DZADP v Minister for Immigration - [2013] FMCA 35

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZADP v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 35

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.

Migration Act 1958 (Cth), ss.36, 46, 46A, 424A

Applicants M1015 v Minister for Immigration [2004] FCA 1309
Minister for Immigration v Al Shamry [2001] FCA 919
Minister for Immigration v SZQHH & Anor (2012) 200 FCR 223
Plaintiff M61/M69 v Commonwealth of Australia & Ors [2010] HCA 41
Re Minister for Immigration; Ex parte “A” (2001) 185 ALR 489
Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1
SAAP v Minister for Immigration [2005] HCA 24
SZBEL v Minister for Immigration (2006) 228 CLR 152
SZEWL v Minister for Immigration (2009) 174 FCR 498
SZQDZ v Minister for Immigration [2012] FCAFC 26
VHAP of 2002 v Minister for Immigration (2004) 80 ALD 559

Applicant:

DZADP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

HEATHER KING IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 36 of 2012

Judgment of:

Driver FM

Hearing date:

21 November 2012

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 36 of 2012

DZADP

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 younger 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) (the 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 was undocumented. He arrived at Christmas Island on 10 May 2011 with his younger brother[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] DZADO, FMC file number DNG 35/2012
[2] court book (CB) 33-85
[3] CB 34-37
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 92-102
The POE officer considered that “the bulk of [the applicant’s] claims that he raised subsequently 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 102.2
[6] CB 97.5, CB 99.3
[7] CB 87, CB 98.2
The Reviewer conducted an interview with the applicant on 21 February 2012[8]. 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 1 October 2012, CB 170-175 [40]-[68]
The applicant’s claims are, in summary:
a)The applicant is a young Vietnamese Catholic man. He was born in 1993[9].
b)The applicant came to Australia as crew on a vessel called Keeling[10]. The applicant came with his younger brother, who was found by the Reviewer to be a minor.
c)Their parents abandoned the applicant and his brother at a young age. An uncle took them in but died in a typhoon in 2006[11]. The applicant is not certain of his parents’ whereabouts, or even if they are alive.
d)The applicant and his brother do not have official identification papers. They hold no identification cards[12]. His uncle had tried to obtain those identification papers on a number of occasions[13]. 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[14].
e)In 2009, the local government detained both the applicant and his brother when they were praying[15]. The applicant has worked as a fisherman in Vietnam. From age 6, he assisted his uncle working with fishing nets and oyster beds[16]. He and his brother had difficulty earning a livelihood in Vietnam[17]. They learnt to read in their spare time from fellow fisherman. He claimed “his uncle tried to enrol him at school many times but could not because he did not have identity documents”[18].
f)The applicant claimed that if he was returned to Vietnam he would be persecuted because he is undocumented, because of his religion and because he left Vietnam illegally.
[9] CB 165
[10] CB 165
[11] CB 165, 171
[12] CB 168
[13] CB 166
[14] CB 168
[15] CB 167
[16] CB 167
[17] CB 165
[18] CB 153
The applicant was present at the following interviews since arrival in Australia:
a)on 20 May 2011, an entry interview (his brother was not present)[19];
b)on 20 May 2011, he was present at his brother’s entry interview[20];
c)on 5 September (or December) 2011, a nationality and identity interview[21] (his brother was not present);
d)on 2 November 2011, a POE interview (joint interview);
e)on 21 February 2012, an IPA interview with the Reviewer (his brother was not present)[22].
[19] CB165
[20] CB 165
[21] CB 166
[22] CB 170
The applicant’s brother was also interviewed on his own on:
a)5 September 2011, an entry interview[23];
b)on 25 January 2012, an age determination interview[24];
c)on 22 February 2012, an IPA interview with the Reviewer[25].
[23] CB 167
[24] CB 169
[25] CB 175
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 is described as the “primary respondent”[26]. This is despite the fact that there was no joint application; the brothers made separate claims for asylum in Australia. The applicant submitted his own Entry Interview Form[27], “Form 80”[28], Request for Protection Obligations Determination (“POD”)[29], IAAAS Form[30], UNHCR Consent Form[31] and Statutory Declaration[32]. Separate preliminary (POD) hearings were heard for the applicant and his brother[33]. Separate “decisions” were made in respect of each of the brothers by the POE officer, and they are being heard as separate judicial review matters.
[26] CB 150
[27] CB 9
[28] CB 72, CB 72
[29] CB 44
[30] CB 38, CB 40
[31] CB 41, CB 43
[32] CB 32, CB 33
[33] CB 89
During her interview the Reviewer asked Ms Stotz to address the POE officer’s request for an explanation of inconsistencies between the evidence of the applicant and his brother[34]. Ms Stotz failed to address those specific issues during the interview but did address the issue of inconsistency generally[35].
[34] Transcript (T) 35.21
[35] T37.20-41
After the interviews Ms Stotz made written submissions to the Reviewer on behalf of the applicant (and his brother)[36], but did not further address the inconsistencies in their evidence.
[36] CB 119-157
The Reviewer interviewed the applicant and his brother separately, but prepared a joint report. 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 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[37].
[37] CB 162-194

The judicial review application

The applicant relies upon his application filed on 2 August 2012 which contains the following particularised 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.
I received as evidence the court book filed on 29 August 2012 and the affidavit of Rebecca Sharkey made on 1 October 2012, to which is annexed a transcript of the interview conducted by the Reviewer with the applicant in Darwin on 21 February 2012.
Both parties made written and oral submissions.
The applicant complains that the Reviewer:
a)denied him procedural fairness by failing to put some of his brother’s evidence to him (Ground 1); and
b)denied him procedural fairness by failing to inform him that his claims concerning his education were in issue (Ground 2).
In response, the Minister contends that:
a)the applicant was not denied procedural fairness as he was not denied an appropriate opportunity to address relevant and significant inconsistencies in the stories given by his brother and himself; and
b)the applicant was aware that the whole of his story was in issue, including matters pertaining to his alleged lack of education, as none of his story had been accepted by the POE officer.

Consideration

The applicant, as an “offshore entry person”, is precluded from making a valid application for a protection visa[38] unless the Minister personally decides to exercise his power to allow the applicant to apply for a visa[39]. This is commonly called a decision to “lift the bar.” Section 46A(2) provides that the Minister can “lift the bar” if he decides it is in the public interest to do so.
[38] Migration Act, s.46(1)
[39] Migration Act, s.46A
In deciding whether to lift the bar, the Minister had established a system where the Department of Immigration first conducted a Refugee Status Assessment. If an applicant was unsuccessful, the applicant could seek review by a Reviewer.These processes were steps taken for the purpose of the potential exercise of the Minister’s statutory power to “lift the bar”. That system has now been terminated, although the Minister’s statutory powers remain.
A Reviewer is bound to afford the applicant procedural fairness and bound to act in accordance with the law by applying relevant provisions of the Migration Act and the decided cases[40]. In Plaintiff M61/M69 the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Keifel and Bell JJ) stated at [78]:
It follows from the consequence upon the claimant’s liberty that the assessment and review must be procedurally fair and address the relevant legal question or questions.
[40] Plaintiff M61/M69 v Commonwealth of Australia & Ors [2010] HCA 41 (“M61”) at [8] and [77].
Specifically, an IPA review must be conducted “according to the criteria and principles identified in the Migration Act and applied by the courts of Australia”[41].
[41] M61 at [88]
However, the recommendation is not a “privative clause” recommendation made pursuant to the Migration Act. In SZQDZ v Minister for Immigration[42], the Full Federal Court (Keane CJ, Rares and Perram JJ) decided that what were then termed Independent Merits Review (IMR) recommendations were not “migration decisions” for the purpose of the Migration Act. At [39] their Honours stated:
A reviewer’s assessment and recommendation have no statutory or other legal force. They came into existence because the Minister sought that information to inform his consideration of the exercise of his powers. The Minister was not bound to act on the assessment or recommendation; he did not even have to take them into account at any stage of his consideration, and he did not have to make a decision even if the recommendations had been favourable to the applicants. A reviewer’s assessment and recommendation cannot be characterised as “a decision of an administrative character made or proposed to be made … under [the] Act” within the meaning of s 474(2) of the Act.

Ground 1 – Did the Reviewer err by failing to put to the applicant evidence given by his younger brother?

[42] [2012] FCAFC 26

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 report was the circumstance in which the applicant and his brother were abandoned by their parents. This issue is used by the applicant as a vehicle to demonstrate the asserted unfairness of failing to put adverse information to each applicant for comment. The Reviewer placed reliance on the following aspects of the applicant’s brother’s evidence given in circumstances where the applicant was not present:
a)“[the brother] stated he did not know where he had been born” at Entry Interview[43];
b)“he did not know the birth identity of his parents”[44];
c)“that he was only a few months old when his mother told his Uncle that she could not take care of him”[45];
d)“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”, explained at Age Determination hearing[46].
[43] CB 187
[44] CB 187
[45] CB 187
[46] CB 187
The Reviewer relies on differences between accounts. She states[47]:
[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.
[47] CB 187
These facts, and possibly others 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”[48];
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”[49]. This is extrapolated to be a finding of critical significance. The Reviewer said “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”[50].
[48] CB 187
[49] CB 187
[50] CB 188
The applicant contends that the information provided by the applicant’s 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.

It is debatable whether some of these “inconsistencies” are really inconsistencies at all. For example, the Reviewer recounts that in the applicant’s explanation about how he was taken from his mother the applicant explains “he doesn’t know whether his uncle and mother communicated because he has never met his mother”[51]. The applicant contends that, if the information provided by the applicant’s brother had been fully put, satisfactory explanations may have been provided.
[51] Report at [45]
The Reviewer also examined the question of education, and noted information provided by the applicant’s brother, together with a statement provided to the Minister’s Department. In particular, the Reviewer placed “some weight on the ease with which he was able at interview to articulate differences between schools [in] Vietnam compared to Australia”[52]. That information was provided by the applicant’s brother[53] at an interview where the applicant was not present. None of this information was put to the applicant.
[52] CB 188
[53] CB175
The Reviewer also examined the question of past experiences of arrest and detention. Again, reliance is placed on information provided by the applicant’s brother[54]. The Reviewer “place[s] weight on the discrepancy in information between accounts provided by each claimant”[55] and placed weight on the “manner in which the claimants delivered evidence”[56]. The Reviewer then referred to the manner in which the applicant’s brother described a statute concluding that the way he did so demonstrated that it was “not clear in their minds.”
[54] CB 188
[55] CB 189
[56] CB 189
The Reviewer also alluded, or referred to inconsistencies in relation to documentation and how much they were paid as crew on the boat[57].
[57] CB 191
In relation to religion, the Reviewer had regard to the fact that the applicant’s brother “could not describe the statue where he claimed to be praying”[58].
[58] CB 192
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 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, for example 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 169 at [36]
Procedural fairness requires that an applicant must be informed about adverse information which may form a reason, or part of a reason, why the applicant’s claims might be rejected. As Merkel J stated in Minister for Immigration v Al Shamry[60]:
An applicant for a protection visa will have provided information relevant to the outcome of the application prior to applying for the review of a delegate’s decision. Such information may, in some cases, have been provided prior to the application for a visa. The prescribed application form requires that the basis for the application be stated. Further, the information given may be supplemented by information provided subsequently to the Department or to the delegate of the Minister. An applicant may have no record of the information provided but, more importantly, may not be aware of its significance to the review ultimately to be conducted by the RRT. It is therefore understandable that the legislature would require that, in fairness, any adverse information provided prior to review, the significance of which the applicant may be unaware, be disclosed to the applicant to enable him or her to respond to it. That approach has particular importance in the context of the inquisitional and non-adversarial nature of proceedings before the RRT: see Paramanathan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 at 62-63.
[60] [2001] FCA 919at [42], as referred to by SZEEU v Minister for Immigration [2006] FCAFC 2
In a statutory context, it is clear that oral evidence of a witness is “information”[61]. It is the applicant’s submission that information from a witness, which might form part of the reason for making the decision, should be put to the applicant as a matter of procedural fairness.
[61] see SZEWL v Minister for Immigration (2009) 174 FCR 498 at [47] per Rares J
The applicant relies on SAAP v Minister for Immigration[62]. That case concerned the statutory scheme of the Migration Act review where there is an obligation, pursuant to s.424A to disclose to an applicant information personal to them, that comes from a source other than them. As McHugh J observed at [55]:
[t]he main purpose of the Division is to accord procedural fairness to applicants in determining whether a decision of the Minister or the Minister's delegate should be affirmed.
[62] [2005] HCA 24
That case also involved information provided by a close family member, the appellant’s daughter. It arose in circumstances where the appellant had come to “because her migration agent was present when the daughter gave her evidence and also because the Tribunal member asked the first appellant about certain aspects of that evidence and invited her response. The first appellant was also given the opportunity to make submissions about that information” per McHugh J at [27][63]. Nonetheless the information, which was constituted by the oral evidence of the appellant’s daughter, was not put, in full and in writing, to the appellant for comment. In those circumstances, the majority held there had been a breach of the statutory provisions.
[63] The whole of the material facts are set out at [31] onwards.
Ultimately, the applicant submits that the question for this Court in this case is whether the applicant had an opportunity to put his case, including an opportunity to be made aware of matters that were significant that emerged from the evidence of his brother. The applicant contends that, while there may have been an attempt to put the applicant on notice of a small proportion of alleged discrepancies, he would have remained unaware of important information his brother provided and as such, was not accorded procedural fairness. That assertion requires close scrutiny.
The first of the applicant’s complaints in relation to this ground concerns the Reviewer’s treatment of the evidence concerning the brothers’ alleged abandonment by their parents[64]. This complaint stems from the Reviewer’s discussion and findings at [117]-[118][65]. 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.
[64] Applicant’s Outline of Submissions [21-24]
[65] CB187-188
In any event, the Minister contends that no “practical injustice”[66] can have arisen as the applicant’s definitive evidence on this point was that he didn’t know how they came to be abandoned by their parents and had been unable to find out from their uncle[67]. It was therefore impossible for him to comment further on the internal inconsistencies in his brother’s evidence.
[66] Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 at 14
[67] T7.22-28; CB 170-171 [45]
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. (emphasis added)
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. (emphasis added)
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.
The applicant’s second complaint is that the Reviewer did not put his brother’s evidence about the differences between schools in Vietnam and Australia to him for comment[68]. This complaint stems from the Reviewer’s discussion and findings at [119]-[120][69].
[68] Applicant’s Outline of Submissions [26]
[69] CB 188
The Minister contends that the Reviewer made separate findings in relation to the brothers on different grounds. She did not accept the applicant’s evidence that he was uneducated because she did not accept that he could gain such fluency in reading as he demonstrated to her during the interview[70] “from self-learning on fishing boats”[71].
[70] see T4.41-5.24; T20.10-21.45
[71] CB188 [119]
In contrast, one of the reasons the Reviewer did not accept the applicant’s brother’s evidence that he had not been to school in Vietnam was “the ease in (sic) which he was able at interview to articulate differences between schools in Vietnam compared to Australia, in a manner which indicated he had first-hand knowledge of schooling in Vietnam”[72]. However, this was not a reason for rejecting the applicant’s evidence as to his lack of schooling. Thus the Minister submits that it cannot be said that the brother’s evidence was relevant or significant to the applicant’s case. There was therefore no requirement to seek the applicant’s response to it[73].
[72] CB188 [120]
[73] Minister for Immigration v SZQHH & Anor (2012) 200 FCR 223 at 233 [27-28]
I accept the Minister’s contentions. The Reviewer dealt at [119] with the credibility of the applicant’s evidence concerning his education and dealt separately at [120] with the credibility of the evidence of his brother. There was no relevant inconsistency between the accounts of the applicant and his brother on the question of education which bore on the outcome in the report.
The applicant’s third complaint is that the Reviewer placed some weight on discrepancies between the brothers’ accounts of alleged arrests and detention[74]. This complaint stems from the Reviewer’s discussion and findings at [121]-[122][75].
[74] Applicant’s Outline of Submissions [27]
[75] CB188-189
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[76]. The Minister also accepts that these particular matters were not directly put to the applicant by the Reviewer.
[76] CB189 [122]
However, the Minister submits that 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”[77]. This finding, together with the Reviewer’s request that Ms Stotz address the POE officer’s request for an explanation of inconsistencies between the evidence of the applicant and his brother[78], are said to have given the applicant sufficient notice that these matters may weigh against him[79].
[77] CB102.2; CB97.5; CB99.3
[78] T35.21
[79] 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”[80].
[80] Applicant’s Outline of Submissions [34]
The applicant and his brother were represented throughout the POE and IPA processes by the same 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 contends that, as the applicant had also not responded to 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[81]. Thus the Court is invited to conclude that there has been no practical injustice.
[81] Re Minister for Immigration; Ex parte “A” (2001) 185 ALR 489 at [54]; VHAP of 2002 v Minister for Immigration (2004) 80 ALD 559 at [15]-[16]; Applicants M1015 v Minister for Immigration [2004] FCA 1309 at [52]-[54]
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.
The applicant’s fourth complaint is that the Reviewer did not put the applicant’s brother’s evidence as to how much he thought the applicant earned on the fishing boats to him for comment[82]. This complaint stems from the Reviewer’s discussion and findings at [132][83].
[82] Applicant’s Outline of Submissions [28]
[83] CB 191
The Reviewer found their evidence that the brothers worked on boats as consistent, albeit noting that the evidence of the applicant’s brother that he earned about a million dong on his last trip[84] was not (in the Reviewer’s mind) 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[85]. That analysis is contestable.
[84] CB156 [61]
[85] CB159 [80]
Ultimately the Reviewer was “unable to conclude with any certainty”[86] that the brothers had been exploited by boat owners. In the applicant’s brother’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”[87], and not because of the applicant’s reluctance to say how much he was paid or any inconsistency between their accounts.
[86] CB173 [132]
[87] CB173 [132]
The relevance of these findings was that the Reviewer was not satisfied that the applicant's brother had “been exploited as an unpaid worker on a fishing boat since 2007” and hence his “status as a minor does not exacerbate his chance of being persecuted should he return to Vietnam”[88].
[88] CB191 [132]
The Reviewer accepted that the applicant had worked on fishing boats[89], and noted his evidence that a boat owner had allegedly paid to have him released from detention, he had “worked for multiple boat owners, with the capacity to change employment frequently”, and was “always treated the same as the other employees on the boat”[90].
[89] CB192 [134]
[90] CB191 [132]
The alleged relevance to the applicant’s case of working on the fishing boats was that it was said to support his claims to be undocumented. However the Reviewer had determined that the applicant was not undocumented[91] for other reasons: ie because he had not been abandoned by his parents[92]; he had been educated[93]; he had not been detained or arrested[94]; and he gave inconsistent evidence in relation to birth certificates[95].
[91] CB190 [128]
[92] CB187 [118]
[93] CB188 [119], CB190 [127]
[94] CB189-190 [122-124]
[95] CB190 [125-126]
The Minister submits that the Reviewer did not consider the applicant’s claims of alleged exploitation on fishing boats, and more particularly the discrepancy in the evidence about how much the applicant was paid (recalling that the brother’s principal evidence was that he didn’t know how much his brother was paid) significant to the applicant’s claims to be undocumented. This is demonstrated by the fact that it was not addressed in those terms.
Only adverse information that is credible, relevant and significant need be put to an applicant in circumstances such as these[96]. It was therefore, in the Minister’s submission, unnecessary to put his brother’s evidence to him.
[96] Minister for Immigration v SZQHH & Anor (2012) 200 FCR 223 at 233 [27-28]
In addition, there was, in the Minister’s submission, no practical injustice in any event because the applicant had been given ample opportunity during his interview to tell the Reviewer how much he earned. Further, Ms Stotz could have addressed the inconsistency in her further submissions to the Reviewer, but did not. Finally, no evidence has been put before the Court as to any response the applicant would have made. Given all the adverse credibility findings made against the applicant by the Reviewer it is, in the Minister’s submission, inconceivable that he could have said anything more that would have made a difference to the outcome.
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 fifth and final complaint is that the Reviewer failed to give the applicant an opportunity to comment on his brother’s failure to describe a religious statue[97]. This complaint stems from the Reviewer’s discussion and findings at [133]-[135][98].
[97] Applicant’s Outline of Submissions [29]
[98] CB192
The Reviewer accepted that the applicant and his brother were Catholics, but not that they were practising Catholics in Vietnam before coming to Australia[99]. In the applicant’s case, the Reviewer accepted that he “lived and worked on fishing boats” and “that the lifestyle associated with his work on fishing boats prohibited active practice of his Catholic religion by attending church”[100].
[99] CB192 [133]
[100] CB192 [134]
The applicant acknowledged that Catholics only faced a risk of harm in Vietnam if engaged in land disputes with the state over church sites[101]. The applicant never claimed to fit the profile of a Catholic who may face a risk of persecution. It was therefore, in the Minister’s submission, inevitable that the Reviewer would find (as she did) on the strength of the accepted country information that the applicant did not face a risk of persecution for religious reasons.
[101] T34.16-35.1; CB192 [135]
In this light, the Reviewer’s observation that the applicant’s brother could not describe the statue is said to be of no relevance to the applicant’s claims[102]. Further, it is said to be of no significance in the determination of the applicant’s claims concerning religion. There was, on that view, no obligation on the Reviewer to put that information to the applicant for comment[103].
[102] as the applicant now suggests; Applicant’s Outline of Submissions [29]
[103] Minister for Immigration v SZQHH & Anor (2012) 200 FCR 223 at 233 [27-28]

The difficulty with this aspect of the report is that the Reviewer dealt with both applicants’ claims collectively by reference to a number of discrete matters. I do not accept the Minister’s contention that the Reviewer’s observation that the applicant’s brother could not describe the statue where he claimed to be praying was not relevant in the applicant’s review. The Reviewer at [133]-[135] identifies the matters she considered to be relevant in rejecting the applicants’ claims based on their Catholic religion. Because the Reviewer dealt with those claims collectively, it is impossible to say to what extent each individual finding was of significance in relation to the claims of either applicant. I cannot say that it was of no significance. In my view, procedural fairness required the Reviewer to put her concerns about the applicant’s brother’s account to the applicant for comment. That was not done.
I conclude that the Reviewer erred in not putting to the applicant the significant inconsistencies in his brother’s account for comment. This constitutes reviewable legal error and the applicant is entitled to the relief he seeks.

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?

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[104] 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”[105].
[104] (2006) 228 CLR 152
[105] SZBEL v Minister for Immigration (2006) 228 CLR 152 at 165 [43]
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”[106]. That is incorrect.
[106] Applicant’s Outline of Submissions [38]
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”[107]. 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.
[107] CB102.2
In any event, the applicant’s education was an issue of discussion at his IPA interview[108]. 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[109]. 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”[110].
[108] T12.28 - T14.16
[109] SZBEL at 165-166 [47]
[110] SZBEL at 165 [43]
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[111]. 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[112], and queried how he had learned to read if he had never been to school[113].
[111] at 165 [44]
[112] T13.9–14.12
[113] T12.28-41
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.

Conclusion

I will make the orders sought by the applicant in view of the reviewable legal errors identified in Ground 1.
I will hear the parties as to costs.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 1 March 2013