SZQHF v Minister for Immigration - [2011] FMCA 774

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQHF v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 774

MIGRATION – Independent merits review of refugee claims of offshore entry person – Vietnamese applicant claiming persecution for perceived negative political profile – IMR report adopted findings from previous report – whether all refugee claims addressed – whether erroneous application of ‘real chance’ test – no error of law or procedural unfairness found – application dismissed.

Migration Act 1958 (Cth), ss.36, 46A, 476, 477

Alami v Minister for Immigration & Citizenship [2011] FMCA 623
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 (“Appellant S395”)
Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Chen v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZYNB v Minister for Immigration [2011] FMCA 714
MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41
SZDTZ v Minister for Immigration [2005] FMCA 1392
SZLTF v Minister for Immigration [2008] FMCA 1177
SZPZI v Minister for Immigration & Anor [2011] FMCA 530
WAEE v Minister for Immigration (2003) 75 ALD 630
WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2

Applicant:

SZQHF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

JANET DUCKMANTON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 1138 of 2011

Judgment of:

Smith FM

Hearing date:

4 October 2011

Delivered at:

Sydney

Delivered on:

18 October 2011

REPRESENTATION

Counsel for the Applicant:

Mr G Gilbert

Solicitors for the Applicant:

Paddock & Associates NSW

Counsel for the Respondents:

Mr J Smith

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the amount of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1138 of 2011

SZQHF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

JANET DUCKMANTON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant arrived in Australia in October 2009 by boat which was taken to Christmas Island, with a group of other undocumented Vietnamese nationals. The group also included a young man who she claimed was her nephew and adopted son. They both requested an assessment by the Department of Immigration of their refugee status, under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow them to make applications for a protection visa. The applicant’s request was made on 1 January 2010 with the assistance of a migration agent under the IAAAS scheme. A negative assessment was made on 19 April 2010, and the applicant then applied for ‘independent merits review’ under those procedures.
On 23 September 2010, Mr Hardy recommended that neither the applicant nor her son should be recognised as persons to whom Australia has protection obligations (‘the first IMR report’), but the Minister agreed to direct a second review following the judgment of the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 (“Plaintiff M61”). Ms Duckmanton became the second Independent Merits Reviewer, and she delivered a report making the same recommendation in relation to the applicant on

6 April 2011. Throughout the IMR proceedings, the applicant was assisted by migration agents, who accompanied her to interviews and made several written submissions on her behalf.
The applicant filed her present application to the Court on 6 June 2011. Although prepared by a solicitor, it was deficient in identifying the relief sought and the grounds. However, these deficiencies were rectified by the filing of amended applications, and the applicant was very competently represented by counsel at the hearing before me. The second amended application upon which he moved, seeks a declaration that Ms Duckmanton’s report was not made in accordance with law, and injunctive relief to prevent the Minister and his Department from relying upon it.
Throughout the administrative and judicial proceedings, the applicant has been in immigration or community detention as an ‘offshore entry person’. The Minister concedes that Ms Duckmanton’s report attracts judicial review, and that the present application is within this Court’s jurisdiction under s.476 of the Migration Act, based on the High Court’s reliance on s.75(v) of the Constitution in Plaintiff M61 at [51].
I have held in another case that an IMR report and recommendation is itself a ‘migration decision’ subject to the 35 day time limit in relation to the relief of the kind sought in the present application (see Alami v Minister for Immigration & Citizenship [2011] FMCA 623 at [48]-[67]). However, in my opinion, no issues as to time limits or the availability of relief arise in the present matter, notwithstanding that the applicant seeks an extension of time under s.477(2) of the Migration Act ‘to the extent necessary’. Under s.477(1) and (3)(d) time runs from “the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate”. In the present case, the letter of notification of Ms Duckmanton’s report is dated

2 May 2011, and the originating application was filed within 35 days after that date. I do not consider that there is a need to extend time to the date of the later amended application, which clarified the jurisdictional foundation of the present matter (see Alami at [67]).
Ms Duckmanton prepared a separate report concerning the applicant’s adopted son, and he also applied for judicial review. His application reached my docket, and was listed for separate hearing. That hearing did not proceed, since the Minister conceded legal error on the morning of the hearing. However, different issues are raised in the present application, and the Minister has contested all the applicant’s grounds of review.
It is important for the applicant to understand that under the judicial review jurisdiction upheld in Plaintiff M61, it is the function of the Court to consider whether Ms Duckmanton’s report reveals any material error of law, including denial of procedural fairness, in its reasoning or the procedures followed before its making. The relief sought in the present application can only be contemplated, if I am satisfied that Ms Duckmanton made such an error. It is not the function of the Court to engage in merits review of Ms Duckmanton’s findings on the applicant’s evidence and claims, nor to form its own opinions on whether the applicant should be permitted to reside in Australia.
When examining Ms Duckmanton’s reasons for legal error, I consider that the Minister’s instructions as to the contents of his report make it appropriate to examine the report on the same principles as would be a statement of reasons given by a migration tribunal (see SZPZI v Minister for Immigration & Anor [2011] FMCA 530 at [12]-[13]). These principles include the obligation not to read Ms Duckmanton’s statement of reasons “minutely and finely with an eye keenly attuned to the perception of error”, but to adopt a benign approach when attempting to understand ambiguous or poorly explained reasoning (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291).

The applicant’s refugee claims and how they were decided

The applicant’s refugee claims were amplified and explained in the course of the RSA and IMR proceedings, both in writing and in evidence given at a series of interviews. However, for the purposes of introducing the present judgment, it is sufficient for me to set out her history and refugee claims as they were concisely set out in the statutory declaration which accompanied her RSA application, with the addition of paragraph numbers:
1.I am seeking protection in Australia for reasons of my race and political opinion.
2.I am a Vietnamese woman aged 59. I am married to a man who is still in Vietnam. He has a small business [description omitted]. My town is in South Vietnam [location omitted.] I have only ever been a housewife.
3.I was brought up in the same town in a slightly different area. When I married I moved and I have one son who is with me in Christmas Island.
4.I am seeking protection because I was a member of the women’s volunteer army group who were fighting for the Republic of Vietnam before 1975. Because of my allegiance to the previous government I was considered a “bad” person and was not treated well. My family were harassed for many years. I was kept for some days after the end of the war but I said I had never served. I was released but we are not believed and although our life went on, I was always considered a person who was not to be trusted because of my past allegiance.
5.My husband was sent to a re-education camp for 18 months after the war finished. He had a very hard time. The government was able to find out at a local level who had supported the old government and who was not to be trusted.
6.I did not have rights to borrow money or to buy property. Neither did I get any bonus from the government. Our medical rights are not as good as other citizens and we are treated badly. My son has no ID or rights as a Vietnamese citizen and so he is like an illegal Vietnamese in his own country.
7.The final problem came when I lost my house in 2006 to the local government authorities who said they wanted it for an office. This in fact did not happen and the house was then rented on to someone else. We were told my house would be replaced but it never was and finally we decided to make the trip to escape Vietnam.
8.The reason for us leaving Vietnam was because of the house being taken and the fact that we lost our property and had nowhere to live. I am still treated as a person who has the wrong allegiances and I am also treated badly in our society.
9.The main problem is that I have no identity in Vietnam. I come under the Convention because of my prior political opinion and my perceived support of the previous government.
Some additional claims were referred to in the subsequent evidence and submissions of the applicant. These included a claim that the applicant in 2007 had been excluded from religious activities in a Buddhist sect, in circumstances connected with the confiscation of her home. The applicant’s agent also claimed that the applicant would be detained and possibly tortured “if handed over to the Vietnamese authorities”, as a result of lacking formal identification “coupled with the consequences of unlawfully fleeing Vietnam”.
It is not necessary for me to summarise the reasoning of the initial RSA assessment, nor that of the first IMR reviewer, although I shall below refer to some particular passages from their statements of reasons which are relevant to the grounds of review. It is not disputed that Ms Duckmanton’s report accurately recited the history of the matter, identifying all of the applicant’s claims and evidence, before explaining her ‘findings and reasons’ for her adverse recommendation. Her narration included recitation of the first IMR reviewer’s description of relevant country information, and the whole of his ‘findings and reasons’.
It is sufficient for me to introduce the reasoning followed by Ms Duckmanton herself, by outlining her ‘findings and reasons’:
i)Ms Duckmanton recognised that the claims of the applicant and her son were made ‘in conjunction’, and had been dealt with in one report by the first IMR reviewer. However, she “decided to treat both claimants as separate and distinct”. No challenge is now made to her adoption of this approach.
ii)She was satisfied that the applicant “is a citizen of Vietnam; that Vietnam is her country of former habitual residence; and that she has no legal right to reside in any other country.”
iii)She expressed a general conclusion in relation to the applicant’s credibility:
However, after a careful examination of all of the claimant’s evidence I find that I am unable to give her the benefit of the doubt on any significant matter relating to her claims to be a refugee, as her evidence is replete with inconsistencies, contradictions and implausibilities, and I doubt her general credibility. The reasons for this are detailed below.
iv)Ms Duckmanton then referred to the applicant’s claims that her various hardships and discrimination suffered under the current regime happened “because the claimant, her husband, and her nephew are perceived as being ‘political dissidents’”. She did not accept the underlying premise of any of these claims, since, in short, she did not accept that the applicant was so perceived by the Vietnamese government. I shall extract the paragraphs containing this adverse finding below, when considering Grounds 1 and 2 of the present application, since the Minister relies upon them in answer to those grounds.
v)Ms Duckmanton made a further finding: “I am not satisfied that the claimant was never issued with either a Vietnamese ID card or a Ho Khau” (i.e. household registration).
vi)She said that the claimant’s claims of persecution for Convention reasons “all come together and are centred around the claim that the Vietnamese government “confiscated” the claimant’s home and land and did not compensate her for this seizure”.
vii)She examined conflicting evidence given by the applicant about how and when the land had been acquired, and when the applicant had stopped living on it. She concluded:
Nonetheless, I accept the claimant and her husband were unable to continue living on land on which they had lived since 1977, and that she was very upset when the land was taken from her. I also accept that this was the reason she decided to leave Vietnam and come to Australia. However, I am satisfied that even if the government took away the land on which she lived (as I advised the claimant at her interview), this does not mean she is “a refugee”, as the action by the government was not Convention-related.
After a careful examination of all of the evidence before me, I am not satisfied that the claimant was “severely discriminated against throughout her life” in Vietnam either because of her or husband’s political opinions, or because she was a member of a particular social group.
viii)Ms Duckmanton then referred to the applicant’s claim that she was excluded from a Buddhist sect, and found: “I am satisfied that the claimant’s (recently enunciated) claim that she lived a religious life in Vietnam and suffered persecution because of her religion, to be without foundation.”
ix)Ms Duckmanton’s report then addressed the applicant’s fear “that she will be arrested, detained and tortured if returned to Vietnam because she departed from Vietnam illegally”. I shall extract the relevant paragraphs which did this, when considering Ground 3.
x)Ms Duckmanton’s report then concluded in a manner which I shall extract below when considering Ground 3.

The Grounds of Review

Three grounds of review were raised by the applicant’s Second Amended Application. These were addressed by her counsel in his written and oral submissions, but they are concisely and sufficiently explained in their pleaded particulars:
1.The recommendation of the Independent Merits Reviewer was affected by an error of law in that the Reviewer failed to accord the applicant procedural fairness.
Particulars
(a)Amongst other claims, the applicant said that she feared persecution because she had been a member of a South Vietnamese women’s army group or association;
(b)The Reviewer did not deal with this claim;
(c)In the absence of a clear indication from the Reviewer that this finding would not or might not be accepted, the applicant was denied the opportunity to properly put her case.
2.The recommendation of the Independent Merits Reviewer was affected by an error of law in that the Reviewer failed to accord the applicant procedural fairness.
Particulars
(a)The Refugee Status Assessor accepted that the applicant had not been able to borrow money or buy property, had had to pay for her son’s education, did not receive her bonus from the government, and did not receive the same level of medical services as others;
(b)The Reviewer did not deal with this claim;
(c)In the absence of a clear indication from the Reviewer that this finding would not or might not be accepted, the applicant was denied the opportunity to properly put her case.
3.The recommendation of the Independent Merits Reviewer was affected by an error of law in that the Reviewer misunderstood or misapplied the test for determining whether the applicant had a well founded fear of persecution.
Particulars
(a)The Reviewer rejected the applicant’s claim that she feared that she would be arrested, detained and tortured if returned to Vietnam because she had departed Vietnam illegally on the basis that there was no evidence before the Reviewer that convinced her that she (the applicant) would be treated in this way;
(b)By imposing a test which required evidence to “convince” her, the Reviewer erred in applying a standard of proof well beyond that sanctioned by the Refugees Convention and/or not turning her mind to the established meaning of a “real chance”.

Grounds 1 and 2 – failure to address claims

These grounds rely upon the well established legal and jurisdictional error which the High Court has characterised as a denial of procedural fairness, being “to fail to respond to a substantial, clearly articulated argument relying upon established facts”, where the refugee claimant has raised a particular claim to satisfy the criteria for a protection visa (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1).

In Plaintiff M61 at [90], the High Court characterised such an error as a failure of procedural fairness.
Neither counsel found it necessary to take me to any authorities in the area, and Grounds 1 and 2 were debated by reference to whether Ms Duckmanton’s findings and reasons did, or did not, show that she made findings which fully answered the two refugee claims which are identified in the Particulars to these grounds.
There is no doubt that the identified harms and their claimed Convention reason were raised at the outset in the RSA process, in particular in paragraphs 4 and 6 of the applicant’s statutory declaration which I have extracted above. These refugee claims were further clearly raised by evidence given at subsequent interviews in the course of the RSA and IMR procedures, and in written submissions made by the applicant’s agent, and were identified in the statements of reasons of the RSA assessor and the first IMR reviewer. It is unnecessary for me to extract these references, since it is common ground that the applicant made the claims identified in the Particulars to Grounds 1 and 2, and that Ms Duckmanton was obliged in her report to address them and to give reasons for not accepting them.

It is therefore necessary for me to examine whether Ms Duckmanton did consider and give reasons for not accepting that the applicant had in the past suffered serious harm as a result of being “considered a ‘bad’ person” as a result of her activities in a women’s volunteer army group, and, in particular, whether persecution for this reason continued until the applicant left Vietnam, and whether it included the discriminatory denial of the rights and services which were identified in her statutory declaration.
As I have noted, when addressing these questions, I consider that the Minister’s guidelines for IMR procedures allow me to draw the same inferences from an omission of pertinent findings and reasons as would be open when examining a statement of reasons of a statutory immigration tribunal. As I said in SZPZI, cited above:
It is well established that an inference of error by reason of a failure to consider a legally relevant matter may be drawn from the omission of discussion of a significant or essential issue raised by s.36(2) of the Migration Act, although drawing that inference requires caution and careful examination of how the refugee claims were raised and responded to by the decision-maker (cf. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [34]-[35], [68]-[69], [75]; WAEE v Minister for Immigration (2004) 75 ALD 630 at [47]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 at [33]-[36]; and Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 at [43]-[49], [55], [72], [91]-[92], [98])
However, I accept the Minister’s submissions that Ms Duckmanton’s report clearly showed an awareness of these central claims of the applicant, and that it also sufficiently addressed them in her ‘findings and reasons’.
Her awareness of the claims emerges clearly in her recitation of the applicant’s ‘claims and evidence’ which includes:
“During the course of her Refugee Status Assessment, the claimant stated as follows:
….
·     She had been a member of a “woman’s volunteer army group” on the side of the Republic of Vietnam (South Vietnam) during the Vietnam War, which ended in 1975.
…..
·    Her medical rights were not as good as they were for other citizens.
·    The claimant’s husband was given a block of land by the former regime for meritorious military service but the current government came and confiscated this land for use as government offices without providing any sort of compensation.
·    She did not have the right to buy property in Vietnam.
…..
·    Her family had no Ho Khau household registration and her nephew had no citizen’s ID document; she did not receive the usual medical services and had to pay for her nephew’s education; she had not received any bonus from the government and had not been able to borrow money or buy property..
·     She did not have a Ho Khau as she had not applied for one, having only informally adopted her son and needing formal adoption papers for him in order to be included in any household registration covering her “family”.”
…
Ms Duckmanton also extracted passages from the applicant’s submissions, and passages from the RSA and first IMR reports, which examined these claims.
In my opinion, Ms Duckmanton sufficiently confirmed her understanding that these pertinent claims were matters for her determination, and made findings upon them, in two paragraphs of her ‘findings and reasons’:
It is claimed that the claimant is a member of a segregated minority of families whose husband was associated with, and was a spy for, the former Dai dau Thieu Ky regime; that the claimant was a member of a pro-government Republican Women’s League Association in the 1970’s who served the government of Vietnam at that time; that she and her husband were consequently discriminated against and persecuted by the current regime; that she was deprived of access to basic social services and forced to dwell in a remote and impoverished rural region in Vietnam on a boat; that she was unable to relocate to another part of Vietnam because she was not registered with the local authorities and cannot obtain permission to move unless she can prove her identity; that she cannot prove her identity because the authorities cancelled her Ho Khau; that the claimant’s husband was given a block of land by the former regime for meritorious military service but the current government came and confiscated their land for use as government offices without providing any sort of compensation because the claimant, her husband, and her nephew are perceived as being “political dissidents”; that due to her involvement with the Dai Dau T[h]ieu Ky regime, the claimant has been expelled from the Buddhist sect and unable to travel to other villages to practice her religion; and that this expulsion was a result of a Buddhist nun’s familial association with the district police chief who was involved in the confiscation of the claimant’s land and who was also responsible for jailing and torturing her nephew.
I accept that the claimant’s husband was sent to a “re-education camp” for 18 months after the fall of Saigon. However, I agree with the previous Reviewer’s findings and reasons for such findings (see above), that subsequent to his release, neither he nor the claimant had any negative political profile or were considered to have a “bad family background”, and were therefore denied a Vietnamese ID card and a Ho Khau.
The applicant’s counsel submitted that adverse findings and reasons on the pertinent claims cannot be found in the second of these paragraphs. He submitted that this paragraph did no more than address only one element in the applicant’s claims of discrimination for perceived political opinions, being the element referrable to her husband’s war history and being sent to re-education camp. He submitted that Ms Duckmanton failed to address in this paragraph – or elsewhere – how she dealt with the applicant’s claims of discrimination relating to her own claimed war history and particular discriminatory treatment.
However, I do not accept this submission. I accept the submission of the Minister’s counsel that in the second of the above quoted paragraphs, Ms Duckmanton indicated in her first sentence one element of the applicant’s claims which she accepted, i.e. that the husband had suffered a period of re-education immediately after the end of the war. She then indicated, in a highly compressed manner, and by adoption of reasoning found in the first IMR report which she had earlier quoted in her own report, reasons for not accepting all the balance of the applicant’s refugee claims which alleged discrimination inflicted by the Vietnamese regime and its agents for a Convention reason by reason of adverse political profiles of herself and her husband.
In my opinion, Ms Duckmanton’s finding that “neither he nor the claimant had any negative political profile” clearly related back to all the claims summarised in the preceding paragraph, and encompassed the applicant’s own claimed history. The finding that “and were therefore denied a Vietnamese ID card and a Ho Khau”, in context, should be understood to reject the essential foundations of all the applicant’s claims of discrimination, which sought to attach her various misfortunes to the discriminatory denial of essential registration papers on the ground of a perceived “negative political profile”.
The reasoning of the first IMR reviewer which was adopted by Ms Duckmanton was:
The claimants assert that they have negative political profiles in Vietnam based on (the applicant) having been actively involved in working for the South Vietnamese regime during the Vietnam War, and on her husband having been a spy for the US, which backed that regime. (The applicant) claims her husband was re-educated for 18 months and she escaped re-education by convincing the authorities she had only worked as a seamstress during wartime, although she seemed to waver in her commitment to claims as to how well she convinced the authorities of this.
Although men and women probably contributed to the war effort in different ways, in variously formal and informal groupings, and with varying levels of awareness of how their role assisted the “bigger picture”, I find that (the applicant’s) evidence about her activities during the Vietnam War is inconsistent, significantly exaggerated and ultimately unreliable. She was also inconsistent as to whether she convinced the post-war authorities that she had no significant involvement with the former Southern regime. With regards to the deficiencies in this and other parts of her evidence, I considered her minimal educational background, her claimed stress levels during the process of claiming refugee status and her claimed difficulties with relevant interviews and the language used in them. Overall, I do not accept that (the applicant) had any significant involvement in the Vietnam War.
Importantly, I do not accept that (the applicant) acquired a “bad family background” on her own part. I am also confident, on her evidence about her father and mother, and taking account of the information she gave about her uncle, that she did not inherit any negative political profile from the family into which she was born. I do not accept that (the applicant) was imputed with “bad” or “unfavourable” political background by the post-war Vietnamese authorities.
As to the claims about (the applicant’s) husband’s negative political profile, I note, on the one hand, that (the applicant’s) evidence about her own activities is so unreliable I would have good reason to doubt her claims about her husband. However, (the applicant) and (her son) have been very broadly consistent in their assertions as to the effect that her husband served the former regime of the South and that he was re-educated. Giving the claimants’ claims the benefit of the doubt, to the extent that I reasonably can, I accept that (the applicant’s) husband had had some involvement in the South’s war effort and was re-educated for eighteen months afterwards. I do not accept on the evidence of only eighteen months re-education and subsequent release back to his family and home village that he was regarded by the post-war authorities as having been a spy for the South or for the US. The notion of “spy” suggests the husband would have been viewed as some kind of traitor but no information in the claimants’ evidence anywhere suggests that the forces of the North thought at any stage that this Southern-Vietnamese clay-pot maker had ever been on their side only to be disclosed as a spy for the South and its allies. I can accept on the evidence that, as a supporter of the South, the husband might have been part of a network of information sharing in the Southern region in which he lived and worked and that he might even have taken up arms in support of the South, but I do not accept that he was or was treated as a spy. Eighteen months’ re-education followed by return to one’s family and home district indicates to me that (the applicant’s) husband was of relatively little interest to the post-war authorities at the height of their response to enemy combatants just after the war. The evidence of his re-integration as clay oven maker, of his family’s purchase of land, and of authorities only checking on him in the context of checking on the local population generally, indicates to me that he was not considered after re-education to have any significant unfavourable political profile.
There is independent evidence suggesting that way back in the past, in the late 1970s and early 1980s, some people who were released from re-education were not subsequently registered and had limitations placed on their capacity to relocate within Vietnam. It is clear from the evidence of (the applicant) and (her son) that (the applicant’s) husband was not in this class of persons. If anyone in (the applicant’s) family did not have household registration or citizens’ ID documents, I do not accept on the evidence before me that this was due to any of them having negative political profiles.
It is hard in light of the country information cited earlier to conceive that (the applicant’s) husband was not placed on a household register after his release from re-education, as the register evidently serves, or at least once served, to keep track on the population of post-war Vietnam and exercise some control over it. Overall, I disbelieve all the purportedly Convention related reasons why (the applicant) claims she and her husband lacked, or would have no access to, household registration.
I consider that this reasoning of the first IMR reviewer shows a full and sufficient examination of the pertinent claims, and supported the adverse conclusion made by Ms Duckmanton. I also consider that Ms Duckmanton made no error of law or denial of procedural fairness by adopting the findings and reasons of the first IMR reviewer. This was not directly contended by the applicant’s counsel. Rather, he submitted that her adoption of passages from the first IMR report allowed me to infer an absence of ‘active intellectual engagement’ in the relevant issues of fact by Ms Duckmanton herself. He submitted, in effect, that there was therefore a constructive failure to perform the task of de novo independent review, which she was required to perform under the Minister’s IMR guidelines.
However, I would not draw an inference that Ms Duckmanton did not actually consider, independently agree with, and adopt as her own reasoning, the relevant findings and reasons of the first IMR reviewer. The contrary allegation suggests a serious dereliction of duty, and is lacking in any support found in other evidence or in the body of Ms Duckmanton’s report. In my opinion, other parts of her report show undoubtedly that she performed her own analysis of the applicant’s refugee claims and evidence, including the elements cited in the particulars to Grounds 1 and 2. Her efficiency in then adopting, as her own, some findings and reasons from an earlier report might be open to criticism as a desirable approach to the review task undertaken by her. Her expression used when doing this might also appear overly compressed. However, I am not persuaded that her approach evidences the denials of procedural fairness alleged in Grounds 1 and 2.
As counsel for the Minister further submitted, Ms Duckmanton’s rejection of all claims of discrimination for a Convention reason, based on a finding that she was not perceived as having a negative political profile, was further confirmed in Ms Duckmanton’s further conclusion, made after examining and rejecting the claim that the applicant had lost her home by reason of a further example of that discrimination:
After careful examination of all of the evidence before me, I am not satisfied that the claimant was “severely discriminated against throughout her life” in Vietnam either because of her or (her) husband’s political opinions, or because she was a member of a particular social group.
In my opinion, this finding, and the previous general rejection of any ‘negative political profile’ resulting in a continuing denial of necessary registration documents, fully answered all of the applicant’s particular claims in relation to separate claims of discrimination for the same underlying Convention reasons. The absence of any more specific negative findings about separate heads of discrimination did not, therefore, exhibit any material error of law or jurisdictional error. All such possible specific findings, were ‘subsumed’ in Ms Duckmanton’s general adverse findings going to the foundations of all her claims (cf. WAEE v Minister for Immigration (2003) 75 ALD 630 at [47], Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91], WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2 at [14], and MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123 at [110]).
For all of the above reasons, I am not satisfied that denial of procedural fairness or error of law occurred, as submitted by reference to Grounds 1 and 2.

Ground 3 – a failure to apply the ‘real chance’ test

This ground seeks to identify error of law in the first of the following concluding paragraphs of Ms Duckmanton’s report:
Although the claimant has stated that she fears that she will be arrested, detained and tortured if returned to Vietnam because she departed from Vietnam illegally, there is no evidence before me that convinces me that she would be treated in this way, or that she would be dealt with other than reasonably and fairly and under the laws of general application.
I agree with both the findings and the reasons for these findings as contained in the previous Independent Merits Reviewer’s Report dated 19/10/2010 (see above). I therefore find that the claimant has never suffered persecution in Vietnam for a Convention-related reason, ant that there is not a real chance of her so suffering in the reasonably foreseeable future.
I find that the claimant, (named), does not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958.
Recommendation
I recommend that the claimant, (named), not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees.
The applicant’s claimed fears relating to her illegal departure from Vietnam were never presented by her or her agent at the forefront of her claims. Nor, in my opinion, were they independent of her claim – which was clearly not accepted by Ms Duckmanton – to have been perceived in recent years as a person with a ‘bad’ political profile.
An illegal departure issue was first touched upon by the RSA assessor, acting on her own initiative, without any relevant claim being made by the applicant. The assessor said at the end of her reasons for a negative assessment:
The claimant did not specifically advance any fears for returning to Vietnam however on the question of possible penalties for people who departed Vietnam illegally, Post Report, CX84861 (4.16) says that “…people smuggling is illegal in Vietnam and individuals identified as being instrumental in organising a group departure may face prosecution under the normal processes of Vietnamese law. In the nature of the Vietnamese system, it is probable that … on return, (they would) be subject to routine questioning for administrative purposes and to some degree of surveillance. As Vietnam is a communist state all citizens are routinely subject to police investigation/surveillance…”. The report says further “… we would not expect that returnees would receive anything more serious than a warning…”. The claimant claimed that she paid both her own and her son’s passage on the boat that left Vietnam. I find that the claimant did not have an instrumental role in organising an illegal departure and per Post advice any penalties that might accrue would be minor. Therefore any fears that she may have relating to possible penalties will not be well founded.
The RSA assessor’s reasoning, in effect, found that there was no prospect of the applicant suffering any serious harm by reason of her illegal departure. It did not examine whether – if such harm might occur – it might occur for a Convention reason.
However, a Convention claim based on the applicant’s illegal departure was presented to the first IMR reviewer by the applicant’s agent in a concluding paragraph to a lengthy written submission dated 26 July 2010:
Without any form identification, and no legal way of reacquiring it, coupled with the consequences of unlawfully fleeing Vietnam, it is likely the applicant will be arrested, detained and possibly tortured if handed over to the Vietnamese authorities. She will not be able to sustain a satisfactory existence or support her family there without employment opportunities and will be forced to work illegally. She will have no access to health care due to her poor social standing and not be able to register at her local village or any other village as a resident or obtain housing without documentation.

The topic was then raised at her interview by the first IMR reviewer on 23 September 2010:
I asked (the applicant) and (her son) if they wished to comment on independent country information to the effect that people who leave Vietnam illegally may be prosecuted for breaching laws of general application in Vietnam particularly if they organise departures of others, and might only be questioned and monitored for a period in the case of simply having left illegally (DIAC CIS file at CX 84861, 17 November 2003).
(The applicant) said she did not wish to comment. (The son) said his situation was different because he had left due to his not being able to live in Vietnam. He said the authorities did not recognise him as a Vietnamese citizen as he has no ho khao and no ID document.
I asked both claimants if they had anything more to add. Their adviser asked for any adjournment so she could take instructions before summing up. I granted the adjournment.
Despite the apparent disclaimer by the applicant, the first IMR reviewer did address this topic in his findings and reasons:
“On the evidence before me, even after considering the concerns on this subject as raised in writing through the claimants’ adviser, I do not accept that (the applicant) will be seriously punished for having departed Vietnam illegally. I do accept that she may be interrogated and subsequently monitored for a period, as she has breached a generally-applicable law, but I do not accept that this would amount to persecution. I gave (the applicant) an opportunity to tell me why she thought she might face persecution and she said she had no comment. I do not accept that her illegal departure would be viewed cumulatively alongside a pre-existing negative political profile as, for the reasons discussed above, I do not accept that she has one.”
…
“I have also considered whether the claimants might face a differential level of treatment for having been unregistered persons and/or persons without citizens’ IDs who left Vietnam illegally but having considered all of the evidence before me I do not accept that they would.”
The topic does not appear to have been again raised by any submission or evidence from the applicant and her agent to Ms Duckmanton. It was not touched upon by Ms Duckmanton at her interview with the applicant on 9 February 2011, nor by the applicant’s agent in her post-interview submission probably dated 22 February 2011 (wrongly dated 2010), notwithstanding that this submission again summarised the applicant’s other refugee claims and how they related to the five Convention reasons.
In this context, it is perhaps understandable why Ms Duckmanton dealt with the illegal departure issue in one paragraph at the end of her report, immediately before expressing her general conclusions in relation to all of the applicant’s refugee claims. That brevity is also, perhaps, explicable due to Ms Duckmanton’s previous rejection of the claimed underlying Convention reason for the feared arrest, detention and torture for departing unlawfully.
Given the finding that the applicant had no adverse political profile, it would have been open to Ms Duckmanton to have rejected this fear as having no Convention nexus. However, she did not give that reason, at least, not expressly. Rather, she made findings which must be read as being that she was not ‘convinced’ (i) that the feared harm would occur, nor (ii) that the applicant would be “dealt with other than reasonably and fairly”, nor (iii) that she would be dealt with other than “under laws of general application”.
The reference to ‘laws of general application’ appears to be directed at jurisprudence which holds that feared harms arising from possible criminal prosecution may lack a Convention nexus unless the laws will be applied on a discriminatory basis for a Convention reason. This jurisprudence is considerably nuanced: see Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 258, Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 (“Appellant S395”) at [45], Chen v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 at 301, and Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 at [41]-[48], and [83]. It is unnecessary for me to explain the nuances, nor to consider whether Ms Duckmanton’s report reflects any error of law in their application, since Ground 3 contends an error of law of a different type.
Ground 3 contends that error of law is demonstrated in the first paragraph in the above extract, by reason of the adoption by Ms Duckmanton of an erroneous test of probability, when addressing and rejecting the applicant’s claim to fear serious harm as a result of her illegal departure, being harm by reason of a Convention reason.

It contends that Ms Duckmanton addressed this claim by assessing the probability of that harm occurring on a test more demanding than a balance of probabilities, and not in accordance with the more beneficial ‘real chance’ test of ‘well-founded fear’ established by the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. Under the correct test, Ms Duckmanton was obliged to assess the future risk of the feared future persecution by reference to a test of whether “there is a real chance of persecution”, which is satisfied “even though the possibility of the persecution occurring is well below 50 per cent” (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 571‑572).
Counsel argued that legal error in this respect is demonstrated in Ms Duckmanton’s use of the words “there is no evidence before me that convinces me”. He cited my judgment in SZDTZ v Minister for Immigration [2005] FMCA 1392 at [19]-[20], as an analogously flawed refugee assessment, in which an erroneous onus of proof was placed on a refugee claimant in relation to future risk. In that case, the RRT made findings that it was not “convinced that the basis for the applicant’s claim is for a convention-based reason”, and found that his claims were “not genuine” “on the balance of probability”. My conclusion of an operative failure to apply the real-chance test in that case was based on a close examination of the RRT’s full reasons, as it was also in another case where I found a similar error arising from the RRT’s making findings in language which was not reflective of the real-chance test (see SZLTF v Minister for Immigration [2008] FMCA 1177 at [21]-[25]).
However, in other cases, I and other judges have not detected material error only from the presence of findings which address the prospect of future persecution, and which are made in language which superficially might not demonstrate an appreciation that the risk does not need to be more than probable and can be considerably less. For example, recently both I and Riley FM have treated as “unfortunate but not fatal” findings which superficially appeared to have required ‘compelling evidence’ to support a refugee claim, but on fuller examination had probably used these words only as emphatic of not being satisfied that the real chance test was met (see MZYNB v Minister for Immigration [2011] FMCA 714 at [41]-[56]).
In short, it is necessary to examine the context of the decision-maker’s language when making findings in the course of arriving at a conclusion on a refugee claim, including how the claimed fear of persecution was made, what preceding findings have been made, and how the ultimate conclusion is framed by the decision-maker. In this process, I must try to understand Ms Duckmanton’s reasoning in relation to the applicant’s ‘illegal departure’ claim, and to give her report the benefit of doubts whether it reveals vitiating error of law, or only an unfortunate obscurity, brevity, or ambiguity when arriving at an ultimate adverse conclusion on that claim.
In this respect, the applicant’s counsel pointed out that there is absent anywhere earlier in Ms Duckmanton’s report any recognition of the ‘real chance’ test of a risk of future Convention-related persecution, and there is a complete absence of any citation of judicial authority. Nor did any such recognition appear in the report of the first IMR reviewer, and his report may well have been flawed by an erroneous opinion that he was not bound by High Court jurisprudence (see Plaintiff M61 (supra) at [87]-[89]). Counsel for the applicant submitted that such a flaw might have attended Ms Duckmanton’s apparently unqualified agreement with “the findings and the reasons for these findings as contained in the previous” IMR report.
However, I have not been persuaded that Ms Duckmanton did, in fact, stop short when addressing the applicant’s ‘illegal departure’ claim, with findings made upon a too-demanding test of the risk of future Convention-related persecution as a result of the applicant’s illegal departure. In the context of how this claim was raised, of Ms Duckmanton’s reasoning preceding the challenged paragraph, and of the reasoning on this topic of both the RSA and first IMR reviewer, it was clearly open to her not to be satisfied that there was a real chance that the applicant would be singled out for harsh punishment for her illegal departure for the reason of perceived ‘bad’ political profile. Moreover, it was clearly open to her to be positively satisfied that such a risk did not exist at all, in the light of her preceding confident finding that the applicant did not have a ‘bad’ political profile, and in light of the apparently uncontested country information cited by the RSA and first IMR decisions. In this context, I consider it likely that the challenged sentence was, in effect, intending only to say this, in an emphatic way.
Moreover, I do not consider that the challenged paragraph contains the expression of Ms Duckmanton’s ultimate finding in relation to the applicant’s ‘illegal departure’ claim. That ultimate finding is found in the next paragraph, which is intended to draw together her preceding findings concerning all of the applicant’s refugee claims, and to provide an operative conclusion covering all of them. That ultimate finding impeccably uses the language of the ‘real chance test’. It was the finding “that the claimant has never suffered persecution in Vietnam for a Convention-related reason, and that there is not a real chance of her so suffering in the reasonably foreseeable future”.

I would read the referent to “so” as shorthand for “suffering persecution in Vietnam for a Convention-related reason”.
In my opinion, this finding was intended by Ms Duckmanton to show, and does sufficiently show, that before making her ultimate finding and recommendation as to the applicant’s refugee status under s.36(2) of the Migration Act, she considered whether any of the fears of future persecution under any of the applicant’s claims was ‘well founded’, in the sense of having an objectively determined possibility of occurrence as a ‘real chance’. I am not satisfied that she did not consider by reference to that test, the applicant’s risk in relation to the repercussions of her illegal departure from Vietnam.
I am therefore not satisfied that Ground 3 is established.
Since I am unable to uphold any of the grounds argued before me, I must dismiss the application. It is agreed that costs should follow the event.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 18 October 2011