FEDERAL COURT OF AUSTRALIA

AZAEF v Minister for Immigration and Border Protection [2016] FCAFC 3

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The judgment and orders made by the primary judge on 9 April 2015 be set aside.

3.    In lieu of the orders made by the primary judge:

(a)    the Court declares that:

in recommending to the first respondent that the appellant not be recognised as a person to whom Australia has protection obligations, the second respondent failed to observe the requirements of procedural fairness; and

(b)    the first respondent be restrained from removing the appellant or causing or allowing the appellant to be removed from Australia until:

(i)    the appellant’s claims to be a person to whom Australia has protection obligations have been assessed according to law; and

(ii)    the first respondent has decided that the appellant is not a person to whom Australia has protection obligations; and

(c)    the first respondent pay the appellant’s costs of the proceeding as agreed or assessed.

4.    The first respondent pay the appellant’s costs of the appeal as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO j:

Introduction

1    This is an appeal by the appellant from an order made by the Federal Circuit Court on 9 April 2015. On that day the Federal Circuit Court made an order that the appellant’s application for judicial review filed on 11 October 2013 be dismissed pursuant to r 16.01 of the Federal Circuit Court Rules 2001 (Cth) (AZAEF & Anor v Minister for Immigration & Anor [2015] FCCA 808).

2    The appellant and her half-brother had sought judicial review of a recommendation made by an independent protection assessor on 25 August 2012. The independent protection assessor (“the IP assessor”) had found that the appellant’s half-brother and the appellant did not meet either of the criteria for a Protection (Class XA) visa set out in s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”) and, accordingly, he recommended that they not be recognised as persons to whom Australia had protection obligations. The appellant’s half-brother has not appealed to this Court.

3    The appellant and her half-brother arrived in Australia by boat on 10 May 2011. The boat was code-named “Keeling” and the appellant was given a nominal role number of KEE011, and her half-brother was given a nominal role number of KEE012. The appellant was said to have been born on 14 May 2005 and, therefore, she was nearly six years of age when she arrived in Australia. The appellant’s half-brother gave his date of birth as 7 June 1995, but a later determination by the Department of Immigration and Citizenship nominated 31 December 1992 as his date of birth. On that basis, he was nearly 19 years of age when he arrived in Australia. It seems that the appellant’s half-brother made a request for a Protection Obligations Determination on behalf of himself and the appellant. Such a determination was made on 7 December 2011 and it was to the effect that the delegate of the Minister was not satisfied that the appellant and her half-brother were persons to whom Australia had protection obligations. The appellant and her half-brother were advised of this outcome and that their Protection Obligations Determination request had been automatically referred for an Independent Protection Assessment. The IP assessor conducted an interview with the appellant and her half-brother. A Ms Josephine Murphy and an observer from Life Without Barriers were also present at the interview. The claims of the appellant and her half-brother were largely based on the evidence given by the half-brother. The IP assessor rejected that evidence and made the recommendation to which I have already referred.

4    The appellant and her half-brother’s application for judicial review contained six grounds. Each ground was rejected by the Federal Circuit Court judge.

5    In her notice of appeal to this Court, the appellant seeks an order that the appeal be allowed and that the orders made by the Federal Circuit Court judge on 9 April 2015 be set aside. She seeks (as she did before the Federal Circuit Court) a declaration that her claim to be a person to whom Australia has protection obligations was not assessed, and otherwise has not been assessed, by an independent protection assessor. In the alternative, she seeks a declaration that the IP assessor, in recommending to the Minister that the appellant not be recognised as a person to whom Australia has protection obligations, made an error of law in that he failed to observe the requirements of procedural fairness and otherwise erred. The appellant also seeks an injunction restraining the Minister from removing her, or causing or allowing her removal, from Australia until the appellant’s claims to be a person to whom Australia has protection obligations have been assessed according to law, and until the Minister has decided that she is not a person to whom Australia has protection obligations.

6    There are three grounds of appeal. The first ground relates to the Minister’s role as the guardian of the appellant by reason of s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) (“the IGOC Act”). The second ground relates to the appellant’s inability to give evidence and make submissions on her own behalf before the IP assessor, and the failure of the Minister to appoint a competent person to make decisions on behalf of the appellant. The appellant argues that the Minister’s failures as her guardian and her age meant that she was denied procedural fairness. The third ground complains of inconsistent findings made by the IP assessor about the appellant’s age.

The Relevant Legislative Context

7    In May 2011, persons who arrived in Australia through an “excised offshore place” were described as “offshore entry persons” and could not be the subject of a valid visa application unless the Minister decided that it was in the public interest to allow the application under s 46A(2) of the Act or that it was in the public interest to grant the visa under s 195A(2) of the Act.

8    In 2008, the Minister announced a non-statutory scheme by which the exercise of the respective powers in ss 46A and 195A of the Act in relation to “offshore entry persons” would be determined. These provisions were considered by the High Court in Plaintiff M61/2010E v The Commonwealth of Australia and Others; Plaintiff M69/2010 v The Commonwealth of Australia and Others (Offshore Processing Case) (2010) 243 CLR 319. On 7 January 2011, the Minister announced a modified non-statutory scheme described as the “Protections Obligations Determination Framework” (“the Framework”). The appellant’s claims were assessed under the Framework.

9    It was common ground between the parties that the appellant could only be removed from Australia where she had been the subject of a determination of her refugee status and that determination (and any review) had been made in a process that accorded her procedural fairness and addressed the question by reference to Australian law: Offshore Processing Case at 334 [8], 356 [88]; Plaintiff M70/2011 v Minister for Immigration and Citizenship and Another; Plaintiff M106/2011 v Minister for Immigration and Citizenship and Another (Malaysian Declaration Case) (2011) 244 CLR 144 at 178 [54] per French CJ; at 191-192 [95]-[98] per Gummow, Hayne, Crennan and Bell JJ; at 231-232 [237]-[239] per Kiefel J.

10    Three sections of the IGOC Act are relevant in terms of the issues in this case. Section 4AAA defines a non-citizen child and it is in the following terms:

4AAA Non citizen child

(1)    Subject to subsections (2) and (3), a person (the child) is a non citizen child if the child:

(a)    has not turned 18; and

(b)    enters Australia as a non citizen; and

(c)    intends, or is intended, to become a permanent resident of Australia.

(2)    Subsection (1) does not apply if the child enters Australia in the charge of, or for the purposes of living in Australia under the care of:

(a)    a parent of the child; or

(b)    a relative of the child who has turned 21; or

(c)    an intending adoptive parent of the child.

(3)    Subsection (1) does not apply if:

(a)    the child enters Australia in the charge of, or for the purposes of living in Australia under the care of, a person who is not less than 21 years of age (the adult); and

(b)    a prescribed adoption class visa is in force in relation to the child when the child enters Australia; and

(c)    the adult intends to reside with the child in a declared State or Territory.

(4)    A person is a non citizen child if:

(a)    the person has not turned 18; and

(b)    a direction under section 4AA is in force in relation to the person.

11    Section 6 makes provision for the guardianship of non-citizen children and it is in the following terms:

6 Guardianship of non citizen children

(1)    The Minister shall be the guardian of the person, and of the estate in Australia, of every non citizen child who arrives in Australia after the commencement of this Act to the exclusion of the parents and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.

(2)    Without limiting the meaning of the expression leaves Australia permanently in subsection (1), a non citizen child leaves Australia permanently if:

(a)    the child is removed from Australia under section 198 or 199 of the Migration Act 1958; or

(b)    the child is taken from Australia to a regional processing country under section 198AD of that Act; or

(c)    the child is deported under section 200 of that Act; or

(d)    the child is taken to a place outside Australia under paragraph 245F(9)(b) of that Act.

12    Section 6A provides that a non-citizen child shall not leave Australia except with the consent in writing of the Minister. The Minister shall not refuse to grant any such consent unless he or she is satisfied that the granting of the consent would be prejudicial to the interests of the non-citizen child.

13    This case is not concerned with the Minister’s power under s 6A of the IGOC Act and nothing was put to the Court about the exercise of that power. As the authorities make clear, an exercise of the power can engage the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth): the Malaysian Declaration Case at 204 [146] per Gummow, Hayne, Crennan and Bell JJ.

The Facts

14    It is necessary to examine the facts in some detail.

15    Upon her arrival in Australia, the appellant completed or had someone complete on her behalf a “Biodata” form. In addition, she seems to have made a request for consular access, although the fate of her application is not known on the evidence before this Court.

16    The appellant’s half-brother was interviewed by officers of the Department on 23 May 2011. It seems that this interview was partly recorded in writing and that an observer from an organisation called Life Without Barriers was present at the interview.

17    On 15 August 2011, the appellant’s half-brother in his own name and in that of the appellant, made an application for two lawyers and identified “Refugees Convention” as relevant to his request.

18    On 1 November 2011, the appellant executed a form entitled “Consent to Release Personal Information to an IAAAS Provider”. IAAAS is the Immigration Advice and Application Assistance Scheme. A client information leaflet before the Court provides the following information about the scheme. The scheme is funded by the Australian Government and gives “free, independent and professional advice and assistance to ‘offshore entry persons’ seeking asylum in Australia”. An IAAAS provider is a registered migration agent or a qualified person who will interview the party requesting assistance and explain immigration procedures to him or her, assist with the preparation and lodgement of a request for a Protection Obligations Determination, and advise of the progress and the outcome of the process and liaise with the Department during the Protection Obligations Determination process. The scheme is not one which includes the provision of legal advice and “many IAAAS agents are not lawyers”, the providers are registered migration agents, “who are professional and independent and qualified to give migration advice and assistance with applications”. As at 10 November 2011, the IAAAS provider in the case of the appellant and her half-brother was Ms Ruth Hogarth from Australian Migration Options Pty Ltd (formerly Libby Hogarth and Associates).

19    On or about 10 November 2011, the appellant and her half-brother signed a “request” form which included details in support of their claims to be refugees and this, together with a detailed statement taken from the appellant’s half-brother, were provided to the Department of Immigration and Citizenship. Ms Ruth Hogarth also signed the request and she completed a form stating that she had been appointed as the migration agent for the appellant and her half-brother. The other information provided to the Department was the personal particulars of the appellant’s half-brother for the purposes of a character assessment.

20    On 12 or 13 November 2011, the delegate of the Minister undertaking the Protection Obligations Determination interviewed the appellant’s half-brother and the appellant in the presence of Ms Libby Hogarth of Australian Migration Options and an observer from Life Without Barriers.

21    On 29 November 2011, Ms Libby Hogarth of Australian Migration Options made a written submission on behalf of the appellant and her half-brother to the Department of Immigration and Citizenship. The submission consisted of a letter and what Ms Hogarth described as a “generic submission containing information and country information about Vietnam”. The letter included the following:

Our clients are claiming a well founded fear of persecution because of their religious beliefs (catholic) and membership of a social group (family – [appellant’s half-brother’s] father was a Catholic Priest).

The main applicant [the appellant’s half-brother]claims his father died from ill health after serving 20 years in prison which affected him mentally and physically. The applicant was only about 7 or 8 years old when his father died. His mother was very depressed because of all the family had suffered and she asked her younger brother to raise the applicant. His mother remarried and had a daughter [the appellant] but the Government continued to persecute her and she could cope no longer and committed suicide.

The uncle took over the care of both the applicant and his half sister. Throughout their life the applicants faced persecution and discrimination because of [appellant’s half-brother’s] father’s background. The persecution included:

•    Denial of the right to education

•    Denial of identity cards

•    Denial of the right to move freely within their country

•    Denial of work rights (because of no identity cards)

If they were to marry their children would continue to suffer as they would also be denied Identification cards.

We submit the applicants have suffered serious harm because of their religion and membership of a social group and will continue to suffer such harm if returned to Vietnam.

22    Ms Libby Hogarth also attached to her letter and submission, an unsigned copy of a statement of the appellant’s half-brother concerning the Department’s age determination. He did not agree with the determination. The Department had advised the appellant’s half-brother by letter dated 15 November 2011 that it had reached the view that he was over 18 years of age and that the Department would use a date of birth of 31 December 1992 unless he could show why another date should be recorded.

23    On 7 December 2011, the appellant and her half-brother were advised that the delegate was not satisfied that they were persons to whom Australia owed protection obligations. It seems that the appellant was treated as her half-brother’s dependant and as a member of the half-brother’s family unit not making a specific claim. The delegate noted discrepancies in the half-brother’s claims. The delegate said she could not be satisfied that the appellant’s half-brother was telling the truth, and in the context of a claim in relation to membership of a particular social group (i.e., family), she said that she had serious doubts about the half-brother’s credibility to the point where she was unable to assess his claims against this Convention ground (AB 127). The delegate advised the appellant’s half-brother and the appellant that the Protection Obligations Determination request had been automatically referred for an Independent Protection Assessment.

24    At some point around this time, Ms Josephine Murphy of Australian Migration Options took over the conduct of the claims from Ms Libby Hogarth. Ms Murphy is a solicitor and a registered migration agent.

25    On or about 23 April 2012, Ms Murphy provided a 29 page submission to the IP assessor on behalf of the appellant. This submission is an important document in light of the issues raised on the appeal. In the submission, Ms Murphy said (among other things):

1.    The Applicant is a 6 year old Vietnamese Catholic Christian orphan girl child, born in Vietnam. Her mother died when she was a baby and her father’s whereabouts is unknown. She has lived with her half-brother … and their uncle since her mother’s death, until they left together for Australia in May 2011.

2.    As a result of the Vietnamese government’s denial of religious freedom, and her human rights, the Applicant and her brother were forced to flee Vietnam. Fearing persecution, and lack of effective protection from the Vietnamese authorities, the Applicant arrived in Australia in May 2011 seeking refugee status.

…

7.    The Vietnamese government has failed to provide effective protection for the Applicant. The Applicant has suffered because the Vietnamese government has systematically and discriminatorily withheld effective protection. This amounts to persecution given:

•    She was denied an education;

•    She was denied identity documents;

•    She was harassed because of her religion;

•    Her family were harassed because of their political profile; and

•    Her life was put at risk by being placed on a smuggler’s boat, exposing her to a threatening sea voyage.

26    In relation to the Protection Obligations Determination which had been made, Ms Murphy said:

1.    The delegate failed to assess the Applicant independent to her brother’s claims, therefore this submission will address only those [sic] comment relevant to the Applicant.

2.    The delegate, with respect to her brother’s POD interview, found ‘the extent to which his claims have changed from his entry interview to subsequent statements to be fatal to his application. By his own admission the claimant has advised that the information he has provided in later statements is on the basis of information provided to him by his uncle’. And ‘I have serious doubts as the claimant’s credibility to the point where I am unable to assess his claims against this convention (family) ground.’

27    Under the heading “Response to POD Decision”, Ms Murphy said:

Whilst the current application before the reviewer is by way of de novo hearing, we submit that the decision of the delegate is wrong and that a recommendation should be made that the Applicant engages Australia’s obligations under the Refugees Convention. …

1.    Applicant’s Claims

a)    The delegate failed to assess the Applicant according to the Refugee Convention or to properly consider the claims put by the Applicant’s brother on her behalf.

b)    The delegate found the Applicant’s brother was not credible. We submit that it is not uncommon for refugees, particularly those from Vietnam, to be less than truthful and untrusting of Australian government authorities on their arrival. …

28    Ms Murphy said in the submission that the appellant claimed a well-founded fear of persecution if she was returned to Vietnam because of her religion (Catholic) or her imputed political opinion of opposing the Vietnamese government, or her membership of particular social groups being (1) children living in poverty (2) girl child orphans living in poverty or (3) a failed asylum seeker returning from a western country. There is extensive reference in the submission to country information. For example, there are at least seven publications referred to in connection with the claim that Catholics are persecuted in Vietnam and a large number of publications referred to in the context of a discussion of the human rights record of Vietnam. Overall, the submission is very thorough and well-referenced and it is specifically directed to the appellant and her circumstances.

29    On 2 May 2012, the appellant and her half-brother were interviewed by the IP assessor. Ms Murphy was present, together with an observer from Life Without Barriers. The bulk of the dialogue at the interview was between the interviewer and the appellant’s half-brother. The IP assessor asked some questions of the appellant. Ms Murphy played a role during parts of the interview (AB 307-340). Ms Murphy made the point that Australian Migration Options had made a separate submission on behalf of the appellant and that she had argued that the appellant should be assessed as a child “in her own right” (AB 340-341).

30    In terms of the chronology, it is important to note at this point that there is a letter in the appeal book dated 17 July 2012 from Ms Rebecca Sharkey of the Northern Territory Legal Aid Commission (“NTLAC”) Immigration Section on behalf of the appellant to the Freedom of Information Section of the Department of Immigration and Citizenship. Ms Sharkey advised the Department that the appellant had asked the NTLAC to provide her with independent legal advice regarding her current situation. Ms Sharkey stated that NTLAC did not purport to act for the appellant regarding her wish to remain in Australia, nor to act as her migration agent. Ms Sharkey enclosed a Form 424A signed by the appellant on 10 July 2012 requesting copies of all documents and audio recordings on the Department file dealing with her. Ms Sharkey advised that she had sent a copy of her letter to “her [i.e., the appellant’s] delegated legal guardian, Philip McDougall”. The email address for Mr McDougall suggests that he is an officer or employee of the Department of Immigration and Citizenship. I do not think that anything can be made of this correspondence involving Ms Sharkey or that the Court should draw any conclusions from this letter. The NTLAC was not acting for the appellant regarding her wish to remain in Australia, and it was not acting as her migration agent. Nor is it possible to draw any conclusions about Mr Philip McDougall’s role. It was open to the Minister to put forward direct evidence of Mr McDougall’s role to the Federal Circuit Court (and possibly with leave to this Court) but he chose not to do so.

31    The IP assessor made his recommendation on 25 August 2012 and the Department advised the appellant and her half-brother of the recommendation. The letter went on to advise them that it was the policy of the Department to accept the IP assessor’s recommendations and, as a result, their case had not been referred to the Minister to consider the exercise of his discretion to permit them to lodge a Protection visa application. The appellant and her half-brother were also advised that their IAAAS provider would not be available to assist them with any application for judicial review or to provide them with legal advice about whether to make an application.

32    The IP assessor’s reasons are very detailed. It is necessary to refer to the following aspects of the reasons. The IP assessor noted that the appellant’s half-brother claimed that his uncle told him that his father was a Catholic priest who had been jailed for 20 years, lost his identity papers and was forbidden from practising his religion. The appellant’s half-brother claimed that by reason of this, he had been unable to obtain identity papers and he could not attend school. He claimed that his uncle had disappeared and his mother (and the appellant’s mother) had been harassed by authorities to the point that she committed suicide. The appellant’s half-brother claimed that he could not return to Vietnam because:

(1)    he had departed the country illegally and applied for asylum abroad;

(2)    he would not be able to obtain a registration card or employment; and

(3)    he would be vulnerable to trafficking, sexual exploitation or forced labour.

33    The IP assessor accepted that the appellant and her half-brother were siblings and were Catholics. However, he did not believe the appellant’s half-brother as to almost all of his claims and he gave detailed reasons for his conclusions. I agree with the Minister’s description of the IP assessor’s credibility findings against the appellant’s half-brother which was that they were comprehensive and damning. The findings of particular relevance to the appellant’s claim were that the appellant’s half-brother, father and mother had not been repressed or stigmatised in the ways claimed, that it could not be accepted that the appellant’s mother had died, and that the appellant’s half-brother would not face serious harm because he was a Catholic.

34    As to the appellant, the IP assessor made the following observations about her claim ([224] and [227]).

The circumstances of [the appellant] in this matter are particularly sensitive as she is a female minor with little education whose overall case depends largely on the evidence of [the appellant’s half-brother] and the submissions of her adviser. I felt it was her right to be able to give evidence directly to me particularly, as her adviser expressed concern that she was not previously interviewed. (No separate file appears to have been initiated in her case.)

[The appellant] is therefore, of course, a minor. I appreciate that she is still too young and vulnerable to represent herself adequately in the present matter and, in my considered view, almost totally dependent on the evidence of her brother, who I have found after much consideration to be an unreliable witness.

35    The IP assessor was not satisfied that the appellant was an orphan. He was not satisfied that she would be vulnerable to trafficking, sexual exploitation, or forced labour or exposure to diseases such as HIV. He did not accept that the appellant would have an unfavourable socio-political profile such that she would face persecution in Vietnam. He did not accept that she faced a risk of persecution because she was a Catholic, or a serious risk of harm because she had departed Vietnam illegally and sought asylum abroad. The IP assessor said (at [232]):

To sum up so far, I do not accept on the evidence before me that [the appellant] would be denied an education, denied identity documents, harassed because of her religion, or harassed because of her family’s political profile, let alone for any Convention-related reason.

The Decision of the Federal Circuit Court

36    The appellant and her half-brother raised six grounds in their application for judicial review.

37    The first ground was that the Minister, as the appellant’s guardian and fiduciary, was required to take his own steps to investigate and obtain material in respect of the appellant’s status. Instead of doing that, he allowed the appellant’s half-brother to make claims and present material on her behalf and for those claims to be assessed on the appellant’s behalf in accordance with the “so-called Protection Obligation Determination process”. The appellant and her half-brother claimed that this constituted a breach of the Minister’s duties as guardian and fiduciary and that the protection assessment had miscarried. The Federal Circuit Court judge rejected this ground. He held that the Department had established guidelines concerning unaccompanied minors who claimed protection and that those guidelines allowed the Minister to receive advice and assistance under the IAAAS and the appointment of an independent observer (Life Without Barriers) to observe and act in the best interests of the child at any interviews held by the Department. The judge said that the Minister and the IP assessor had followed established procedure and that, therefore, it could not be said that he had breached his duties to the appellant. The judge said that the ground must also fail “for the simple reason that any putative breach of the IGC Act by the Minister would not lead to the conclusion that the Assessor made an error of law in making the recommendations”.

38    The second ground raised two matters. The first matter was that it was alleged that the IP assessor had no evidence before him to the effect that the appellant was not an orphan, or that she was not a person to whom Australia owed protection obligations, and yet he made findings to this effect. The second matter was that the Minister should not have allowed the appellant’s half-brother to make claims and present material on her behalf once the IP assessor had made findings about the half-brother’s credibility. At that point, the Minister should have taken his own steps to investigate and obtain material in respect of the appellant’s claim. The judge dealt only with the first aspect. He rejected the ground on the basis that the onus was on the appellant and her half-brother to establish their claims and they had not done so.

39    The third and fourth grounds were to the effect that the appellant was not given the opportunity to give evidence and comment upon or respond to matters before the IP assessor, and she was not given the opportunity to comment upon and respond to the matters supporting the adverse credibility findings against her half-brother. The judge rejected these grounds and he said that given that the appellant was not capable of making claims or giving evidence before the IP assessor, the IP assessor’s procedural fairness obligations were taken to be owed to her half-brother. He said that otherwise, it would have been a nonsense for the IP assessor to have acted in a way consistent with the fiction that the appellant was capable of presenting evidence and arguments in support of her application.

40    The fifth ground was to the effect that the IP assessor made inconsistent findings about the appellant’s age. At one point in his reasons, the IP assessor said that he did not accept that the appellant was as young as claimed ([197]), and at a later point in his reasons the IP assessor said that he was prepared to accept that the appellant was born on the date she provided ([226]). The judge rejected this ground on the basis that even if the IP assessor made inconsistent factual findings, such an error was a factual error only and not a legal error.

41    The sixth ground relates to the half-brother’s age and the age determination. It is not relevant on the appeal and it is not necessary to consider it.

Issues on the Appeal

Grounds 1 and 2

42    It is convenient to deal with these two grounds together. They are in the following terms:

1.    The learned Judge erred in law in not holding that:

a.    the First Respondent, as the guardian and a fiduciary of the Appellant, was required to take steps to investigate and obtain material in relation to determining whether the Appellant was a person to whom Australia owed protection obligations;

b.    the First Respondent breached his duties in failing to take such steps and/or permitting the Appellant’s half-brother to give evidence and make claims on behalf of the Appellant, either:

i.    per se; or

ii.    in the alternative, in circumstances where the Second Respondent had determined that the evidence of the Appellant’s half-brother was not to be accepted.

c.    the First Respondent’s breach of duty constituted a denial of procedural fairness to the Appellant and/or meant the assessment of any claim of the Appellant was not assessed in process conducted in accordance with Australian law.

2.    The learned Judge, having found that the Appellant was not competent to give evidence and make submissions on her own behalf, erred in law in not holding:

a.    the assessment of any claim of the Appellant based on an interview between the Appellant and the Second Respondent constituted a denial of procedural fairness per se; and/or

b.    the treating of the evidence of the Appellant’s half-brother as evidence given by her constituted a denial of procedural fairness, either per se or in circumstances where the Second Respondent had determined that the evidence of the Appellant’s half-brother was not to be accepted; and/or

c.    a competent person to make decisions on behalf of the Appellant (“a guardian”) should have been appointed by the First Respondent and the failure to do so constituted a denial of procedural fairness.

43    The steps involved in the first ground are as follows. The Minister was the guardian and fiduciary of the appellant. He was required to take steps to investigate and obtain material in relation to determining whether the appellant was a person to whom Australia owed protection obligations. The Minister breached his duties by failing to take such steps, either at the outset or when the IP assessor had determined that he would not accept the evidence of the appellant’s half-brother. In addition or in the alternative, the Minister breached his duty in allowing the appellant’s half-brother to give evidence and make claims on her behalf. The Minister’s breaches constituted a denial of procedural fairness or meant that the appellant’s claim was not assessed in a process conducted in accordance with Australian law.

44    The steps involved in the second ground are as follows. The appellant was not competent to give evidence and make submissions on her own behalf. In that circumstance, it was a denial of procedural fairness for the Minister not to appoint a competent person to make decisions on behalf of the appellant. In that circumstance, it was a denial of procedural fairness for the appellant’s claim to be assessed by reference to an interview between the appellant and the IP assessor. In that circumstance, it was a denial of procedural fairness to treat the evidence of the appellant’s half-brother as evidence given by her or at least from the point the IP assessor decided that he would not accept the evidence of the appellant’s half-brother.

45    The appellant’s arguments as developed before this Court were as follows. The Minister was the guardian of the appellant from at least 15 August 2011 when the appellant’s half-brother made a request on his own behalf and on behalf of the appellant which indicated an intention by them to become permanent residents of Australia (see paragraph 17 above and s 4AAA(1)(c) of the IGOC Act). The IAAAS was not specifically designed for wards under the IGOC Act, but more generally for persons seeking asylum. The appellant did not make a request under the Framework. The Minister did not adduce any evidence of Departmental guidelines for the procedures to be followed in relation to unaccompanied minors. The Federal Circuit Court judge erred in relying on what was said in an earlier decision of the Federal Circuit Court (DZDAO v Minister for Immigration & Anor [2013] FMCA 1 (“DZADO”)). The appellant argued that by reason of her age she did not have the capacity to make a request under the Framework and the Minister had a duty as her guardian to provide her with advice and assistance in relation to the making of a request under the Framework. The Minister did not do that and his breach is not cured by the fact that the appellant’s half-brother made the request and received assistance through IAAAS and there were observers from Life Without Barriers present at the interview. Even if there was no breach at the stage of the request under the Framework, the process miscarried because a guardian should have been appointed to conduct appropriate investigations “within reason”, put issues to the appellant in an appropriate manner and respond to adverse matters arising from the evidence of the appellant’s half-brother. As far as the alleged inconsistent findings of the IP assessor were concerned, they constituted a failure to deal with the appellant’s case and, therefore, a denial of procedural fairness.

46    In response, the Minister’s arguments as developed in this Court were as follows. Even though the appellant was a minor, there was no obligation on the IP assessor to assess her claim only if she had a guardian representing her (Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194; (2002) 122 FCR 29 (“Odhiambo”)). The appellant had a migration agent representing her who made a detailed written submission on her behalf, represented her at the hearing and made submissions about the IP assessor’s concerns in relation to the credit of the appellant’s half-brother. There was no error in the IP assessor regarding the evidence of the appellant’s half-brother as evidence put in support of the appellant’s case (SZLSM and Another v Minister for Immigration and Citizenship and Another (2009) 176 FCR 539). There was no obligation on the Minister to appoint a litigation guardian for offshore entry persons who are minors in relation to the assessment of their claims for protection (DZADO at [95] per Judge Driver). There was no breach of procedural fairness bearing in mind the following:

(1)    the IP assessor’s hearing was an inquiry not an adversarial contest;

(2)    the appellant was given an opportunity to submit an independent claim;

(3)    the appellant through her migration agent submitted written material to the IP assessor;

(4)    the appellant was represented by an apparently competent migration agent; and

(5)    the appellant was given the opportunity of having her half-brother inform the IP assessor of any matter which may have assisted her claim.

47    In my opinion, for the following reasons, the appellant’s arguments should be rejected.

48    Odhiambo is a decision of the Full Court of this Court (Black CJ, Wilcox and Moore JJ) and it is authority for the following propositions:

(1)    Section 6 of the IGOC Act confers all the usual incidents of guardianship on the Minister.

(2)    These incidents extend to provision of the basic needs of the child and may include legal advice and assistance.

(3)    The Court in Odhiambo did not need to decide whether the Court would have jurisdiction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) in respect of the Minister’s powers and obligations as guardian.

(4)    There is potential conflict in the case of the Minister as guardian on the one hand, and the Minister’s role in matters involving the detention of persons and the upholding of the decisions of his delegates in relation to Protection visa applications, on the other.

(5)    However, the issue before the Court in Odhiambo was a narrower one and was whether the Tribunal had committed a jurisdictional error.

(6)    There will be cases where by reason of the tender years or mental disability of an applicant, the Tribunal is unable to conduct the hearing envisaged by Part 7 of the Migration Act except though a “guardian” actively representing the applicant’s interests. That would be so in the case of a young child or a person “demonstrably unable to protect their own interests” (at 48 [95]). There may be other cases where the Tribunal would not err in refraining from conducting a hearing unless and until an applicant (due to their age or mental capacity) has obtained independent legal advice and assistance and may, in fact, depending on the circumstances, err in not doing so.

(7)    The facts in Odhiambo did not call for an application of these principles because the applicants, although minors, were not young children or demonstrably unable to have proper regard to their own best interests.

49    In this case, the Court has no evidence of anything the Minister did in purported fulfilment of his duties as the appellant’s guardian. Evidence in another case (i.e., DZADO) is not evidence in this case. If it be the fact that the Minister purported to discharge his duties as guardian by an appointment under the IAAAS and the presence of an observer from Life Without Barriers, then that could have been (but was not) the subject of evidence in this case. There is nothing in the material about the IAAAS before this Court to the effect that it is intended to serve not only persons seeking protection, but also the subclass of non-citizen children within s 6 of the IGOC Act seeking protection. Nevertheless, there was an appointment under the IAAAS in this case (and an independent observer from Life Without Barriers at the interview) and the Minister is entitled to rely on whatever conclusions may properly be drawn from those circumstances.

50    I reject the appellant’s arguments insofar as they relate to the request under the Framework. At this point, I am dealing with the argument that irrespective of subsequent events, the Minister’s “failure” to appoint an independent person to assist the appellant in deciding whether to make a request tainted all that followed. I reject that argument for the following reasons. First, it seems inconsistent with the appellant’s acceptance of the fact that it was the act of the appellant’s half-brother that engaged the Minister’s obligations as guardian. Secondly, a request under the Framework is consistent with the appellant’s intention to become a permanent resident of Australia. Thirdly, the appellant did not identify any other decision which could have been made in the appellant’s best interests.

51    I note two further matters which at the very least make the appellant’s proposition doubtful. They are that the appellant did not explain how a breach at the request stage could taint all that followed, and there is a real issue which was not debated before this Court as to whether any breach at the request stage would need to be the subject of a specific and different claim for relief (see the reference in Odhiambo to s 39B(1A)(c) of the Judiciary Act).

52    It seems to me that in light of the relief sought by the appellant, the focus must be on the process under the Framework and whether the IP assessor committed a jurisdictional error.

53    The appellant was plainly a young child and demonstrably unable to have proper regard for her own best interests. She needed a “guardian” actively representing her interests. I think that from the IP assessor’s point of view, the appellant had such a person in Ms Murphy. I say that having regard to Ms Murphy’s thorough written submission on behalf of the appellant before the hearing and her presence and participation in the hearing. As far as legal advice and assistance is concerned, the IP assessor may have noted from her submission that Ms Murphy was a solicitor as well as a registered migration agent and that in the footnotes she cited with pinpoint references a number of authorities. Even if this is put to one side, there was no matter for legal advice and assistance which would have been evident to the IP assessor and none was suggested by the appellant’s counsel in the course of his submissions. I do not think that the IP assessor was required to do anything after he had formed the opinion that he would not accept the half-brother’s evidence. It seems to me inevitable in a case such as this that the claims would be heard and determined together. There would have been nothing apparent to the IP assessor to indicate that Ms Murphy had not fully and fairly presented the appellant’s claims.

54    I reject grounds one and two of the notice of appeal.

55    If I am wrong and the Minister’s duties as guardian directly affect whether the IP assessor accorded procedural fairness to the appellant, I would nevertheless reject grounds one and two of the notice of appeal. It seems to me that, having regard to the appellant’s age and the circumstances surrounding her arrival in Australia, Ms Murphy did all that would have been done by a person specifically appointed by the Minister in the exercise of his powers and duties as the appellant’s guardian.

Ground 3

56    Ground 3 of the notice of appeal is in the following terms:

3.    The learned Judge erred in:

a.    not finding that the Second Respondent had made inconsistent findings at paragraph [197] and [226] of his reasons;

b.    finding that, if made, the inconsistent findings would be a “factual error only and not a legal error”; and

c.    not holding that the inconsistent findings gave rise to an inference that:

i.    the Second Respondent had failed to deal with the case put by the Appellant and thereby denied the Appellant procedural fairness; and/or

ii.    the assessment of any claim of the Appellant was not assessed in a process conducted in accordance with Australian law

57    As I have said, at paragraph 197 of his reasons the IP assessor said that he did not accept that the appellant was as young as she claimed, whereas at paragraph 226 he said that although he had some concerns, he was prepared to accept that the appellant was born on the date she claimed. These findings do appear to be inconsistent. There is no error of law in making an erroneous finding of fact (Waterford v Commonwealth of Australia (1987) 163 CLR 54 at 77 per Brennan J (as his Honour then was)). It may indicate a failure to deal with the appellant’s claims and, therefore, a denial of procedural fairness. However, I am satisfied that is not the case here. The IP assessor has dealt with the appellant’s claims in detail and I am satisfied that the error did not affect his conclusions.

Conclusion

58    The appeal must be dismissed.

Associate:

Dated:    18 January 2016

REASONS FOR JUDGMENT

GRIFFITHS J:

59    I have had the considerable benefit of reading in draft form the reasons of the judgment of Besanko J. I respectfully agree with his Honour that grounds 1 and 3 should be rejected for the reasons he has given. For the following reasons, however, I respectfully take a different view concerning the appellant’s procedural fairness case, which is raised by ground 2 in the notice of appeal.

60    In [44] of his Honour’s reasons, Besanko J describes the steps in ground 2. I respectfully agree with those steps but consider that there was also an additional step, namely the claim that there was a denial of procedural fairness because the assessor failed to provide the appellant (or, alternatively, given the appellant’s age, her guardian and/or migration agent) with an opportunity to comment on the fact that the assessor disbelieved most of her half-brother’s evidence, including those parts of his evidence relating to her separate claim for protection. Thus, in my opinion, the procedural fairness claims raised by ground 2 of the appeal were not confined to a complaint that the assessor continued to conduct the hearing into the appellant’s claims notwithstanding that he had by then formed strongly adverse views as to her half-brother’s credibility. Ground 2 also included what might be described as a more orthodox claim of procedural unfairness based upon the assessor’s failure to provide the appellant (or her legal guardian and/or migration agent) with notice and an opportunity to respond to the fact that the assessor’s disbelief of the half-brother would be relied upon in rejecting the appellant’s claims for protection (the orthodox claim).

61    I respectfully agree with Besanko J’s reasons for rejecting those parts of ground 2 which relate to the alleged failure of the Minister to appoint a competent person to make decisions on behalf of the appellant and the alleged denial of procedural fairness resulting from the assessor’s interview with the appellant (see [48]-[53] of Besanko J’s reasons for judgment). However, in my respectful view, it is also necessary to consider that aspect of ground 2 which raised the orthodox claim.

62    Before setting out the reasons why I consider that the orthodox claim should be upheld, it is appropriate to explain why I consider that the appellant’s procedural unfairness case raised this claim.

63    Ground 2 of the notice of appeal is set out in [42] of Besanko J’s reasons for judgment. Ground 2 is related to the Federal Circuit Court Judge’s rejection of grounds 3 and 4 of the appellant’s judicial review application. Those grounds were as follows (emphasis added):

3.    The Second Respondent, in recommending to the First Respondent that the Applicants not be recognised as persons to whom Australia has protection obligations, made an error of law in that the Second Respondent failed to observe the requirements of procedural fairness.

Particulars

3.1    The Applicants repeat paragraphs 1.1 to 1.9, 2.2 and 2.3 above.

3.2    On 2 May 2012, the Second Respondent interviewed both applicants. He interviewed each applicant separately.

3.3    The First Applicant was not competent to give evidence or make submissions on her own behalf at an interview before an Independent Protection Assessor, and was not able to participate in the interview.

3.4    The First Applicant has thereby not been given an opportunity to give evidence, comment upon or respond matters (sic) before the Independent Protection Assessor.

3.5    In the premises:

(a)    The First Applicant’s status as a person to whom Australia may owe protection obligations has not been assessed in a process conducted in accordance with Australian law; and

…

3.6    If the First Applicant is a person to whom Australia owes protection obligations, the Second Applicant is a member of the same family unit within the meaning of s.5 of the Migration Act 1958 (Cth) and therefore a person to whom Australia owes protection obligations.

4.    The Second Respondent, in recommending to the First Respondent that the Applicants not be recognised as persons to whom Australia has protection obligations, made an error of law in that the Second Respondent failed to observe the requirements of procedural fairness.

Particulars

4.1    The Applicants repeat paragraphs 1.1 to 1.9, 2.2, 2.3 and 3.2 above.

4.2    The Second Respondent made a decision as to the recommendation in both of the Applicants’ cases jointly and as one process.

4.3    In making significant adverse credibility findings against the First Applicant and in rejecting her factual claims, the Second Respondent relied upon matters arising from the Second Applicant’s evidence.

4.4    The First Applicant was not given an opportunity to comment upon and respond to these matters.

4.5    In the premises:

(a)    the First Applicant’s status as a person to whom Australia may owe protection obligations has not been assessed in a process conducted in accordance with Australian law; and

(b)    any removal of the First Applicant from Australia would be unlawful.

4.6    If the First Applicant is a person to whom Australia owes protection obligations, the Second Applicant is a member of the same family unit within the meaning of s.5 of the Migration Act 1958 (Cth) and therefore a person to whom Australia owes protection obligations.

64    Ground 3 of the judicial review application squarely raised the procedural unfairness claim relating to the appellant’s young age and incompetency to give evidence and make submissions personally. In contrast, ground 4 squarely raised a more orthodox claim of procedural unfairness, as is confirmed by [4.3] and [4.4].

65    The Federal Circuit Court rejected both those grounds for reasons which are summarised by Besanko J in [39] of his Honour’s reasons for judgment.

66    Ground 2 of the notice of appeal challenged the primary judge’s rejection of grounds 3 and 4 of the judicial review application. Each of the three “particulars” to that ground complain of a denial of procedural fairness. Sub-paragraphs (a) and (c) relate to ground 3 of the judicial review application. So does sub-paragraph (b), but I consider that, despite its somewhat infelicitous drafting, sub-paragraph (b) should also be read as challenging the primary judge’s rejection of ground 4 of the judicial review application.

67    Whatever the shortcomings in the drafting of ground 2, it is clear from the written outline of submissions which were filed on behalf of the appellant in the appeal that the appellant’s complaint of procedural unfairness was directed not just to the failure in the process to involve a guardian or someone other than Ms Murphy to assist the appellant because she was incompetent to give evidence or make submissions. There was also a related complaint in respect of the failure to provide an opportunity to comment and respond to the assessor’s views concerning her half-brother’s credibility. This is reflected in the following paragraphs from the appellant’s written outline of submissions (footnotes omitted):

4.1    Even if the Minister’s duty was, in some way, fulfilled by reason of the Appellant’s brother making a request, there was a denial of procedural fairness in the manner that the determination of status proceeded.

4.2    As stated above, the Appellant’s status was determined on the basis of the falsity of the Appellant’s brother’s evidence.

4.3    These matters, going to whether the Appellant was an orphan, an unaccompanied minor, her likelihood of remaining an unregistered person in Vietnam, and her being part of a family that would suffer persecution for having had as a former member a former seminarian, and for being Catholic, were not put to the Appellant directly by the Assessor as being matters subject to doubt by him. They were merely dealt with as having been part of the Appellant’s evidence, and tainted as a result.

4.4    The Appellant was not given an opportunity to comment and respond to the findings on credit made by the Assessor against her brother. Subject to the issue of her competence, that would ordinarily constitute a denial of procedural fairness.

4.5    The learned Judge found that the Appellant did lack competence and that, in some way, this relieved the Assessor of acting in a manner that was procedurally fair to the Appellant.

4.6    In the circumstances, procedural fairness required a guardian to be appointed for the purposes of the Appellant giving evidence. This would be someone more than the role apparently fulfilled by Ms Murphy; instead, it would be someone who would be able to put issues to the Appellant in an appropriate manner, conduct appropriate investigations (within reason) and then respond to the adverse matters arising from the Appellant’s brother.

68    It is also evident from the outline of written submissions filed on behalf of the Minister in the appeal, that the Minister understood that the appellant’s procedural unfairness case included an allegation that an appropriate opportunity to respond to the assessor’s credibility concerns regarding the half-brother’s evidence was not provided. This is apparent from [12.3] of that outline, which stated (emphasis added):

12.3    There was no procedural unfairness as a result of the Assessor relying on the evidence of [the appellant’s] brother (notwithstanding that the brother was found to be an unreliable witness). The Appellant was represented before the Assessor and the representative was invited to address the Assessor upon his credibility concerns as to the brother’s evidence.

69    In other words, the Minister’s response in relation to this aspect of the appellant’s procedural unfairness case was to say that it was sufficient that Ms Murphy, as migration agent representing the appellant, had an opportunity to address the assessor regarding his credibility concerns.

70    Furthermore, during the course of the oral hearing before the Full Court, White J squarely raised with Mr Ower (who appeared for the appellant) whether the procedural fairness case included the orthodox claim. Mr Ower confirmed that it did, as is reflected in the following extracts from page 30 of the transcript (emphasis added):

WHITE J: Perhaps, had the Minister become involved, then exactly the same might have occurred. So I’m wondering whether the real point of your case is the failure of the assessor, as you would say, to put the appellant, by one means or another, on notice of her disbelief of the stepbrother and her intention not to rely upon his evidence in relation to her case.

MR OWER: That would be formulating the second ground of appeal in accordance with perhaps more orthodox views of procedural fairness, but when one looks at that in terms of putting it back to the appellant, clearly, at her age, she would not have been able to do anything about it. As your Honour would have seen from the very perfunctory interview with her, to be told that at the interview would be of no utility.

WHITE J: When I said to the appellant by one means or another, I was - - -

MR OWER: Yes.

WHITE J: - - - intending to embrace, by that, doing it via the Minister in his capacity as guardian - - -

MR OWER: Yes. And - - -

WHITE J: - - - or, if there has been a delegation or something else to Mr McDougall, via Mr McDougall, but by some means, by someone who is competent to do so, putting them on notice that this was the position.

MR OWER: Yes. And, in my respectful submission, that’s clearly the case in terms of ground 2 and a complete answer to the learned federal circuit judge’s finding at paragraph 37, page 357, where his Honour found that:

Given that the first applicant was not capable of making claims or giving evidence before the assessor, the assessor’s procedural fairness obligations are taken to be owed to the second applicant.

…

71    In oral address in the appeal, the Minister sought to deal with the orthodox claim by submitting that the concerns about the half-brother’s credibility was an issue which was known to Ms Murphy (presumably because it formed a substantial part of the reasons given in the Protection Obligations Evaluation Referral and also having regard to the statements on this issue by the assessor during the course of the interview with the half-brother). Ms Murphy’s response was to point to the fact that the half-brother was merely repeating what his uncle had told him.

72    The Minister did not contend that the orthodox claim of procedural unfairness was not sufficiently raised in terms of ground 2 of the notice of appeal. Moreover, it is evident from the matters outlined above that the Minister responded to that aspect of the appellant’s procedural fairness case.

73    For these reasons, I consider that there is an additional step which needs to be considered in the appeal in considering the appellant’s claims of procedural unfairness.

Should the Court accept the orthodox claim of procedural unfairness?

74    For the following reasons, I consider that the appellant has established procedural unfairness in the assessor’s failure to provide her (or her guardian and/or migration agent) with an opportunity to comment on the assessor’s adverse views regarding the half-brother’s credibility.

75    In my respectful opinion, the primary judge erred in concluding that, because of the appellant’s age and incompetency to give evidence or make submissions, the procedural fairness obligations of the assessor were “taken to be owed” to her half-brother. There are two difficulties with this approach. First, the appellant lodged a separate claim to protection from her half-brother. Matters were raised in support of her claim which included but went beyond the matters raised by the half-brother in support of his own application. Secondly, the half-brother was not the appellant’s guardian or representative. The appellant herself was entitled to procedural fairness albeit that the content of procedural fairness requirements necessarily had to take into account her age, the fact that she was represented by Ms Murphy as her migration agent and that she also had a legal guardian by dint of the operation of the Immigration (Guardianship of Children) Act 1946 (Cth).

76    It is well settled that where procedural fairness requirements apply (and it was not disputed by the Minister that those requirements applied to the Independent Protection Assessment process), a decision-maker must provide an affected person with “an opportunity…to deal with adverse information that is credible, relevant and significant to the decision to be made”: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629 per Brennan J. The particular content to be given to the requirements of procedural fairness depends upon the facts and circumstances of the particular case, noting that there is no relevant statutory framework applicable to the Independent Protection Assessment: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (SZBEL) at [26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

77    It is equally well settled that a decision-maker need not give a “running commentary” on his or her thought or deliberative processes. The relevant principles were described by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 (Alphaone) at 591-92:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person 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. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

78    See also SZBEL at [32], where the plurality referred approvingly to the Full Court’s statement in Alphaone at 590-91 that the opportunity of being heard: 

…would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.

79    The separate claims for protection made by the appellant and her half-brother for the purposes of the Independent Protection Assessment overlapped to some extent, but they were not identical. Their common claims related to such matters as their fears of persecution on account of their religion (Catholic); imputed political opinion of being opposed to the Vietnamese regime because of the profile of the half-brother’s father as a former Catholic seminarian; and their membership of particular social groups constituted inter alia by being part of a family of Catholic clergy and/or failed asylum seekers returning from a Western country. It was claimed that the feared persecution related to curtailment of their human rights, including access to education and healthcare because they both were unable to obtain formal identity papers. Additional claims were made on behalf of the appellant which reflected her particular personal circumstances, especially the fact that she was said to be a girl child orphan and was vulnerable to sexual exploitation and human trafficking if she was returned to Vietnam.

80    The essence of the appellant’s claims for protection are reflected in the conclusion to the detailed written submissions which Ms Murphy prepared on her behalf and provided to the assessor (emphasis in original):

VI.    CONCLUSION

We submit that in the particular circumstances of the Applicant, there is a real chance, which is not remote or speculative, that she will suffer serious harm in Vietnam because of her Catholic religion, and/or imputed political opinion, and/or because she is a member of the particular social group constituted by children living in poverty, and/or girl child orphans living in poverty, and/or failed asylum seeker returning from a western country. The risks of serious harm to her will be exacerbated by the fact that she is a vulnerable, orphan girl child of 6 years old.

We submit that there is a real chance that the Applicant would suffer persecution for a Convention reason should she return to Vietnam, now or in the reasonably foreseeable future, and we invite you to make a recommendation that the Applicant engages Australia’s obligations under the Refugees Convention.

81    It is convenient to now turn to the assessor’s statement of reasons for deciding not to recommend that the appellant met the criteria for protection. It is clear from those reasons that the assessor’s disbelief of the half-brother’s evidence was central to his decision to reject the appellant’s claims.

82    In his statement of reasons, the assessor referred to the interviews which were conducted with the appellant and her half-brother. At [83], the assessor stated:

I conducted interviews with [the half-brother] and his sister [the appellant]… on 2 May 2012 at the Darwin Airport Lodge APOD. Their migration agent was present. The interview was conducted with the assistance of an interpreter in the Vietnamese-English medium. I first interviewed [the half-brother] with [the appellant] present. [The half-brother] was happy to speak on [the appellant’s] behalf, since she was a minor, and I assured the adviser that she was welcomed to be robust in putting [the appellant’s] case; nevertheless, I undertook to interview [the appellant] herself in case there was any useful information she might be able to provide.

83    The assessor then summarised the interviews with both the half-brother and the appellant. The following paragraphs of his statement of reasons summarise that part of the interview which related to the appellant:

98.    [The appellant] told me she was born on 14 May 2005. She said she did not know where she was born. She said she did not know how long it had been since she last saw her mother. She said she did not know where her mother is now. She said she did not know what had happened to her mother.

99.    [The appellant] said she can read and write a little. I saw her reading and writing during the course of the day’s interview. I asked her in our interview where she learned to read and write and she said she learned from her “brother and adults and uncle”.

100.    I introduced a break in the interview to allow the claimants time to confer with their adviser and to provide for a short rest for the interpreter. When we resumed, I interviewed [the half-brother] alone.

84    The assessor then summarised the second part of his interview with the half-brother. At [128] of his reasons for decision, the assessor described a submission by Ms Murphy regarding his concerns about the credibility and reliability of the half-brother’s evidence:

128.    On their behalf, the claimants’ adviser addressed concerns, expressed earlier by me, as to the credibility and reliability of [the half-brother’s] evidence. She said it was “irrelevant to challenge the validity” of the claims [the half-brother] was making, as he was just repeating what he heard from his uncle. She said that whether [the half-brother] is 18 years or 20 years old matters little if he ends up being detained in Vietnam where detainees are mistreated. She said that whether it was true that [the half-brother’s] father had been a seminarian or not did not matter so much as how his father’s predicament left him.

85    The assessor’s reasons then summarised that part of the interview with the half-brother in which he was asked by the assessor about his mother’s circumstances after he had been left by his mother with his uncle. After noting that the half-brother had not talked about his mother after he was left with his uncle, the assessor said he then asked the half-brother if the claim about his mother having committed suicide was a fabrication. Paragraph 132 of the reasons then states: “In reply, he said he was not able to invent this; he said he had heard it from his uncle.”

86    At [139]-[141] the assessor then summarised some further matters relating to the appellant after he invited the half-brother to speak further on her behalf. The relevant summary is as follows (emphasis in original):

139.    … He said [the appellant] has a good life in Australia compared to life in Vietnam. He said he hoped she would be allowed to continue to improve her circumstances and enjoy life here. He said life was stressful for them both in Vietnam. He said that here in Australia they both have a chance of a better life.

140.    The adviser invited [the half-brother] to describe what stress had been placed on his sister, and he said, “I’m just a normal person. I haven’t been able to do anything because [I have] no documents”. The adviser again invited [the half-brother] to talk about any stresses faced by his sister and he said that if she were ever to fall ill in Vietnam she would not be able to be admitted to hospital, due to being undocumented. He said that the family would have to rely on the pharmacist instead.

141.    I asked [the half-brother] who looked after his sister while he and his uncle were working here and there and he said their neighbours would “keep an eye on her”. I asked if the neighbours were registered and/or otherwise documented, and he seemed to digress or evade the point of the question: he said they had “good hearts”. He then said they were not “registered carers”. I asked [the half-brother] if his neighbours were ho khau registered and he said, “I think they were”. He said he, his uncle and sister rented a room in a dormitory or boarding house-style building, as did the neighbours we were just discussing.

87    The assessor found at [180] that there were “a number of discrepancies in [the half-brother’s] evidence that, on close consideration, are not satisfactorily explained”, including the fact that he had told the half-brother several times that he was concerned about whether he could rely on “whole parts of his evidence, such as the subject and circumstances of his mother’s alleged suicide”. The assessor emphasised that the half-brother’s credibility, consistency and reliability was a concern and that he had been put on notice of that matter. The assessor further noted at [181] that, after inviting the half-brother and his advisor to comment on the proceedings, and as to his concerns about credibility, “the claimants’ adviser said it was irrelevant to challenge the credibility of [the half-brother’s] claims, as he was simply repeating what he heard from his uncle.” The assessor added that he found that the half-brother had given inconsistent evidence about what his uncle said to him.

88    On the issue of whether the children’s mother had suicided, the assessor set out his findings at [197] of his reasons:

Looking at the evidence overall I find that the information about [the half-brother’s] mother having suicided, or even being deceased, is unreliable and that it is [the half-brother] himself who has been unreliable on the subject. [The appellant] also says she does not know where her mother is. I have considered if these were the words of a child in psychological and emotional denial, or the response from a person too young to understand death but I do not accept that [the appellant] is as young as claimed and I do not accept on what I heard from both claimants that she was in genuine denial. There is so much evidence in this case negating the claims about the claimants’ mother having died that I do not accept that she has. I do not accept on the evidence before me that the experiences or current status of [the half-brother’s] mother give rise to a real chance of his being persecuted for a Convention-related reason in Vietnam in the reasonably foreseeable future.

89    It might be noted that the finding regarding the appellant’s age is inconsistent with what the assessor subsequently stated at [226] where, although recording that he had concerns, he found that he was “prepared to accept that [the appellant] was born on the date she provided, making her seven years old”. Nothing of significance turns on this inconsistency.

90    In [224]-[257], the assessor set out his reasons why he was not satisfied that the appellant was entitled to protection. At [224], he described the appellant’s circumstances as:

…particularly sensitive as she is a female minor with little education whose overall case depends largely on the evidence of [her half-brother] and the submissions of her adviser.

The assessor added that he “felt it was her right to be able to give evidence directly to me, particularly as her adviser expressed concern that she was not previously interviewed…”.

91    The assessor noted Ms Murphy’s contentions as to the appellant’s vulnerability to exploitation as an unregistered orphaned minor and made other relevant submissions including the fact that her lack of documentation meant that she would have to rely on pharmacists rather than doctors in hospitals if she were to fall ill.

92    After finding that the appellant was aged seven, the assessor said at [227] that he appreciated that she was still too young and vulnerable to represent herself adequately and in his “considered view”, she was “almost totally dependent on the evidence of her brother, who I have found after much consideration to be an unreliable witness”.

93    The assessor then found at [228] that he was not satisfied on the evidence that the appellant’s father had died, nor did he accept that she was an orphan. (In fact, no claim was ever made in the appellant’s case that her father was dead: the claim was that her father’s whereabouts were unknown). The assessor found that although there was evidence indicating that the appellant had enjoyed “continuity of adult care throughout her life in Vietnam”, the assessor did not accept the half-brother’s explanation that this was achieved by neighbours looking after his sister while he and the uncle worked itinerantly. That evidence was described as not being consistent with the claim that the uncle and the half-brother took the appellant with them when they worked in various places. The assessor concluded at [228] that he was not satisfied that the father was beyond contact with the appellant, her half-brother and their uncle. The assessor also made adverse findings at [229] relating to the claim that the appellant was undocumented and unable to be registered. That was because the assessor did not accept the evidence of the father’s history and he described his “impression” that the appellant “has had stable domicile under the care of adult family members”. Adverse findings were also made in respect of the claims relating to religion and political opinion, leading to an interim conclusion in [232] by the assessor as follows:

To sum up so far, I do not accept on the evidence before me that [the appellant] would be denied an education, denied identity documents, harassed because of her religion, or harassed because of her family’s political profile, let alone for any Convention-related reason.

94    At [235], the assessor set out his reasons why he did not accept that the appellant was an orphan (emphasis added):

I accept that [the appellant] would not be a ho khau-registered person as at the time of her return to Vietnam and would have to apply for registration in a household. However, as discussed earlier, I do not accept as credible the basis upon which it is claimed she has never been household-registered in the past; the claims about [the half-brother’s] father. On the evidence before me, I find that [the appellant] has continuously been under the protective care of adults in Vietnam, even though I do not accept the particular claim suggesting that the adults in question were outside of her own family. I do not accept that she is an orphan. [The half-brother’s] claims about [the appellant’s] immediate family do not credibly account for her own father and his status. I do not accept on the evidence before me that she has no ho khau-eligible household to re-join in Vietnam. I acknowledge that she will be dependent on the adults in her family to apply for her restoration to a ho khau but I do not believe on the information before me that such assistance would be withheld or delayed.

95    As to the claims made on the appellant’s behalf that impoverished children were at a heightened risk of abuse and serious harm due to a lack of effective child protection in Vietnam, the assessor repeated at [239] that he did not accept that the appellant would be an unaccompanied minor or that she was an orphan.

96    Furthermore, as to the specific claims regarding the appellant’s membership of particular social groups, being “children”, “impoverished children”, and “female children”, the assessor concluded at [240] that he did not accept that the appellant had lived in an impoverished environment. At [242] the assessor stated:

On the evidence before me, recalling my findings to the effect that she is neither an orphan nor an unaccompanied minor, I am not satisfied that [the appellant] would be vulnerable to trafficking, sexual exploitation, or forced labour or exposure to diseases such as HIV.

97    The assessor concluded at [257] that he was not satisfied that the appellant met the criterion in s 36(2)(aa) of the Migration Act 1958 (Cth).

98    It is beyond dispute that the assessor’s disbelief of the half-brother’s evidence was essential to his rejection of the appellant’s own claims to protection.

99    Given the appellant’s immature age, it may be accepted that the requisite notice and opportunity to comment did not need to be given to her personally. In my view, however, procedural fairness principles required that the requisite notice and opportunity be given either to her legal guardian or to Ms Murphy.

100    It was not suggested that Mr McDougall (who was the delegated legal guardian of the appellant) was provided with such notice and opportunity. The relevant issue then is whether the requisite notice and opportunity was given to Ms Murphy as the appellant’s migration agent. The Minister contended that Ms Murphy was given adequate notice and an opportunity to respond on behalf of the appellant to the assessor’s concerns about the half-brother’s credibility. In particular, the Minister relied on [83], [128] and [144] of the assessor’s reasons as supporting that contention. In fact, none of those paragraphs supports that contention and it should be rejected.

101    Paragraph 83 of the assessor’s statement of reasons is set out in [82] above. Reference is made there to the half-brother speaking on his sister’s behalf because she was a minor and the assessor having assured “the adviser that she was welcome to be robust in putting [the appellant’s] case”. The assessor noted that he undertook to interview the sister in case there was any useful information she might be able to provide. Nothing in that paragraph constitutes the giving of the requisite notice and opportunity referred to above.

102    Paragraph 128 is set out in [84] above. On the first reading of that paragraph it might be thought to provide some support for the Minister’s contention, however, on closer analysis I consider that it does not. There is a reference in that paragraph to Ms Murphy addressing the assessor’s concerns regarding the credibility and reliability of the half-brother’s evidence. Ms Murphy responded by saying that it was irrelevant to challenge the validity of the claims that the brother was making as he was just repeating what he heard from his uncle. At this point in the transcript the half-brother had not given evidence in support of the appellant’s case which was based on his own observations; rather, he was simply repeating what his uncle had told him.

103    It is also evident from [128] of the statement of reasons that the assessor was confirming that he had invited Ms Murphy, acting in her capacity as the half-brother’s advisor, to respond to the credibility concerns. There is nothing in this paragraph to suggest that the opportunity afforded to Ms Murphy extended to include the ramifications of those concerns for the appellant’s case.

104    As to [144] of the assessor’s reasons, it stated:

144.    The claimant’s adviser made a number of brief of (sic) legal submissions. She argued that, mindful of Australian jurisprudence, I should consider the threshold of a “real chance of persecution” to be a low one. She posited that foreign courts dealing with questions of complementary protection had tended to regard the “real risk of significant harm” test also as one involving a low threshold.

105    There is nothing in that paragraph which supports the Minister’s contention.

106    For completeness, nor is there anything in the transcript of the assessor’s interviews which records the assessor giving either the appellant or Ms Murphy (or anyone else for that matter) notice of his disbelief of the half-brother’s evidence and the possible ramifications for the appellant’s claims and an opportunity to respond.

107    I do not consider that Ms Murphy was put on adequate notice of these matters because of her awareness of the assessor’s concerns regarding the half-brother’s credibility. Separate claims for protection were made by the appellant and her half-brother. The half-brother gave evidence in support of the appellant’s claim relating to such matters as her being an orphan. He also gave detailed evidence to the assessor on matters such as the appellant being looked after by neighbours while the half-brother and their uncle were away working. Indeed, the half-brother told the assessor the address of those neighbours. Similarly, he gave evidence to the assessor regarding the appellant’s lack of access to education and healthcare. He said that because she lacked documentation she could not be admitted into hospital and each time she fell seriously ill their uncle could only seek medical advice and products from a pharmacist. The assessor disbelieved this evidence.

108    The assessor did not disbelieve all the half-brother’s evidence. For example, he accepted that the appellant and the half-brother were at least nominally Catholic, were both baptised and could be cognisable as Catholics in Vietnam. He also accepted that they were siblings and that they shared the same mother but had different fathers. He also accepted that the mother remarried and gave birth to the appellant. These findings must have been based on the assessor’s acceptance of the half-brother’s evidence on these matters. In circumstances where the assessor was prepared to accept the half-brother’s evidence on some issues but not on others, procedural fairness obliged him to give notice of his disbelief of those aspects of the half-brother’s evidence which had adverse ramifications for the appellant’s claim for protection. Assuming that it would have been sufficient for these matters to be disclosed to Ms Murphy as the appellant’s migration agent, this did not occur. Accordingly, procedural fairness was denied.

109    This is not a case where it would be open to find that the procedural unfairness produced no practical injustice (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] per Gleeson CJ). If appropriate notice had been given, Ms Murphy may well have made further enquiries of the appellant directly or, alternatively, sought an adjournment so that either she or the appellant’s legal guardian could initiate enquiries of people in Vietnam who might be able to corroborate the appellant’s claims. For example, enquiries could have been made of the neighbours whom it was said looked after the appellant when her half-brother and uncle were away. The neighbours, whose address was provided during the interview, might have been able to confirm the appellant’s orphan status and that she lacked formal identity papers. Or enquiries might have been made with a view to obtaining a death certificate to confirm the fact that the appellant’s mother was dead. Ultimately, however, the nature and scope of any such enquiries would be a matter for Ms Murphy and/or her legal guardian.

110    For these reasons, I consider that the appellant was denied procedural fairness.

111    In my view, the appropriate orders are:

(1)    The appeal be allowed.

(2)    The judgment and orders made by the primary judge on 9 April 2015 be set aside.

(3)    In lieu of the orders made by the primary judge:

(a)    the Court declares that:

in recommending to the first respondent that the appellant not be recognised as a person to whom Australia has protection obligations, the second respondent failed to observe the requirements of procedural fairness; and

(b)    the first respondent be restrained from removing the appellant or causing or allowing the appellant to be removed from Australia until:

(i)    the appellant’s claims to be a person to whom Australia has protection obligations have been assessed according to law; and

(ii)    the first respondent has decided that the appellant is not a person to whom Australia has protection obligations; and

(c)    the first respondent pay the appellant’s costs of the proceeding as agreed or assessed.

(4)    The first respondent pay the appellant’s costs of the appeal as agreed or assessed.

Associate:

Dated:    18 January 2016

REASONS FOR JUDGMENT

WHITE j:

112    The circumstances giving rise to this appeal are set out in the reasons of Besanko J. It is not necessary to repeat them.

113    The Notice of Appeal contains three grounds. There is some overlap between the first and second grounds and some infelicity in the manner of expression of the second. However, I agree with Griffiths J that, fairly understood, the Notice of Appeal raises complaints that the Circuit Court Judge had erred in three respects. It is said that the Judge should have found that:

(1)    By reason of breaches of duties said to be owed by the Minister as guardian and fiduciary and, in particular, by his failure to investigate and present a case for the appellant which was independent of that presented to the Independent Protection Assessor (the IP Assessor) by the appellant’s half-brother, there had not been an assessment of the appellant’s claim by a process according with the law and, or in the alternative, the appellant had been denied procedural fairness;

(2)    The IP Assessor had denied the appellant procedural fairness by basing his assessment on the limited responses of the appellant to questions put to her by the IP Assessor in the course of his enquiry and on the evidence given by the appellant’s half-brother, without informing the appellant, the Minister as her guardian, or her representative that he considered that significant aspects of the evidence of the half-brother should not be accepted;

(3)    Inconsistent findings by the IP Assessor meant that he had not made an assessment which accorded with law.

114    Ground 2 also repeated in substance an element of Ground 1, namely, that the failure of the Minister to appoint a guardian to make decisions on behalf of the appellant had resulted in a denial of procedural fairness.

115    In my opinion, the appellant has not made out the first and third of the complaints just summarised. I agree, respectfully, with the reasons of Besanko J concerning those grounds.

116    The question of principle raised by Ground 2 is whether, in the circumstance that the appellant was an infant who lacked the ability herself to instruct a migration agent, that her request for assessment as a refugee was separate and distinct from her half-brother’s claim, and that the evidence presented on her behalf came principally from the half-brother, procedural fairness required the IP Assessor to give notice to her guardian, or to a migration agent acting independently of the half-brother, or at least to the migration agent acting for both the appellant and the half-brother, that he disbelieved the half-brother on significant matters and in that circumstance to give her the opportunity to obtain separate representation and to make further submissions.

117    The Circuit Court Judge rejected the claim that there had been such a denial of procedural fairness, saying:

[37]    In my view, the applicants’ contentions in this regard are misconceived. Given that the first applicant was not capable of making claims or giving evidence before the Assessor, the Assessor’s procedural fairness obligations are taken to be owed to the second applicant. Otherwise, it would have been a nonsense for the Assessor to have acted in a way consistent with the fiction that the first applicant herself was capable of presenting evidence and arguments in support of her application.

118    I agree with the conclusion of Griffiths J that the Circuit Court Judge erred in this respect. I respectfully agree with his reasons for so holding.

119    I add the following. It has been said that the content of the requirements of procedural fairness is “infinitely variable”: Jaffarie v Director-General of Security [2014] FCAFC 102; (2014) 226 FCR 505 at [110]. The content may vary according to the circumstances of a given case. In my opinion, there are three features which are of importance in informing the content of the duty of the IP Assessor to afford the appellant procedural fairness in the circumstances of this case.

120    The first is that the appellant’s claim was separate and distinct from that of her half-brother. That circumstance had not been recognised by the initial assessor in the assessment made on 7 December 2011. That assessment was made on the basis that the claimant for refugee status was the half-brother and the appellant his dependant. The referral by the initial assessor for an Independent Protection Assessment was made on the same basis.

121    However, the IP Assessor recognised, correctly, that each of the half-brother and the appellant had independent claims. So also did Ms Murphy, the migration agent, acting for each. She made a separate submission in respect of the appellant’s claim.

122    The second circumstance is that, subject to a favourable exercise by the Minister of the discretion under s 48B of the Migration Act 1958 (Cth), the consequence for the appellant of rejection of her claim for refugee status was likely to be her deportation to Vietnam. Even without regard to the appellant’s age, this was a significant matter: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [9]-[10].

123    The third circumstance is the vulnerability of the appellant as a young child of tender years without appropriate parental supervision. That vulnerability underpins the law’s solicitude for the welfare of children in a number of contexts. These include the parens patraie jurisdiction (Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 258-9) and the Immigration (Guardianship of Children) Act 1946 (Cth) to which Besanko J has referred. The same considerations may be taken to underpin the Convention on the Rights of the Child (to which Australia is a signatory).

124    The IP Assessor’s reasons referred to some particular matters bearing upon the vulnerability of the appellant. At [82] of his reasons, the IP Assessor set out an extract in the UK Country of Origin Report of May 2010 which Ms Murphy had incorporated into her written submission on behalf of the appellant:

22.10    A report by the United Nations Children’s Fund (UNICEF), accessed on 7 April 2010, stated:

Children protection concerns are increasing in Viet Nam. More than 2.6 million children in Viet Nam are reported to be in need of special protection. Among their ranks are children who are abused, sexually exploited and trafficked; street children; children with disabilities; children in conflict with the law; orphans, abandoned children, and children affected by HIV and AIDS; and children living in poverty. Their circumstances are almost uniformly grim. Few children in Viet Nam live in institutions. Many more struggle to survive on their own. Some are forced to work. And others live on the streets – a scenario that places them at high risk of contracting HIV, using drugs and falling prey to crime and sex work. There are many complex reasons why children are trapped in these difficult situations. Economic factors such as poverty, income disparities and the shift to a market economy have made more children vulnerable. Social trends such as migration, disintegrating family values and gender discrimination also harm children. Systemic issues such as the lack of a comprehensive legal framework, poor law enforcement and limited understanding of child protection threaten children as well. Accelerating HIV infections also place children at high risk.

(Citations omitted)

125    Later, the IP Assessor’s reasons included the following:

[164]    I have had regard to the following from the “Vietnam” chapter of the US Department of State’s Country Reports on Human Rights Practices for 2011 (Washington DC, 2012):

Children

…

Child prostitution, particularly of girls but also of boys, existed in major cities. Many prostitutes in Ho Chi Minh City were under 18 years of age. Some minors entered into prostitution for economic reasons. …

…

The government’s National Program of Action for Children for 2001-10 aimed to create the best conditions to meet demands and rights of every child, prevent and eliminate child abuse, and implement programs to prevent child trafficking, child prostitution, and child pornography. The government also promulgated the Program on Prevention and Resolution of the Problems of Street Children, Sex-abused Children, and Children Being Overworked and Working in Poisonous and Dangerous Conditions for 2004-10. The program had separate projects for prevention of sexual child abuse; communication, advocacy, and capacity enhancement for program management; prevention and support for street children; and prevention of hazardous and dangerous working conditions for children. Initial assessments indicated that these measures provided an important legal basis for children’s matters and that most local governments, departments, and unions supported these efforts. A lack of funding and a clear understanding of responsibilities, along with unclear implementation guidance, hindered implementation in certain localities.

According to the Ministry of Labour, Invalids, and Social Affairs (MOLISA), there were an estimated 23,000 street children, who were sometimes abused or harassed by police. …

[165]    I have had regard to the following report about children who do not have household registration:

According to a 2006 Human Rights Watch (HRW) report, household registration documentation in Vietnam is essential for legally obtaining a job, collecting food rations, attending government schools, receiving health care, travelling, voting and contesting administrative abuses … The report also indicates that children who do not have household registration documentation are more likely to be arrested or harassed by the police and may not be eligible to receive basic social services. …

126    The potential exposure of the appellant to detriments of the kind described in these documents was, in my opinion, a particularly significant matter informing the content of the requirements of procedural fairness in her case.

127    It is understandable that the IP Assessor considered it convenient to conduct a single interview of the appellant and the half-brother. Their claims had much in common and they had common representation. However, that circumstance did not relieve the IP Assessor from the obligation of complying with the requirements of procedural fairness in relation to the appellant’s claim and, in particular, the obligation to identify to the appellant the issues which were critical to his decision on her claim: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 at [29]-[30].

128    In the particular circumstances of this case, I consider that procedural fairness required, at the least, that the IP Assessor inform the appellant’s migration agent of the adverse view which he had formed of the half-brother’s credibility and of the rejection of much of his evidence. That was so because it was the IP Assessor who had chosen to conduct a single hearing of the separate claims; because it must have been obvious to the IP Assessor that the appellant’s claim was presented on the assumption that the half-brother had provided reliable information in support of her claim; because the IP Assessor had already rejected much of the half-brother’s evidence before he considered the merits of the appellant’s claim; and because of the particular vulnerability of the appellant, by reason of her tender years, to detriments resulting from an adverse decision.

129    It was common ground that the IP Assessor had not informed the appellant by any means of his rejection of the half-brother as a reliable witness.

130    I respectfully agree with the conclusion of Griffiths J that this is not a case in which the Court could be satisfied that the lack of procedural fairness has not resulted in injustice. In particular, I do not accept the submission of counsel for the Minister to the effect that it may be inferred that the appellant, as a six year old, would not have been capable of providing further information. The law now has considerable experience of persons who are skilled in the questioning of children outside a court environment obtaining reliable information from children. This is particularly so in the child sex abuse context and the family law context. In this circumstance, it would not be appropriate to hold that the perfunctory questioning by the IP Assessor at the interview on 2 May 2012 exhausted the information which could be provided by the appellant.

131    For these additional reasons, I consider that the appeal should be upheld. I agree with the orders proposed by Griffiths J.

Associate:

Dated:    18 January 2016