DYX17 v Minister for Immigration - [2018] FCCA 323

FEDERAL CIRCUIT COURT OF AUSTRALIA

DYX17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 323

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Vietnam – application previously accepted by Australia as a refugee from Vietnam in 1983 and became a permanent resident, but the visa was cancelled in 2015 – whether the Tribunal made a finding on the applicant’s health condition without evidence or whether the Tribunal overlooked a particular social group claim considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5, 5J, 36, 424A, 501, 503

Cases cited:

Abebe v The Commonwealth (1999) 197 CLR 510

Bell v Commissioner of Taxation [2012] FCA 1042

Chen Shi Hai v Minister for Immigration [2000] HCA 19; (2000) 201 CLR 293

CLK16 v Minister for Immigration & Anor [2017] FCCA 2582

Falzon v Minister for Immigration [2018] HCA 2

Lo v Minister for Immigration (1995) 61 FCR 221

Minister for Immigration v SZIAI (2009) 259 ALR 429; (2004) 83 ALJR 1123

Minister for Immigration v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

NAVK v Minister for Immigration [2004] FCA 1695

SZRIR v Minister for Immigration & Anor [2012] FMCA 1006

Applicant:

DYX17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 474 of 2017

Judgment of:

Judge Driver

Hearing date:

8 February 2018

Date of Last Submission:

2 March 2018

Delivered at:

Sydney

Delivered on:

29 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr G Barns

Solicitors for the Applicant:

SanLing Chan, solicitor

Solicitors for the Respondents:

Mr J Hutton of Australian Government Solicitor

ORDERS

The application as amended on 8 February 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 474 of 2017

DYX17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 August 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister filed on 4 December 2017.
The applicant was born on 24 December 1959 in Khanh Hoa Province, Vietnam.
The Tribunal accepted that the applicant witnessed the murder of his mother and sister in about 1971 by Communist Party forces and that he was shot in the legs at the same time and survived by pretending to be dead. It accepted that his father was an officer in the South Vietnamese army who was killed by Communist Party forces when the applicant was a baby. It accepted that the applicant attempted to flee Vietnam in 1979 but was detained during the attempt and held for three years in a “re-education camp”, and that he left Vietnam on a stolen boat in 1982.[1]
[1] Court Book (CB) 388-389 at [32]-[36]
The applicant arrived in Australia on a Class 200 Refugee (Vietnamese K4011) visa on 31 October 1983.
On 4 June 2015, the applicant’s Class BF Transitional (Permanent) visa was cancelled under s.501(3A) of the Migration Act 1958 (Cth) (Migration Act).[2] In November 2016, the applicant’s application for revocation of the cancellation decision was unsuccessful.
[2] Section 503(3A) provides for mandatory visa cancellation of a person serving a sentence of imprisonment
On 10 January 2017, the applicant applied to the Minister’s Department (Department) for the protection visa.
On 2 March 2017, the delegate refused to grant the protection visa to the applicant.
On 6 March 2017, an application was lodged with the Tribunal for review of the delegate’s decision.
On 29 June 2017, the applicant appeared before the Tribunal via video-link from Christmas Island to give evidence and present arguments.
On 17 August 2017, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant the protection visa.
On 4 September 2017, the applicant lodged an application in this Court for judicial review of the Tribunal’s decision.

The review hearing and the Tribunal’s reasons for decision

In addition to the applicant’s protection visa application, the delegate’s decision record and other documents from the Department, the Tribunal had before it a statutory declaration from the applicant and a detailed submission from the applicant’s migration agent that attached numerous documents in support of the review.
As mentioned above, the applicant appeared at the review hearing by video-link from Christmas Island to give evidence. He gave his evidence through an interpreter. His migration agent also attended that hearing.
The Tribunal gave detailed reasons for its decision.
The Tribunal began by identifying the criteria for a protection visa in the Migration Act and by referring to the relevant policy guidelines.[3]
[3] CB 382 at [5]-[10]
The issues on review were:
a)whether the applicant had a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Migration Act; and, if not,
b)whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Vietnam, there was a real risk that he would suffer significant harm.[4]
[4] CB 383 at [11]
The Tribunal found that the applicant is a Vietnamese national.[5]
[5] CB 384 at [15]
Before turning to the applicant’s claims, the Tribunal addressed a submission that the applicant suffers from poor mental health owing to his experiences in Vietnam as a child and that returning him to Vietnam would cause psychological harm that could not be adequately treated and from which he would not recover. The Tribunal considered all the information referred to in the submission, including a report from a clinical psychologist, Dr Ruth Rudge.[6] The Tribunal accepted that the applicant may be suffering from mental health conditions, including PTSD.[7] However, the Tribunal concluded it was not satisfied that these conditions were so severe that they would result in a real chance of serious harm or a real risk of significant harm upon his return to Vietnam.[8] It also concluded that the applicant was able to participate meaningfully in the hearing and was able to understand the Tribunal’s questions and respond clearly.[9]
[6] The report at CB 368-369 is signed by Dr John Rudge
[7] Post Traumatic Stress Disorder
[8] CB 384-386 at [17]-[25]
[9] CB 386 at [26]
The Tribunal then summarised the applicant’s claims:
a)the applicant fears for his life and liberty if he returns to Vietnam because:
i)of his family’s past support for democracy prior to 1975;
ii)his father was a high-ranking officer in the South Vietnamese army;
iii)the boat he stole to escape Vietnam in 1982 belonged to the Communist government;
iv)he assaulted police officers who were on board and imprisoned them in the hold; and
v)he had been living illegally and unregistered in Vietnam for a long time prior to escaping;
b)the applicant fears that he will be classed as a foreigner by the Vietnamese authorities because he has not lived there for 33 years;
c)the applicant experienced mental trauma after witnessing the murder of his mother and sister and was himself shot;
d)the applicant will experience severe difficulty living in Vietnam because he has lost all contact with family there and he has lived more than half his life in Australia.[10]
[10] CB 386-388 at [27]-[28]
The Tribunal referred to the detailed submission received by the applicant’s migration agent and to a letter from the applicant to the Tribunal clarifying that he stole the boat to escape Vietnam.[11]
[11] CB 388 at [29]-[30]
The Tribunal summarised the applicant’s oral evidence in detail.[12] It then went on to consider each of the applicant’s claims.
[12] CB 388-389 at [32]-[36]
First, the Tribunal found that the chance the applicant would be seriously harmed by the Vietnamese authorities because of an imputed anti-communist party political opinion, arising from his family’s support for the previous regime, was remote.[13] It found that his fear of persecution for this reason was not well-founded.[14] In this respect:
a)the Tribunal mostly accepted the applicant’s claims about his family and their fate in Vietnam.[15] It also accepted that he was detained between 1979 and 1982, noting that this was for attempting to steal a boat to escape Vietnam;[16]
b)the Tribunal relied on country information about the treatment of supporters of the former South Vietnamese regime that indicated that they and their families were not persecuted;[17]
c)the Tribunal said that country information did not indicate that the applicant would be a person of interest to the Vietnamese authorities because of his father, noting that his father was killed around 57 years ago;[18]
d)in relation to the applicant’s fear of ongoing reprisals connected with the murder of his mother and sister the Tribunal noted that he lived in Vietnam for another decade without anything happening to him;[19] and
e)the Tribunal did not accept that the applicant was hiding from the authorities for the period after the murder of his mother and sister.[20]
[13] CB 391 at [48]
[14] CB 391 at [48]
[15] CB 390-391 at [40], [44] and [45]
[16] CB 391 at [46]
[17] CB 390 at [41]-[43]
[18] CB 390 at [44]
[19] CB 391 at [45] cf the Tribunal’s findings at [46], [48]
[20] CB 391 at [47]
Secondly, the Tribunal found that the chance the applicant would be arrested, jailed and possibly harmed on return to Vietnam because he stole a government boat 35 years ago was remote. It concluded that his fear of persecution for this reason was not well-founded.[21]
[21] CB 392 at [53]
Thirdly, the Tribunal considered the implications of the applicant returning to Vietnam with a serious criminal record in Australia.[22] It found that the chance the applicant would face serious harm on return to Vietnam because he had been convicted of drug related or other crime in Australia was remote.[23] In this respect:
a)the Tribunal referred to country information from DFAT[24] stating that the principle of double jeopardy applies in Vietnam and noted that it had raised this with the applicant in the review hearing;[25]
b)the Tribunal accepted that the applicant had a criminal history in Australia and it was likely the Vietnamese authorities would be aware of this fact upon his return;[26] and
c)the Tribunal relied on DFAT country information in making the finding.[27]
[22] CB 392-395 at [54]-[66]
[23] CB 394 at [64]
[24] Department of Foreign Affairs and Trade
[25] CB 393-394 at [58]-[60]
[26] CB 394 at [61]
[27] CB 394 at [63] and [64]
Fourthly, the Tribunal gave detailed consideration to the applicant’s claim that he will experience severe difficulty living in Vietnam.[28] It mostly accepted all the reasons advanced by the applicant as to why it will be difficult for him to live in Vietnam but found that these reasons, considered separately and cumulatively, did not result in him facing a real chance of persecution.[29] In this respect:
a)the Tribunal was not satisfied that the applicant would be denied medical treatment or would not be able to access treatment for his Hepatitis C;[30]
b)the Tribunal found that he would be able to find work in Vietnam eventually;[31]
c)the Tribunal found that he would be able to obtain household registration eventually, which would enable him to access various services;[32] and
d)the Tribunal found that his family in Australia would be able to provide him with the support he needs while he is establishing himself in Vietnam.[33]
[28] CB 395-400 at [67]-[86]
[29] CB 395 and 399 at [70] and [86]
[30] CB 396 at [71]
[31] CB 396 at [72]
[32] CB 396-399 at [74]-[85]
[33] CB 399 at [84]
Fifthly, the Tribunal considered whether the applicant would face serious harm from the Vietnamese authorities on return to Vietnam because he was a “failed asylum seeker” and due to an incident in which the Tribunal sent documents containing the applicant’s personal information to the wrong email address. In relation to the failed asylum seeker claim, the Tribunal relied on country information in concluding that the applicant does not face a real chance of persecution on return to Vietnam as a failed asylum seeker.[34] In relation to the provision of personal information claim, the Tribunal doubted that the information would get into the hands of the Vietnamese authorities and concluded in any event that if it did, that claim failed too, for the same reasons given in relation to the failed asylum seeker claim,.[35]
[34] CB 400-402 at [87]-[97]
[35] CB 400 at [91]
Sixthly, the Tribunal considered that the applicant left Vietnam in 1982 without a passport and, consequently, might be fined upon return. The Tribunal accepted that he might be fined but concluded that he does not face a real chance of persecution on account of his illegal departure from Vietnam for any reason.[36]
[36] CB 402-403 at [98]-[102]
Seventhly, the Tribunal considered whether the applicant would face serious harm upon return to Vietnam as a UNHCR mandated refugee. The Tribunal accepted that the UNHCR found the applicant to be a refugee and that the Vietnamese authorities might be aware of this. However, the Tribunal found that he does not face a well-founded fear of persecution for this reason.[37]
[37] CB 403 at [103]-[106]
Eighthly, the Tribunal considered the applicant’s claim that he will be denied access to medical treatment in Vietnam. It concluded it was satisfied that he would be able to access treatment.[38]
[38] CB 403-404 at [107]-[108]
Ninthly, the Tribunal addressed and rejected a claim based on his detention and treatment under s.501(3A) of the Migration Act.[39]
[39] CB 404 at [110]
Having considered the applicant’s claims individually and cumulatively, the Tribunal found that the applicant did not face a real chance of persecution on return to Vietnam, and therefore he did not satisfy the criteria in s.36(2)(a) of the Migration Act.[40]
[40] CB 404-405 at [111]-[112]
In relation to the consideration of the complementary protection criterion, the Tribunal found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there was a real risk that he would suffer significant harm. Therefore, he did not satisfy s.36(2)(aa) of the Migration Act.[41]
[41] CB 408 at [122] and [124]

The current proceedings

These proceedings began with a show cause application lodged on 4 September 2017.[42] The applicant now relies upon an amended application filed on 8 February 2018. There are two grounds in that application:
1.The Tribunal erred in making a finding that the Applicant would not be refused medical treatment because he had Hepatitis C as the finding was not founded on an adequate evidentiary basis.
2.The Tribunal committed jurisdictional error when it failed to properly identify, assess and address the risk of harm in respect of the Applicant's particular social group, in this case a person who has hepatitis C.
[42] filed the following day
I have before me as evidence the court book filed on 25 October 2017.
Both the applicant and the Minister filed pre-hearing submissions. Those of the Minister were overtaken by the amended application. Two issues were also raised by me during oral argument. I provided the Minister with the opportunity to file post-hearing submissions within 14 days and for the applicant to file any submissions in reply within a further seven days. Both parties took up that opportunity.

Consideration

The applicant’s contentions

Ground 1

The applicant contends that the Tribunal erred in making a finding that he would not be refused medical treatment because he had Hepatitis C as the finding was not founded on an adequate evidentiary basis.
One of the features of the applicant’s case is that he has been diagnosed with Hepatitis C. This was accepted by the Tribunal.[43]
[43] CB 404 at [108]
It is well known that Hepatitis C and drug use are linked and this linkage would be known in Vietnam as well as in Australia.
In the applicant’s statutory declaration, he declared that he would need medical assistance and treatment for Hepatitis C if he was returned to Vietnam “but the authorities will also see this in a bad light, and they will not give me assistance or subsidy for such illness. They will either refuse treatment, or make any treatment that might be available so expensive that I will not be able to afford it”.[44]
[44] CB 230
The applicant submits that the Tribunal, in relation to his Hepatitis C, had no evidence before it that could justify the finding[45] that it “does not accept the submission that [the applicant] would be refused medical treatment for his Hepatitis C or any other health problems on the return to Vietnam because of his criminal history or for any other reason.”
[45] CB 404 at [108]
There is a duty on the Tribunal in reviewing a decision, to make obvious enquiries about a critical fact and in this particular case, the critical fact would be whether because of his Hepatitis C the applicant has a well-founded fear of persecution or there was a real risk he will suffer significant harm in Vietnam.
Denial of medical treatment can amount to persecution.[46]
[46] Chen Shi Hai v Minister for Immigration [2000] HCA 19; (2000) 201 CLR 293, [29]
In relation to the issue of whether medical treatment would be available to the applicant if he had to return to Vietnam, the Tribunal appears to be relying on the assumption that because the applicant’s adult children have agreed to provide continued support to the applicant in Australia, they would do so in Vietnam,[47] and furthermore, that it is simply the case that there is a lower standard of health care in Vietnam compared to Australia.[48]
[47] CB 396 at [71]
[48] CB 406 at [118]
It is notable that the Tribunal did not have before it any information about the treatment of individuals in Vietnam who are suffering from Hepatitis C and whether there is any discrimination and persecution which would provide evidence that there is a real chance of harm to the applicant if he returned to Vietnam as a person with Hepatitis C, and furthermore a person with Hepatitis C who required medical treatment.
The applicant submits that the Tribunal should have sought this information, given that the applicant relied in part upon his having Hepatitis C as a reason for seeking a protection visa, which involved a material question in relation to whether he would suffer any discrimination or persecution.
The applicant submits that the failure to make that enquiry in this particular case amounts to jurisdictional error.[49]
[49] Minister for Immigration v SZIAI (2009) 259 ALR 429; (2009) 83 ALJR 1123 at [25]
The applicant further submits that in this particular case, the findings made by the Tribunal, about the type of health care that the applicant would receive in Vietnam for Hepatitis C, were made without probative evidence to support it, or an inference was drawn by the Tribunal which was not open on the primary facts.[50]
[50] Bell v Commissioner of Taxation [2012] FCA 1042 at [84]
The applicant relies upon the decision of this Court in CLK16 v Minister for Immigration & Anor.[51]
[51] [2017] FCCA 2582

Ground 2

The applicant submits that the Tribunal committed jurisdictional error when it failed to properly identify, assess and address the risk of harm in respect of the applicant’s particular social group, in this case a person who has Hepatitis C.

Pursuant to s.36(2)(a) of the Migration Act, the criterion for a protection visa is that the applicant is a person in respect of whom the Minister is satisfied Australia has protection obligations because that person is a refugee.
A person is a refugee if they have a well-founded fear of persecution.
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted by virtue of their membership of a political social group and there is a real chance that they would be persecuted for that reason, and the real chance of persecution relates to all areas of the relevant country.
As noted above, it is well known that Hepatitis C and drug use are linked and this linkage would be known in Vietnam as well as in Australia.
Therefore, the applicant contends that those persons in Vietnam who have Hepatitis C could be said to be members of a particular social group.
The Tribunal is said to have failed to examine the question of whether, as a member of a particular social group, the applicant would meet the criteria for protection either as a refugee or alternatively under the guise of complementary protection.
While membership of a particular social group was not directly raised by the applicant, the Tribunal has an obligation to consider a claim which arises clearly on the materials before it even if it is not expressly made.[52]
[52] NABE v Minister for Immigration(No 2) (2004) 144 FCR 1
The applicant submits that in this particular case, there was an obligation on the part of the Tribunal to answer the question as to whether, given the nature of the illness, it could be said that the applicant was a member of a particular social group.
The unresolved question is whether, in respect of persons in Vietnam with Hepatitis C, there is a history of discrimination, persecution or negative social attitudes which amounts to special treatment over a period of time.[53]
[53] see Lo v Minister for Immigration (1995) 61 FCR 221
The applicant seeks to distinguish this case from my decision in SZRIR v Minister for Immigration & Anor[54] because in that case the applicant did not raise the issue of sufferers of an illness and treatment in that country.
[54] [2012] FMCA 1006
In his final submissions, the applicant also deals with the two issues raised by me at the hearing. The two issues are:
a)whether the Tribunal complied with s.424A in respect of information gained from letters of support from the applicant’s children; and
b)given that the applicant was a heroin user, whether the Tribunal needed to consider if he could be treated for his addiction in Vietnam.
In relation to the s.424A issue the applicant concedes that the information, in the form of the letters, was provided by him to the Tribunal,[55] and therefore s.424A is not relevant.
[55] See Migration Act, s.424A(3)(ba)
In relation to the issue of the applicant’s previous heroin use, the applicant submits that the Tribunal needed to consider whether he could be treated for his addiction issues in Vietnam.
The applicant contends that it is not correct to state, as the Minister’s post-hearing submission does at [31], that given that the applicant was no longer using heroin, there was no factual basis which required the Tribunal to consider how he would be treated for heroin addiction in Vietnam. This is said to ignore material indicating that if returned to Vietnam the applicant would suffer mental and physical harm.[56]
[56] CB 369
Further, the applicant contends that it is also not correct to say the applicant’s previous experience with addiction did not form part of his claim. It is said to be clear from a reading of the submissions made by the applicant that his history as a user of drugs, and its allied criminal history, was one of the matters which formed his argument that he would be persecuted if returned to Vietnam.[57]
[57] CB 241, 243
The fact is that the applicant is a person who has been addicted to drugs and who will require access to facilities to deal with his addiction if there is a relapse. This is said to be a matter which the Tribunal should have considered given there was no dispute the applicant had suffered from addiction to heroin.

The Minister’s contentions

The applicant’s claims regarding Hepatitis C

The Minister contends that the entirety of the applicant’s references to Hepatitis C in the material provided to the Tribunal are as follows.
The applicant made no written claims and provided no written evidence about his Hepatitis C in his visa application or before the delegate. The delegate noted the fact that the applicant had Hepatitis C in her decision, but did not treat it as a distinct claim.[58]
[58] CB at 82
In his statutory declaration dated 15 June 2017, the applicant refers to his Hepatitis C at [36].[59] It is important to read the applicant’s claims at [36] in light of the applicant’s earlier comments at [34] of his statement. At [34] the applicant makes a claim that he will be denied access to medical treatment for his health conditions because of the way authorities will view him due to:
a)his family background;
b)his criminal record; and
c)his “being forced to return”.
[59] CB at 230
The applicant then goes on to claim at [36] of his statutory declaration that he “will need medical assistance and treatment for Hepatitis C” which he will be denied. It is clear from [34] and [36] that the applicant did not claim that he would be denied medical treatment because he had Hepatitis C. He claimed he would be denied medical treatment for his Hepatitis C because of the reasons set out in [34]. Nor was there any country information to suggest that a person who has Hepatitis C will be denied treatment.
The highest that any claim made by the applicant rises is found at [36] of his statutory declaration. There he says that he will need medical treatment for Hepatitis C and “the authorities will also see this in a bad light”. Notably, the applicant claims that it is the need for treatment and not the fact that the applicant has Hepatitis C which will cause him to be seen in a bad light.
The applicant’s migration agent made brief and indirect submissions to the Tribunal about the applicant’s Hepatitis C infection. Under the heading “Psychological harm”, the submissions note at [52] that the applicant has Hepatitis C (alongside mental health issues).[60] The submissions then state at [57] that if the applicant were returned, the abovementioned matters “would be of such detriment to his well-being that he will not be able to function nor subsist”. [61]
[60] CB 247 at [52]
[61] CB 247 at [57]

The Tribunal’s consideration of the applicant’s Hepatitis C

The Tribunal rejected the three reasons that the applicant gave as to why he would not receive medical treatment. It rejected his claims to fear harm due to his family background at [41], [44], [46] and [48],[62] because of his criminal record at [50],[63] [62] and [64],[64] and from “being forced to return” at [97],[65] [102] and [106].[66]
[62] CB 390
[63] CB 392
[64] CB 394
[65] CB 402
[66] CB 403
The Tribunal then concluded that although it accepted that the applicant had Hepatitis C, “he would be able to access medical treatment for this disease if required on return to Vietnam”.[67] The Tribunal went on to find:
Given the Tribunal’s findings that he [sic] applicant does not face a real chance of serious harm from the authorities on account of his family’s links to the South Vietnamese army or old regime, because of his illegal departure from Vietnam (and stealing a government boat to do so) or as a failed asylum seeker, the Tribunal does not accept the submission that he would be refused medical treatment for his Hepatitis C or any other health problems on return to Vietnam because of his criminal history of [sic] for any other reason. (emphasis added)
[67] CB 404 at [108]
The Tribunal separately considered the applicant’s claims that his need for treatment for Hepatitis C would cause the authorities to see him in a bad light. The statement is identified at [67] of the decision,[68] under the Tribunal’s consideration of the ability of the applicant to subsist in Vietnam. The Tribunal concludes in respect of these claims at [70]:[69]
… [T]hese considerations considered separately and cumulatively do not, in the Tribunal’s view, result in the applicant facing a real chance of persecution for a refugee reason as defined in s 5J(1)(a).
[68] CB 395
[69] CB 395
Finally, the Tribunal dealt with the applicant’s Hepatitis C in considering the complementary protection criterion at [118].[70] The Tribunal noted that there would be a lower level of health care in Vietnam compared to Australia. However, the Tribunal found that this would not give rise to a real risk of arbitrary deprivation of life or that the death penalty would be carried out, nor that it would fall within the remaining definitions of the definition of “significant harm” in s.5(1) because there was no relevant intention. Further at [118],[71] the Tribunal noted that inadequate medical treatment would not generally amount to a violation of Article 7 of the International Covenant on Civil and Political Rights.

The grounds of the amended application

[70] CB 406

[71] CB 407

Ground 1

The Minister submits that the applicant’s first ground is based on an incorrect premise that there was an issue before the Tribunal about whether the applicant would be refused medical treatment because he had Hepatitis C.[72] No such claim was made.[73]
[72] see applicant’s submissions at [1]
[73] see [69] and [70] above
To the extent that the applicant identifies the claim as being his submission that he would be seen in a bad light by the authorities because of his need for treatment for Hepatitis C, he did not provide evidence that being seen in a bad light would have amounted to “persecution [which involved] serious harm to the person” or “persecution [which involved] systematic and discriminatory conduct”.[74] In any event, this claim was dealt with by the Tribunal at [70] of the decision record. There it found that this claim did not amount to a “well-founded fear of persecution” within the meaning of s.5J of the Migration Act. This is logical given that the applicant did not identify or demonstrate that his fear of being seen in a bad light involved “being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”.[75] The Minister submits that the Court should not accept the applicant’s submissions that “denial of medical treatment can amount to persecution”,[76] without the appropriate qualifier that the fear of denial of medical treatment must be for one of the Convention reasons set out in s.5J(1)(a) and otherwise meet the requirements of s.5J.
[74] see s.5J(4)
[75] see s.5J(1)(a)
[76] applicant’s submissions at [7], relying on Chen Shi Hai at [29]
The Minister submits that the Tribunal did not require any further evidence to reject the applicant’s submission that he may be seen in a bad light because he required treatment for Hepatitis C.
The applicant claims that the Tribunal’s findings about health care in Vietnam were made without evidence.[77] This submission is said to misconceive the Tribunal’s role. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It was for the applicant to advance whatever evidence or argument he wished to advance in support of his contention that he was entitled to the visa. The Tribunal was then required to decide whether the claims were made out.[78]
[77] applicant’s submissions at [5] and [9]
[78] Abebe v The Commonwealth (1999) 197 CLR 510 at [187]
As set out above, the applicant claimed that he would be denied medical treatment for his Hepatitis C because of the way authorities would view him. The Tribunal did not accept the applicant would be viewed negatively by the authorities for the reasons he claimed.[79] That is said to have been sufficient to deal with the applicant’s claim.
[79] see [73] and [74] above
As the applicant points out in his submissions,[80] there was no material before the Tribunal indicating that people with Hepatitis C in Vietnam were denied medical treatment. Nor was there a claim to that effect. As such, the Tribunal was under no duty to give consideration to the question. What was before the Tribunal was country information provided by the applicant’s migration agent which stated:[81]
The Government provides access to basic health care for all citizens, in both urban and rural areas.
[80] applicant’s submissions at [9]
[81] CB at 277. Note that the Tribunal found that the applicant was a Vietnamese citizen at CB 384 at [15] and [16]
The Minister submits that, given there was no claim about the denial of medical services to people in Vietnam who had Hepatitis C, there was no “critical fact” which the Tribunal was required to enquire into.[82] Further, proof that there was no discrimination against people with Hepatitis C in Vietnam is also not clearly “easily ascertained”.[83]
[82] Cf. applicant’s submissions at [6] and [11]
[83] SZIAI at [25]
Accordingly, the Minister contends that the Tribunal’s decision was founded on an adequate evidentiary basis.

Ground 2 of the amended application

The applicant’s second ground is that the Tribunal failed to consider an implied claim that the applicant was part of a “particular social group” relating to his Hepatitis C.
The applicant concedes that he did not directly raise such a claim.[84]
[84] applicant’s submissions at [21]
While a Tribunal may be required to consider an unexpressed claim which clearly arises on the material, it is not required to consider all possible unexpressed claims. The Full Federal Court has stated that an: [85]
… unarticulated claim 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.
(emphasis added)
[85] NABE at [58] (the Court)
Allsop J (as his Honour then was) has also said:[86]
Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy. (emphasis added)
[86] NAVK v Minister for Immigration [2004] FCA 1695 at [15]
The Minister contends that, given the limited nature of the applicant’s statements about his need for treatment for Hepatitis C, the fact that he has identified a very limited form of harm (namely, being seen in a bad light) and that he identified no Convention nexus or relevant “particular social group”, there was no obligation for the Tribunal to consider the claim.
To the extent that the applicant raised a “particular social group” claim relating to his Hepatitis C, the Tribunal dealt with it at [70] in which it found that such a claim did not result in the applicant facing a real chance of persecution for a refugee reason as defined in s.5J(1)(a). This provision refers to a person fearing persecution for reasons of membership of a particular social group. The Tribunal therefore rejected any such claim.
Ground 2 is said therefore to be no more than an attempt to creatively reverse engineer the applicant’s claims to make out an error in the Tribunal’s decision.

Matters raised by the Court

As noted above at [61], at the hearing, I asked for the following matters to be considered in the post hearing written submissions:
a)first, whether the Tribunal complied with s.424A in respect of information gained from letters of support from the applicant’s children; and
b)secondly, given that the applicant was a heroin user, whether the Tribunal needed to consider if he would be treated for his addiction issues in Vietnam.
The applicant has conceded that there was no breach of s.424A and hence there is no need to consider the Minister’s submissions on that issue.
On the second issue, there was evidence before the Tribunal that the applicant had previously used heroin. The Minister contends that this did not form the basis for any of the applicant’s claims. Moreover, the applicant gave evidence that he had worked hard to rehabilitate himself in Australia and that he had stopped his drug addiction and rebuilt his life.[87] The Tribunal considered this information in its decision[88] and considered the applicant’s claim in light of his being a former heroin user.[89] Given that the applicant was no longer using heroin, the Minister submits that there was no factual basis which required the Tribunal to consider how he would be treated for his heroin addiction if he were returned to Vietnam.
[87] CB 229 at [30]
[88] CB at 385 at [22]
[89] CB 395 at [70]

Resolution

As the High Court recently observed in Falzon v Minister for Immigration[90] at [95], it might be thought that where a person comes to this country many years ago and is absorbed into the community, the consequences of that person engaging in criminality should be matters for Australia to deal with. That is, however, a matter of policy beyond the scope of these proceedings, and it is not in question that the Minister was empowered to confirm the cancellation of the applicant’s permanent residence visa. Likewise, the Minister would be empowered to remove the applicant from Australia if these proceedings are not resolved in the applicant’s favour.
[90] [2018] HCA 2
Ground 2 in the amended application may be disposed of shortly. This Court’s decision in SZRIR may be confined to its facts. I found in that case that the Tribunal did not fall into error in finding that no particular social group of Hepatitis C sufferers existed in Pakistan. The Tribunal in that case also found that the applicant had not advanced a claim in relation to the disease based on any other attribute recognised by the Refugees Convention.
In the present case the Tribunal expressly considered the applicant’s position as a person infected with Hepatitis C, both in relation to the Refugee Criterion at [70] and [107]-[108] and in relation to complementary protection at [118]. Having considered whether the applicant would suffer harm because of that attribute (infection with Hepatitis C), there was, in my view, no need for the Tribunal to consider whether the applicant would suffer harm as a member of a class of persons with the same attribute.
The applicant did not claim membership of any other particular social group (eg criminals or intravenous drug users), no doubt because he contended that he had reformed and had ceased his drug use.
Ground 2 does not establish a jurisdictional error.

Ground 1

The first ground is not so easily disposed of. This Court’s decision in CLK16 established no more than had been stated by the Full Federal Court in Minister for Immigration v SZSRS[91] at [52]-[54] and by the High Court in SZIAI.[92] The question is whether, consistently with the principles established in those cases, the Tribunal came under a duty to inquire.
[91] [2014] FCAFC 16; (2014) 309 ALR 67
[92] at [25]
The Tribunal made a bold assumption at [71] that because his family had provided letters of support for the applicant’s release on parole and in challenging the cancellation decision, they would support the applicant in Vietnam. Nevertheless, the letters were provided to the Tribunal by the applicant and it does not appear that any limitation was placed on the Tribunal’s use of them.

The Tribunal stated at [71]:[93]
The Tribunal accepts the applicant has Hepatitis C for which he has received treatment and some mental health issues for which he has received counselling, as discussed above, but he is currently not taking any medications and indicated that his mental health was stable. It also accepts the submission that he has continuing pain in his legs. It accepts the applicant may not be able to access the same standard of health care services in Vietnam as he would in Australia, as is the case for other nationals of Vietnam but it is not satisfied on the evidence before it that he would be denied medical services or health care for a refugee (or any other) reason by anyone. For the reasons above, whilst the Tribunal accepts the applicant's claims about his family's links to the former south Vietnamese government, it finds remote the chance the authorities would continue to try and punish him for his family's links to the South Vietnamese army decades ago. The Tribunal accepts the applicant may need some financial help initially when he first arrives in Vietnam. In this regard the Tribunal notes his oral (and written) evidence that he has the support of his family members in Australia, including three adult children who work, who would be able to help him settle in to life in Vietnam, including obtaining counselling or treatment for his Hepatitis C or other medical or material assistance if required. The letters of support from the applicant's son, daughter and nephew provided to the Tribunal clearly indicate their commitment to support the applicant in the future. Although written in support of his release on parole and to challenge the cancellation decision, the Tribunal doubts they would withdraw their support if he returns to Vietnam.
[93] CB 396
The Tribunal continued at [84]:[94]
It is submitted that it could take years for the applicant to obtain household registration and without money and support it will be difficult for the applicant to live and find work on return to Vietnam. County information set out above from the World Bank group indicates the applicant may be required to show continuous residence for a year to be eligible for permanent residency. However the Tribunal notes that the applicant's adult children in Australia have indicated their willingness to support their father post release from prison/immigration detention and at hearing the applicant said he has the support of his adult children in Australia, all of whom work and earn an income. On this basis the Tribunal is satisfied that his adult children and/or nephew in Australia would be willing and able to provide the applicant with the necessary financially support to help him settle in to Vietnam on return, at least initially in order to secure a place to live and obtain a ho khau.[95]
[94] CB 399
[95] household registration
The Tribunal’s conclusions at [107]-[108] and [118] need to be viewed in the light of these anterior findings.
There is arguably a disconnect in the Minister’s submissions. The Minister contends correctly that the applicant’s claim was that he would be refused medical treatment because he would be seen in a bad light in view of his family background, his criminal history both in Vietnam and Australia and as a forced returnee. Further, and as put in the Minister’s submissions above at [74]-[77], the Tribunal considered the claim that the applicant would be denied medical treatment because of those factors.
On the other hand, as set out at [94] above, the Minister contends that, even though there was evidence before the Tribunal that the applicant had been an intravenous drug user and that he had been addicted to heroin, that did not need to be considered by the Tribunal because it was in the past, and because the applicant had rehabilitated himself. It is, in my view, artificial to draw a distinction between the applicant’s drug offending in Australia in the past and his former drug use and addiction. As is often the case, the criminal conduct and the drug addiction were related. Nevertheless, as the Minister points out, the Tribunal considered, at [22] of its reasons, the information put before it by the applicant concerning his rehabilitation. Further, the applicant’s past drug addiction was expressly addressed by the Tribunal at [70] where it stated:[96]
The Tribunal accepts the applicant has no family or friends in Vietnam, he is not familiar with Vietnamese society, he has some mental health problems from past trauma, he has Hepatitis C, and his studies and work experience has been intermittent. He has also spent many years in institutions (prison and detention) in Australia and has struggled with drug addiction in the past. It accepts that given these considerations, combined with the fact that he has not returned to his home country for around 35 years and his family members are all in Australia, it will be difficult for him to adjust to life in Vietnam. It also accepts that he experienced traumatic events in his childhood as described, which have impacted on him adversely psychologically. However, these considerations considered separately and cumulatively do not, in the Tribunal's view, result in the applicant facing a real chance of persecution for a refugee reason as defined in s.5J(1)(a). As well, in terms of whether the applicant would face discrimination from the community at large because of his history as a drug user and criminal history, the Tribunal doubts whether they would even come to know these facts. If they do, the Tribunal accepts that the applicant may face a degree of ostracism and discrimination in Vietnam on this basis, however is not satisfied that it would arise to the level of serious or significant harm as defined in the Act.
[96] CB 395-396
The applicant’s concern in this ground is not that the Tribunal failed to consider a claim but that the Tribunal’s conclusions on the claim were not based on adequate evidence. The applicant’s focus is on [71] of the Tribunal’s reasons set out above at [102]:[97]
[97] see also CB 406 at [118]
The Tribunal’s reasons were not unsupported by evidence. They were supported by evidence put by the applicant himself and by country information. While the Tribunal’s reliance upon the letters of support by the applicant’s son, daughter and nephew is questionable, the use of those letters was open to the Tribunal. It was neither illogical nor unreasonable for the Tribunal to conclude that family members who had offered to support the applicant in Australia would not deny him support in Vietnam.
Neither was there any obligation on the Tribunal to make further inquiries in the circumstances of this matter. I accept the Minister’s submission that, given that there was no claim about the denial of medical services to people in Vietnam who had Hepatitis C, there was no “critical fact” which the Tribunal was required to inquire into.[98] Further, I accept that proof that there is no discrimination against people with Hepatitis C in Vietnam is not something which could be easily ascertained.
[98] see [83] above

Conclusion

I conclude that the applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
I will so order.
I will hear the parties as to costs.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 29 March 2018