SZSRX v Minister for Immigration
[2014] FCCA 2447
•24 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSRX v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2447 |
| Catchwords: MIGRATION – Application for review of decision by Independent Protection Assessment Reviewer (Reviewer) – whether Reviewer was under a duty to inform the applicant that one issue the Reviewer intended to consider was whether the applicant’s claim satisfied the complementary protection criteria – whether Reviewer gave such notice – whether the notice the Reviewer gave was adequate – whether one of the claims the applicant made was also a claim based on complementary protection – whether the Reviewer considered such claim – whether the Reviewer failed to apply the “real chance” test when determining whether the applicant was entitled to protection under the complementary protection criteria – no legal error. |
| Legislation: Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967, Article 1A(2) Migration Act 1958 (Cth), ss.5(1), 36(2)(a), 36(2)(aa), 36(2A), 46A(1), 46A(2), 91R(2), 195A(2), 425 |
| Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319 Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24 SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152 SZSDP & Ors v Minister for Immigration & Anor [2013] FCCA 1647 SZSFK v Minister for Immigration & Anor [2013] FCCA 7 |
| Applicant: | SZSRX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IRENE O’CONNELL IN HER CAPACITY AS INDEPNDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | SYG 597 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 4 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Searle with Mr P. Bodisco |
| Solicitors for the Applicant: | Stanford Lawyers |
| Counsel for the Respondents: | Mr J. Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 597 of 2013
| SZSRX |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of Vietnam, seeks a declaration that the second respondent’s recommendation that the applicant does not meet the criteria for a Protection (Class XA) visa was not made according to law, and an injunction to restrain the first respondent (Minister) from relying on the recommendation.
The applicant relies on three grounds: the second respondent (Reviewer) failed to consider all the integers of the applicant’s claims for protection; the Reviewer failed to apply the “real chance” test to the applicant’s claims; and the Reviewer denied the applicant procedural fairness. At the hearing, counsel for the applicant first addressed the third ground.
A factual foundation of the third ground is the date on which s.36(2)(aa) was added to the Migration Act 1958 (Cth) (Act) as an additional criterion for the granting of a protection visa. The amendment came into effect after the applicant’s claims for protection had been referred to the Reviewer, but before the Reviewer interviewed the applicant. The applicant claims the Reviewer failed to properly notify the applicant of the availability of s.36(2)(aa) as a ground for protection; and it is this failure that constitutes the denial of procedural fairness of which the applicant complains.
The nature of the applicant’s third ground requires me to set out in chronological order the events that led to the Reviewer making her recommendation. I will therefore review those events before I consider the Reviewer’s reasons.
The applicant’s claims for protection
The applicant arrived on Christmas Island as an unauthorised boat arrival on 10 May 2011.[1] On 8 November 2011 the applicant made a request for a “protection obligations determination” (POD). In a statement of claims supporting that request the applicant claimed she feared two types of harm if she were to return to Vietnam.[2] The first is harm from the persons with whom the applicant and a friend of the applicant had a traffic accident. The second is discrimination on the ground the applicant is a Catholic.
[1] CB145, [1]
[2] CB61-63
The asserted facts on which the applicant relied for her first-mentioned fear are as follows. While riding a bicycle, the applicant was hit by a motorbike. The persons who caused the motorbike to hit the applicant and her friend had been drinking. As a result, those persons were arrested, and the motorbike was confiscated. The applicant’s knee was injured, and she was admitted to hospital for treatment. The applicant remained in hospital for one month. The persons who caused the accident visited the applicant. After the applicant was released, the persons visited the applicant at her home, and asked her to accompany them to the police to tell lies to enable the persons to retrieve their motorbike. The applicant refused. The persons then applied pressure on her. The applicant agreed to help them after the persons said they would look after the applicant’s injury. The applicant helped the persons retrieve their motorbike, but they did not help the applicant with her injury. The applicant informed the persons that she was going to sue them for her injury. That resulted in the persons threatening to harm the applicant if she were to sue them.
The asserted facts on which the applicant relied for her fear of discrimination are as follows. The applicant is a Catholic. She said that she was discriminated in her place of work because she was a Catholic. The discrimination took the form of one person saying that Roman Catholics were liars, and that Roman Catholics believed in nonsense. People at the applicant’s workplace said nasty things about Catholic people.
By letter dated 29 November 2011 to the POD officer, the applicant’s migration agent made the following submissions:[3]
[3] CB94
Our client is claiming a well founded fear of persecution because of her religious beliefs (catholic) and membership of a social group (single vulnerable woman).
The applicant has faced ongoing discrimination in Vietnam because of her religion. . . .
The applicant states she has witnessed a lot of violence in Vietnam. She states her grandmother had many difficulties in their village . . . and had to move . . . .
The applicant decided to flee Vietnam after being involved in an accident with a friend and they were hit by a motorbike . . . The applicant feared for her safety and returned to her grandmother who searched for a wayfor [sic] the applicant to leave Vietnam.
The applicant states she does not want to return to Vietnam as she has no rights as a Catholic and she fears the men who caused the accident. . . .
On 30 November 2011 the applicant submitted an additional statement in which she claimed fear of persecution from the person who introduced the applicant to take the trip to Australia. The applicant said she made a promise to come here, find work, and pay the person who introduced her to coming to Australia.[4] The applicant has been unable to pay the money to that person as a result of which the person has threatened to possess the applicant’s family property.
[4] CB100
On 7 December 2011, the POD officer declined to recommend that the applicant be granted protection, and referred the POD for an independent protection assessment. The officer was not satisfied the applicant was entitled to protection because the officer did not accept the applicant to be a witness of credit.[5] But, even if true, the officer was not satisfied the applicant’s claims established the need for protection because the reasons for which the applicant claimed fear were not those provided for by the definition of “refugee” contained in Article 1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Refugee Convention).
[5] CB107
On 7 December 2011 the POD officer notified the applicant of the officer’s decision, and of the fact that the applicant’s POD had been automatically referred for an independent protection assessment.[6] The letter stated:
i)The role of the independent assessor is to make a recommendation to the Department of Immigration and Citizenship (the Department) as to whether or not you are a refugee under the 1951 Refugees Convention and relevant provisions of the Migration Act. If the independent assessor makes a positive recommendation, and you meet all criteria for the grant of a visa, the Minister will be asked to allow you to make a visa application.
ii)The independent assessor will conduct an assessment in accordance with procedural fairness principles. This will include an opportunity for you to put forward arguments which support your case and this may include an interview. It will also include the independent assessor putting information, that is known by them and that may not support your case, to you for comment.
[6] CB101
On 29 February 2012 the applicant’s migration agent provided to the independent protection assessment office a detailed written submission in support of the applicant’s claim for protection.[7] The submission was supported by a statement from the applicant that was said to respond to the negative POD.[8]
[7] CB113-134
[8] CB135-136
On 24 March 2012 s.36(2)(aa) was introduced into the Act.[9] That subsection is an additional criterion for the granting of a protection visa. It provides that a person is entitled to a protection visa if the person is a non-citizen and “the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”.
[9] Subsection 36(2)(aa) was introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth). That Act received Royal Assent on 14 October 2011 and commenced by proclamation on 24 March 2012.
On 17 April 2012, the applicant’s migration agent was informed that an independent assessor had been allocated to consider the applicant’s claims and, on 4 May 2012, the applicant was invited to attend an interview with the Reviewer on 16 May 2012.
The Reviewer interviewed the applicant on 16 May 2012. The interview opened with the Reviewer stating that she would explain the process that would be followed in the interview. That included the Reviewer explaining to the applicant the criteria for being a refugee. The Reviewer said that was important because “it forms the background to the questions I’ll be asking you in the interview”.[10] The Reviewer explained the elements of the Convention definition of “refugee” – the need for there to be a fear that has an objective basis,[11] the fear must be one of persecution,[12] and that the fear of persecution must be for a Convention reason.[13]
[10] Record of Hearing (RH), RH3.50. The RH is annexed to the affidavit of C. F. Stanford sworn on 25 March 2014.
[11] RH4.35
[12] RH4.50
[13] RH5.15
The Reviewer also stated that since the applicant’s arrival and the applicant’s interview on arrival, “there’s been additional criteria for considering whether a person is entitled to a Protection Visa”.[14] The Reviewer said she needed to “consider whether you might be owed protection on the basis of the Convention against torture, the Convention on the rights of the child, and also on the . . . Convention on political rights;[15] the criteria “under any of those other Conventions” are “slightly different from the test that we use to determine whether or not you are a refugee”;[16] the other Conventions talk “about significant harm, rather than serious harm”, and also refer to a person being “at significant risk” or that the person “will suffer significant harm”.[17]
[14] RH6.40
[15] RH7.5
[16] RH7.10-15
[17] RH7.15-30
Reviewer’s recommendation and reasons
Although the Reviewer accepted the applicant was a practising Roman Catholic, the Reviewer did not accept the applicant faced harm amounting to persecution by reason of her religion.[18] The Reviewer also did not accept the applicant is a member of a particular social group, namely, vulnerable single women or family of women with no male protection.[19] The Reviewer accepted the applicant may have been involved in a traffic accident in which a motorbike hit her and her friend when riding a pushbike.[20] The Reviewer did not, however, accept the applicant was threatened by the persons who hit her, and that she was unable to access police protection, leaving her with no alternative but to leave Vietnam.[21] The Reviewer found much of the applicant’s account of the events “to be incongruent, unconvincing and seemed to be improvised in response to questions”.[22]
[18] CB159, [85]
[19] CB159, [88]
[20] CB159, [89]
[21] CB159, [90]
[22] CB159, [90]
The Reviewer accepted the applicant had left Vietnam illegally and that, if she were returned to Vietnam, she would there face questioning about her illegal departure and may also receive an administrative penalty.[23] The Reviewer found, however, on the basis of country information, that the questioning and imposition of an administrative penalty would not constitute serious harm within the meaning of s.91R(2) of the Act.[24] The Reviewer also accepted that the applicant and her family may have entered into debt to smuggle the applicant out of Vietnam, although the Reviewer remained unconvinced as to the extent of the debt.[25] In any event, the Reviewer was not satisfied the persons to whom the applicant and her family may have incurred debt would be able to possess the applicant’s family’s home because those persons were smugglers, and country information indicated that people smugglers face severe penalties in Vietnam.[26] For those reasons, the Reviewer was not satisfied the applicant had a well-founded fear of persecution or that she will suffer significant harm on her return to Vietnam.
[23] CB160, [91]
[24] CB160, [91]
[25] CB160, [94]
[26] CB160, [95]
Ground 3 – denial of procedural fairness
I will first deal with the third ground stated in the applicant’s amended application, because that was the ground counsel for the applicant first addressed.
The applicant’s submissions
The elements of the applicant’s claim that she has been denied procedural fairness are as follows:
a)the Reviewer was under a duty to accord the applicant procedural fairness when determining whether to recommend the applicant is or is not entitled to protection;
b)the duty to accord procedural fairness required the Reviewer to notify the applicant that one of the issues the Reviewer intended to consider was whether the applicant met the criterion specified in s.36(2)(aa) of the Act;
c)the Reviewer failed to properly notify the applicant of that issue because:
i)in a letter dated 7 December 2011, the POD officer stated that the role of the independent protection assessment was to determine whether the applicant was “a refugee under the 1951 Refugees Convention and relevant provisions of the Migration Act”; the officer did not mention the complementary protection criteria that was to be specified in s.36(2)(aa);
ii)the applicant’s migration adviser relied on the letter of 7 December 2011 by including in the submissions dated 29 February 2012 matters that related only to the issue of whether the applicant was a “refugee” within the Convention definition of “refugee”;
iii)neither the communication of 17 April 2012, by which the applicant’s migration agent was informed that an independent assessor had been allocated to consider the applicant’s claims, nor the communication of 4 May 2012 by which the applicant’s migration agent was invited to attend an interview before the Reviewer, mentioned complementary protection; and
iv)although at the interview of 16 May 2012 the Reviewer informed the applicant and her migration agent of the complementary protection criterion, the Reviewer did so in a manner that was confused, confusing and misleading.[27]
[27] T15.20-T16
Counsel for the applicant submitted that the explanation the Reviewer gave of the scope of the complementary protection claim was misleading for the following reasons:
a)The Reviewer did not initially identify the complementary protection provision at all. The Reviewer only referred to “some other United Nations Conventions”, and in particular “the Convention against torture, the Convention on the rights of the child, and also . . . [the] Convention on political rights”.[28]
b)The Reviewer said that the criteria that had to be met under the other conventions were “slightly different from the test that we use to determine whether or not you are a refugee”.[29] That was incorrect because the differences between the criteria provided for under s.36(2)(a) of the Act and under s.36(2)(aa) are very different.[30]
c)The test the Reviewer said had to be met under the other conventions was that the applicant is a person that is “at significant risk” or that “I guess” it was “more correct to say whether you’re a person, you will suffer significant harm”.[31] The applicant submits that this misstates the test of harm; that test is whether there is a real chance a person will suffer significant harm.[32]
[28] RH7.5
[29] RH7.15
[30] T15.30-45
[31] RH7.20-30
[32] T16.10
Minister’s submissions
The Minister accepts the Reviewer was obliged to give the applicant notice that an issue she would be considering when deciding whether or not to recommend Australia owed protection obligations to the applicant was whether the applicant met the criterion provided for by s.36(2)(aa) of the Act. The Minister submits, however, that the Reviewer did give adequate notice. The Minister submits the applicant’s migration advisor was aware at the interview that complementary protection was an issue before the Reviewer. The Minister also submits that the applicant had sufficient opportunity after the interview to make any submissions she wished to make in relation to complementary protection.
Issues
From this statement of the competing submissions, three issues arise:
a)Was the Reviewer under a duty to give the applicant notice that whether or not the applicant met the criterion provided for by s.36(2)(aa) of the Act was an issue the Reviewer would be considering?
b)If (a) is answered in the affirmative, did the Reviewer give the applicant notice?
c)If (b) is answered in the affirmative, was the notice the Reviewer gave sufficient?
Was the Reviewer under a duty to give notice of the availability of complementary protection criterion?
Whether a decision-maker owes a duty to accord procedural fairness and, if so, what procedural fairness requires, depends on the statutory framework in which the decision-maker makes the decision.[33] The first matter I must consider, therefore, is the statutory framework in which the Reviewer made her recommendation.
[33] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152 at [26]
The Reviewer made her decision as part of “an administrative refugee status assessment process established by the Government for offshore entry persons”.[34] As I have noted elsewhere,[35] under that process (as at 16 May 2012), an “offshore entry person”[36], although prevented by s.46A(1) of the Act from making a valid application for a protection visa, may be permitted by the Minister, under s.46A(2) of the Act, to lodge an application for a protection visa. An applicant may be so permitted if, after a POD officer has conducted a protection obligations assessment, the POD officer finds the applicant meets all the requirements for the granting of a protection visa and also finds the applicant is a person to whom Australia has protection obligations under the Refugee Convention. An applicant may also be permitted to lodge an application for a protection visa if a POD officer has found the applicant is not a person to whom Australia has protection obligations under the Refugee Convention but, after an independent protection reviewer has undertaken an “independent protection assessment”, the independent protection reviewer recommends to the Minister that the applicant is a person to whom Australia has protection obligations under the Refugee Convention.
[34] Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24 at [7]. This is a description of the “administrative refugee status assessment process” described by the High Court in Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319 which is almost identical to the current system.
[35] SZSDP & Ors v Minister for Immigration & Anor [2013] FCCA 1647 at [5]
[36] Which as at 16 May 2012 was defined in s.5(1) of the Migration Act 1958 (Cth) (Act). The Act now employs the expression “unlawful maritime arrival”.
In Plaintiff M61/2010E v The Commonwealth of Australia[37] the High Court considered the substantially similar predecessor of this administrative scheme. Under that scheme, a reviewer conducted an “independent merits review” of a “Refugee Status Assessment” made by an officer of the Department of Immigration and Citizenship (as the Department of Immigration and Border Protection was then known). The Court held that the scheme was implemented by the Minister after he decided to consider exercising the dispensing power conferred by s.46A(2) of the Act and the power to grant a visa to a person in detention under s.195A(2) of the Act, and for the purpose of informing the Minister of matters that were relevant to whether he would exercise these powers in favour of the claimant;[38] that the carrying out of the independent merits review, and the making of a recommendation were steps that were taken to inform the Minister’s consideration, and hence were steps towards the exercise of the powers conferred by ss.46A(2) and 195A(2);[39] that the Minister’s consideration of the exercise of these powers must be procedurally fair to the persons in respect of whom that consideration is given;[40] and, that the consideration must proceed by reference to correct legal principles, correctly applied.[41] It followed, therefore, that the independent reviewer was obliged to accord the applicant procedural fairness when undertaking the review. It followed further that the independent reviewer’s “determination of whether Australia had protection obligations to the plaintiff was to be made according to law”.[42]
[37] (2010) 243 CLR 319
[38] (2010) 243 CLR 319 at [73]
[39] (2010) 243 CLR 319 at [78]
[40] (2010) 243 CLR 319 at [78]
[41] (2010) 243 CLR 319 at [78]
[42] (2010) 243 CLR 319 at [87]
It may be inferred that the role of reviewers under the administrative refugee status assessment process I have described was intended to mirror that given under the Act to the Refugee Review Tribunal to review decisions of the Minister or delegates of the Minister not to grant protection visas. What the High Court said in SZBEL v Minister for Immigration and Multicultural Affairs[43] about the circumstances in which the Tribunal is required to give an applicant notice of issues, therefore, is relevant to determining the circumstances in which a reviewer is obliged to give an applicant notice of issues. In that regard, the following three principles stated in SZBEL v Minister for Immigration and Multicultural Affairs are relevant:
a)At common law, a duty to accord procedural fairness consists in providing to the person likely to be affected by the decision an opportunity to put information and submissions to the decision-maker in support of the outcome the persons seeks; and to rebut or qualify by submitting further information and comment and submission in relation to material that is adverse to the person.[44]
b)The duty extends to the decision-maker identifying to the person likely to be affected “any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made”, and advising the person likely to be affected “of any adverse conclusion which has been arrived at which would not obviously be open on the known material”.[45]
c)The issues that arise in relation to the decision are to be identified by the Refugee Review Tribunal. If “the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.”[46]
[43] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152
[44] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152 at [29]
[45] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152 [29]. The quoted passages are from Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 (Northrop, Miles and French JJ).
[46] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35]
In my opinion, these principles, although stated in relation to the Refugee Review Tribunal, apply with equal force to reviewers. Thus, if the Reviewer intended to take steps to identify whether or not the applicant could satisfy the criterion prescribed by s.36(2)(aa) of the Act, she was obliged to give the applicant notice she intended to do that. That is so because the POD officer did not consider the applicant’s not satisfying that criterion as dispositive. As the Reviewer did take steps to identify s.36(2)(aa) as an issue, it was obliged to give the applicant notice that she intended to consider whether the applicant satisfied s.36(2)(aa) of the Act.
Did the Reviewer give notice?
The Reviewer gave the applicant notice that the Reviewer considered it to be an issue before her whether the applicant could meet the complementary protection criterion specified by s.36(2)(aa) of the Act. The Reviewer did so by making the statements I have set out in paragraph 15 of these reasons.
It is true the Reviewer did not use the words “complementary protection”. Nevertheless, the words the Reviewer used were enough to alert the applicant’s migration agent that the Reviewer intended to consider whether the applicant satisfied the complementary protection criterion. The applicant’s migration agent uttered the words “complementary protection” when making submissions to the Reviewer towards the end of the interview when the Reviewer asked the applicant’s migration agent “if there’s something she would like to say”.[47] The agent took up the invitation. She made submissions about Vietnam’s legal system being not fully functioning. After that, the transcript of the hearing records the following:[48]
ADVISOR . . . . And if you want me to add the Complementary Protection, it would be …
ASSESSOR: Hmmm.
ADVISOR: . . . just the three points that I . . . that we are currently making in respect to Complementary Protection, that significant harm is a lower threshold that seri [sic] . . . that should . . . should be defined as a lower threshold of serious harm according to international law, that the well-founded fear test is likely the most applicable test in the circumstances, and that the fear that she har . . . the . . . the harm that she fears from the… the motorbike people and as a result of lack of protection from the police, is not . . . is intentionally aimed at her, and doesn’t apply for the general population.
[47] RH34.10
[48] RH35.15
Did the Reviewer provide adequate notice?
Notice is an essential element of the duty to accord procedural fairness. That duty, where it applies, requires a decision-maker to give to the person who may be affected by the decision (affected person) a fair opportunity to participate in the process by which the decision-maker arrives at his or her decision.[49] The giving of notice is the means by which a decision-maker communicates to the affected person that person’s right to participate in the decision-making process. It is the ticket that grants the affected person entry into the decision-making process.
[49] “The purpose of notice is to enable participation” (Aronson, M., and Groves, M., Judicial Review of Administrative Action 5th ed 2013)
The kind of notice that must be given in any case depends on the particular circumstances of the case. In some cases, it is sufficient if the decision-maker simply informs the affected person that the decision-maker intends to make a decision and invites the affected person to say what he or she wishes to say in relation to the decision. An example is the invitation the Refugee Review Tribunal is required to give under s.425 of the Act. As the High Court held in SZBEL, in the absence of any additional notice, an applicant to whom such invitation has been issued is entitled to assume that the only issues that will be before the Tribunal are those that were dispositive before the delegate of the Minister. In other cases, notice must be given of particular issues that arise in the course of the decision-making process itself. An example is the Refugee Review Tribunal not accepting in the applicant’s favour an issue that a delegate accepted in favour of an applicant. Here, the decision-maker must give the affected person notice of the issue and an opportunity to address the issue. And yet in other cases, the decision-maker must give notice not only of an issue, but of information that may be relevant to the making of the decision. That occurs where a decision-maker becomes aware of information that is adverse to the affected person. But, as a minimum, where notice must be given, it must be such so as to fairly alert the affected person of the issue and to grant to that person a reasonable opportunity to provide information to the decision-maker before he or she makes the decision.
In my opinion, the notice the Reviewer gave of whether the applicant satisfied the complementary protection criteria provided by the Act was sufficient. First, as I note above, although the Reviewer did not employ the words “complementary protection”, what the Reviewer said was sufficient to alert, and did alert, the applicant’s migration agent that the Reviewer intended to consider whether the applicant satisfied the complementary protection criteria. Second, the applicant was given ample opportunity to make submissions after the interview in relation to complementary protection. At the beginning of the hearing, the Reviewer stated that she usually allowed a two-week period after the interview “for you to talk to your Advisor and perhaps make a post interview submission or post hearing submission”.[50] Was the applicant misled?
[50] RH2.1
Counsel for the applicant submitted that the Reviewer made misleading statements about the complementary protection criteria. I have set out those submissions at paragraph 20 of these reasons.
To the extent the Reviewer misstated the test for complementary protection, the Reviewer corrected her error. Shortly after the Reviewer misstated the test for complementary protection, the Reviewer said that if she does not think the applicant is a refugee “then I need to consider whether there are substantial grounds for believing that there’s a real risk, that you will suffer significant harm on returning to your country”.[51]
[51] RH8.1
There is no evidence that either the applicant or her migration agent were misled by anything the Reviewer said or did not say. If anything, the evidence establishes that the migration agent was not misled. As I note earlier in these reasons, towards the end of the interview, the applicant’s migration agent made submissions in support of the complementary protection criteria.
Did the migration agent misunderstand the complementary protection criteria?
The applicant submitted that the applicant’s migration agent “wholly misunderstood the complementary protection provisions”.[52] The applicant further submitted that that fact was, or ought to have been obvious to the Reviewer and the duty to accord procedural fairness required the Reviewer to take steps to put the applicant in a position to be able to articulate any claim she may have for complementary protection.[53]
[52] T20.25
[53] T20.30
Even if it is accepted the applicant’s migration agent wholly misunderstood the complementary protection provisions, that cannot have given rise to any duty on the part of the Reviewer to assist the applicant to articulate a case. What has been said in the context of applications for review before the Refugee Review Tribunal applies to applications for assessment made to reviewers. It is “for the applicant for a protection visa to establish the claims that are made”;[54] it is “for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason”, and that the “Tribunal must then decide whether that claim is made out”;[55] the “function of the Tribunal . . . is to respond to the case that the applicant advances”.[56] and the Tribunal “is required to deal with the case raised by the material or evidence before it”.[57]
[54] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at 164 ([40])
[55] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 ([187]) (Gummow and Hayne JJ)
[56] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1100 ([78]) (Kirby J)
[57] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 18 ([58]) (Black CJ, French and Selway JJ)
In any event, I am not satisfied the applicant’s agent misunderstood the complementary protection criteria.
Decision on ground 3
The applicant does not succeed on ground 3 of her amended application.
Ground 1 – failure to consider integer of claims
The applicant claims the Reviewer did not consider whether the applicant satisfied s.36(2)(aa) of the Act in relation to all of her claims of harm. The applicant claims the Reviewer considered s.36(2)(aa) only in relation to the applicant’s claim that she will face harm on her return to Vietnam because she left Vietnam illegally.
The basis of the applicant’s claim is contained in paragraphs 96, 97, 98, and 99 of the Reviewer’s reasons.
96. For all the reasons set out above I am not satisfied that the claimant has a well founded fear of persecution on return to Vietnam within the meaning of the Refugee Convention. Accordingly I find the claimant does not meet the criteria for a protection visa set out in s.36(2)(a) of the Migration Act.
97. In respect to whether the claimant meets the criteria set out in s.36(2)(aa) of the Migration Act I find as follows.
98. As set out above I accept that that [sic] the claimant left Vietnam illegally and will return as a failed asylum seeker and will on her return likely to be the subject of questioning by the authorities. I do not accept that questioning of the claimant by the Vietnamese authorities is significant harm defined in s 36(2A) of the Migration Act (see paragraph above 16). As noted above, I do not accept the claimant faces any other form of harm on return to Vietnam.
99. Accordingly I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the claimant being removed from Australia to Vietnam that there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Migration Act.
The applicant submits the Reviewer made the same error Judge Driver found the reviewer made in SZSFK v Minister for Immigration & Anor.[58] In that case, his Honour found that the reviewer failed to distinguish between s.36(2)(a) and s.36(2)(aa) of the Act when considering the applicant’s claims for protection. Whether or not the Reviewer made the same error must be determined by analysing paragraphs 96-99 of her reasons.
[58] SZSFK v Minister for Immigration & Anor [2013] FCCA 7 at [97]
Paragraph 96 of her reasons contains the Reviewer’s conclusion in relation to s.36(2)(a) of the Act. As signalled by paragraph 97 of the decision, the Reviewer in paragraph 98 then considered whether the applicant’s claims fell within s.36(2)(aa) of the Act. The Reviewer singles out one particular claimed harm, namely, the applicant’s being questioned by Vietnamese authorities on her return because she left illegally and is a failed asylum seeker. The Reviewer had already considered that claim against s.36(2)(a) of the Act in paragraph 91 of her reasons, and in particular, whether the harm of being questioned by Vietnamese authorities constituted “serious harm” within the meaning of s.91R(2) of the Act. The Reviewer considered the claim of harm of being questioned by Vietnamese authorities in paragraph 98 of her reasons from the point of view of whether the harm constituted “significant harm” as defined in s.36(2A) of the Act. The Reviewer concluded she was not satisfied.
The Reviewer then concluded that, “[a]s noted above”, she did not accept the applicant faced “any other form of harm on return to Vietnam”. The use of the words “[a]s noted above” appears at the very least to refer to the applicant’s claims in relation to the harms the Reviewer was not satisfied the applicant suffered in Vietnam or would suffer if she were to return to Vietnam. The claimed harms of which the Reviewer was not satisfied were the applicant’s being bullied and harassed at her workplace because of her religion,[59] and threats by the persons with whom the applicant was involved in the traffic accident.[60]
[59] CB159, [87]
[60] CB159, [90]
It is unclear, however, whether the Reviewer’s conclusion that she did not accept the applicant faced “any other form of harm on return to Vietnam” included the Reviewer’s conclusions made in paragraph 86 of her reasons.[61] In that paragraph, the Reviewer accepted that Catholics are unable to obtain government jobs because only members of the Communist Party are eligible for such jobs, and being a member of the Communist Party is incompatible with being a Catholic. The Reviewer also accepted that the denial to Catholics of government jobs constitutes discriminatory conduct but not conduct amounting to serious harm as set out in s.91R(2) of the Act.
[61] CB159, [86]
How, then, is one to read the Reviewer’s conclusion that “[a]s noted above”, she did not accept the applicant faced “any other form of harm on return to Vietnam”? One possibility is that the Reviewer intended to refer to the harm she identified in paragraph 86 of her reasons, but she used “harm” to mean “significant harm” as defined in s.36(2A) of the Act. In other words, the Reviewer intended to refer to the harm she identified in paragraph 86 of her reasons and concluded that she was not satisfied the harm was “significant harm” as defined in s.36(2A) of the Act.
One difficulty with this interpretation is that the Reviewer considered whether the claimed harm of being questioned by Vietnamese authorities and being exposed to the risk of an administrative penalty, constituted both “serious harm” under s.91R(2) of the Act, and “significant harm” under s.36(2A) of the Act. It could thus be inferred that the Reviewer did not consider whether the harm she identified in paragraph 86 of her reasons constituted “significant harm” within the meaning of s.36(2A) of the Act.
In my opinion, the Reviewer did not consider whether the harm she identified in paragraph 86 of her reasons constituted “significant harm”. Does that disclose any legal error? That depends on whether the applicant claimed, or the material that was before the Tribunal reasonably raised a claim that the discrimination based on her being a Catholic constituted “significant harm” and that her being returned to Vietnam would expose the applicant to a real risk that she will suffer significant harm because of such discrimination.
The applicant did not in terms claim that the harm identified in paragraph 86 of the Reviewer’s reasons was “significant harm”. No such claim is expressly made in any of the submissions prepared by the applicant’s migration agent. And at the hearing before the Reviewer, although the transcript is to some extent unclear, when the applicant’s agent referred to complementary protection, the agent referred to the applicant’s fear of the “motorbike people”. Further, no claim that the harm identified in paragraph 86 of the Reviewer’s reasons was “significant harm” can reasonably be considered as having been raised by the material or evidence before the Reviewer.[62] No decision-maker in the position of the Reviewer could reasonably have regarded the harm the Reviewer identified in paragraph 86 as constituting “significant harm” as defined in s.36(2A) of the Act. The discrimination cannot reasonably be interpreted as constituting the deprivation of the applicant’s life, or as the infliction of the death penalty, or the infliction of torture, or the exposure of the applicant to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.
[62] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] (Black CJ, French and Selway JJ)
The applicant, therefore, does not succeed on ground 1 of her amended application.
Ground 2 – failure to apply “real chance” test
The applicant claims the Reviewer made a legal error because, in her formulation of the legal principles in relation to s.36(2)(aa), the Reviewer did not say that for there to be real risk that a person seeking protection will suffer significant harm it was necessary that the decision-maker had to be satisfied that there was a “real chance” the person will suffer significant harm. The applicant submits this omission constitutes a legal error because the Full Federal Court in Minister for Immigration and Citizenship v SZQRB[63] held that the test for determining whether there is a real risk that a person will suffer significant harm is whether there is a “real chance” the person will suffer such harm if he or she returned to their country of nationality.[64] The applicant further submits that this error affected the Reviewer’s findings at paragraph 90 of the Reviewer’s reasons.
[63] [2013] FCAFC 33
[64] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246]
The Minister submits the words “real chance” can only be “epexegetic”[65] of “real risk”, and that to substitute any other words to explain the meaning of “real risk” is only to invite legal error. This submission is based on what the High Court in Minister for Immigration and Ethnic Affairs v Guo & Anor said about the use of the expression “real chance” to explain the meaning of “well-founded”.[66]
[65] The Oxford English Dictionary defines “epexegetic” as “pertaining to, or of the nature of, an epexegesis; given as an additional explanation”. The same dictionary defines the word “epexegesis” as “The addition of a word or words to convey more clearly the meaning implied, or the specific sense intended, in a preceding word or sentence; a word or words added for this purpose”.
[66] Minister for Immigration and Citizenship v Guo & Anor (1997) 191 CLR 559 at page 572
In my opinion, this is not an answer to the applicant’s submission. In Minister for Immigration and Citizenship v SZQRB, the assessor employed a “more likely than not” test when applying s.36(2)(aa). It is possible that the Reviewer, too, construed the expression “real risk” in a manner that was not consistent with the construction the Full Federal Court gave it in SZQRB. The question is whether the Reviewer construed the expression “real risk” in a manner that was inconsistent with “real chance”.
The applicant submits she did so in paragraph 90 of the Reviewer’s reasons. That the Reviewer employed an incorrect construction of “real risk” in that paragraph is revealed, the applicant submits, in the Reviewer’s use of the word “unconvincing”. The applicant further submits that the error is revealed in paragraph 91 where the Reviewer found that, although on her return to Vietnam the applicant would be subjected to questioning about her illegal departure and may receive an administrative penalty, the Reviewer noted that country information indicated that the “focus on such questioning and also penalties is on those who have arranged illegal departures”.[67] The error, the applicant submits, is that the Reviewer did not consider whether there was a real chance such penalties would be imposed on the applicant.
[67] CB160, [91]
In neither of the two instances on which the applicant relies did the Reviewer apply an incorrect test of “real risk”. As to the first instance, the Reviewer applied the word “unconvincing” to the applicant’s evidence. It is a word the Reviewer used for not accepting the applicant’s evidence that there were persons who had pressured her. Having not accepted the applicant’s evidence, the Reviewer did not consider whether there was nevertheless a risk the applicant would suffer the harm she claimed she would suffer at the hands of the people with whom she had the traffic accident.
The Reviewer made no error in adopting that approach. In Guo the High Court held, first, that the Tribunal was entitled to weigh the material before it and make findings before it considered whether the applicant’s fear in that case was well-founded and, second, having made strong findings against the applicant’s claims, the Tribunal was “not bound to consider the possibility that its findings were inaccurate”.[68] In my opinion, the findings the Reviewer made against the applicant’s evidence in paragraph 90 of her reasons constituted “strong findings” the truth of which the Reviewer was not bound to consider to be doubtful.
[68] Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at page 576
As to the second instance on which the applicant relies, that too constitutes a strong finding by the Reviewer. It is a finding based on country information the Tribunal accepted that the applicant’s questioning by the Vietnamese authorities, and the possible imposition of penalties, will focus on those who arranged the applicant’s illegal departure.
The applicant, therefore, does not succeed on the second ground of review.
Conclusion and disposition
The applicant has not succeeded on any of the grounds on which she relies.
I propose, therefore, to make an order dismissing the application, and an order that the applicant pay the Minister’s costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 24 October 2014
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