as such, were not likely to be subject to mistreatment as a consequence of having to live on the street because they were orphans.
As a consequence of this decision, each applicant sought a review in the Refugee Review Tribunal [2] “the Tribunal” on 14 December 2012. On 25 October 2013, the Tribunal affirmed the delegate’s decision not to grant each applicant a protection (Class XA) visa.
[2] As the Administrative Appeals Tribunal was formerly known.
In brief terms, the Tribunal found AZAFX to be vague and unconvincing in respect of her account to it of significant aspects of her previous life in Vietnam, particularly who had cared for the sisters, after the death of their father and how they had come to leave Vietnam. In this context, she was found to lack credibility, particularly in regards to the issue of the existence or otherwise of relatives, in Vietnam, who would be available to provide each applicant with support and protection in that country.
Ultimately the Tribunal found that neither applicant faced a real risk of suffering significant harm, as a consequence of being an orphan, who would be compelled to live on the street, because each would have a relative or relatives living in Vietnam, to whom they could have recourse. There was, however, a significant gloss on that finding, which arose for the following reasons.
The applicants had each been invited to appear before the Tribunal to give evidence before it pursuant to the provisions of section 425 of the Act. There were two such hearings, on 26 February 2013 and 6 September 2013. Each applicant was represented by the same migration agent and had the assistance of an interpreter. Only the older applicant (AZAFX) gave oral evidence to the Tribunal.
During the first hearing, AZAFX, in the absence of her sister, disclosed that she had been sexually assaulted. She was extremely distressed. On this basis, the proceedings were adjourned so that medical assistance and counselling could be obtained for AZAFX.
During the period between the first and second hearing, AZAFX’s adviser obtained a brief report from her treating psychologist. The report was inconclusive but the psychologist concerned queried whether she was suffering from depression and post-traumatic stress disorder stemming from either sexual or emotional abuse.
After the second hearing, a further period of two weeks was provided to enable AZAFX’s adviser to obtain a more comprehensive medical report and any relevant evidence from others involved in AZAFX’s care up to that stage.
At a second session, with her psychologist, AZAFX disclosed a very serious sexual assault, which had occurred when she was about 11 years old and living in a rural area of Vietnam. A similar disclosure was made to the applicant’s school counsellor.
In a report dated 17 September 2013, AZAFX’s psychologist described her patient as a child, who had been traumatised, not only by sexual abuse, but also the loss of her parents, abusive treatment at the hands of her aunt, and the deprivations of her previous life in Vietnam, where she had sold food on the streets.
In addition, AZAFX was described as being “weighed down by the responsibility she feels towards her young sister, particularly on the terrifying sea voyage to Australia and the consequent events and insecurity she suffers here.”[3]
[3] See Case Book (AZAFX) at page 131
In its decision, the Tribunal, whilst doubting many aspects of the applicants’ cases, recommended that both their cases should be referred to the Department for the consideration of the Minister and the exercise of his discretion, pursuant to the provisions of section 417 of the Act. Pursuant to this provision, the Minister is able to substitute a more favourable decision, for that of the Tribunal, if he thinks it is in the public interest to do so.
The Tribunal gave the following reasons for recommending ministerial intervention:
“The Tribunal considers that the matter merits consideration by the Minister because of the compassionate circumstances arising in out of her vulnerability as a child who has suffered multiple traumas of a sexual assault and being orphaned.
The Tribunal acknowledges the findings above that it is possible the applicant has not been entirely forthcoming about her circumstances in Vietnam. The Tribunal acknowledges the delegate fund the applicant was deliberately evasive. However, the Tribunal considers the applicant’s immaturity and ongoing psychological problems account for the inconsistencies and evasiveness of her claims. That is, the Tribunal finds the applicant’s behaviour is not a deliberate attempt to deceive the Department, but is understandable in the light of her age and vulnerabilities.” [4]
[4] Ibid at page 154 – 155 [86] – [87]
The current applications
On 6 February 2015, each applicant filed an application, seeking the judicial review of the Tribunal’s decision of 25 October 2013, pursuant to the provisions of section 476 of the Migration Act. In particular each sought an order that the decision of the Tribunal be quashed and a writ of mandamus issue directed it to re-determine their application according to law.
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”. The provision of the Constitution grants original jurisdiction, to the High Court, in matters of mandamus against any officer of the Commonwealth.
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 “a privative clause decision”.
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 decisions of the Tribunal, which the applicants seeks to review, in this case, are such privative clause decision as defined by section 474 of the Act.
However, the High Court has held that the provisions of section 476 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.
Pursuant to section 477(1) of the Act, any application to this court, in relation to a migration decision, must be made within 35 days of the date of the decision concerned. In the case of the current matters, the applications are each significantly out of time, in respect of the time prescribed.
Pursuant to section 477(2) of the Act, the court may extend the 35 day period if it considers appropriate to do so. This discretion is subject to two factors: firstly, there is an application in writing to this effect; and secondly the court is satisfied that it is necessary in the interests of the administration of justice, to make such an order.
In the current matter, the delay in instituting proceedings is just short of fifteen months. The application for extension of time has been made in writing and is supported by an affidavit of each applicant and their solicitor, Ms Saunders.
The grounds on which each applicant seeks an extension of time can be summarised as follows:
·Each is a minor;
·Each was advised not to appeal the decision immediately after it was made;
·Each was seeking pro bono legal assistance and the appointment of a litigation guardian and there were delays in respect of each;
·Each has a meritorious case for judicial review;
·Each fears for her safety, if returned to Vietnam.
Each applicant seeks the quashing of the Tribunal decision on the basis that it is affected by jurisdiction error on three bases, namely as follows:
“1. The Tribunal's decision was affected by jurisdictional error in that the Tribunal, having:
a. expressed an inability to “definitely say” whether the lack of factual detail provided by the Applicant was as a result of ignorance, trauma or concealment, but found that it was "more likely the result of trauma and some concealment." (Tribunal's Reasons 1219857 at (59]);
b. expressed uncertainty as to why or by whom the Applicant was sent to Australia (Tribunal's Reasons 1219857 at (62]);
c. found that the “more likely explanation” was that the Applicant had been sent to Australia by a relative or relatives who had her best interests in mind (Tribunal's reasons 1219857 at (64]);
d. found that it was “possible that the Applicant had not been entirely forthcoming about her circumstances in Vietnam” but that “the applicant's behaviour is not a deliberate attempt to deceive the Department, but is understandable in light of her age and vulnerabilities” (Tribunal's reasons 1219857 at (87]),
considered the question of whether the Applicant faces a real risk of significant harm only on the basis that its findings were correct (Tribunal's Reasons 1219857 at [81]), and in so doing the Tribunal:
e. failed to address itself to the question posed by s36(2) of the Migration Act 1958 (Cth), namely whether the applicant had a well-founded fear of persecution for a Convention reason; and
f. failed to have regard to a relevant consideration, namely the acknowledged possibility that the Tribunal’s findings might have been wrong.
2. The Tribunal's decision was affected by jurisdictional error in that the Tribunal, in determining whether the criteria in ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) were satisfied, failed to have regard to a relevant consideration, namely what would or might actually take place upon the applicant's return to and arrival in Vietnam and, in particular, failed to consider:
a. whether or how, assuming the applicant had a relative or relatives in Vietnam who was or were prepared to care for her, she would make contact with that person or those persons; or
b. the possibility that the relative or relatives would be unwilling or unable to care for the applicant due to intervening circumstances such as death, disablement or serious illness.
3. The Tribunal's decision was affected by jurisdictional error in that the Tribunal failed to consider an integer of the applicant's claim which had been advanced by the Applicant and/or which reasonably arose on the material before the Tribunal, namely that the Applicant and her sister had had no contact with anyone in Vietnam since they left and would or may be unable to contact the relative or relatives who, as the Tribunal found, had sent them to Australia.”
A fourth ground, relating to the asserted irrationality, illogicality and legal unreasonableness of the decision was not pressed at hearing. In this context, it should be pointed out that the proceedings before the court to which these reasons for judgment relate, were listed for final hearing on 23 November 2015, not merely for an extension of time application.
In its response, the first respondent seeks the dismissal of the application and opposes the granting of any extension in which to file the application. It is the Minister’s contention that, as the merits of any application for judicial review, in the migration context, have a bearing on whether or not an extension of time should be granted, it is expedient for the court to examine each of the grounds for review placed before it before turning to the extension of time aspect of the case.
Mr Aleksov, counsel for the Minister contends that there is no merit in any of the grounds put forward and therefore the application for extension of time should be dismissed. In Wie v Minister for Immigration & Border Protection[5] the High Court approved such an approach.
Relevant provisions of the Migration Act
[5] Wie v Minister for Immigration & Border Protection [2015] HCA 51 at [5]
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 has 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. …”[6]
[6] 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 applicants concerned in this case would suffer persecution, if returned to Vietnam. Given the manner in which the applicants framed their cases, this did not turn on what had happened to them in the past, but hinged on what they asserted would happen to them in the future, particularly given their assertion that they had no familial support in Vietnam.
In cases such as Chan v Minister for Immigration[7] and Minister for Immigration v Guo[8] 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.
[7] Chan v Minister for Immigration (1989) 169 CLR 379
[8] Minister for Immigration v Guo (1997) 191 CLR 559
In addition, pursuant to section 36(2)(aa), a person is 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 [9] 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.[10]
[9] Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505
[10] Ibid at 551 [248] per Lander & Gordon JJ and 557 [297] per Besanko & Jagot JJ
The findings of the Tribunal
In both written and oral submission to the Tribunal, the applicants claimed to have a well-founded fear of persecution because of their membership of a particular social group, namely failed asylum seekers who are undocumented underage female orphans, who have returned for a western country.
In the alternative, each claimed to be entitled to complementary protection because they would be subject to cruel torture and/or cruel and inhuman treatment or punishment because they were orphans and the Vietnamese authorities would be disinclined to provide protection to them.
In written submissions provided by the applicants advisor, their claim for protection was encapsulated in the following terms:
“AZAFW left Vietnam unlawfully and has nobody in the country to support her and no resources with which to support herself. She would be immensely vulnerable to whatever the authorities decided to do to her, which could include imprisonment, or falling into the hands of criminals, because she could well be forced to live on the streets. Various forms of serious harm could follow any of these events and, were they to occur, they would be principally for reason of her membership of a particular social group, namely orphaned children.”[11]
[11] See Case Book at 105
It is the submission of the Minister that this is a significant passage because it makes clear that the central aspect of each applicant’s claim for protection was that neither had any relatives, to whom they could have recourse, if returned to Vietnam.
During the hearings concerned, only the older applicant provided oral evidence to the Tribunal. As previously indicated, it was she who claimed to have been sexually assaulted, whilst a minor living in Vietnam. As a consequence, additional psychological evidence was provided on her behalf.
This included the opinion of her psychologist that it could not be considered unusual that she could not provide details of her past life in Vietnam due to her past childhood trauma. In this context, the psychologist opined as follows:
“Children surviving child abuse will develop PTSD which will effect their moods, cognitions and cognitive functioning, memory function and concentration. They normally have problems with their memory function.
[AZAFX] was showing both confusion and memory loss. Her issue with her memory will be particularly noticeable when being questioned in a frightening situation. In my sessions with [AZAFX] I never felt that she was being deliberately evasive or fabricating her trauma.”[12]
[12] Ibid at 131
The Tribunal found that AZAFX had given only limited information to the Department and the Tribunal about her previous life in Vietnam. It was said that she cannot or will not identify the area in which she grew up or the name of the school, which she had previously attended. It was further said that she cannot or will not give the full name and address of her aunt in Vietnam or say why she and her sister were put on a boat to Australia and who paid to send them.[13]
[13] Ibid at 149 [56]
However, the Tribunal did not accept that either applicant was without a relative or relatives, who had previously acted as a guardian for them, following their father’s death and who had helped them come to Australia. This finding was based on what the Tribunal regarded as the essential implausibility of the aunt placing the children on the boat in question without some motive or purpose in her mind and the children themselves having no idea about it until they were place on the boat.
It was however accepted by the Tribunal that both applicants were orphaned. It was also accepted that AZAFX had been sexually assaulted. To this extent AZAFX was accepted as a credible witness, who was an intelligent girl.
Accordingly, the dilemma confronting the Tribunal was that it accepted significant aspects of the applicant’s case, particularly that she was a traumatised child but doubted other salient aspects of her account, particularly in circumstances where she and her sister had previously provided contradictory accounts of how they had come to leave Vietnam. However, the Tribunal also accepted the opinion of the psychologist concerned as to why a person in AZAFX’s position might exhibit deficits in her memory.
In this context, the Tribunal expressed itself in the following terms:
“The Tribunal has carefully considered whether the applicant's inability to provide more details, such as addresses and names of relatives, is actual ignorance of them, or deliberate concealment, or the result of trauma. As at date of decision the Tribunal cannot definitively say which of these three account for the lack of detail provided by the applicant, but finds it is more likely the result of trauma and some concealment.
The Tribunal gives weight to the psychological report insofar as it concludes the applicant is suffering some memory loss and confusion as a result of multiple traumas. That is, losing both her parents and the sexual assault. The Tribunal accepts this and accepts this accounts for some of her difficulty in dealing with the Department and the Tribunal and answering questions in what must be a frightening setting for her.
The Tribunal is left with the question of who cared for the applicant after her father died and who arranged for her and her sister to come to Australia and why. The Tribunal found the applicant's answers at hearing to be vague and unconvincing when she spoke about how an aunt, that she claimed to have no prior knowledge of, appeared after her father died. The Tribunal found the applicant's differing accounts as to who put them on a boat to Australia, either the aunt or a kind woman called Tu, leads the Tribunal to be unsure as to who or why they were sent to Australia.”[14]
[14] Ibid at 150 [59] [61] & [62]
Ultimately the Tribunal made a finding that both applicants had been sent to Australia, by a relative, acting as their guardian, who had misguidedly thought it best for both children that they leave Vietnam. The basis on which the Tribunal reached this conclusion was that it considered implausible the applicants’ account that their aunt had mistreated and exploited them, prior to sending them to Australia.
The Tribunal expressed its factual finding in the following terms:
“The Tribunal is not satisfied it has the complete picture of the applicant’s situation back in Vietnam, But finds the applicant’s account of an unknown aunt turning up just after her father had unexpectedly died, being mistreated by this aunt, who then spent considerable money to send her and her sister to a better life, to be unconvincing. The Tribunal finds the more likely explanation is that the applicant has been sent to Australia by a relative or relatives who her best interests in mind, misguided thought that might have been. The Tribunal therefore finds the applicant has a relative or relatives living in Vietnam such that she would not be living on the streets with no family protection should she return there in the reasonably foreseeable future.”[15]
[15] Ibid at page 151 [64]
It is this finding, which is the basis of the applicant’s first ground of review, when taken in the context of the Tribunal’s apparent ambivalence about the reasons why AZAFX may not have been completely frank in her account of how she came to this country.
In these circumstances, Mr McDonald, counsel for the applicants, submits that there is a gap in the Tribunal’s reasons between its stated level of uncertainty about why AZAFX was unable to provide salient information about her past life in Vietnam and its finding that the applicants must have a relative or relatives in Vietnam, who arranged their passage to Australia and who are therefore able to prevent them from having to live on the streets if returned to that country.
The Tribunal found that the applicants would be able to obtain a reinstatement of their ho khau or household registration, which would entitle them to access government services in Vietnam. On the basis of country information available to it the Tribunal did not accept that either applicant was likely to be persecuted, for a Convention reason, if returned to Vietnam.
In these circumstances, the Tribunal concluded that neither applicant faced a real chance of coming to serious harm of the kind envisaged by section 91R(1)(b) of the Act, if they were returned to Vietnam. In addition, the Tribunal was further satisfied that no claim for complementary protection was established pursuant to section 36(2)(aa), on the basis that it was satisfied neither applicant would be living on the street, if they returned to Vietnam.
Ground one – failure of the Tribunal to consider the possibility its findings were wrong
Mr McDonald contends that the Tribunal, in the current case, has failed to exercise properly the jurisdiction conferred upon by section 36(2) (aa) of the Act, in that it has failed to consider whether there is a real risk that the applicants will suffer significant harm if returned to Vietnam or will be persecuted for a Convention reason [section 36(2)(a)]. In assessing claims for refugee status, the decision-makers concerned must assess what is the likelihood that particular events, claimed by the applicants concerned, will occur in the future.
Necessarily, tribunals determining refugee status are dealing with potentially life and death issues. Applicants for protection, in Australia, frequently claim that they are at risk of suffering serious injury or death, if returned to their country of origin, very often because of what has occurred to them (or others who share their attributes) in the past in that country.
In addition, it may be very difficult for such a tribunal, sitting in Australia, to determine the veracity or otherwise of the claims of an applicant for refugee status, at far remove from the source of those claims. Frequently, indeed, such tribunals are unable to make any findings, as to past events, with any degree of confidence.
Sackville J summarised the difficulties facing an administrative decision-maker, required to determine issues relating to refugee status, in the following terms:
“Although the civil standard of proof is not irrelevant to the process, the RRT cannot simply apply that standard to all fact-finding. Moreover, the RRT must frequently make its assessment on the basis of fragmented, incomplete and confused information. It has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision-maker/investigator.”[16]
[16] Minister for Immigration & Multicultural Affairs v Rajalingam (1999) FCR 230 at 239 [61]
In such circumstances, it has the potential to be erroneous for a decision-maker, in respect of a protection application, to determine the chance of a particular claimant suffering significant harm merely on the basis of the civil standard of proof. It is Mr McDonald’s contention that it is clear from the findings of the Tribunal, in the current matter, that it felt considerable misgivings about making findings of fact about many salient factors in the cases of each of the applicants, particularly AZAFX.
In these circumstances, he contends that it was necessary, in the current matter, in order for the Tribunal to discharge the jurisdiction conferred upon by section 36(2)(a) & (aa), to ask itself, notwithstanding its finding in regard to the existence of relatives in Vietnam, what if I am wrong about that and what are the consequences of that in assessing the real chance that the applicants will suffer significant harm, if returned to Vietnam or suffer persecution for a Convention reason.
Mr McDonald places significant emphasis on the use, by the Tribunal, of the expression the more likely explanation, for the applicants presence on the vessel leaving Vietnam, that they had been placed there by their misguided by impliedly otherwise well-meaning relatives in that country.
Mr McDonald argues, I think, that this is not a statement containing any strong level of conviction and therefore, in order to discharge its obligations under section 36(2) of the Act, the Tribunal was required to consider the alternative scenario that the applicants had not been placed on the vessel by a misguided individual or individuals, who retained the potential to resume a guardianship role for them, but rather had been placed there by some disinterested person or persons.
The starting point for Mr McDonald’s submission is the High Court authority of Guo v Minister for Immigration & Ethnic Affairs.[17] In their joint judgment (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) pointed out as follows:
[17] Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
“Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
…
If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.
In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.” [18]
[18] Ibid at 575 - 576
The Full Federal Court considered these passages in Minister for Immigration & Multicultural Affairs v Rajalingam. [19] In Rajalingam Sackville J considered that in some cases, concerning refugee status, it was necessary for the decision-maker concerned to consider the possibility that past events occurred even if satisfied, on balance that those events probably did not occur. Rather such a decision-maker might be in error if it foreclosed upon reasonable speculation about the chances of hypothetical events occurring in future.
[19] Minister for Immigration & Multicultural Affairs v Rajalingam (supra)
Sackville J said as follows:
“… it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
Although the “What if I am wrong?” terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a “well-founded fear of being persecuted” for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found".[20]
[20] Minister for Immigration & Multicultural Affairs v Rajalingam (supra) at 240 [62] – [63]
Mr McDonald places significant weight on this passage. He submits as follows:
“As is established by Rajalingam, in a case where the Tribunal is uncertain about its own findings, the objective assessment of risk that is required by s36(2)(a) must take into account the possibility that the findings may be wrong. The reasoning of the Tribunal reveals that no such assessment was undertaken. The statutory test imposed by s36(2)(a) was, consequently, not properly applied by the Tribunal. This was jurisdictional error.”
It is the submission of Mr Aleksov, counsel for the Minister, that although there may be some level of uncertainty or qualification regarding some aspects of the Tribunal’s findings, there is no such ambivalence in respect of its central finding regarding whether the applicants are either in need of protection pursuant to the Refugees Convention or otherwise entitled to complementary protection.
In Mr Aleksov’s submission the Tribunal appropriately exercised its jurisdiction in regards to these matters and rejected the applicants’ contention that they did not have recourse to relatives and familial protection, in Vietnam, if returned there. In Mr Aleksov’s submission, this central finding is neither hedged nor qualified and was reasonably open to the Tribunal, after it had determined that it was implausible that the applicants would have been placed on a vessel leaving Vietnam, without some level of concerned familial involvement.
Although the Tribunal was unable to make definitive findings about the identity of these relatives and how the applicant’s passage to Australia had been financed, it is Mr Aleksov’s submission that this level of uncertainty cannot affect the confidence with which the Tribunal reached its operative finding that such relatives existed in Vietnam and, as such, Australia’s protective obligations were not triggered.
The starting point, for Mr Aleksov’s submissions, is the oft-quoted passage from the High Court’s decision in Minister for Immigration & Ethnic Affairs v Wu Shan Liang[21] where the majority of the Court confirmed that the reasons of an administrative decision-maker were not to be construed by a court undertaking judicial review with an eye keenly attuned to the perception of error. Rather:
“…the reality [is that] the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”
[21] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
It is Mr Aleksov’s submission, as I understand it, that the approach advocated by Mr McDonald, if adopted by the court, will transgress into an inappropriate merits review of the Tribunal decision. In this context, he points to the distinction elaborated by Sackville J in Rajalingam between, on the one hand, a court on judicial review seeking to examine whether a subordinate tribunal ought to have had a degree of doubt about some factor relative to protection status and, on the other, whether the tribunal concerned did have a doubt about such a factor but nonetheless reached an adverse conclusion regarding protection status. The former approach being tantamount to a merit review; the latter being potentially demonstrative of jurisdictional error.[22]
[22] See Rajalingam (supra) at 229 [24]
In this context, Mr Aleksov relies upon a statement of principle formulated by the High Court in Wu Shan Liang namely:
“A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law.”[23]
[23] Wu Shan Liang (supra) at 282 - 283
In this context, Mr Aleksov argues that, just because the Tribunal approached its task in a way with which the applicants may now disagree, this, of itself, does not bespeak of jurisdictional error. To the contrary, Mr Aleksov contends that the Tribunal did properly apply itself to the jurisdictional task set for it.
This jurisdictional task was to examine the applicants’ joint contention that they had no relatives or sources of familial support in Vietnam and therefore would be at real risk of suffering significant harm if returned to Vietnam. It is Mr Aleksov’s contention that the findings of the Tribunal were responsive to the claims raised by the applicants and the other issues arising from the materials.[24]
[24] See AZAEH v Minister for Immigration & Border Protection [2015] FCA 414 at [21]
The Tribunal specifically found that the applicants did have relatives in Vietnam and therefore neither would have to live on the streets in the foreseeable future. In Mr Aleksov’s submission the weight Mr McDonald seeks to place on the Tribunal’s use of the phrase more likely explanation, appearing in the operative section of the Tribunal’s reasons, on a fair reading of the remainder of those reasons, cannot be regarded as equivocal. Rather it is an expression of preference for the earlier findings of the delegate over the accounts provided by the applicants themselves.
To construe the reasons otherwise would, in my view, be to embark upon a zealous pursuit of error. I accept Mr Aleksov’s contention that the Tribunal expressed with a prerequisite degree of certainty that it was satisfied with its finding that the applicants did have relatives in Vietnam who had been and were likely to continue to be concerned for their interests and it would be unwarranted to impute any lack of conviction, on the Tribunal’s part, to this finding, by its use of the phrase in question.
I accept that any such imputation will have the consequence of converting a judicial review into a merits re-hearing. In this context, I have regard to the following comments of Sackville J in Rajalingam:
“Nor do I think that there is anything in the reasoning of the High Court which permits a court exercising powers of judicial review to "impute" to the RRT (or other administrative decision-maker) a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the RRT should not or could not have relied on those findings to hold that the applicant's fear of persecution was not well-founded. To take this course on the basis of the court's own assessment of the evidence before the RRT, is to enter the territory of merits review. It is one thing to find error in a decision-maker's failure to apply the correct legal test or to comply with statutory obligations (for example, to set out findings on material questions of fact as required by Migration Act, s 430(1)(c)). It is another to decide what factual findings the RRT should or should not have made.”[25]
[25] See Rajalingam (supra) at 240 [65]
In my view, whether the applicants did or did not have relatives available to them in Vietnam, who would provide them with familial support was an issue of fact, which the Tribunal resolved. This was its jurisdictional task, which it acquitted. Although the Tribunal was obviously perplexed as to why AZAFX had not been more forthcoming about her circumstances in Vietnam, its bafflement in this regard, did not affect the validity of its central finding regarding the applicants’ claim for protection. In my view, it would amount to an improper merits review, if this court was able to reject this aspect of the Tribunal’s findings.
As Sackville J pointed out in Rajalingam:
“In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had "no real doubt" (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A "fair reading" of the reasons incorporates the principle that the RRT's reasons should receive a "beneficial construction" and should not be "construed minutely and finely with an eye keenly attuned to the perception of error":
Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.”[26] Case references and citations removed
[26] See Rajalingam (supra) at 241 [67]
In my view, a fair reading of the Tribunal’s findings as a whole indicate that it had no appreciable doubt that the accounts provided by the applicants as to how they came to be on the boat, which conveyed them away from Vietnam, were implausible and therefore the reality of their situation was that their relatives had arranged their passage to Australia.
Quite properly, the Tribunal was both sympathetic and sensitive to the situation of AZAFX and perplexed as to why she was unable to provide a more coherent account of her circumstances. However, in my view, these factors did not cast doubt in the Tribunal’s mind as to its central findings regarding the credibility of the applicants’ claims nor cause it to foreclose prematurely any reasonable speculation, which it was required to undertake, about the applicants’ claims, which it rejected.
In addition, the Tribunal tried to elicit from AZAFX the reasons why she was apparently unable to provide information regarding her previous life in Vietnam. The proceedings were adjourned and time allowed for her representative to obtain relevant medical information. However, as Mr Aleksov points out, it is not the responsibility of the Tribunal to make the applicant’s case for her.
As the High Court pointed out in Minister for Immigration & Citizenship v SZIAI:
“The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.”[27]
[27] Minister for Immigration & Citizenship v SZIAI (2009) 111 ALD 15 at 21 [25]
In the current matter, in my view, there were no more inquiries which the Tribunal could have made which were likely to yield a useful result. The Tribunal was left with a situation in which it considered it had not been provided with all relevant information by the applicants who, for reasons about which the Tribunal could only conjecture, were either unwilling or unable to provide more detail and what detail had been provided was found by the Tribunal to lack credibility.
In all these circumstances, I do not consider that the first ground of review has been made out.
Ground 2 – failure of the Tribunal to consider the actual situation which would be faced by the applicants upon their return to Vietnam
Ground 3 – failure of the Tribunal to consider a discrete integer of the applicants’ claim namely that they had not had any contact with a relative in Vietnam since departing that country
These grounds of review are closely related. Mr McDonald, in his written submission elected to address them together. In those circumstances, I propose to adopt the same course.
It is common ground between Mr McDonald and Mr Aleksov (and to some extent it is a trite proposition) that the Tribunal was required to “give proper, genuine and realistic consideration to the merits” of the case presented by the applicants.[28]
[28] See Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 at
In this context, in order to discharge its obligations in this regard, it is the responsibility of the Tribunal to consider each discrete integer or component of the applicants’ claims for protection arising under section 36(2) of the Act. In this context, reliance is placed by Mr McDonald on the comments of Allsop J (as His Honour then was) in Htun v Minister for Immigration & Multicultural Affairs[29] where His Honour described the nature of the review function as follows:
“The requirement to review the decision [pursuant to the provisions of the Act] requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the jurisdiction embarked upon. The claims or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration… It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act … make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.”
[29] See Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42]
It is the submission of Mr McDonald that the Tribunal has failed to consider significant aspects of the applicants’ claims for refugee status and associated complementary protection grounds in the sense that, having found that the applicants have relatives in Vietnam, the Tribunal has given no realistic consideration as to how the applicants are to re-connect with those relatives, in a practical sense, if returned to Vietnam, given their current circumstances now.
In particular, Mr McDonald asserts that it is implicit from a reading of the Tribunal decision that, after finding that the applicants did have relatives in Vietnam, no consideration was given to the following factors:
·Who would meet any aeroplane on which the applicants were returned to Vietnam and how would any relatives be informed of any such travel arrangements;
·What support, government or otherwise, would be available to the applicants;
·What government agency or other agency was available to assist the applicants locate a relative or relatives in Vietnam;
·Saliently, by what means would the identity and location of these relatives be secured;
·Given the applicants had left Vietnam in mid-2011, how could it be assured that any relatives remained where they had been at this stage and were still in good health and indeed alive.
In ignoring these issues, it is the contention of Mr McDonald that the Tribunal has fallen into jurisdictional error in the classic sense envisaged by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf in that it has ignored material relevant to the application before it.[30]
[30] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Mr McDonald contends that, having accepted they were orphans, the Tribunal articulated, in its reasons, no intellectual process through which the actual applicants were to be re-united with their unascertained relatives in Vietnam. Mr McDonald articulated the argument in the following terms:
“The Tribunal articulated no thought process at all directed to the actual, particular situation in which the Applicants would finds themselves, if returned to Vietnam in the future – as opposed to the paradigm generally who have caring relatives in Vietnam.
These were considerations which the statutory duty – to consider whether the Applicants faced a real risk of serious harm on return to Vietnam – necessarily required be addressed by the Tribunal. The failure of the Tribunal to consider them except by way of the assumption implicit in the slide from “relative” to “not on the streets”, was jurisdictional error.”[31]
[31] See Applicants written submissions at paragraph 39 - 40
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.[32]
[32] See Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at 394, 408
In Dranichnikov , prior to the ultimate disposal of the matter by the High Court, the Full Court of the Federal Court said as follows:
“The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention “label” to describe his or her plight, but the Tribunal can only deal with the claims actually made.”
The implication arising from this statement being that applicants for asylum invariably make their claims for protection under a significant level of disadvantage. They may lack documentation to support their claims; they may have to make their claims through an interpreter; they may be placed in a cultural milieu, which is unfamiliar to them; above all, they may be unaware of the precise formulation of the Refugees Convention and the legal principles surrounding it.
All these factors and others were present in the current case. The Tribunal recognised that each applicant was young and accepted that AZAFX, the spokesperson for the two siblings had been emotionally traumatised both before and after she had left Vietnam.
In this particular case, it was the applicants’ position that they had been placed on the vessel leaving Vietnam by their aunt, who had not told them in advance where the boat was bound. Their evidence was that they did not have any other living relatives, to their knowledge, in Vietnam and did not know what the address of their aunt was and how to contact her.
As previously indicated, whilst accepting that AZAFX was generally an honest person, who was not likely to be being wilfully obstructive, the Tribunal found that it had not been told the whole story surrounding the applicants’ departure from Vietnam. In particular, the Tribunal specifically did not believe that the children had been placed on a boat leaving that country, with all the vicissitudes likely to be involved, in such travel by a disinterested relative or other third party. Essentially, the central finding of the Tribunal was that the applicants had left Vietnam through the agency of a person or persons, who were concerned about them and their welfare.
In the current case, controversy arises between the parties as to whether the issues relating to the practicality of the applicants being re-united with relatives in Vietnam have been clearly articulated by them. It is Mr Aleksov’s submission that these issues have not been raised by the applicants in their respective cases before the Tribunal and therefore the Tribunal was not required to consider them.
The applicable principles, which apply to cases where it is asserted a jurisdictional error arises because it is said an administrative tribunal has failed to deal with an aspect of a claim which is characterised to have been impliedly rather than expressly put are enunciated by the Full Court of the Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[34] as follows:
“The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised on the material before it…There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case are not articulated…It has been suggested that an unarticulated case must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it…The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.” (citations omitted)
[34] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]
From this passage, I take it the Tribunal is required to consider all claims which appear expressly on the face of the material before it whether they are specifically articulated or not. However the Tribunal is not required to seek out such a ground in a creative manner. It is not required to consider a case which is not expressly made out or which does not arise clearly on the materials before him.
The failure of the Tribunal to consider a claim raised by the evidence (whether or not articulated) amounts to a failure of procedural fairness and therefore leads to a jurisdictional error. However a judgement that the Tribunal has failed to consider a claim not expressly advanced is not one which should be lightly made.[35] If such a claim is required to be considered it must emerge clearly from the materials available to the reviewer.
[35] See ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 75 ALD 630 at 641
The important distinction is that although the Tribunal is required to consider claims which although not articulated arise clearly on the face of the material, it is “not obliged to deal with claims which are not articulated and which do not clearly arise from the material before it.”[36]
[36] NABE (supra) at [60]
The emphasis being on whether such claims arise clearly. Each such case must be judged on its own circumstances to determine whether an error of jurisdiction has arisen. In NABE the Full Court of the Federal Court said as follows:
“…a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and it is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Errors of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected.’ ”
It is Mr Aleksov’s submission that the Tribunal did deal with the case advanced by each of the applicants. It was aware that it was the applicants’ position that they had been placed on the vessel leaving Vietnam without prior notice by their aunt, who was essentially disinterested in their care. In its findings, the Tribunal clearly indicated its understanding of the applicants’ claim that there was no-one available in Vietnam to provide them with familial support and therefore it was inevitable that they would have to live unsupported on the streets.
Mr Aleksov contends that the Tribunal gave active consideration to this claim and rejected it as being implausible. It found that although the evidence of the applicants was unsatisfactory in many regards and was hedged with uncertainty, it was satisfied that the applicants had not lived in a vacuum devoid of care since the death of their father and therefore necessarily they had been placed on the vessel in question by an individual or individuals, who were interested in their welfare, although the level of insight of these persons was likely to be questionable.
Essentially the Tribunal rejected the applicants’ contention that they had no relatives or sources of support in Vietnam. Whilst AZAFX maintained the contrary and had done so consistently from her arrival in Australia.
Having reached this conclusion, it is Mr Aleksov’s submission that the Tribunal had completely acquitted its jurisdictional task and it would have been both otiose and fruitless for it to have made any further inquiries of the applicants, in an attempt to gain answers to the types of questions posed by Mr McDonald – namely, where are your relatives; how can you get in contact with them; and so on and so forth – as each had made it clear that their position was that there were no such persons available to them in Vietnam and therefore it could serve no utility to inquire after them.
In this context, Mr Aleksov submits as follows:
·The task of the Tribunal is fundamentally to consider the claim as advanced by the applicants themselves, not intuit or construct the case;
·In this context he reiterates that it is not for the Tribunal to make the applicants’ case for them. In response to the claim that the applicants had no relatives in Vietnam, it determined to the contrary that they did have such relatives, who could assist them to obtain a ho khau;[37]
·The Tribunal is not under any general obligation to inquire into the existence or otherwise of any state of affairs, which is external to the case presented by the applicants concerned;
·Finally, if the court entertains Mr McDonald’s contentions, regarding issues relating to the practicality of the applicants’ return to Vietnam, which was not advanced before either the delegate or the Tribunal, it will have converted a judicial review into a merits review, which is not permissible.
[37] See Case Book at page 153 [76]
In this latter context, Mr Aleksov relies on the remarks of Gleeson CJ in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs as follows:
“Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant or an applicant’s lawyers, at some later stage in the process.”[38]
[38] S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 479 [1]
I agree with Mr Aleksov’s submissions. Given that it was not the applicants’ position, before the Tribunal, that they would not be able to locate their relatives in Vietnam, it was not necessary for the Tribunal to consider these practical matters. The Tribunal expressly found that the applicants could obtain a ho khau and this issue subsumes any issue concerning the potential unknown whereabouts of relatives.
Conclusions
The Tribunal’s function was to review the decision of the delegate regarding the applicants’ entitlement or otherwise to be granted a protection visa pursuant to the applicable provisions of the Migration Act.
The statutory framework applicable required the applicants to satisfy one of two criteria. Firstly, they met the definition of refugee arising under the Convention because there was a real chance they would suffer serious harm, for a Convention reason, if returned to Vietnam. Secondly, they were entitled to complementary protection because they would suffer significant harm, if so returned. Accordingly the jurisdictional task confronting the decision-makers concerned turned on a factual assessment of the probability of harm arising to the applicants.
The claim provided by the applicants to satisfy these respective criteria was that they each had a real chance of suffering persecution or significant harm, if returned to Vietnam, because they had no one in that country to support them and, as a consequence, they would inevitably be compelled to live on the streets, where their sex and tender years rendered them vulnerable.
The Tribunal, in its fact finding role, did not accept this proposition as being credible, although it accepted that both applicants were orphans. It unequivocally found that some person or persons, with the applicants’ interests in mind, had assisted them to leave Vietnam by boat. The intellectual basis of this finding being that the Tribunal found it intrinsically implausible that a disinterested person would spontaneously place the applicants on a boat leaving Vietnam for no discernible reason. Therefore, the Tribunal concluded that that individual or individuals would be available to assist the applicants, in Vietnam, if they were returned there.
In my view, the Tribunal disposed of the case as promulgated by the applicants. As such, I am satisfied that the Tribunal properly acquitted the jurisdiction conferred upon it. In my view, the Tribunal considered the probability, according to the prerequisite standard, of whether the applicant would come to harm. It concluded that there was no such probability because their circumstances did not preclude them from having some level of familial support and being able to obtain the household registration.
The Tribunal was, however, deeply dissatisfied by many surrounding aspect of the applicants’ evidence and disturbed by their overall circumstances. These difficulties arose from the Tribunal’s quite reasonable perception that the principal applicant (AZAFX) had been singularly uncooperative and unforthcoming in providing details of her personal history, particularly how and where she and her sister had lived in Vietnam, following the death of her father.
The Tribunal considered AZAFX to be a generally honest person. It was understandably concerned when she broke down before the Tribunal and disclosed an incident of sexual assault. In these circumstances, it did its best to investigate her psychological status and its implications for her capacity to provide evidence to it. However, no matter the Tribunal’s level of sympathy for the applicants, these matters did not impact upon its central finding that there was not a real chance that they would suffer harm if returned to Vietnam.
The various grounds of review advanced by the applicants are similar in nature and inter-related. They centre on the contention that given its obvious concerns about the situation of the applicants the Tribunal was duty bound to go further and investigate, if it could, other aspect of the situation, which might confront the applicants, upon their return to Vietnam.
As I have indicated, an assessment of a real chance of persecution requires a degree of prognostication which, depending on the circumstances, is to be informed by what has happened in the past, as well as by what might happen in the future. It is in this context that the so-called “what if I’m wrong test” has arisen. As with many shorthand titles, its brevity has the potential to be misleading.
These are not civil proceedings, in the classical sense of adversarial proceedings between competing parties. As such, proof of harm is not to be established on the balance of probabilities. Rather, inquiries into refugee status are inquisitorial in nature, with a requirement that the decision-maker concerned is mindful of the possible difficulties confronting an asylum seeker, particularly that such claims arise because of issues having a potentially life or death significance for the claimant concerned.
As the High Court has pointed out, a real chance of persecution may arise in circumstances where no harm has previously befallen a claimant or where there is a statistically limited (10%) probability that it will occur. It is in this context that the “what if I’m wrong test” must be considered.
In many cases, claimants for refugee status assert that he or she has been persecuted on a past occasion or occasions and as such is at risk of the similar treatment in future. For various reasons, the decision-maker concerned has cause to doubt the probability of such accounts of prior persecution but may not be able to definitively conclude one way or the other.
In such circumstances, given the moment of the decision for the individual concerned, it behoves the decision-maker concerned to have second thoughts, particularly if the view concerning the probability of persecution is equivocal. Not to have such second thoughts may amount to a failure to discharge jurisdiction.
That is not the case in the present matter. Although the Tribunal was concerned about many aspects of the applicants’ evidence, it was unequivocally satisfied with its finding regarding the existence of familial support, for them, in Vietnam. As such, in my view, there can be no failure of jurisdiction evinced by the Tribunal’s failure to consider what if it was wrong about this aspect of the matter. The Tribunal did not evince any doubt about this central issue.
In my view, similar conclusions arise in respect of claims that the Tribunal failed to consider implied components of the applicants’ claims for asylum or did not attempt to glean evidence about how the applicants would function, if returned to Vietnam. I accept that it is not for the Tribunal to make the applicants’ case for them or to make specific inquiries about the case presented.
In any event, in this particular case, it is axiomatic that those inquiries would have been fruitless. The Tribunal had reached a factual conclusion that the applicants did have well-meaning relatives in Vietnam. It did not believe AZAFX’s evidence that they did not. In these circumstances, in my view, it would have been both illogical and a non-sequitur for the Tribunal to have inquired of the applicant how they were to make contact with these relatives, as she would have indicated that they did not exist, which the Tribunal did not accept. Accordingly any inquiry, in this regard, would inevitably have been circular in nature.
The real difficulty in the case was that, although the Tribunal was sympathetic to the applicants, given their tender years and the likely trauma which both had endured in coming to Australia and which AZAFX had suffered as a consequence of an earlier sexual assault, it found the essential underpinning of their claim for protection, in Australia, to be implausible. This was a finding unaffected by the Tribunal’s other concerns, arising from its sympathy for the predicament in which the applicants found themselves in this country.
In these circumstances, in my view, the was nothing the Tribunal could do, after finding that the applicants were not at risk of suffering persecution in Vietnam or suffering other forms of harm there, other than to refer the matter to the executive for possible re-consideration.
Extension of time
As previously indicated, these proceedings are well over a year out of time. The discretion to extend time is dependent upon whether it is in the interests of justice to do so.
In SZRIQ v Federal Magistrates Court of Australia[39] Foster J considered that the following factors, should ordinarily be taken into account by the court, in considering whether the interests of the administration of justice justified an extension of time being granted:
·Whether there was a reasonable and adequate explanation for the applicants delay;
·Whether there is any prejudice to the Minister; and
·Whether the applicant’s substantive case for judicial review was sufficiently arguable to justify the extension of time.
[39] SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252 at 261 [47]
AZAFX and Ms Sanders have provided cogent explanations for the delay in instituting the proceedings, which arise as a consequence of difficulties relating to the applicants being able to retain counsel and obtain the support of an appropriate litigation guardian.
In addition, it is asserted that the applicants’ previous adviser did not inform them of their entitlement to seek a review in this court, following the Tribunal’s decision and the time limit which applied. It is a significant matter that each of the applicants was a minor at the time of the Tribunal decision.
It is difficult not to be sympathetic for the situation in which each applicant found herself, following the Tribunal determination. I have no reason to disbelieve the evidence regarding their difficulties accessing legal advice. I also note that the applicants understood that their situation had been referred to the Minister for his consideration. In my view, these are all reasonable and adequate explanations for the delay in question.
However, in my view, the most significant aspect of the extension issue is that the court has conducted a full hearing of each ground of review advanced by the applicants and found them to be lacking in merit. Accordingly, I do not propose to extend the time for the filing of the application.
In this context, I apply the following comments of Wigney J in SZTES v Minister for Immigration & Border Protection: [40]
“How could it be said to be necessary in the interests of the administration of justice to grant an extension of time in respect of an application which had been found to be without merit and therefore destined to fail? The applicant’s apparent answer to this rhetorical question is that it was in the interests of the administration of justice to extend time, despite the finding that his substantive application was destined to fail, because otherwise he would be deprived of his appeal rights. But that is the case in relation to all extension applications. The creation or preservation of appeal rights alone could not provide a basis for an extension of time where the court has concluded that there are no reasonable prospects of success.”
[40] SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [66]
In all these circumstances, I do not consider that either applicant has demonstrated any jurisdictional error in the decision of the Tribunal. It must follow therefore that the application should be dismissed and the applicants should jointly 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 forty-nine (149) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 15 March 2016
[33] Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49]
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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