BAK15 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

BAK15 v Minister for Home Affairs [2018] FCA 1173

Appeal from: BAK15 v Minister for Immigration and Border Protection [2018] FCCA 489
File number: NTD 8 of 2018
Judge: GRIFFITHS J
Date of judgment: 29 August 2018
Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – whether the primary judge erred in finding that an assessor who conducted an International Treaty Obligations Assessment in respect of the appellant had not denied her procedural fairness by failing to put country information to her, because the assessor’s conclusion was obviously open on the known material – whether the primary judge erred in finding that the appellant suffered no practical injustice because she did not claim to have engaged in the activities or had the profiles referred to in the relevant country information– whether the primary judge erred in finding that the appellant suffered no practical injustice because she did not submit to the primary judge that she would or could have made a submission in response to that country information – Held: appeal dismissed, with costs  
Legislation: Migration Act 1958 (Cth)
Cases cited:

Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326

Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223

Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252

Snedden v Minister for Justice for the Commonwealth of Australia  [2014] FCAFC 156; 230 FCR 82

SZBELv Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152

SZQGL v Minister for Immigration and Citizenship [2012] FCA 1011; 206 FCR 474

Date of hearing: 9 August 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 61
Counsel for the Appellant: Mr C Tran
Counsel for the Respondent: Mr C Lenehan
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NTD 8 of 2018
BETWEEN:

BAK15

Appellant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

29 AUGUST 2018

THE COURT ORDERS THAT:

1.The appeal be dismissed. 

2.The appellant pay the first respondent’s costs, as agreed or assessed. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

GRIFFITHS J:

  1. This appeal is from a decision dated 1 March 2018 by the Federal Circuit Court of Australia (FCCA).  The judgment is reported as BAK15 v Minister for Immigration and Border Protection [2018] FCCA 489. The appellant failed in her judicial review challenge to a decision of an assessor who conducted a second International Treaty Obligation Assessment (ITOA) in respect of the appellant for the purpose of assessing whether Australia had

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Details
Case
[2018] FCA 1173
Decision Date

CaseChat Overview and Summary

The case of BAK15 v Minister for Home Affairs involved an appeal against the decision of the Federal Circuit Court of Australia regarding the assessment of an International Treaty Obligations Assessment (ITOA) conducted on the appellant, BAK15. The appellant contested the decision to deport her to Vietnam, asserting that she would face significant harm if returned due to her status as a failed asylum seeker. The central legal issues revolved around whether the primary judge erred in finding that the appellant was not denied procedural fairness, and whether she suffered practical injustice due to the omission of specific country information.

The court examined whether the procedural fairness requirement was met by ensuring the appellant was given the opportunity to respond to significant information. The primary judge concluded that the appellant was already aware of the key issue at hand, which was her potential risk of significant harm in Vietnam. The decision-maker’s conclusion was deemed consistent with the available country information, and the omission of additional information did not prejudice the outcome as it was confirmatory of the appellant's own submissions.

Furthermore, the court held that the appellant did not suffer practical injustice since she neither claimed to have engaged in activities nor had profiles as outlined in the relevant country information. The court also noted that the appellant did not submit that she would have made a different response had the omitted country information been presented. The reasoning of the primary judge was upheld as the assessor's conclusions were found to be obviously open on the known material.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs as agreed or assessed. This decision underscores the importance of correctly identifying the relevant issues and ensuring that the procedural fairness requirements are met in the context of international treaty obligations assessments.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In a separate section of the ITOA’s reasons headed “Are there substantial grounds for believing that there is a real risk of significant harm?” (which forms part of the assessor’s consideration of the appellant’s claim for complementary protection), the assessor explained why he did not accept the appellant’s claim that she feared harm because she would be returning to Vietnam as a failed asylum seeker. It is desirable to set out the entirety of this section, despite its length, because it is at the heart of the appeal (footnotes omitted and bold emphasis added):Evidence and ReasonIn 2007, in response to an Australian Department of Immigration and Citizenship (DIAC) question - ‘whether it is likely authorities would take punitive action against a national who left Vietnam illegally, acquired permanent residence in Australia and who was deported to Vietnam because of a criminal conviction in Australia’ - DFAT’s advice was that ‘It is unlikely that a person who departed illegally would suffer punitive action from Vietnamese authorities if deported back to Vietnam, even after committing criminal offences in Australia.’ Examples of particular criminal offences warranting various levels of prosecution are outlines as is followed:Vietnam’s 2007 Decree On Vietnamese citizens’ exit and entry gives the Ministry of Public Security uniform management of ‘lists of citizens not yet permitted to leave the country’. Persons not permitted to leave the country, nor even to be granted travel documents, include persons ‘being examined for penal liability or involved in criminal investigation’, obliged to serve criminal, civil or economic sentences, or awaiting the settlement of civil or economic disputes: decisions not permitting such persons to leave may be made by ‘[i]nvestigative agencies, procuracies, courts or judgment enforcement agencies at all levels’.Other persons not permitted to leave are those obliged to comply with decisions on sanctioning administrative violations, pay taxes or perform other financial obligations, on grounds of safeguarding national security and social order and safety, and who commit acts of administrative violation related to exit and entry: decisions not permitting such persons to leave can be made by various other specified authorities. Vietnamese who violate the Decree’s provisions ‘shall, depending on the nature and severity of their violations, be administratively sanctioned or examined for penal liability in accordance with the law.’ Though the Decree On Vietnamese citizens’ exit and entry does not specify the ‘law’ ‘in accordance’ with which violators of its provisions should be ‘administratively sanctioned or examined for penal liability’, Vietnam’s Decree No.49-CP of August 15, 1996 of the Government on Sanctions Against Administrative Violations in the Domain of Security and Order provided for fines for ‘[v]iolations of the regulations on exit, entry and transit’. The highest fine band was for specified acts ‘not serious enough to warrant examination for penal liability’: including for faking papers to obtain a passport, exit/entry/transit visa or temporary/permanent residence certificate; for counterfeiting a passport, exit/entry/transit visa, temporary/permanent residence certificate or control seal; and for using such papers or any other faked papers to exit, enter or transit Vietnam. Vietnam’s Penal Code (No. 15/1999/QH10), as amended in 2009, provides for a fine or a prison term for those who, after having been administratively sanctioned, re-offend by illegally entering, exiting or remaining in Vietnam: Those who illegally enter or leave the country or stay in Vietnam and have been administratively sanctioned for this act but relapse into it shall be imposed a fine of between five million and fifty million dong or a prison term of between three months and two years. In determining if the client faces a real risk of significant harm, I am guided by MIAC v SZQRB [2013] FCAFC 33 (20 March 2013), Lander and Gordon JJ, which stated (in part):In our opinion, the [real risk] test is as for s36(2)(a) [of the Act]…is there a real chance that SZQRB will suffer significant harm…were he to return to Afghanistan. Based on the country information listed above, I consider that the client departed Vietnam illegally for reasons other than evading criminal, civil or economic sentences and she is not awaiting the settlement of any civil or economic dispute. Furthermore, based on her statements the client was not obliged to comply with any decisions following any sanction of administrative violations, or to avoid certain financial obligations (such as paying taxes). I find that [the appellant] held no position of authority and/or public influence before her departure from Vietnam nor has she engaged in certain activities abroad whereby she now risks being convicted by the authorities on the grounds of safeguarding national security and social order and safety. Furthermore I do not find that [the appellant] has committed any crime prior to her departure from Vietnam (including that of departing illegally and committing acts of administrative violation related to exit and entry) which is serious enough to incur any penalty other than being fined upon her return.As per my assessment under the refugees convention, I therefore consider that there is only a remote chance, and therefore not a real chance (which amounts to a real risk), that the client will be harmed by the Vietnamese authorities on account of departing Vietnam illegally and seeking asylum overseas. Based on the evidence before me I am therefore not satisfied that the client would face a real risk of significant harm in any foreseeable future under the CAT and ICCPR. I therefore find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to Vietnam, there is a real risk that [the appellant] will be subject to significant harm.

Decision

Reasons for decision

It may be noted that there is no express reference in this part of the assessor’s reasons to the Report which was provided by the appellant’s agent after her ITOA interview. It is common ground that, apart from the Penal Code, the other specific laws referred to in the extract above were not specifically put to the appellant for comment. FCCA decision summarised The primary judge rejected all three grounds of judicial review set out in the amended application. The first ground was that the appellant was denied procedural fairness because the country information relied upon for rejecting her claim to complementary protection was not put to her for comment. The primary judge stated at [9] of his Honour’s reasons for judgment that the country information relied upon by the appellant in support of ground 1 is the material referred to by the assessor and which is set out in [10] above. As noted above, this material did not include the Report. The primary judge summarised the assessor’s reasoning and findings by reference to the various laws of Vietnam applying to citizens exiting and entering the country, which laws and findings are set out in [10] above. The introductory words “Based on the country information listed above” in the second last paragraph in the passages in [10] above make abundantly clear that the findings set out therein relate to the country information concerning the various relevant Vietnamese laws set out immediately above in the assessor’s reasons. They do not relate to the country information provided by the appellant’s agent in the form of the Report. After summarising relevant caselaw, the primary judge stated at [23] that the relevant issue for the assessor was whether or not the appellant was at real risk of significant harm as a returnee or failed asylum seeker. His Honour then said at [24] that this issue was first raised by the appellant herself and was central to her claim, referring to the Report which the appellant’s agent sent to the assessor under cover of the 8 April 2015 post-interview submission. After setting out that part of the Report which referred to Article 91 of the Penal Code, the primary judge reiterated that the appellant herself had raised the issue. It is evident that the primary judge viewed this fact as a sufficient and complete answer to the appellant’s complaint of procedural unfairness. The primary judge then proceeded in [25] and [26] to make two additional points as to why he rejected ground 1. The first was that the assessor’s conclusion that the appellant was not at risk of penal sanction was consistent with the country information put forward by the appellant herself and that the assessor “simply referred to additional publicly available and general information confirmatory of the position taken in the [appellant’s] country information”. Accordingly, the primary judge found that the assessor’s conclusion was “obviously… open on the known material”, which is a reference to SZBELv Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (SZBEL) at [38] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

Ratio Decidendi

Legal Principle Established

It is unnecessary to summarise the Minister’s submissions as they are substantially reflected in my reasons below for dismissing the appeal. Consideration and determination It is convenient to address each of three grounds of appeal in turn. (a) Ground 1 The appellant did not challenge the primary judge’s summary of the relevant principles concerning procedural fairness at [20]-[22] of his Honour’s reasons for judgment:20.Broadly speaking, procedural fairness requires a person affected by a decision to “know the case sought to be made against him and to be given an opportunity of replying to it”: Kioa v West (1985) 159 CLR 550 at 582 per Mason J. In Hala v Minister for Justice [2015] FCAFC 13 the Full Court of the Federal Court said that procedural fairness ordinarily required the party affected by the decision to be given the opportunity to:(a)ascertain the relevant issues and be informed of the nature and content of the adverse material (SZBEL v Minister for Immigration (2006) 228 CLR 152 at [32] (“SZBEL”), approving Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590 – 591);(b)deal with adverse information that is “credible, relevant and significant” to the decision to be made (Kioa v West at 629 per Brennan J; Applicant VEAL of 2002 v MIMIA (2005) 225 CLR 88);(c)be advised of any adverse conclusion the decision-maker has reached “which would not obviously be open on the known material” (Alphaone at 590-591)21.It is also accepted that “fairness is not an abstract concept … the concern of the law is to avoid practical injustice” (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ).22.In SZBEL the High Court emphasised the importance of correctly identifying the relevant issue in order to determine whether the adverse conclusion reached by the decision-maker was “not obviously … open on the known material” (SZBEL at [38]). Although the High Court in SZBEL was concerned with a different statutory provision a similar inquiry is required in this case. His Honour then identified the relevant issue as whether or not the appellant was at real risk of significant harm from Vietnamese authorities as a returnee or failed asylum seeker. His Honour stated at [24] that this issue was first raised by the appellant herself and was central to her claim. These findings are undoubtedly correct. It was the appellant herself who put at the forefront of her claims that she was at risk of significant harm as a returnee or failed asylum seeker and she provided country information in support of that claim, both before and after the ITOA interview. Equally, there can be no doubt that the appellant was put on notice that this was an important issue for the assessor to determine. Procedural fairness required that the appellant be given the substance of credible, relevant and significant information which was available to the assessor and related to an issue in relation to which the appellant was not already on notice (see Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223 (SZQHH) at [30] where Rares and Jagot JJ said:30.However, the reviewer’s obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country or other information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice. The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to deal with its potentially adverse consequences by responding to the decision-maker on those consequences. That enables the decision-maker to take into account the person’s answer to the substance of information that has the potential of being used adversely to his or her interests. Affording the person an opportunity of dealing with some matter that he or she has not already had a chance to address in the process ensures that the process itself is fair.