CPP17 v Minister for Immigration and Border Protection

Case [2020] FCA 1097

FEDERAL COURT OF AUSTRALIA

CPP17 v Minister for Immigration and Border Protection [2020] FCA 1097

Appeal from: CPP17 & Anor v Minister for Immigration & Anor [2019] FCCA 3593
File number: SAD 255 of 2019
Judge: BESANKO J
Date of judgment: 31 July 2020
Date of Publication of Reasons: 4 August 2020
Catchwords: PRACTICE AND PROCEDURE — interlocutory application by appellant for leave to adduce further evidence on appeal — where Authority’s decision said to involve legal unreasonableness and therefore jurisdictional error — whether the evidence could have been adduced before the Federal Circuit Court of Australia by the exercise of reasonable diligence — whether the further evidence was likely to have led to a different result  
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 25, 27

Migration Act 1958 (Cth) ss 5H, 36

Federal Court Rules 2011 (Cth) r 36.57

Cases cited:

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 93 ALJR 1091; (2019) 373 ALR 196

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 47

NASB v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 24

Sami v Minister for Immigration and Citizenship [2013] FCAFC 128; (2013) 139 ALD 1

Date of hearing: 27 July 2020
Registry: South Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 40
Counsel for the Appellants: Dr S Churches
Solicitor for the Appellants: MSM Legal
Counsel for the First Respondent: Ms K Hooper
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The Second Respondent entered a submitting notice, save as to costs

ORDERS

SAD 255 of 2019
BETWEEN:

CPP17

First Appellant

CPQ17

Second Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

31 JULY 2020

THE COURT ORDERS THAT:

1.The interlocutory application for leave to adduce further evidence on the appeal dated 15 June 2020 be refused.

2.The appellants pay the first respondent’s costs of the interlocutory application for leave to adduce further evidence on the appeal.

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


REASONS FOR JUDGMENT

BESANKO J:

INTRODUCTION

  1. This proceeding is an appeal by the appellants from orders made by the Federal Circuit Court of Australia on 28 October 2019. The appellants issued an application for judicial review in the Federal Circuit Court in relation to a decision of the Immigration Assessment Authority (the Authority) under Div 3 of Part 7AA of the Migration Act 1958 (Cth). The Federal Circuit Court made an order that the application for judicial review be dismissed. The appeal is listed for hearing on 5 August 2020. In hearing and determining the appeal, I am exercising the appellate jurisdiction of this Court (s 25(1AA) of the Federal Court of Australia Act 1976 (Cth)).

  2. These reasons deal with an application by the…

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CPP17 v Minister for Immigration and Border Protection [2020] FCA 1097
Case
[2020] FCA 1097
Decision Date

CaseChat Overview and Summary

The appellant, a Vietnamese national, sought leave to adduce further evidence on appeal in relation to the refusal of her application for a protection visa. The primary issue before the court was whether the appellant was entitled to lead the proposed further evidence, which she sought to do in the context of an interlocutory application. The appellant had previously been found to be a victim of domestic violence by the Authority, but the Authority was not satisfied that there was a real chance that she would be at risk of harm from her husband should she return to Vietnam. The appellant argued that the evidence, which consisted of unsworn statements she claimed to have made to an officer at a detention facility, could not have been obtained earlier by the exercise of reasonable diligence and was likely to have led to a different result.

The court held that the appellant was not entitled to lead the proposed evidence. The court noted that the appellant had been separated from her husband for a number of years and there was no evidence that the threat of violence was ongoing. The court held that the proposed evidence did not establish a well-founded fear of future harm if the appellant were to return to Vietnam. The court also held that the appellant could have obtained the proposed evidence earlier by the exercise of reasonable diligence, as she had kept the original statements and had only recently realised that they might be relevant to her case. The court held that the proposed evidence was not likely to have led to a different result.

The court refused the interlocutory application for leave to adduce further evidence on the appeal and ordered that the appellant pay the first respondent's costs of the interlocutory application. The court held that the proposed evidence was not relevant or likely to have led to a different result and that the appellant could have obtained the evidence earlier by the exercise of reasonable diligence.

Orders

Orders of the court

1. The interlocutory application for leave to adduce further evidence on the appeal dated 15 June 2020 be refused.

2. The appellants pay the first respondent’s costs of the interlocutory application for leave to adduce further evidence on the appeal.

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

Background

Background to the litigation

For the reasons which follow, the application to adduce further evidence is refused.BACKGROUND The appellant left Vietnam on 29 May 2013 and she arrived in Australia on 18 June 2013. The appellant took part in an arrival interview on 17 July 2013. On 5 October 2016, the appellant made an application for a protection visa. In her application, and putting the matter generally at this stage, she claimed that she had a well-founded fear of persecution because of her religion. She claims to be a practising Catholic from a traditional Catholic family in Vietnam. In a statutory declaration made on 4 October 2016, the appellant referred to her religious practices and the disadvantages she has suffered and will suffer in Vietnam as a result of those practices. The appellant has been married twice. She has a son by her first marriage and a daughter by her second marriage. In her statutory declaration, she claims that her second husband who, for convenience, I will refer to as the appellant’s husband, is an alcoholic who has beaten her. She states that she has wanted to divorce her husband on a number of occasions, but the law in Vietnam requires its citizens to engage in reconciliation before they approve a divorce application. Furthermore, there are (she claims) bribery and other difficulties associated with a divorce application. The appellant also states in her statutory declaration that she fears that if she returns to Vietnam she will be put in prison because she had previously left the country. On 31 March 2017, the appellant’s application for a protection visa was refused by a delegate of the Minister. On 4 April 2017, the appellant was advised by letter that the Minister had referred the matter to the Authority. The appellant was represented by a lawyer during the process before the Authority and the lawyer made a submission on her behalf to the Authority on 5 May 2017. In that submission, the lawyer referred to, among other matters, the fact that the appellant belonged to a particular social group, namely, failed asylum seekers who leave Vietnam unlawfully and the complementary protection criteria assessment in s 36(2)(aa) of the Migration Act. On 22 May 2017, the Authority decided not to grant the referred appellant a protection visa. In its reasons, the Authority referred to the claims made by the appellant. Of present relevance for reasons which will become clear, are the appellant’s claims to have suffered domestic violence from her husband. The Authority considered the appellant’s claim that she suffered domestic violence from her husband and said that it accepted that domestic violence had occurred. However, the Authority went on to note that the appellant had, at no point during the arrival interview, or in her protection visa application process, stated that she fears her husband, or fears that he will harm her in the future, should she be returned to Vietnam. She said that she is now separated from him and there is no indication that the threat of violence is ongoing. She said that her mother had recently informed her that her home in Vietnam which was empty, had recently been broken into. The Authority concluded from this that the appellant’s husband had moved out of the family home at or around the time the appellant came to Australia. The Authority said that the whereabouts of the appellant’s husband was not discussed at the protection visa interview. The Authority said that it was not satisfied that there would be ongoing conflict between the appellant and her husband, should the appellant return to Vietnam (at [20]). In its conclusions, the Authority stated that it accepted that the appellant was the victim of domestic violence from her husband. However, it found that the threat of violence was not ongoing and it was not satisfied that there is a real chance that the appellant would be at risk of harm from her husband should she return to Vietnam (at [26]). The Authority found that the appellant did not satisfy the requirements of the definition of “refugee” in s 5H(1) of the Migration Act. In addition, the Authority found that she was not entitled to complementary protection under s 36(2) of the Migration Act.

Evidence

Evidence Before The Court

His Honour then referred to evidence that supported the appellant’s claim and then said (at [53]–[57]):53.The Applicant, though, has now left Vietnam and has been away from the husband since 2013. That was a period of some four years at the time the IAA was making their decision. 54.Having looked at that evidence, it does not seem to me that the claim that is now being put forward, that supposedly arises in the NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 sense, is a claim that actually did arise. The domestic violence that occurred, occurred because the Applicant and the husband were together. Now that the Applicant and the husband are not together there is no fear of domestic violence. 55.It seems to me that it cannot be said that, on the evidence that had been placed before the delegate and the IAA, that the Applicant was truly saying that there would be a well-founded fear of domestic violence if she returned to Vietnam. Nothing that has been put forward that would suggest there would be a chance of cohabitation resuming with the husband upon the Applicant being returned to Vietnam. 56.Because of these reasons, I do not accept that the claim that is now being made was one that fairly arises on the material. Because that claim does not arise on the material there was no need then for the IAA to look at the question of relocation. Relocation will only become a matter that the IAA needs to look at if it is satisfied that there is a well-founded fear that has been established. 57.For those reasons I am of the view that the grounds of the application do not illustrate any jurisdictional error.THE FURTHER EVIDENCE THE APPELLANT SEEKS TO ADDUCE The further evidence which the appellant seeks to adduce consists of eight paragraphs in an unsworn affidavit of the appellant which, in turn, is an annexure to an affidavit of her solicitor, and a statement of approximately two-and-a-half pages which is the first annexure to the appellant’s unsworn affidavit. The evidence in the appellant’s unsworn affidavit is as follows. The appellant states that she was formally interviewed twice in the Wickham Point detention facility in Darwin in July and August 2013. She states that after those formal interviews, one of the guards in the detention centre, a woman by the name of Elizabeth, helped her write some further statements to be given to the Department. The appellant does not know Elizabeth’s last name. She states that Elizabeth wore a uniform and she helped her write the statements. One such statement is dated 11 October 2013 and it is the first annexure to her affidavit. The appellant states that the second statement she made at the detention facility is dated 23 October 2013 and she annexes a true copy of that statement with its translation into English as the second annexure to her affidavit. That annexure is not part of the further evidence the appellant seeks to adduce. The appellant states that Elizabeth was either a centre management officer, i.e. guard, or an immigration officer. She had been involved in interviewing the appellant. The appellant states that she gave the statements to one of the people who had interviewed her. She states that she had the originals with her, so at the time she gave them to that person, she thinks that the person copied them. However, she states that she cannot remember them for certain. She states that she definitely gave them to the interviewer, because they were statements intended to be given to the Australian government and that is why she wrote them. She states that she still has the originals of those statements as she thought that copies were made and kept by the Department. She states that Elizabeth was definitely based at the detention centre and working there. She states that Elizabeth was not a visiting person. She states that Elizabeth’s job was to help with things, look through files, tell refugee people like her when to do things for their applications, and to help them make applications for being refugees and applying for visas.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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