SZQHF v Minister for Immigration and Citizenship
[2012] FCA 251
•20 February 2012
FEDERAL COURT OF AUSTRALIA
SZQHF v Minister for Immigration and Citizenship [2012] FCA 251
Citation: SZQHF v Minister for Immigration and Citizenship [2012] FCA 251 Appeal from: SZQHF v Minister for Immigration & Anor [2011] FMCA 774 Parties: SZQHF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and JANET DUCKMANTON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NSD 1940 of 2011 Judge: NORTH J Date of judgment: 20 February 2012 Date of hearing: 20 February 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 28 Counsel for the Appellant: Mr J. A. Gibson Solicitor for the Appellant: Paddock & Associates Counsel for the Respondents: Mr J. D. Smith Solicitor for the Respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1940 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQHF
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentJANET DUCKMANTON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
20 FEBRUARY 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Leave given to the appellant to argue the new ground of appeal contained in [1] of the amended notice of appeal as follows, namely, that the second respondent failed to determine an integer of the appellant’s claims being a claim that she and her son attempted to defend their land and protested against the authorities and are now considered political dissidents.
2.The appeal is allowed.
3.Paragraph 1 of the orders made by Smith FM on 18 October 2011 is set aside.
4.The first respondent pay the appellant’s costs of the appeal.
AND THE COURT DECLARES THAT:
5.In recommending to the first respondent that the appellant is not a person to whom Australia has protection obligations, the second respondent made an error of law in that she failed to consider a discreet integer of the appellant’s claims being a claim that she and her son attempted to defend their land and protested against the authorities and are now considered political dissidents.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1940 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQHF
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentJANET DUCKMANTON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
NORTH J
DATE:
20 FEBRUARY 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
Before the Court is an appeal against orders of the Federal Magistrates Court made on 18 October 2011. The federal magistrate dismissed the appellant’s application for review of a recommendation made on 6 April 2011 (the recommendation) by the second respondent, to the first respondent, Minister for Immigration and Citizenship that the appellant 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 Convention).
The appellant was born in Vietnam on 16 February 1950. She arrived at Christmas Island from Indonesia on 2 October 2009. She sought an assessment of her refugee status on 1 January 2010 which was rejected by a departmental officer on 19 April 2010. The appellant then sought a merits review of that assessment. On 19 October 2010, the reviewer (the first reviewer) also rejected her claim to be a refugee.
Following the judgment of the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319 [2010] HCA 41, a second merits review was granted to the appellant. That is the review presently under consideration.
The appellant’s case before the assessor and reviewers was that she was a refugee within the meaning of the Convention by reason of her actual or imputed political opinion, religion, and/or membership of a particular social group. She claimed to have been a supporter of the previous political regime in Vietnam and, that as a consequence, the Vietnamese government had discriminated against her by refusing to restore her Ho Khau (household registration) thereby denying her access to basic social services. At each stage, her central claim was rejected on the basis that she did not have the profile in Vietnam which she claimed.
On 6 June 2011, the appellant applied to the Federal Magistrates’ Court for review of the recommendation. Her second amended application alleged that the reviewer failed to consider certain claims that she had made, and had also failed to apply the real chance test to some of her claims.
The federal magistrate rejected these grounds of review and ordered the appellant to pay the costs of the first respondent.
Then on 4 November 2011, the appellant filed a notice of appeal from the orders made by the federal magistrate. That notice of appeal appears to have been drawn by the appellant herself, or at least with some non-legal assistance. It provides no sensible grounds of appeal. However, in due course, an application was made to amend the notice of appeal and to raise an argument which had not been agitated before the federal magistrate. It also sought to re-argue the real chance argument, which had been raised before and rejected by the federal magistrate.
THE GROUNDS OF APPEAL
The amended notice of appeal raised the following issues:
1.The appellant seeks the leave of this Honourable Court to amend her Notice of Appeal to raise a new ground of appeal in the following terms in addition to the grounds raised herein which were pleaded at first instance:
i)The Second respondent failed to determine a discreet integer of the Appellant’s claims being the claim that she and her son attempted to defend their land and protested against the authorities and are now considered political dissidents.
2.His Honour erred in not finding that the Second Respondent erred in law and thereby exceeded its jurisdiction in that by imposing a test which required evidence to “convince” her, the reviewer erred in applying a standard of proof well beyond sanctioned by the Refugees Convention and/or did not turn her mind to the established meaning of a “real chance”.
3.His Honour should have held that the Tribunal erred in law and thereby exceeded its jurisdiction in that by imposing a test which required evidence to “convince” her, the reviewer erred in applying a standard of proof well beyond sanctioned by the Refugees Convention and/or did not turn her mind to the established meaning of a “real chance”.
THE PROPOSED NEW GROUND OF APPEAL
Whether the Court should allow the appellant to raise on appeal an argument which was not raised before the federal magistrate depends upon whether it is expedient in the interests of justice to do so. That test often involves consideration of the chances of success of the new proposed ground, consideration whether the respondent would suffer any prejudice by reason of the new ground being raised, and consideration whether there is some explanation for the fact that the ground was not raised at first instance. In the present appeal, consideration of the merits of the proposed new ground is determinative. Consequently, the arguments on that question will now be outlined.
The Court has been particularly assisted in this case by the very extensive experience of both counsel. As a consequence, the central arguments have been put succinctly and clearly.
For the appellant, Mr Gibson of counsel, contended that the second respondent failed to consider a claim by the appellant that she had a political profile generated from her objection to the confiscation of her land in Vietnam. This, he argued, was a distinct and separate profile from that which she asserted came from her allegiance to the previous government in Vietnam. Mr Smith, who appeared on behalf of the first respondent, contended that such a claim had not been raised before the second respondent. He accepted that, if it had been raised, then it was not dealt with. Consequently, the fairly narrow issue left for determination by the Court is whether the suggested ground was raised before the second respondent in a way that compelled her to deal with it.
The basis upon which Mr Gibson said that the claim was before the second respondent depended on the matters which were before the assessor and the reviewers, and the way in which the second respondent explained the matters that she regarded as emerging from the unusual history of the claim.
In her reasons for the recommendation, the second respondent set out the claims made in the previous stages of the case, including the comprehensive written submissions which were relied upon before the refugee status assessment officer. That submission contained a claim, which was set out in the second respondent’s reasons, as follows:
The claimant and her son attempted to defend their land, and protested against the authorities very strongly, and are now considered political dissidents.
In the context of the submission as a whole, it is clear that this was relied upon as a discreet and separate basis upon which the actual or imputed political opinion ground was to be argued.
The second respondent then set out, at length, the reasons of the first reviewer, which included the following passage:
I accept but give no weight to the fact that there was a clash between officials and the claimants in their home at the time they were advised of the intended expropriation, but am of the view that this was not unexpected by the authorities. I accept that an officer slapped Mr Bang. Although the process appears to have been harsh and flawed, I do not accept that the claimants lost their property for Convention-related reasons. I am not satisfied on the evidence before me that the authorities would have regarded the claimants’ complaints or even anger towards the state at that time as dissidence to any significant degree. They were in a position to arrest family members on the spot when they came to visit and did not; evidently they dealt with conflict “in the moment” and left.
I am concerned about Mr Bang’s claims about having lodged a form or letter in June 2006 seeking justice in the matter of compensation, as little or no time had yet passed in June 2006 for the compensation promise to appear unfulfilled. Mr Bang’s evidence about what followed after the house was expropriated is generally marked by inconsistency and implausibility, both internally and when seen beside the evidence of Mrs B [the appellant]. The two claimants provided very different recollections as to what they last knew of the fate of the house; Mr Bang was entirely unconvincing in his evidence about taking up the concerns of neighbours and encouraging them to protest; he told the Department in a statutory declaration that Mrs Be was, up to that time, unaware that he had been detained and had had his collarbone broken by the police, whereas Mrs Be herself later claimed in writing to have known of his detention the very day he was detained and also claimed in writing to have found out whilst still in Vietnam about his collarbone having been broken; Mr Bang claims not to have discussed purportedly important issues of common interest with Mrs Be; Mr Bang claimed to have gone into hiding and later claimed that he only hid in the day, enabling him to see what had become of the seized house in the middle of one night; Mr Bang gave inconsistent evidence as to when he went to the provincial office to try to obtain ID documentation.
In tying claims about his personal campaign for justice to claims about encouraging neighbours to rise against the authorities, Mr Bang left me unconvinced that he took any significant or potentially significant action arising from the expropriation of his family’s property. Even the evidence as to how he came to be detained is inconsistent: in one version he was led away by police from the house in which he was staying and in another version he was detained when he went to the police station to petition. Added to this, I find the claim about the police saying to Mr Bang that they were releasing him until his collarbone had time to heal whereupon they were going to arrest him again quite far-fetched.
Ultimately, I do not accept that Mr Bang or Mrs Be or, for that matter, Mrs Be’s husband attracted negative political profile as a result of their disaffection over the expropriation of their property.
In support of the argument that the claim in question was before the second respondent, Mr Gibson also referred to some passages in the lengthy written submission made to the first reviewer which were before the second respondent. The passages include the following:
At the time the authorities came to confiscate the applicant’s land, the police chief gave an order to his officers to strike the applicant’s son because he attempted to defend her land. Approximately one month later, the police chief returned to arrest the applicant’s son while she was away selling clay pots. Her son was detained and beaten for 10 days sustaining a broken collar bone.
The applicant and her son attempted to defend their land and protested against the authorities very strongly and are now considered political dissidents.
The applicant claims she has been discriminated against because of her and her husband’s association with the former Dai Dau Tjieu Ky regime. They have continued to be discriminated against and persecuted for defending their rights as citizens of their country and have so far, been denied the right to compensation since the confiscation of their land in 2006.
The applicant claims this is because the authorities want to silence her and her son’s protests against them for not providing adequate compensation for confiscating her family’s land.
Mr Smith argued that, whilst the claim in question was made to the first reviewer, it was, in effect, abandoned before the second respondent. He relied on the written submission, incorrectly dated 22 February 2010, which was sent from the appellant’s advisors to the second respondent, following the interview on 9 February 2011 conducted by the second respondent. Mr Smith submitted that it was significant that this submission did not refer to the claim in question.
He then relied upon the evidence given by the appellant to the second respondent on the subject of land confiscation. The second respondent set out that part of the interview relevant to the issue as follows:
The claimant then said that because the house was near the authorities, the government wanted it for government use. She said that she was very upset when the land was taken from her, and that this was the reason she decided to come to Australia. I advised the claimant that even if the government had taken her land, it did not necessarily mean she was a refugee.
Mr Smith contended that there was no reference in this evidence to the claim that the appellant gained any profile as a result of objecting to the confiscation of her land. He said this was particularly significant because the second respondent had indicated that the evidence, as it then was, would not necessarily mean that the appellant was a refugee. Mr Smith also argued that the appellant was legally represented before the second respondent, and that the legal representative had not taken any issue with the advice given by the second respondent.
Mr Smith referred to Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 (Dranichnikov), where at [24] Gummow and Callinan JJ with whom Hayne J agreed, said:
To fail to respond to a substantial, clearly articulated argument relying upon established facts, was at least to fail to accord Mr Dranichnikov natural justice.
The matters to which Mr Smith referred, he contended, demonstrated that no such clearly articulated argument had been made by the appellant. Mr Smith distinguished the circumstances of the present appeal where, it was said, a claim which was before the first reviewer was abandoned before the second respondent, with those in Dranichnikov, where the majority was satisfied that the case presented to the Tribunal was no different to that which was before the delegate.
Finally, Mr Smith submitted that, in any event, the evidence demonstrated that the claim concerning a profile gained following the confiscation of her land related to the appellant’s son and not to the appellant herself.
CONSIDERATION
The claim that the appellant had gained a political profile, or an imputed political profile, as a result of her objection to the confiscation of her land was clearly made to the first reviewer. It was dealt with, at length, by him. The submissions in which that claim was made were before the second respondent. They were set out by her and were not expressly withdrawn by the appellant.
The final written submissions of the appellant sent after the interview on 9 February 2011 were explicitly incomplete and supplementary in nature. The appellant’s legal representative introduced the submissions by stating:
As I was unable to complete the oral submission due to technical difficulties on the 9th of February 2010 (sic) I wish to forward same in written form.
(emphasis added)This written submission was two pages long. It referred to the previous written submission, and was obviously an attempt to summarise the remaining part of the case which could not be addressed on 9 February 2011. This supplementary submission should not be taken as limiting the scope of the previous comprehensive submissions made to the first reviewer and repeated in the reasons of the second respondent.
In any event, it is arguable that this further submission does make reference to the claim that the appellant had gained a profile from protesting against the confiscation of her land. In summarising the bases of the appellant’s well founded fear, the submission includes that her fear is “also due to her capacity to subsist being threatened.” It is possible that this summarised claim was intended to encapsulate the claim presently under consideration.
The lack of evidence expressly directed to the issue of the appellant’s response to the confiscation of her land does not itself establish that the claim was abandoned. There were other reasons for a failure of communication between the appellant and the second respondent specific to the circumstances of the hearing before the second respondent. More likely, the lack of evidence reflects the fact that the interview was conducted by video and through an interpreter. The appellant had a very limited education. The legal advisor of the appellant asked the second respondent to consider the appellant’s ability to answer even simple questions. Further, it is apparent from the description of the interview in the reasons of the second respondent that the questioning on this aspect was quite inadequate. There was no attempt to raise with the appellant the details of this claim. Rather, the second respondent appears to have provided a fairly immediate negative response, which is likely to have inhibited the response of the appellant on the issue.
In relation to the suggestion that the claim was limited to the appellant’s son, Mr Gibson pointed out correctly that the written submissions to the first reviewer made it quite clear that the claim was not so limited. Those submissions provided:
The applicant lodged a formal complaint with the provincial office and he and his mother are now considered political dissidents.
(emphasis added)
The argument that the second respondent failed to deal with the appellant’s claim that she had gained a political profile opposed to the government as a result of her objecting to the confiscation of her land should be accepted. The proposed new ground of appeal thus has merit. The entire argument before the Court revolved around the question of the merits of the proposed new ground of appeal. The first respondent did not contend that leave to argue the new ground should be refused if the Court found that the proposed new ground of appeal has merit. In any event, no substantial prejudice would flow from the grant of leave. It is therefore expedient in the interests of justice to permit this ground to be argued. It also follows that the new ground of appeal should be upheld and the appeal allowed.
The grounds particularised in [2] and [3] of the amended notice of appeal largely reflect the argument which the appellant lost before the federal magistrate on the question of whether the reviewer applied the real chance test in considering her claim. Mr Gibson only faintly pressed these grounds at the hearing of the appeal. For the reasons given by the federal magistrate at [32] to [51] of his Honour’s judgment, these grounds should be rejected.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 19 March 2012
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