BAK15 v Minister for Immigration
[2018] FCCA 489
•1 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAK15 v MINISTER FOR IMMIGRATION | [2018] FCCA 489 |
| Catchwords: MIGRATION – International Treaty Obligations Assessment – application for judicial review – alleged denial of procedural fairness – failure to put general country information about laws of Vietnam to applicant – issue raised by applicant’s own material – assessor’s conclusion obviously open on known material - application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 195A, 417 |
| Cases cited: Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901 Kioa v West (1985) 159 CLR 550 |
| Applicant: | BAK15 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | DNG 34 of 2015 |
| Judgment of: | Judge Young |
| Hearing date: | 24 March 2017 |
| Date of Last Submission: | 24 March 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 1 March 2018 |
REPRESENTATION
| The Applicant: | In person by video link |
| Counsel for the Respondent: | Ms Davidson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed 15 June 2015 is dismissed.
The applicant is to pay the respondent’s costs in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
DNG 34 of 2015
| BAK15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of an officer of the Department of Immigration and Border Protection (the Department) who conducted an International Treaty Obligations Assessment (ITOA) in respect of the applicant. The ITOA was conducted following the inadvertent release by the Department of her personal details on the internet in February 2014 (the “data breach”).
The applicant is a citizen of Vietnam. She arrived at Christmas Island in June 2010. She made claims for protection that were assessed in 2011. A Refugee Status Assessment was undertaken on 11 January 2011. It was found that the applicant was not a refugee under the Convention Relating to the Status of Refugees 1951 (“Refugee Convention”). A review of that assessment was undertaken on 16 July 2011 by an Independent Merits Review with the same outcome. Following the data breach she was interviewed for the ITOA on 14 January 2015 and the ITOA was completed on 10 April 2015. The applicant did not raise the data breach during the ITOA and it has not been raised in this application for judicial review.
The claims raised by the applicant in the ITOA included that she was harassed and assaulted in Vietnam by local police as a result of her work making paper figurines at a temple or shrine dedicated to a village ancestor and as a result of participating in a demonstration against the alienation of land used as a market. She also said that she had been refused a ho khau (diacritical marks omitted) which is a kind of official residency permit or identity document giving the holder access to social services and work and residency entitlements. She claimed she was unable to sustain herself without a ho khau and was more vulnerable to police harassment as a result. The applicant also said that she was at risk of serious harm in Vietnam as a returnee or failed asylum seeker.
The officer conducting the ITOA did not accept the applicant as credible in relation to some of her claims. The officer found the applicant’s claims were an “embellishment” of her circumstances, particularly in relation to her claims of harassment as a temple goer and her claims of coming to the notice of the authorities as a result of participating in a demonstration. In relation to the applicant’s claims about the ho khau and her difficulty in earning a livelihood the officer found that the applicant was a victim of laws of general application and poverty rather than persecution.
In relation to the applicant’s claim to fear torture or maltreatment in detention as a returnee or failed asylum seeker the officer relied on country information, including from the Australian Department of Foreign Affairs and Trade (DFAT), that the applicant would likely be fined on her return but not imprisoned or subjected to harassment, discrimination or other harm.
The officer concluded the applicant was not a refugee and that Australia did not have an obligation of non-refoulement under the Refugee Convention.
Consistently with the decision in Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901 at [71] the respondent accepted that the court has jurisdiction in the present case to review a departmental officer’s conduct of an ITOA preparatory to the making of a substantive decision about the exercise of the Ministers non-compellable powers under sections 46A, 195A or 417 of the Migration Act 1958 (the Act).
Grounds of review
The applicant’s amended grounds of review were as follows:
1. The Applicant was denied procedural fairness, in that the ITOA concluded that the Applicant was not entitled to complementary protection based on country information that was not put to the Applicant for comment.
2. The Applicant was denied procedural fairness, in that the assessor or did not disclose for her comment country information that was favourable and which contradicted other adverse country information put to the Applicant.
3. The assessor constructively failed to exercise jurisdiction in failing to consider an integer of the Applicant’s claim to protection, namely that she feared harm from police, which was apparent from the material in front of the assessor.
Ground 1
The ground of review does not provide particulars of the country information the applicant says was not put to her. However, in the applicant’s outline of submissions the material is identified as appearing at Court Book 325 – 326. This material consists of references by the assessor to various laws of Vietnam including, in particular, Decree No.136/2007/ND-CP Decree On Vietnamese citizens’ exit and entry (“Decree on Vietnamese citizens’ exit and entry”).
In assessing whether the applicant was at risk of harm upon return to Vietnam the assessor in his written reasons, under the heading “Procedural Fairness”, expressly referred to adverse information that he put to the applicant for response. Under the heading “Adverse information: treatment of returned failed asylum seekers” the assessor recorded the following:
It was put to the client that, according to advice from DFAT in 2012, returnees who are failed asylum seekers are not targeted by the authorities for harassment or discrimination. The advice also stated that in the event their previous registration had lapsed, returnees are also able to obtain registration.
The reference to “registration” refers to the ho khau.
The assessor recorded the “Client response” as follows:
In response, the client simply stated “how could you know?” To which I explained that according to the DFAT report. (sic) The client then responded that “each person has his own [view], no one is the same”.
It can be seen that the second sentence of the response, as recorded by the assessor, is incomplete. The assessor may have intended to record having put some additional information to the applicant. However, nothing turned on that and the parties proceeded on the basis that the substance of the adverse information on this issue put to the applicant was as recorded.
In a separate and later part of the assessor’s reasons under the subheading “Evidence and Reason” the assessor referred to a question from the then Department of Immigration and Citizenship in 2007 to DFAT that was answered “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”.
The assessor then went on to refer to a law made in Vietnam in 2007, the Decree on Vietnamese citizens’ exit and entry. The assessor noted that the law lists persons who were not permitted to leave Vietnam, including persons being examined for penal liability or involved in criminal investigations, persons obliged to serve criminal, civil or economic sentences or awaiting the settlement of civil or economic disputes. Other persons not permitted to leave were 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 those who commit acts of administrative violation related to exit and entry. The assessor also referred to 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 which provided for fines for “[v]iolations of the regulations on exit, entry and transit”. The assessor noted the highest fine band was for specified acts “not serious enough to warrant examination for penal liability”, including faking papers to obtain exit/entry/transit visa and for using such papers. The assessor referred to Vietnam’s Penal Code which provided for a fine or prison term for those who, after being administratively sanctioned, re-offended by illegally entering, exiting or remaining in Vietnam.
The assessor concluded that the applicant was not a person included in the categories mentioned in the laws. He considered that the applicant departed Vietnam illegally for reasons other than evading criminal, civil or economic sentences and she was not awaiting settlement of any dispute. He considered she was not obliged to comply with sanctions for administrative violations or to pay taxes. He considered she had no position of authority or influence and had not engaged in activities abroad so that she risked prosecution in relation to “national security and social order and safety”. He concluded that she had not committed any act in Vietnam serious enough to incur any penalty other than a fine.
It should also be noted that the claims advanced by the applicant did not suggest that she was included in any of these categories and she did not submit, nor was there evidence, that had these matters been put to the applicant she would or could have made a submission about them.
The respondent accepted that the “Procedural Fairness” section of the assessment did not refer to this detailed information being put to the applicant and, in substance, accepted that it had not been put. I will proceed on that basis.
The applicant asserted that because this information was not put to her she lost an opportunity to be heard on these matters and thereby suffered “practical injustice”.
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)
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).
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.
The relevant issue for the assessor in this case was whether or not the applicant was at real risk of significant harm from the authorities in Vietnam as a returnee or failed asylum seeker and, in particular, whether she would be likely to be detained on her return and ill-treated. It was in addressing that issue that the assessor referred to the laws of Vietnam mentioned above.
This issue was first raised by the applicant herself and was central to her claim. In support of her claim she relied on country information including a publication of the Campaign to Abolish Torture in Vietnam, Vietnam: Torture and Abuse of Political and Religious Prisoners, published in January 2014. This publication referred to Article 91 of the Penal Code of Vietnam which creates an offence of “fleeing abroad to oppose the people’s administration”. It said that this charge was often filed against peaceful dissidents who fled Vietnam. It went on to say that “people who simply exit the country illegally are not sanctioned under Article 91, whose criminal penalties apply only to those who flee abroad ‘with a view to opposing the people’s administration’ ”(Court Book 247).
It can be seen that the issue was raised in the applicant’s own material. Further, the adverse conclusion reached by the assessor that, although the applicant departed Vietnam illegally, she was not at risk of penal sanction was consistent with the country information put forward by the applicant herself. The assessor simply referred to additional publicly available and general information confirmatory of the position taken in the applicant’s country information. For this reason the assessor’s conclusion was, in my view, “obviously … open on the known material”.
Further, in the absence of a claim by the applicant that she was included in any of the categories of the laws of Vietnam identified by the assessor or a submission that had these matters been put to the applicant she would or could have made a submission about them I am not satisfied that she has been subjected to any “practical injustice” in the sense referred to in Re Minister for Immigration; Ex Parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ.
This ground is not made out.
Ground 2
In the ITOA the assessor said:
It was repeated to [the applicant] throughout her interview that only adverse information would be put forward to her for comment and that any favourable country information would not be raised by the assessor throughout the ITOA interview (even if such information were to contravene (sic – “contradict” was meant) some of the adverse information listed above) (Court Book 348).
While accepting that procedural fairness ordinarily requires a decision-maker only to disclose material which is adverse to the applicant (referring to VEAL at [15] ) the applicant submitted that not telling her about country information that contradicted adverse country information meant that an “incomplete or misleading account” of the material on which the ITOA was based was given to the applicant.
The applicant drew an analogy with the law of misrepresentation and misleading or deceptive conduct which was said to provide “useful guidance”. It was submitted that in that context non-disclosure or silence can be misleading or deceptive. It was said that the non-disclosure amounted to a “half-truth”.
The assessor’s written report of the ITOA did not indicate, even in a general way, that favourable country information had not, in fact, been disclosed to the applicant. Nevertheless, the applicant asked the court to assume such was the case and, further, to assume that such non-disclosure constituted a “half-truth”. It may be acknowledged that information contradicting adverse country information could relevantly qualify the value of that country information or even render it untrue. However, as the respondent pointed out, the purpose of the requirement to disclose “credible, relevant and significant” adverse information in the procedural fairness context is to afford a person an opportunity to deal with the potentially adverse consequences of such information. It is not concerned with the truth or accuracy of the information provided to the person affected.
Further, to rely on the analogy of misrepresentation or misleading or deceptive conduct is problematic. One obvious difficulty is that the law relating to misrepresentations and misleading or deceptive conduct usually requires the plaintiff to demonstrate detrimental reliance on the misrepresentation or the deceptive conduct. Here there was no suggestion of any such reliance.
As Gleeson CJ pointed out in Lam at [34] “the content of the requirements of [procedural] fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed” but it was not suggested that any representation of that kind was made in this case.
I am satisfied that the applicant has not identified a recognised category of jurisdictional error. Accordingly, this ground is not made out.
Ground 3
The applicant submitted that the assessor’s conclusion that the applicant was unlikely to be detained in custody as a returnee or failed asylum seeker failed to grapple with an integer of her claim because it did not deal with her claim that she had been harassed by the police in the past and feared harassment in the future. It was submitted that, as the assessor accepted that the applicant “may have suffered hardship and was harassed by the police in Nghe An province for not having a ho khau or any identity documents and engaging in work without one”, the assessor ought to have considered whether there was a “real chance of the past conduct occurring again and in a manner that would engage Australia’s complementary protection obligations”.
In relation to the applicant’s claim of being involved in a protest the assessor did not accept that the applicant had played a significant part and did not accept that she was of interest to the authorities for a political reason or that she would be at risk of harm as a consequence. The assessor accepted that the applicant had previously been harassed by the police when she worked because she did not hold a ho khau but considered that in relation to this she was “a victim of Vietnamese laws of general application and poverty in her home region”. The assessor considered that there were avenues for the applicant to re-obtain a ho khau on her return to Vietnam although this would be “cumbersome” because of her low socio-economic status.
In my view, the factual premises on which the applicant’s claimed fear of the police was based were rejected by the assessor. As the Full Court of the Federal Court held in WAEE v Minister for Immigration (2003) 236 FCR 593 at [46]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
I am satisfied that is the case here. This ground is not made out.
The application is dismissed. The applicant is to pay the first respondent’s costs according to Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules in the sum of $7,206.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Young
Date: 1 March 2018
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