BFQ15 v Minister for Immigration

[2016] FCCA 1541

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFQ15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1541

Catchwords:

MIGRATION – Migration Act s.36(2)(aa) – complementary protection obligation – risk that the death penalty will be carried out on the applicant.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A

SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: BFQ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 37 of 2015

Judgment of: Judge Young

Hearing date: 20 November 2015 & 16 June 2016

Date of Last Submission: 16 June 2016

Delivered at: Adelaide

Delivered on: 23 June 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents on 20 November 2016: Ms Z Kent of Australian Government Solicitor

Solicitors for the Respondents on 16 June 2016: Ms C He of Australian Government Solicitor

ORDERS

1. The decision of the Administrative Appeals Tribunal be set aside.

2. The matter be remitted to the Administrative Appeals Tribunal (differently constituted) for re-consideration.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 37 of 2015

BFQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Vietnam. He is 49 years old. He arrived in Australia on 10 October 2010. He applied for a protection visa on 11 August 2011. The delegate of the Minister refused the application and that refusal was affirmed by the Tribunal (differently constituted) on 2 December 2011.

2. The applicant made a further application for a protection visa on 11 March 2013. He was permitted to make a subsequent application because section 48A of the Migration Act (“the Act”), as it then stood, allowed a second application on different grounds[1]. 

   [1] SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235

3. The applicant’s subsequent application and its consideration were limited to the complementary protection grounds. The complementary protection grounds arise from section 36(2)(aa) of the Act which provides that Australia has protection obligations if:

   …the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…

4. Subsection (2A) defines “significant harm” to mean:

   (a)the non-citizen will be arbitrarily deprived of his or her life; or

   (b)the death penalty will be carried out on the non-citizen; or

   (c)the non-citizen will be subjected to torture; or

   (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment: or

   (e)the non-citizen will be subjected to degrading treatment or punishment.

5. The grounds raised before the delegate stemmed from the fact that the Vietnamese authorities have charged the applicant with a serious criminal offence and seek his return to Vietnam (although there is no evidence of an extradition application). In broad terms the alleged offence might be described as fraud perpetrated by the applicant against a state owned bank in Vietnam. The sum said to be involved is more than 100 billion Vietnamese dong[2]. At current exchange rates that is about Australian $6.1 million. The Vietnamese authorities requested the issue of an Interpol “red notice” which described the applicant’s offence as “appropriating property through swindling”. According to the “red notice” the law covering the offence is article 139(4) of the Criminal Code of Vietnam and the maximum penalty for the offence is 20 years imprisonment.

   [2] The “red notice” refers to 40 billion VND and the indictment 112 billion VND. See Tribunal decision at [13] and [18], CB 290,291.        

6. Before the delegate and the Tribunal the applicant claimed that there was a real risk that he would suffer significant harm if he were returned to Vietnam. He asserted that the risk of significant harm arose from a number of factors: first, the offence carried the death penalty and that bank officials had been sentenced to death for a similar offence involving a lesser sum of money some years before and so it is likely the applicant will be tried, convicted and subjected to the death penalty, secondly, that he would be killed in prison by corrupt officials or others associated with his fraud so that he would be arbitrarily deprived of his life, thirdly, he was likely to be subjected to ill-treatment, abuse or bad conditions in the Vietnamese prison system amounting to cruel or inhuman treatment or punishment and, fourthly, he would likely be identified by the Vietnamese authorities as seeking protection in Australia as a result of a “data breach” by the Department of Immigration and Border Protection in 2014 when the applicant’s personal details and details of his detention were inadvertently made available on the internet for a short period of time (about 14 days according to my understanding).

7. The Tribunal in dealing with the second ground found that, in view of the applicant’s lack of credibility, there was no substantial evidence to support the applicant’s claims. In dealing with the third ground the Tribunal found that while the prison conditions in Vietnam were poor those conditions did not amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. In reaching that conclusion the Tribunal had regard to a US Department of State report on human rights practices in Vietnam and UK Border Agency reports dealing with prison conditions in Vietnam. In my view these conclusions, based on the Tribunal’s own assessment of the applicant’s credibility and country information properly exposed and explained, were open to it.

8. In relation to the fourth ground the Tribunal concluded that the “red notice” indicated that the Vietnamese authorities believed the applicant was likely to be in Australia or Cambodia and that the “data breach”, even if it brought the applicant’s presence in Australia to the attention of the Vietnamese authorities, was not likely to add to any risk of harm. The Tribunal noted that the applicant had not indicated what, if any, harm he was at risk from as a result of the “data breach” and noted his concession that it may not be relevant to his case. The Tribunal was not satisfied that the applicant was at risk of any harm as a result of this. That conclusion was, in my view, clearly open to it.

9. Both the delegate’s and the Tribunal’s consideration of the first ground focussed on the question of whether the death penalty applied to the offence outlined in the “red notice” namely article 139 of the Criminal Code of Vietnam. Article 139(4) has carried the death penalty in the past but, based on advice from the Australian embassy in Vietnam, the Tribunal concluded that the death penalty for this offence was abolished in 2009. Apparently the applicant’s own lawyer in Vietnam had confirmed this was so.

10. The Tribunal went on to note that the Embassy advice confirmed that the death penalty remained for another offence: article 278(4)(a) relating to official corruption or “crimes relating to position”[3]. The Tribunal said that it had no substantial grounds for believing the applicant will be charged with that offence and there was nothing to suggest he held an official position. It concluded that there was no real risk that the death penalty will be carried out on the applicant.

    [3] Tribunal decision [59], CB 297.

11. Although the indictment and statement of facts prepared by the prosecutor (a translation of which was provided by the applicant) do not mention article 278(4)(a) they do say that state bank officials were involved in the commission of the alleged crimes. The Tribunal did not make any inquiries or seek advice from any person with any expert knowledge of the Criminal Code of Vietnam. It did not make any inquiry whether any of those charged with the applicant could be charged under article 278(4)(a) and whether, in that event, accessorial liability under article 278(4)(a) could be imposed on the applicant. It may be assumed that the concept of accessorial liability is present in any developed criminal code, including the Criminal Code of Vietnam[4]. Given that the crime allegedly committed by him appears to have involved the co-operation of officials of a state bank there must be a possibility of the officials involved in the fraud being charged under article 278(4)(a) and accessorial liability being imposed on the applicant. In that event there may be a possibility the applicant will be subjected to the death penalty.

    [4] A simple internet search of an English translation of the Criminal Code might establish whether this is so.

12. I requested further submissions from the parties about this issue. The applicant emphasized that the bank he defrauded was a state bank and that he acted jointly with officials of that bank to carry out the fraud. It might be thought that the applicant’s submissions on that point were opportunistic but there was clearly a foundation for the submission in the material before the Tribunal. The Minister submitted that the applicant had not raised the issue before the Tribunal and there was no information to suggest that he may face charges as an official under article 278(4)(a). It was submitted that the Tribunal was not required to go further and speculate about the possibility of him being charged as an accessory under that provision. The Minister submitted, citing Prasad v Minister for Immigration and Ethnic Affairs[5], that there was no information about the treatment of accessories under article 278(4)(a) that was “readily available which is centrally relevant to the decision to be made”.

    [5] (1985) 6 FCR 155 at 169 – 170.

13. I have some difficulty accepting that submission. It is true that the applicant did not raise this possibility before the Tribunal. He is not legally trained (as is plain from the inadequate drafting of his application), he was not legally represented before the Tribunal or this court and there is no reason to believe he has the training or capacity to independently identify the issue. In any event, the Tribunal is not a court of pleadings. However, the uncontested facts of this case, involving a large fraud carried out with the connivance of officials of a state owned bank, would appear to raise the risk of charges being laid which carry the death penalty. Although the indictment provided by the applicant does not mention article 278(4)(a) all Australian criminal lawyers would be familiar with the addition of counts to an original indictment. In my view, an obvious question arising from the uncontested material is whether the applicant is at risk of being charged as an accessory under article 278(4)(a).

14. I accept that the obligation to inquire identified in Prasad is “strictly limited”[6] and may be more accurately characterised as a question about unreasonableness. The Tribunal’s assessment that the applicant was not at risk under this article because he was not an official seems to me to be unsatisfactory. It relied on its own interpretation of a translated[7] provision of a foreign legal code. The Tribunal was without any evident experience or knowledge of that legal code. Its conclusion that there were no substantial grounds for believing he would be charged under that provision is, in my view, little more than a guess or, put another way, “lacks an evident and intelligible justification”[8]. Whether there was “material readily available”[9] about this issue is less clear but I would be surprised if it were very difficult to inquire of some person expert in the relevant law of Vietnam. If there were no information available it may be necessary for the Tribunal to consider whether a state of uncertainty about the degree of risk of the death penalty being carried out is, in itself, indicative of a “real risk that the non-citizen will suffer significant harm”. 

    [6] Ibid, p 170.

    [7] A translation of uncertain provenance.

    [8] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [76].

    [9] Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 170.

15. In my view it is centrally relevant to consider if this possibility, the applicant being charged with a capital offence, exists in the criminal practice and procedure of Vietnam. The possibility arises from the uncontested facts of this case and the legal concepts which would appear likely to be shared by any developed criminal code, including the Criminal Code of Vietnam. In my view the Tribunal’s failure to properly consider this issue constitutes jurisdictional error and the Tribunal’s decision should be quashed.

16. It might be that, even after appropriate consideration - perhaps including consulting an expert, it is not possible for the Tribunal to reach any definite conclusion about the operation of the Criminal Code of Vietnam in general or in the particular circumstances of this case. If so, it might be appropriate to attempt to resolve the uncertainty by seeking an assurance from the Vietnamese authorities that the applicant will not be subjected to the death penalty if he is returned.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 23 June 2016