DZADO v Minister for Immigration
[2013] FMCA 1
•1 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZADO v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 1 |
| MIGRATION – Review of report and recommendation of Independent Merits Reviewer in relation to the claims of an offshore entry person – applicant and his brother claiming religious and particular social group persecution in Vietnam – Reviewer making a composite report on the claims of both – applicant and his brother not believed – whether the Reviewer erred by not putting credibility concerns about inconsistencies between the account of the applicant and his brother to the applicant – whether the Reviewer erred by not alerting the applicant to a determinative issue in the Review considered – whether the Reviewer overlooked an element of the applicant’s claim or whether the applicant as a minor was denied procedural fairness considered. |
| Immigration (Guardianship of Children) Act 1946 (Cth), ss.4AA, 4AAA, 4AAAA, 5 Migration Act 1958 (Cth), ss.36, 426 |
| Applicant WAEE v Minister for Immigration [2003] FCAFC 184 Applicants M1015 v Minister for Immigration [2004] FCA 1309 DZADP v Minister for Immigration & Anor [2013] FMCA 35 Htun v Minister for Immigration (2001) 194 ALR 244 Minister for Immigration v SCAR (2003) 128 FCR 553 Minister for Immigration v SZNVW & Anor (2010) 183 FCR 575 Minister for Immigration v SZQHH & Anor (2012) 200 FCR 223 NAHI v Minister for Immigration [2004] FCAFC 10 Odhiambo v Minister for Immigration (2002) 122 FCR 29 Re Minister for Immigration; ex parte “A” (2001) 185 ALR 489 Re Minister for Immigration; ex parte Lam (2003) 214 CLR 1 SFTB v Minister for Immigration (2003) 129 FCR 222 SZBEL v Minister for Immigration (2006) 228 CLR 152 SZIWY v Minister for Immigration & Anor [2007] FMCA 1641 VHAP of 2002 v Minister for Immigration (2004) ALD 559 X v Minister for Immigration (1999) 92 FCR 524 |
| Applicant: | DZADO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | HEATHER KING IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 35 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 20 November 2012 |
| Date of Last Submission: | 11 February 2013 |
| Delivered at: | Sydney, via videolink to Darwin |
| Delivered on: | 1 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms A Burt |
| Solicitors for the Applicant: | NT Legal Aid Commission |
| Counsel for the Respondents: | Mr T Anderson |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Court declares that the report and recommendation of the second respondent dated 25 May 2012 was not made according to law.
The first respondent, by himself or his Department, officers, delegate or agents, is restrained from relying upon the report and recommendation of the second respondent.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
DNG 35 of 2012
| DZADO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| HEATHER KING IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to restrain the first respondent (the Minister) from relying upon a report and recommendation made by the second respondent (the Reviewer) on 25 May 2012. The Reviewer found that the applicant and his older brother did not meet either of the criteria for a protection visa in s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).
The applicant is from Vietnam and made claims of persecution based upon his Catholic religion and his membership of a particular social group of undocumented persons in Vietnam. The following statement of background facts is derived from the submissions of the parties.
The applicant is an offshore entry person, as that term is defined at s.5 of the Migration Act. He is a citizen of Vietnam who claimed to fear persecution in Vietnam (relevantly) on account of his Catholic religion and because he is an undocumented minor. He arrived at Christmas Island on 10 May 2011 with his older brother (DZADP)[1] and submitted claims in support of a request for a Protection Obligation Evaluation (POE) on 26 October 2011[2], which included his statutory declaration[3].
[1] See DZADP v Minister for Immigration & Anor [2013] FMCA 35
[2] Court Book (CB) 31-83
[3] CB 32-35
On 7 December 2011, the POE found that Australia did not owe the applicant protection obligations[4] and the applicant’s case was automatically referred to the Reviewer for an Independent Protection Assessment (IPA).
[4] CB 90-100
The POE officer considered that “the bulk of the [applicant’s] claims that he raised subsequent to his entry interview are not credible”[5]. She noted inconsistencies in the evidence of the applicant and his brother[6], that remained unexplained even after a request to do so[7].
[5] CB 99.10
[6] CB 95.5, CB 97.3
[7] CB 85, CB 95.10
The Reviewer conducted an interview with the applicant on 22 February 2012[8], the day after interviewing his brother[9]. The applicant and his brother were represented by the same firm of solicitors (Vrachnas Lawyers). The same migration agent (Beatriz Stotz) appeared for both at the interviews.
[8] Annexure A to the affidavit of Rebecca Sharkey affirmed 4 October 2012, CB 157-160 [69]-[85]
[9] CB 152-157 [40]-[68]
During the interview the Reviewer raised her concerns about inconsistencies between the evidence of the applicant and his brother[10]. The agent’s response was to blame the “different understandings or misunderstandings”, “a lot of confusion” and “contradictory information” on the applicant’s difficulties in answering questions at interview through an interpreter. This explanation was adopted by the applicant[11].
[10] Transcript (T) 25.16-39
[11] T 26.14-33
After the interviews Ms Stotz made written submissions to the Reviewer on behalf of the applicant (and his brother)[12], but did not further address the inconsistencies in their evidence.
[12] CB 101-116, CB 160 [86]
The Reviewer recommended in her report of 25 May 2012 that the applicant and his brother not be recognised as persons to whom Australia has protection obligations[13]. As with the POE officer, the Reviewer did not find the applicant's account credible. Although the Reviewer was prepared to accept that the applicant “may be a minor”, she did not accept that this heightened his risk of persecution[14].
[13] CB 143-176
[14] CB 173 [131]
The applicant’s claims are, in summary:
a)He is a young Vietnamese Catholic man. He was born on 13 July 1997[15].
b)He was found to be a minor[16].
c)He came to Australia as crew on a vessel called Keeling[17]. The applicant came with his older brother.
d)The brothers’ parents abandoned them at a young age. An uncle took them in but he passed away in a typhoon in 2006.
e)The applicant and his brother do not have official identification papers in Vietnam. They hold no identification cards[18]. His uncle had tried to obtain those identification papers on a number of occasions[19]. As he has no papers, the applicant suffered discrimination, for example if he were to die, he could not be buried in a Catholic cemetery[20].
f)The applicant has worked as a fisherman in Vietnam. From a young age, he assisted his uncle working with fishing nets and oyster beds[21]. He and his brother had difficulty earning a livelihood in Vietnam[22].
g)In 2009, the local government detained both the applicant and his brother when they were praying[23]. The applicant learnt to read by attending the hut of a woman who was a teacher for a couple of hours, one or two days a week[24]. His uncle arranged this. The teacher worked assisting people with no documentation with basic literacy[25]. At night on the barge he would “revise notes, copy things and practise his writing”[26].
h)The applicant fears that he will be persecuted on return to Vietnam for reasons of religion, for the fact that he is a minor, and because he is undocumented and left Vietnam illegally.
[15] CB 147
[16] CB 173
[17] CB 147
[18] CB 150
[19] CB 148
[20] CB 148
[21] CB 147
[22] CB 147
[23] CB 149
[24] CB 157
[25] CB 150
[26] CB 158
The applicant was present at the following interviews since arrival in Australia:
a)on 20 May 2011, an entry interview (his brother was present)[27];
b)on 5 September (or December) 2011, a nationality and identity interview[28] (his brother was not present);
c)on 2 November 2011, a POE interview (joint interview);
d)an age determination hearing on 25 January 2012[29];
e)on 22 February 2012, an IPA interview (his brother was not present[30].
[27] CB 148
[28] CB 149
[29] CB 151
[30] CB 152
The applicant’s brother, was also interviewed on his own on:
a)20 May 2011, an entry interview[31];
b)5 September 2011, another interview[32];
c)on 21 February 2012, an IPA interview[33].
[31] CB 147
[32] CB 150
[33] CB 152
A statement was prepared on behalf of the applicant and is dated 26 October 2011. His brother prepared a separate statement.
The POE officer conducted a joint interview with the brothers. The applicant’s brother is described as the “primary respondent”[34]. This is despite the fact that there was no joint application; the brothers made separate applications for asylum in Australia. The applicant submitted his own Entry Interview Form[35], “Form 80”[36], Request for Protection Obligations Determination (“POD”)[37], IAAAS Form[38], UNHCR Consent Form[39], Statutory Declaration[40] (applicant’s references first). Separate preliminary (POD) hearings were heard for the applicant and his brother[41]. Separate “decisions” were made in respect of each of the brothers, and they are being heard as separate judicial review matters.
[34] CB 150
[35] CB 9
[36] CB 72
[37] CB 44
[38] CB 38, CB 40
[39] CB 41, CB 43
[40] CB 32, CB 33
[41] CB 87, 89
The Reviewer interviewed the applicant and his brother separately, but made a joint decision.
The Reviewer did not find the applicant or his brother to be credible. The Reviewer made a number of findings that she did not accept aspects of the evidence of either the applicant, or his brother. In critical respects, the Reviewer relied on inconsistencies in the accounts given by the applicant and his brother.
The judicial review application
These proceedings began with a judicial review application filed on 2 August 2012. Grounds 1 and 2 in that application were the same as the grounds of application in DZADP, with an additional ground drawing upon the applicant’s asserted status as a minor. As a result of the argument about the third ground and particulars at the trial of this matter on 20 November 2012, I gave leave for the applicant to file an amended application. I also invited further written submissions from the parties. The amended application filed on 7 December 2012 contains the following grounds:
1. The Second Respondent denied the Applicant procedural fairness in failing to put to the Applicant relevant and adverse information, namely the evidence of the Applicant’s brother.
Particulars
(a) The Second Respondent decided the Applicant’s case and his brother’s case jointly and in the one decision.
(b) The Second Respondent interviewed each applicant separately.
(c)In making significant adverse credibility findings against the Applicant and in rejecting his factual claims, the Second Respondent relied upon the discrepancies between the Applicants’ evidence and the evidence of his brother.
(d) Procedural fairness required the Second Respondent to provide the Applicant with an opportunity to comment upon and respond to the adverse information.
2. The Second Respondent denied the Applicant procedural fairness by failing to raise with the Applicant that a live issue in his application was his education and/or his level of literacy.
Particulars
(a) The Applicant claimed to have only received limited, informal education.
(b) The Second Respondent rejected the Applicant’s evidence of his education.
(c) The Second Respondent relied upon the Applicant’s capacity “to be literate” as a basis for rejecting the claim that the Applicant was undocumented and for making adverse credibility findings.
(d) The Second Respondent failed to raise with the Applicant that a live issue at the hearing was the Applicants’ education and/or level of literacy.
3. The Second Respondent failed to consider whether the Applicant was at risk of persecution upon return to Vietnam as a minor without parental protection or support.
Particulars
(a) The Applicant claimed to be at risk of harm in Vietnam upon return for several reasons including his status as a minor.
(b) On behalf of the Applicant it was submitted that his status as a minor would place him in danger of harm, including children trafficking.
(c) The Second Respondent accepted that the Applicant was a minor and accepted his stated age.
(d) The Second Respondent found that his status as a minor did not exacerbate his chance of being persecuted should he be returned.
(e) The Second Respondent relied upon her finding that the Applicant had a “protective older brother” who had ensured that he was cared for and that his basic needs were met.
(f) The Second Respondent failed to assess whether the Applicant would be at risk of harm as a minor without parental support or protections upon return to Vietnam. Instead, the Second Respondent made a finding that in the past the Applicant had been adequately supported by his brother.
(g) The Second Respondent was required to consider whether the Applicant was at risk of future persecution by reason of his status instead of proceeding on the assumption that his older brother (with his own pending protection visa application) would be capable of providing sufficient future support.
4. By reason of the Applicant’s status as a minor and his lack of competence the Applicant was denied procedural fairness as he was not fit and/or capable of fully participating in the application process and/or was unable to give evidence and present arguments at the hearing before the Second Respondent.
Particulars
(a) The applicant is a minor.
(b) The applicant was not assisted by an independent observer, responsible adult, and/or any other adult acting in a guardianship capacity present at interview before the Second Respondent.
(c) The applicant required assistance in order to participate in the hearing.
(d) Without that assistance the applicant was not in a position to participate in the hearing in a real and meaningful manner.
5. The Applicant’s status as an unaccompanied minor caused him to suffer disadvantage necessitating a guardian to actively represent his interests through the application process and/or the hearing before the Second Respondent.
Particulars
(e) The Applicant has consistently claimed [he] was a minor and arrived in Australia as an offshore entry person and accompanied by his older brother.
(f) The Second Respondent found at court book [172] that the Applicant was a minor.
(g) Under section 6 of the Guardianship Act the Minister for Immigration became the guardian of the Applicant and as such acquired the “same rights, powers, duties, obligations and liabilities, as a natural guardian of the child would have”.
(h) The Applicant’s guardian failed to represent the Applicant’s interests through the application process and/or hearing before the Second Respondent and consequently this gave rise to procedural fairness.
(i) The Applicant repeats and refers to ground [4] of this application.
I received as evidence the court book filed on 29 August 2012 and the affidavit of Rebecca Sharkey, made on 4 October 2012, to which is annexed a transcript of the applicant’s hearing with the Reviewer on 22 February 2012.
The applicant filed with his amended application and further written submissions on 7 December 2012 a further affidavit by Ms Sharkey made the previous day. That affidavit annexes a copy of a document of the Minister’s Department titled Information on Arrangements in Place for Unaccompanied Minors. Ms Sharkey deposes that the arrangements described in that document are applicable to the applicant’s time in immigration detention, including during his initial entry interview, his POE interview and his interview with the Reviewer.
On 21 December 2012, the Minister filed with his supplementary submissions an affidavit by Jonathan Bray made on 20 December 2012, apparently intended to support the proposition that the applicant is not a minor. Annexed to that affidavit are two age determination assessments and a letter from the Minister’s Department to the applicant dated 25 January 2012 notifying him of the outcome of his age determination assessment. Further documents relating to the assessments are also annexed to the affidavit.
On 31 January 2013 the applicant filed his final submissions in reply and a further affidavit by Rebecca Sharkey, made on the same day, apparently intended to support the applicant’s contention that he is a minor. By email correspondence dated 4 February 2013 to my associate, the Minister’s solicitor objected to the receipt of that affidavit. I instructed my associate to inform the parties that I proposed to receive both Mr Bray’s affidavit, and Ms Sharkey’s further affidavit, subject to relevance, but that the parties could have the matter relisted if they remained concerned. My associate informed the parties that the Court did not consider it necessary to make a finding of fact on the age of the applicant. The Minister’s solicitors submitted by email on 11 February 2013 that, as the Court did not consider it necessary to make a finding of fact on the age of the applicant, neither the affidavit of Mr Bray, nor the third affidavit of Ms Sharkey should be received. I accepted that submission.
The applicant contends that the Reviewer fell into the same errors identified by the applicant in DZADP. Further, the applicant contends that the Reviewer erred by reason of procedural fairness stemming from his position as a minor. In particular, the applicant contends that he was not able as a minor to fully participate in the review process (including the interview with the Reviewer) and that he needed a litigation guardian, which was not afforded to him.
The Minister denies that the Reviewer fell into reviewable legal error in any of the asserted instances. In particular, the Minister denies any procedural unfairness and denies that the applicant is a minor.
Consideration
I dealt with the general legal principles applicable to judicial review applications by offshore entry persons in DZADP at [21]-[25]. Those principles apply equally in this case.
In addition, when considering the issue of procedural fairness in relation to the applicant, if he is a minor, it is appropriate to have regard to the arrangements put in place for unaccompanied minors by the Minister’s Department. Those arrangements relevantly were as follows[42]:
[42] affidavit of Rebecca Sharkey, 7 December 2012, page 5
(a) Operation of the Immigration (Guardianship of Children) (IGOC) Act
Under the Immigration (Guardianship of Children) Act 1946 (the IGOC Act) the Minister for Immigration and Citizenship (‘the Minister’) is the legal guardian of each ‘non-citizen child’ who arrives in Australia (section 6 of the IGOC Act refers).
Under section 4AAA of the IGOC Act, a ‘non-citizen child’ is a child who:
– has not turned 18 years old; and
– enters Australia as a non-citizen (that is as a person who is not an Australian citizen); and
– intends, or is intended, to become a permanent resident of Australia; and
– has not entered Australia in the charge of, or for the purpose of living in Australia under the care of:
·a parent of the child, a relative of the child who has turned 21, or an intending adoptive parent of the child; or
·a person who is not less than 21 years of age; and
· a prescribed adoption class visa is in force in relation to the child when they enter Australia; and
· the adult intends to reside with the child in a declared State or Territory.
A child will also be a ‘non-citizen child’ if they have not turned 18 and a direction under section 4AA of the IGOC Act (‘Orders of guardianship for certain children’) is in force in relation to them (subsection 4AAAA(4) of the IGOC Act refers).
A person will cease to be a ‘non-citizen child’ where they:
– turn 18; or
– leave Australia permanently; or
– are granted Australian citizenship; or
– the provisions of the IGOC cease to apply to, and in relation to, them. For Example, this will occur where:
· the child becomes an Australian citizen; or
· the child is subject to an order made under section 11 of the IGOC Act. Broadly speaking, under this section the Minister may make an order excluding a child, or a class of children, from the provisions of the IGOC Act.
The Minister’s Department determines whether a person is a minor or an adult through age determination processes detailed in Ms Sharkey’s second affidavit[43]. Special arrangements for unaccompanied minors only apply if an individual is found to be a minor:
[43] at page 9
Delegated guardianship
Under section 5 of the IGOC Act, the Minister may delegate all, or any, of his powers and functions (other than the power to delegate) under that Act to any officer or authority of the Commonwealth, State or Territory.
However, it is important to note that even if the Minister delegates all of his powers or functions under the IGOC Act, the Minister remains the guardian of children covered by that Act and accordingly retains ultimate responsibility for those children. A delegation of these powers and functions does not transfer the office of guardian to the delegate.
The Minister delegates his or powers and functions under the IGOC Act by means of an instrument of delegation. The Minister’s instrument of delegation is reviewed regularly to ensure guardianship roles and responsibilities are delegated to appropriate departmental officers and relevant State and Territory agencies.
The current instrument of delegation was made by the Minister for Immigration and Citizenship, the Honourable Mr Chris Bowen, MP on 16 June 2011.
Pursuant to section 5 of the Immigration (Guardianship of Children) Act 1946 (the Act), the Minister has delegated to persons holding or performing the duties of various positions in State and Territory child welfare agencies, his powers and functions under the Act (with a couple of exceptions), in relation to a non-citizen child who:
– is in an alternative care arrangement (as defined);
– is in community detention (as defined); or
– is not in immigration detention
In the Northern Territory and as at 6 August 2012, the Department’s delegated guardians are:
– Territory Director;
- Assistant Secretary, Community and Detention Operations; and
– Executive Level 2 Detention Directors.
The information provided by Ms Sharkey in her second affidavit from the Departmental documents details the roles and responsibilities of guardians and the guiding principles for delegated guardians. They include arrangements for the provision of immigration advice and assistance under the Immigration Advice and Application Assistance Scheme (IAAAS) and the procedure for appointing an IAAAS provider.
The following information concerns the role of independent observers in cases concerning unaccompanied minors[44]:
[44] Affidavit of Ms Sharkey, 7 December 2012, at pages 15-16
(a) The role of an independent observer
Unaccompanied minors will undergo a number of interviews with the Department as they progress towards an immigration outcome (visa grant or removal from Australia). It is the Department’s policy that an independent observer should be present at any DIAC interview with an unaccompanied minor.
The independent observer role is currently performed by a DIAC contracted service provider, Life Without Barriers (LWB), both in immigration detention facilities and in community-based accommodation. Independent observers from Life Without Barriers are specially trained to ensure the physical and emotional well-being of an unaccompanied minor during an interview. They are there to support the unaccompanied minor but do not provide legal advice.
The role of an independent observer is to act in the best interests of unaccompanied minors and ensure that the treatment of unaccompanied minors is fair, appropriate and reasonable. Their role is to observe the demeanour and presentation of a minor, draw any concerns about the emotional and physical well-being of the minor being interviewed to the interviewer’s attention and maintain records of any concerns that have been raised.
Independent observers are expected to:
– build rapport and reassure the unaccompanied minor;
– explain to the unaccompanied minor that they will be accompanying them in interviews to assist them through the process by providing them with physical and moral support;
– explain that they are not a legal representative or an advocate for the unaccompanied minor;
– maintain a physical presence, ensuring appropriate toilet and food breaks are provided to the unaccompanied minor and monitor for inappropriate questioning and/or behaviour by the interviewer; and
– ensure the unaccompanied minor is given the opportunity to ask questions, have their questions answered, is debriefed following the interview, and is returned to their accommodation.
(b) When an independent observer’s services are used
Independent observers are required to attend interviews and meetings between unaccompanied minors and the Department and/or other agencies.
They are also required to attend interviews and meeting between accompanied minors and the Department and/or other agencies where no adult relative is present or where concern exists regarding the adult relative’s understanding of processes and capability of acting in the best interests of the minor with regards to a minor’s physical and emotional wellbeing.
Some of the main types of interviews or processes that an independent observer will participate in include (but are not limited to):
– induction processes;
– bio-data, entry, Protection Obligations Evaluation (POE) and Independent Protection Assessment Office (IPAO) interviews;
– discussions regarding negative decisions;
– removal interviews;
– discussions upon release from an alternative place of detention or community detention location;
– transfers;
– visa grants;
– assistance with case management processes;
– age determination processes;
– interviews with external agencies; and
– interactions with DIAC’s Detention Service Provider (Serco) for some functions such as the return of property to a minor or the release or transfer of a minor from an alternative place of detention.
An independent observer is generally not required during routine processes that are in the unaccompanied minor’s best interests such as:
– health related processes (such as medical appointments); or
– the facilitation of phone calls.
The Department also gives consideration to the continued use of an independent observer for a person who may have recently turned 18 years of age. For example, where an independent observer has been working with a person who has turned 18 years of age before a process is completed, consideration will be given to continuing to provide that person with access to the independent observer, particularly in cases where there may be concerns regarding the person’s level of maturity or understanding of processes.
(c) Attendance of the unaccompanied minor’s carer at interviews
In addition to the attendance of an independent observer, an unaccompanied minor may also request that their community detention service provider carer also attend an interview.
The purpose of a carer attending an interview should be to provide a reassuring presence for the unaccompanied minor if requested. Their role is not to advocate on behalf of the unaccompanied minor or speak on behalf of the unaccompanied minor.
Departmental policy is that a carer can attend the interview if the unaccompanied minor has request the carer attend. The carer’s attendance at the interview though, should not replace the presence of an independent observer. Rather, both the carer and the independent observer can attend the interview with the unaccompanied minor.
Ground 1 – did the Reviewer err by failing to put to the applicant evidence given by his older brother?
As was the case in DZADP, the applicant contends that the Reviewer denied him procedural fairness by failing to put him on notice of relevant and adverse information given by his brother. The claim arises essentially because of the unusual way in which the Reviewer dealt with the claims of the two young men. Whereas the POE officer interviewed the brothers together but dealt with their claims separately, the Reviewer did the reverse. She interviewed the brothers separately and then prepared a single report and recommendation dealing with both of them. There is nothing in the Migration Act (or under the general law) to prevent a decision maker taking that course, but if a decision maker chooses to deal with related claims together it is important that the decision maker clearly identify which relevant findings relate to which individual’s claims. The report and recommendation of the Reviewer in this case turned essentially on adverse credibility findings against the applicant and his brother. The problem is that while the report at some points clearly identifies an adverse credibility finding in relation to the claims of one or other of the two brothers, at other points the report deals with them collectively. Further, the adverse credibility findings not only were based on inconsistencies in information provided over time by each individual considered separately (which I refer to as “vertical” inconsistencies) but also inconsistencies between the information provided by the brothers at their interviews conducted on consecutive days (which I call “horizontal” inconsistencies). Moreover, some inconsistencies were identified by the Reviewer between the information provided by the two brothers at different stages of the assessment process (which I call “diagonal” inconsistencies). The approach taken by the Reviewer renders the assessment of the fairness of the report a complex and difficult task.
The applicant does not contend that the Reviewer denied him procedural fairness in respect of his own account. The allegation is that the Reviewer acted unfairly in not putting to him inconsistencies between his account and that of his brother.
The applicant complains that the Reviewer relied on information provided by the applicant’s brother about several critical topics. None of that information was provided to the applicant for comment. As is clear from the decision itself, there was information provided by both brothers, independently of one another, that ultimately had a bearing on the report that was prepared.
One central issue in the decision was the circumstance in which the brothers were abandoned by their parents. This issue is used by the applicant to demonstrate the unfairness of failing to put adverse information to each applicant for comment. In relation to the circumstances of their parents leaving them, the Reviewer places reliance on the following aspects of the applicant’s brother’s evidence given in circumstances where the applicant was not present:
a)“he was abandoned by his parents at a young age” at entry interview[45];
b)“his father is deceased, and his mother abandoned him and his brother at the local clinic when he was aged four or five ” at interview on 5 September 2011[46];
c)“that he was abandoned by when he was about five years old and left with his uncle”[47];
d)that his father had been working in the jungle at that time[48];
e)that he was abandoned at age six[49].
[45] CB 169
[46] CB 169
[47] CB 169
[48] CB 169
[49] CB 169
The applicant provided different information about the circumstances of his abandonment. For example, he said that “his mother and father had a fight and separated and his mother went to be with another man; that is why his uncle came to get them. He said he did not know where his father was, and that his uncle told him that his father was a gold miner”. This was explained at the age determination hearing[50].
[50] CB 169
The Reviewer relies on differences between accounts. She states[51]:
[t]here has been different information provided about whether the claimants were left at a local clinic or whether the arrangement with their uncle was made at home, at least one version of which must not be true; about whether their father is dead or alive, at least one account must not be true; about whether their mother had another man or not.
[51] CB 169
These facts lead the Reviewer to a number of conclusions, specifically:
a)“There has been significant inconsistency in the accounts provided by both claimants about their early years”[52];
b)“In considering the substantial discrepancies I cannot accept the claim that the claimants were abandoned by their parents. I consider that if such a momentous event had occurred, there would be consistency in the account between both parties and at all times about what happened and when it happened, even if that account is non-specific at times”[53]. This is extrapolated to be a finding of critical significance. The Reviewer says “the disparity between accounts has undermined the claimant’s credibility in relation to all their claims, and has signalled that their evidence cannot be relied on”[54].
[52] CB 169
[53] CB 169
[54] CB 169
The applicant contends that the information provided by his brother should have been put to the applicant, either orally or in writing, for comment. He contends that, before drawing conclusions adverse to the applicant, the Reviewer was obliged to put information that his brother had provided about the circumstances of their parent’s abandoning them, to the applicant for comment.
The failure to put information was not only confined to the topic of the abandonment, but arose in the context of other issues. In relation to the issue of whether the applicant was exploited by boat-owners, the Reviewer “note[s] [the applicant’s brother’s] reluctance at interview to provide specific information about how much he was paid”[55]. This was not put to the applicant. Further, the applicant is concerned that the difficulties with his brother’s evidence are used against him.
[55] CB 173
The Reviewer also examines the question of past experiences of arrest and detention. Again, reliance is placed on information provided by the applicant’s brother[56]. The Reviewer “place[s] weight on the discrepancy in information between accounts provided by each claimant”[57].
[56] CB 170
[57] CB 170
The Reviewer also alludes, or refers to inconsistencies in relation to documentation and how much they were paid as crew on the boat[58].
[58] CB 173
This is not a case where the applicant volunteered his brother to corroborate his account, but rather the Reviewer acted on information in possession of the Minister’s Department without the applicant being made aware of the content of the information. That is, it is not a case where the applicant volunteered a witness to the decision-maker, like, for example a case where an applicant seeks to call a witness pursuant to s.426 of the Migration Act. It also does not seem to be a case where the migration agent was aware of all the information relating to the evidence of each brother that was potentially adverse[59].
[59] see CB 151 at [36]
I dealt with the general principles relating to this ground in DZADP at [39]-[42].
Also, as in DZADP the Minister deals with the challenge to this aspect of the Reviewer’s reasoning in detail. It is necessary to consider that detail.
The first of the applicant’s complaints concerns the Reviewer’s treatment of the evidence concerning the brothers’ alleged abandonment by their parents[60]. This complaint stems from the Reviewer’s discussion and findings at [117]-[118][61]. The Minister contends that, properly understood, that analysis turns on internal inconsistencies in the evidence of the two brothers over time, not inconsistency between their accounts.
[60] Applicant’s First Outline of Submissions [21]-[25]
[61] CB 169-170
In any event, the Minister contends that no “practical injustice”[62] can have arisen as the applicant’s definitive evidence on this point was that he did not remember anything about his life at the relevant time (due to his very young age) and all the information that he had about those events had come from his brother[63]. It was therefore impossible for him to comment further on the internal inconsistencies in his brother’s evidence. In those circumstances, the Minister submits that the Reviewer was not obliged to put anything further to the applicant about that subject.
[62] Re Minister for Immigration; ex parte Lam (2003) 214 CLR 1 at 14
[63] T 12.23-35, CB 158 [75]
I reject the Minister’s contention for the same reasons as I gave in DZADP at [46]-[48]:
I reject the Minister’s contention. It is impossible to tell from [117] of the Reviewer’s report what weight discrepancies in the applicant’s brother’s account had in the Reviewer’s consideration of the applicant’s claims on this issue. However, the Reviewer’s view about the inconsistencies is made tolerably clear in [118] where the Reviewer says:
In considering these substantial discrepancies I cannot accept the claim that the claimants were abandoned by their parents. I consider that if such a momentous event had occurred, there would be consistency in the account between both parties and at all times about what happened and when it happened, even if that account is non-specific in nature.
The Reviewer specifically rejected the applicant’s explanation of ignorance about the facts. She concluded that:
the disparity between accounts has undermined the claimants’ credibility in relation to all of their claims, and has signalled that their evidence cannot be relied upon.
I conclude that, contrary to the Minister’s contentions, it was discrepancies between the accounts of the applicant and his brother that was critical to the Reviewer’s adverse credibility finding in relation to the applicant’s claim of abandonment, which was in turn critical to the rejection of the applicant’s claims overall. Procedural fairness required that the perceived inconsistencies between the accounts of the applicant and his brother on the question of parental abandonment be put to him for comment. That was not done.
Further, in this case, and contrary to the Minister’s submissions, the practical injustice of the situation is stronger because this applicant was reliant upon what his brother had told him about the abandonment by their parents. He was too young to remember those events himself. The Reviewer needed to specifically put to this applicant the inconsistencies between his account and that of his brother about those events. Contrary to the Minister’s submission, if that had been put (and it was not) this applicant could have reasonably explained that his recollection of what his brother had told him was imperfect and his brother’s account should be preferred as he had first hand knowledge.
The applicant’s second complaint is that the Reviewer did not put his brother’s reluctance to give evidence about how much money he received for working on fishing boats to him, and used this against the applicant[64]. This complaint stems from the Reviewer’s discussion and findings at [132][65].
[64] Applicant’s First Outline of Submissions [26], [28]
[65] CB 173
However the Reviewer found their evidence that they worked on boats to be consistent, albeit noting that the evidence of the applicant’s brother that he earned about a million dong on his last trip[66] was not consistent with the applicant saying that although he didn’t know how much his brother was paid he had heard him say he earned a couple of million dong over two or three months[67].
[66] CB 156 [61]
[67] CB 159 [80]
Ultimately the Reviewer was “unable to conclude with any certainty”[68] that they had been exploited by boat owners. In the applicant’s case this was because his “level of literacy is evidence that he has spent time being educated in recent years, a finding that is inconsistent with the claim that he has been exploited as an unpaid worker on a fishing boat since 2007”[69], and not because of his brother’s reluctance to say how much he was paid or any inconsistency between their accounts.
[68] CB 173 [132]
[69] CB 173 [132]
Only adverse information that is credible, relevant and significant need be put to an applicant in circumstances such as these[70]. Although the information received from the brother may be considered adverse simply because it could be construed as inconsistent (not because the brother suggested he had earned less than the applicant said; this supported the exploitation claim), the Reviewer clearly did not consider it credible.
[70] Minister for Immigration v SZQHH & Anor (2012) 200 FCR 223 at 233 [27]-[28]
Further, it was not significant to the applicant’s case which turned on the finding that he was in school, not out working on fishing boats.
Finally, there was no practical injustice in any event because the applicant had said that he didn’t know how much his brother earned and could not have commented further on what he was paid for his last trip or why he may have appeared reluctant to disclose the amount. This is demonstrated by the absence of any evidence of what he may have said.
As in DZADP I accept the Minister’s contentions on this issue for the same reasons as at [69] of that case:
I accept the Minister’s contentions on this issue. First, the Reviewer accepted that the evidence of the applicant and his brother that they were exploited by boat owners in Vietnam was consistent. However, she was not satisfied that it was true. The Reviewer’s finding on the level of literacy of the applicant’s brother appears only to bear on his claim. Likewise, the applicant’s brother’s status as a minor only bore upon his claim. Ultimately, the Reviewer was unable on the material before her to be satisfied about the veracity of the claims and in circumstances where it does not appear that the applicant could have given any further information, there was no practical unfairness.
The applicant’s third and final complaint is that the Reviewer placed some weight on discrepancies between the brothers’ accounts of alleged arrests and detention[71]. This complaint stems from the Reviewer’s discussion and findings at [121]-[122][72].
[71] Applicant’s First Outline of Submissions [27]
[72] CB 170-171
The Minister accepts that the Reviewer placed some weight on the discrepancies, albeit there were a number of other matters upon which weight was also placed[73]. The first respondent also accepts that these particular matters were not directly put to the applicant by the Reviewer.
[73] CB 171 [122]
However, it is clear from the POE “decision” that these discrepancies were amongst the reasons the POE officer found that the applicant’s claims to have been arrested “have been manufactured to bolster his claims for protection”[74]. This decision, together with the Reviewer’s expressed concerns about inconsistencies between the brothers’ evidence, are said to have given the applicant sufficient notice that these matters may weigh against him[75].
[74] CB 100.1; CB 95.5; CB 97.3
[75] SZBEL v Minister for Immigration (2006) 228 CLR 152 at 165 [47]
As the applicant says, “the question for this Court in this case is whether the applicant had an opportunity to put his case… aware of matters that were significant”[76].
[76] Applicant’s First Outline of Submissions [33]
The applicant and his brother were represented throughout the POE and IPA by the same experienced solicitors. The Minister asserts that it is inconceivable that they were not aware of the potential significance of the discrepancies in the brothers’ evidence concerning the various alleged arrests.
At interview Ms Stotz addressed the issue of inconsistencies but chose not to address the subject further in her subsequent written submissions. The Minister asserts that, as the applicant had also ignored the POE officer’s request to explain the discrepancies it can be safely assumed that he had nothing more to say on the subject. The absence of any evidence to the contrary now is also said to be compelling in these circumstances[77]. Thus the Court is invited to conclude there has been no practical injustice.
[77] Re Minister for Immigration; ex parte “A” (2001) 185 ALR 489 at [54]; VHAP of 2002 v Minister for Immigration (2004) ALD 559 at [15]-[16]; Applicants M1015 v Minister for Immigration [2004] FCA 1309 at [52]-[54]
I reject the Minister’s submissions on this issue for the same reasons as in DZADP at [59]:
I reject the Minister’s contentions. I accept that the applicant was on notice as a result of the outcome of the POE that the credibility of his accounts of alleged arrest and detention was in issue. However, the POE officer prepared separate “decisions” in respect of the applicant and his brother. The applicant could not have been on notice, from that process, that the credibility of his brother’s account was in issue in his review. The Reviewer dealt with the claims of the applicant and his brother collectively at [122]. She specifically placed weight on the discrepancy in information between accounts provided by each applicant. In the circumstances, procedural fairness required that the discrepancies between accounts (whether horizontal or diagonal) be put to the applicant for comment. That was not done.
Ground 2 – Did the Reviewer deny the applicant procedural fairness by failing to raise as a live issue in the assessment of his claims his education and/or his level of literacy?
I reject this ground of review for the same reasons as in DZADP at [76]-[83]:
The second ground is easier to deal with. I accept the Minister’s submissions on this ground.
The applicant contends the Reviewer denied him procedural fairness by failing to inform him that his claims concerning his education were in issue. The applicant correctly identifies SZBEL v Minister for Immigration[78] as the leading relevant authority. However, this is not a case in which, “nothing in the delegate’s reasons for decision indicated that these aspects of his account were in issue”[79].
The applicant contends that “At the RSA (sic; POE) stage, it appears no issue was taken with the information submitted by the applicant in respect of education… no findings were made about education and/or literacy”[80]. That is incorrect.
The applicant’s claims about his lack of education were made in support of the allegations that he was undocumented and homeless (at the POE stage he also claimed to be a minor but this appears to have been abandoned at the IPA stage, perhaps because he had turned 18 by then).
However as noted above, the POE officer found that “the bulk of [the applicant’s] claims that he raised subsequent to his entry interview are not credible. I find that the claims he has made with respect to being arrested for his religious beliefs and for being an undocumented minor have been manufactured to bolster his claims for protection”[81]. The applicant was therefore on notice that his claim to be uneducated because he was undocumented (or more particularly that his undocumented status was demonstrated by his lack of education) was in issue.
In any event, the applicant’s education was an issue of discussion at his IPA interview[82]. Thus this is also a case in which the Reviewer’s “statements or questions” during the interview sufficiently indicated to the applicant that his account in relation to his education was in issue[83]. Conversely, it is not a case in which the Reviewer “did not challenge what the applicant said”, or “did not say anything to him that would have revealed to him that these were live issues”[84].
The High Court granted relief in SZBEL because the appellant was not given a sufficient opportunity to give evidence or make submissions about determinative issues[85]. That is not the case here. The applicant gave evidence about the relevant matters to the Reviewer, in response to her questioning. The Reviewer was clearly concerned that the applicant’s evidence was inconsistent with country information[86], and queried how he had learned to read if he had never been to school[87].
There is nothing in SZBEL from which the applicant can gain any comfort on the facts of this matter. There was no failure to accord procedural fairness as alleged.
Ground 3 – Did the Reviewer fail to consider whether the applicant was at risk of persecution upon return to Vietnam as a minor without parental protection or support?
[78] (2006) 228 CLR 152
[79] SZBEL v Minister for Immigration (2006) 228 CLR 152 at 165 [43]
[80] Applicant’s First Outline of Submissions [38]
[81] CB 102.2
[82] T 12.28 - T14.16
[83] SZBEL at 165-166 [47]
[84] SZBEL at 165 [43]
[85] at 165 [44]
[86] T 13.9–14.12
[87] T 12.28-41
The applicant asserts that the Reviewer failed to consider whether he was at risk of persecution on return to Vietnam as a minor without parental protection or support. At the POE stage, the claim was made that he “has no family and is homeless and is vulnerable to children trafficking”[88].
[88] CB 92 and 151 at [37]
The applicant claimed to be at risk of harm on return to Vietnam for a number of reasons; one was because he was a minor[89]. On behalf of the applicant it was submitted that his status as a minor would place him in danger of harm, by virtue of being young and without parental support.
[89] CB 173
It appears to have been accepted by the Reviewer that the applicant was a minor[90] based on the findings of an age determination report, his physical appearance, behavioural and social history.
[90] CB 173 and see below at [78]-[81]
Although the Reviewer apparently accepted that the applicant was a minor, she did “not accept that it follows that his risk of persecution is heightened”[91]. In part this is because “[the applicant] has a protective older brother who has ensured that he is cared for, and his basic needs met”[92]. The Reviewer also found[93]:
I consider that [the applicant’s] level of literacy is evidence that he has spent time being educated in recent years, a finding that is inconsistent with the claim that he has been exploited as an unpaid worker on a fishing boat since 2007. On the evidence, I conclude that [the applicant’s] status as a minor does not exacerbate his chance of being persecuted should be return to Vietnam with his brother in the reasonably foreseeable future.
[91] CB 173
[92] CB 173
[93] CB 173
The applicant contends that the Reviewer failed to assess whether he would be at risk of harm as a minor without parental support or protections upon return to Vietnam. Instead, the Reviewer made a finding that in the past the applicant had been adequately supported by his brother.
The applicant further contends that the Reviewer was required to assess whether the applicant was at risk of future persecution by reason of his status instead of proceeding on the assumption that his older brother would be capable of providing sufficient family support. The Reviewer knew that his older brother’s application for protection was pending at the time (albeit that she was rejecting it at the same time).
There was a considerable amount of country information available to the Reviewer which related to vulnerabilities of children[94]. The Reviewer says that she “carefully considered” that material[95]. However, the applicant maintains that none of the issues or materials are expressly discussed in the Reviewer’s report.
[94] CB 109
[95] at CB 176
In Applicant WAEE v Minister for Immigration[96], the Full Court explained the obligation to consider the reasons for persecution, at [45]:
If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.
[96] [2003] FCAFC 184
A failure to deal with a claim can be asserted in circumstances where a decision maker does not address a claim in their reasoning process. The full court in WAEE explained that there are some circumstances in which a decision maker is relieved of their obligation to consider the claims, 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. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. (emphasis added)
Failure to consider an integer is a jurisdictional error.[97] In Htun v Minister for Immigration[98] Allsop J held:
To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 LCR 24; 66 ALR 299 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225.
[97] For an IMR context see DZAAA v Minister for Immigration & Anor [2012] FMCA 699 and MZYPW v Minister for Immigration [2012] FCAFC 99
[98] (2001) 194 ALR 244 at 259
However, as pointed out by the Minister, the applicant in his submissions overlooked the discussion in the Reviewer’s report at [131][99]:
I have compared the claimants accounts of their situation with information contained with (sic) the Human Rights Report “Children of the Dust” which details degrading and inhumane treatment of street children in Hanoi. I cannot identify any similarities between the claimants situation while in Vietnam to that of children whose situations are the focus of this report.
[99] CB 173
The report is discussed further at [102]-[105][100]. The Reviewer was entitled to interpret and place such weight as she considered appropriate on the country information before her[101].
[100] CB 173
[101] NAHI v Minister for Immigration [2004] FCAFC 10 at [10]-[14]
I reject Ground 3.
Grounds 4 and 5 – Was the review process unfair because the applicant was a minor or was there reviewable legal error connected to the failure by the Reviewer to provide the applicant with a guardian to represent his interests?
The Minister deals with these grounds on the simple basis that the applicant was not in fact a minor and hence there was no obligation to arrange for an independent observer (and no obligation to appoint a litigation guardian in any event).
On 25 January 2012 the applicant was interviewed by two departmental officers for the purposes of an age determination assessment[102]. Each officer’s assessment was that the applicant was over 18 years of age. The Minister says that the applicant did not ask to have that assessment reconsidered by the Minister. The applicant asserts that he did.
[102] in accordance with the process described at pages 2-3 of Annexure A to the affidavit of Rebecca Sharkey affirmed 6 December 2012
The Reviewer noted that the departmental officers considered that the applicant was not a minor based on their assessments of his behaviour and social history[103].
[103] CB 173 [130]: in fact one of the officers did not consider he was under 18 years of age on the social history criteria alone; both officers considered he was unlikely to be under 18 years of age based on the history he gave of his education, but this was not referred to by the Reviewer
The Reviewer considered that the age determination assessments did not contain “substantive evidence that the claimant is over 18” and that “he may well be his claimed age”[104], and “may be a minor”[105] (emphasis added). The Reviewer subsequently referred to the applicant’s “status as a minor” in expressing her conclusion that this “does not exacerbate his chance of being persecuted should he return to Vietnam”[106].
[104] CB 173 [130]
[105] CB 173 [131]
[106] CB 173 [132]
The Minister contends that properly understood, the Reviewer did not positively find that the applicant was a minor. Rather, out of an abundance of caution, she assessed his claims on the basis that he was a minor and found it made no difference in any event. It was therefore unnecessary for her to reach any definitive view as to his age.
The Reviewer said in her report at [130]:[107]
At interview the Advisor claimed that [the applicant’s] risk of persecution as an undocumented was heightened because of his status as a minor, being born in 197. The advisor and the claimant have rejected the Departmental age determination assessment dated 25 January 2012 that concluded that the claimant was over the age of 18 years, maintaining that his stated birth date is accurate. On scrutiny of the age determination report, it summarises that an assessment could not be made on the criteria of physical appearance or family history alone, but in regards to behaviour and social history it was likely that the claimant was aged over 18 because of his evasive behaviour at interview and because of doubts about the reliability and accuracy of the information he has provided to DIAC Officers. I do not accept that either of these stated reasons are substantive evidence that the claimant is aged over 18, rather my impression of the claimant at interview was that he may well be his claimed age. In coming to this finding I note his physical presentation could be that of a 15 year old. Additionally, his clear dependency on his brother is indicative of a strong and protective relationship, such would exist between brothers when one is younger and in need of care.
[107] CB 173
It is certainly arguable, as the applicant contends, that the Reviewer made a finding that he is (or was at the time of the report) a minor. What is clear is that the Reviewer proceeded on the basis that the applicant was at the time of the review, a minor.
The Minister submits that, as the applicant’s new grounds rest on the proposition that he is (or was) a minor, the onus is upon him to establish his age (or status) to the satisfaction of the Court by admissible evidence.
The Minister also submits that there is no evidence that the applicant’s age impaired his ability to participate in the interview conducted by the Reviewer, during which he was assisted by an interpreter and represented by a firm of solicitors experienced in migration law. It is far from sufficient for the applicant to simply assert via his counsel that he was impaired by his age. I accept the Minister’s submission on this issue in part.
The applicant relies on SZIWY v Minister for Immigration & Anor[108] and Minister for Immigration v SCAR[109]. SZIWY has been disapproved by the Federal Court[110] following the decision of the Full Court of the Federal Court in Minister for Immigration v SZNVW & Anor[111].
[108] [2007] FMCA 1641
[109] (2003) 128 FCR 553
[110] Minister for Immigration v SZNCR [2011] FCA 369 at [23]-[28]
[111] (2010) 183 FCR 575
This issue has most recently been considered by the Full Court of the Federal Court in SZNVW, and applied by Tracey J in SZNCR. As Tracey J said in the latter decision[112]:
Following SZNVW an applicant who has a diagnosed mental impairment which does not render him or her "entirely unfit" to attend a Tribunal hearing and answer questions cannot be held to have been denied a "real and meaningful" opportunity to participate in the appeal hearing. It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing.
[112] at [30]
I accept that there is no evidence before the Court that the applicant was unfit to participate in the review process. The only inference that can be properly drawn from the material before the Court is that the applicant was not “entirely unfit”.
Indeed, there is no authority that supports the applicant on Grounds 4 or 5. The applicant has attempted to distinguish the authorities that are against him[113]. However the real point of distinction between those cases and the applicant’s is that the applicant had legal representation throughout the process, the very remedy identified in those authorities for a minor who may otherwise be unable to obtain a fair hearing.
[113] Applicant’s Further Submissions [22]-[25]
The closest any authority comes to recognising that procedural unfairness may arise in particular circumstances concerning unrepresented minors is SFTB v Minister for Immigration at [31][114]:
In the case of an unrepresented minor, the circumstances of his interview on 4 March 2002 to which the appellant deposes might well support a claim of procedural unfairness.
[114] (2003) 129 FCR 222 at 230, quoted by the applicant at Applicant’s Further Submissions [22]
In that matter the appellant swore an affidavit to the effect that he was interviewed on 4 March 2002 without the assistance of a migration agent, shortly after attempting suicide and going on a hunger strike, when he was still feeling sick and finding it hard to concentrate[115]. The applicant in this matter has put no evidence before the Court, let alone any suggesting his circumstances were similar to those of SFTB. Thus the applicant can gain no comfort from SFTB, notwithstanding the point of distinction concerning the acceptance by the Tribunal of SFTB’s evidence.
[115] SFTB at 229-230 [29]-[30]
In SFTB the Full Court of the Federal Court followed its earlier decision in Odhiambo v Minister for Immigration[116] and that of North J in X v Minister for Immigration[117].
[116] (2002) 122 FCR 29
[117] (1999) 92 FCR 524
The applicant relies on the dicta of the Full Court in Odhiambo, that there may be cases in which the Tribunal will be unable to determine a minor’s claims “except through a guardian” or with the applicant receiving “independent legal assistance”[118]. However this is not a case in which the applicant’s “tender years” rendered it “impossible” for him to put his case to the Reviewer. Moreover, he had the assistance of his solicitors and a migration agent in doing so. Thus the applicant can gain no comfort from Odhiambo.
[118] at 48 [94]; extracted in full at Applicant’s Further Submissions [23]
Finally, the applicant seeks to distinguish North J’s reasoning in X on the basis that the Reviewer was not operating under a statutory procedure, while at the same time alleging a failure by the Department to follow its own procedure for dealing with minors. The Minister contends, as noted above, that in the absence of proof that the applicant was a minor at the relevant time, there is no merit in the allegation of breach of the departmental policy. Further, as the Court said in Odhiambo, a case such as this “requires attention to the conduct and decision of the [Reviewer], not the position or conduct of the Minister”[119].
[119] at 48 [93]
Clearly, the Reviewer considered the applicant was able to put his case without further assistance. This is unsurprising given the level of assistance the applicant had received. The following comments from the Full Court in Odhiambo are properly relied on by the Minister[120]:
The Tribunal provided an apparently satisfactory interpreter… and it knew that each applicant had received qualified and independent assistance in the formulation of his application for a protection visa and at each stage of the Tribunal’s inquiry. That matter, we regard, as extremely important. As counsel for the Minister submitted, it is difficult to see how the extent or quality of legal assistance would have been any greater if it had been commissioned by an independent guardian of these applicants.
[120] at 48 [95]
Although the Reviewer was not operating under the same statutory regime as the Tribunal, as North J reasoned in X, the position is no different at common law[121]. A minor may conduct matters of this sort without the active involvement of a guardian and without suffering procedural unfairness, as the relevant authorities have decided.
[121] at 542-546 [57]-[75]
I accept the Minister’s submissions on the question of the failure to appoint a litigation guardian. There is no legal obligation to appoint a litigation guardian for offshore entry persons who are minors in relation to the assessment of their claims for protection. Rather, the arrangements that have been put in place by the Minister’s Department are those detailed above. I am inclined to the view that the failure to follow those arrangements in relation to unaccompanied minors may be a reviewable legal error but, as also noted below, it is unnecessary to make a definitive finding.
It is nevertheless unfortunate that while the Minister’s Department followed its guidelines in relation to unaccompanied minors in respect of this applicant (at least to the point where the age determination process had been completed to the Department’s satisfaction) the Reviewer did not, even though she proceeded on the basis that the applicant was a minor. The Department acted appropriately by interviewing the applicant with his older brother present. Having proceeded on the basis that the applicant was a minor the Reviewer should have done the same, or should have made arrangements for an observer to be present in accordance with the Departmental guidelines.
I do not accept the Minister’s contention (if that was intended) that the Court should determine whether or not the applicant was, at the relevant time, a minor. That is not a jurisdictional fact but, rather, an ordinary fact for the Minister and the Reviewer to determine and make appropriate procedural arrangements. I have already found that it was procedurally unfair for the Reviewer not to put to the applicant inconsistencies between his account and the account of his older brother on the issue of parental abandonment and their arrest and detention. Those are established instances of the unfairness of the process followed by the Reviewer in relation to this applicant. The guidelines issued by the Minister’s Department have been put in place in order to ensure that fair arrangements are made for the assessment of claims by unaccompanied minors. The guidelines (and compliance with them) are probably a necessary expression of Australia’s compliance with its international obligations under article 22 of the Convention on the Rights of the Child. The failure by the Reviewer to follow the guidelines, having proceeded on the basis that the applicant was a minor, resulted in unfairness as it probably inevitably would have. That miscarriage of process is reviewable by the Court and may have been sufficient to support the relief claimed by the applicant by reason of the risk of practical unfairness occasioned by the failure to follow the guidelines.
It is, however, unnecessary to answer that question definitively in view of the established error under Ground 1.
I will grant the applicant the relief he seeks by reason of the reviewable legal error established in Ground 1.
I will hear the parties as to costs.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 1 March 2013
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