Federal Court of Australia

DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 177

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    This is an appeal from order 2 of the orders made by the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) on 25 July 2022 dismissing the appellant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, made on 22 June 2017. The appellant also appeals from order 2 made by the FCFCOA on 4 November 2022 requiring the appellant to pay the Minister for Immigration, Citizenship and Multicultural Affair’s costs, save for costs awarded against the appellant’s counsel and solicitor who appeared below (but not on the appeal) with respect to an adjournment of the trial. By its decision, the Tribunal affirmed a decision made on 7 March 2017 by a delegate of the first respondent, the Minister, refusing to grant the appellant a Protection (Class XA) (subclass 866) visa.

2    On 26 April 2023, the Court granted the appellant extensions of time within which to appeal both decisions, together with leave to file a further amended draft notice of appeal in the form annexed to the affidavit affirmed by Mr Abu Siddque on 21 April 2023.

3    For the reasons set out below, the appeal must be dismissed.

2.    BACKGROUND

2.1    Legislation and relevant principles

4    The Tribunal’s decision concerned the appellant’s claim for protection. It is helpful at the outset to outline the relevant provisions relating to protection claims, the principles concerning which are now well-‍settled, and were not in dispute between the parties.

5    The Migration Act 1958 (Cth) provides for the grant of visas pursuant to which a person who is not a citizen of Australia (a non-‍citizen) may enter and remain in Australia. One class of visa for which provision is made in the Act is a protection visa, the criteria for which are specified in s 36.

6    Relevantly, s 36(2)(a) provides that a “criterion for a protection visa is that the applicant for the visa is … a non-‍citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee” (the refugee criterion). In circumstances where a person is a national of another country, a person will be a “refugee” for the purposes of the Act if they are “outside the country of his or her nationality and, owing to a well-‍founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country”: s 5H(1)(a) of the Act.

7    The expression “well-‍founded fear of persecution” is defined in s 5J of the Act. That section relevantly provides that:

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-‍founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

8    Each of the reasons set out at s 5J(1)(a) are commonly referred to in a compendious manner as a ‘Refugees Convention reason’, being reasons why a person may fear persecution so as to engage the obligations on State parties under the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, [1954] ATS 5 (entered into force 22 April 1954) as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267, [1973] ATS 37 (entered into force 4 October 1967) (collectively, the Refugees Convention).

9    Furthermore, s 5J(4)(b) relevantly provides that if a person fears persecution for a Refugees Convention reason, “the persecution must involve serious harm to the person” (emphasis added).

10    A determination of whether a (subjective) fear is (objectively) “well-‍founded” relevantly requires the Tribunal to assess what might occur in the future on the assumption that the non-‍citizen is returned to their country of nationality: see definition of “receiving country” in s 5 of the Act. A fear is “well-‍founded” when there is “a real and substantial basis for it” even though the chance of the fear eventuating is less than 50 per cent (often described as a “real chance”): Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). Conversely, a fear of persecution is not well-‍founded “if it is merely assumed or if it is mere speculation”: ibid.

11    Further in assessing whether there is a real chance of persecution, it is well-‍established that past events may assist in assessing what is likely to occur in the future. As the joint judgment held in Guo at 574, “[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence.” Thus, in the context of applying the definition of a refugee in the Refugees Convention, the joint judgment in Guo held at 575 that:

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

12    Section 36(2)(aa) provides an alternative criterion for the grant of a protection visa to a non-‍citizen where the Minister is not satisfied that the person is a refugee but is nonetheless satisfied that the person is entitled to protection under Australia’s international non-‍refoulement obligations, being a person:

…in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-‍citizen being removed from Australia to a receiving country, there is a real risk that the non-‍citizen will suffer significant harm…

(The complementary protection criterion.)

13    The phrase “significant harm” is defined in s 36(2A) and involves, for example, arbitrary deprivation of life, torture, or cruel or inhuman treatment or punishment: see at [51] below.

14    A determination of whether there is a real risk for the purposes of the complementary protection criterion requires a consideration of whether there is a “real chance” that an applicant will suffer “significant harm” if returned to her or his country of origin: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [242]–‍[246] (Lander and Gordon JJ) (with whom Besanko and Jagot JJ at [296] and Flick J at [342] relevantly agreed). The level of risk of harm which must be established in order to satisfy the s 36(2)(aa) complementary protection criterion is therefore the same as the level of risk required under the s 36(2)(a) refugee criterion. Furthermore, just as the forward-‍looking inquiry required by the refugee criterion can be informed by an applicant’s past experiences, equally the applicant’s past experiences may inform the question of whether there is a real chance that an applicant may suffer “significant harm” if returned to their country of origin for the purposes of the complementary protection criterion.

2.2    The appellant’s claims to fear harm

15    The appellant is a citizen of Vietnam who arrived in Australia in 2015 as the holder of a Tourist visa. Her Tourist visa expired in July 2015, following which the appellant remained in Australia unlawfully.

16    The appellant applied for a protection visa in January 2017. In support of her protection visa application, the appellant’s claims may be broadly summarised as follows.

(1)    The appellant previously owned a vehicle business in Vietnam with her husband. The local government asked her to pay a large sum of money per year when they discovered that her business was very prosperous.

(2)    The appellant could not endure the financial burden and moved to a new address. Eventually, however, the local government demanded that she pay them a large sum of money which she could not afford.

(3)    The appellant moved for a second time. Again, the local government demanded that the appellant pay them a large sum of money or they would close her business.

(4)    The local government had gangsters threaten to kill the appellant if she did not pay the government.

17    On 20 January 2017, the appellant attended an interview with the delegate. At the interview, the appellant claimed that high-‍ranking state officials and people related to corrupt police officers had invested in her business. When her business started to experience financial problems, she claimed that a government official forced the appellant to transfer her other business to a person appointed by the official. She alleged that police officers demanded the return of money and forced the appellant to plead guilty to fraud and deception charges. The appellant claimed that she had paid off the majority of her debts but still owed money to other creditors. She said that it was those creditors who hired gangsters to threaten her. When the creditors and gangsters discovered that the appellant did not have any money, she claimed that they tried to extort money from her daughters and their families.

18    On 7 March 2017, the delegate refused to grant the appellant a protection visa.

2.3    The decision of the Tribunal

19    On 22 March 2017, the appellant applied to the Tribunal for merits review of the delegate’s decision.

20    On 2 June 2017, the appellant attended a hearing before the Tribunal. The hearing was conducted with the assistance of a Vietnamese interpreter and the appellant was represented by a solicitor, identified by the primary judge as “Mr V”, who continued to act for her in the subsequent FCFCOA proceeding.

21    On 22 June 2017, the Tribunal affirmed the delegate’s decision.

22    The Tribunal’s reasons for refusing to grant the appellant a protection visa were helpfully summarised by the primary judge as follows (at [15]–‍[16]):

The Tribunal:

(a)    set out the applicant’s claims as made in each of the visa application and the Department interview before summarising the delegate’s decision and the evidence given by the applicant at the hearing before it;

(b)    expressed at the outset of its findings and reasons that it was not satisfied that the applicant had provided truthful evidence about her circumstances and experiences in Vietnam;

(c)    found there had been a material shift in the applicant’s claims over time from the visa application, in which she claimed to have been extorted by corrupt local government officials, to claims made later at the Departmental interview that those officials had been the disgruntled investors in her business. The Tribunal was not satisfied that the claims were unchanged or consistent as the applicant asserted, but rather that the claims had changed and there was no credible explanation provided for that evolution;

(d)    did not accept that the applicant’s travel to Malaysia, Thailand, Singapore and Indonesia in early 2015 were attempts to escape Vietnam but which had failed because of a lack of resources in those places and language barriers, noting that such matters had not later been obstacles to the applicant travelling to Australia and later seeking protection;

(e)    found the applicant’s conduct upon arriving in Australia was not consistent with a claim to have fled Vietnam to Australia to seek protection, given the delay in doing so after she arrived and given that it appeared she had only applied for protection once placed in immigration detention and after a considerable period, during which she had remained unlawfully in Australia;

(f)    had serious concerns arising from the applicant’s evidence that her husband continued to operate the passenger transport business in Vietnam under the same business name as had the applicant. The Tribunal considered that if disgruntled investors were still seeking to recoup losses then it was plausible they would approach her husband. The Tribunal was not persuaded by the applicant’s explanation that the reason this had not occurred was that her husband was more akin to an employee, given the applicant’s other claim that her daughters had been harassed by the gangsters;

(g)    found that the foregoing aspects led it to not be satisfied that the applicant’s claims of past harm were true. While the Tribunal was prepared to accept that the applicant had been involved in a passenger transport business and even that there may be debts associated with that business, it did not accept the applicant was harmed by corrupt government officials who had extorted her, by officials who had invested in her business or by gangsters engaged by such officials. The Tribunal also did not accept that the applicant had been threatened herself or that the applicant’s children had been threatened by officials, police officers, gangsters or any creditors;

(h)    was not satisfied the applicant had a genuine fear of serious or significant harm at the time of the decision;

(i)    found that there was not a real chance or risk that the applicant would be threatened, killed, arrested, falsely prosecuted or subject to any other form of serious or significant harm at the hands or behest of government officials or police officers in Vietnam;

(j)    in relation to the possibility that the applicant’s debts could give rise to harm, was not satisfied that it would be for a reason set out in s 5J(1)(a) of the Act and therefore found that it would not satisfy the refugee criterion; and

(k)    concerning the complementary protection criterion in relation to the applicant’s debt position, stated that it was plausible that if the applicant been harassed in the past about her debts, then unpaid creditors might do so again but noted that the applicant had not claimed to have been threatened or otherwise harmed by such creditors in the past (despite her having speculated that it might occur in future). The Tribunal relied on its anterior factual and credit findings, and was not satisfied the applicant would face significant harm from any creditors in future.

Accordingly, the Tribunal was not satisfied that the applicant satisfied either of the s 36(2)(a) or (aa) criteria.

(References to the Court Book omitted.)

2.4    The FCFCOA’s judgment

23    At first instance, the applicant relied upon three grounds of judicial review. As the primary judge’s findings with respect to ground 1 only are challenged on the appeal, the other grounds can be put to one side. Ground 1, as ultimately pressed below, had two limbs, namely, that:

(1)    the Tribunal at [60]–‍[61] of its reasons wrongly imported the requirement in the refugee criterion that the visa applicant subjectively fear harm into its assessment of whether the applicant satisfied the complementary protection criterion; and

(2)    the Tribunal at [61] erred in its assessment of whether the applicant met the complementary protection criterion by making a factual error that the applicant had not claimed to be threatened in the past which in turn affected its finding regarding past harm.

24    The primary judge rejected ground 1 for reasons which we explain in the context of considering the first ground of appeal.

3.    DISPOSITION OF THE APPEAL

25    By the further amended notice of appeal, the appellant alleges that the primary judge erred in three respects which may be summarised as follows:

(1)    in failing to hold that the Tribunal misapplied s 36(2)(aa) of the Act in treating the existence of fear of harm as being required for, or relevant to, the satisfaction of the provision and/or failing to make a finding on whether the conduct constituting harassment by unpaid creditors amounted to “significant harm” as defined in the Act (ground 1);

(2)    in failing to hold that the Tribunal constructively failed to exercise jurisdiction by not considering whether harassment constituted “significant harm” in ss 36(2A)(c)–‍(e) for the purposes of the complementary protection criterion (ground 2); and

(3)    in failing to hold that the Tribunal constructively failed to exercise jurisdiction by not considering whether harassment amounted to “serious harm” for the purposes of the refugee criterion in s 36(2)(a) of the Act (ground 3).

26    The Minister contends that all of the grounds of appeal (save for particulars (c)–‍(j) to ground 1) were new and had not been raised at first instance (outline of submissions of the first respondent (RS) [3]). While the appellant submits that ground 1 below was sufficiently broad to encapsulate the grounds of appeal (appellant’s outline of submissions in reply (AR) [2]), there is considerable force in the Minister’s position. However, it was ultimately unnecessary to decide this issue as the Minister did not oppose the grant of leave (RS [3]). Accordingly, at the start of the hearing, the Court granted leave to the appellant to the extent necessary to rely upon any new issues on the appeal raised by the grounds of appeal in her further amended draft notice of appeal.

3.1    Ground 1: did the Tribunal misapply s 36(2)(aa) of the Act?

3.1.1    The appellant’s submissions

27    With respect to ground 1, the appellant first submits that the primary judge erred in failing to find that Tribunal at [60]–‍[61] of its reasons misinterpreted the complementary protection criterion in that it “treated what it found to be a lack of fear of harm as required for satisfaction of the criterion” (T-10.33–34; see also further amended notice of appeal, ground 1, particulars (a)–‍(j) and (l)). Specifically, after referring to those aspects of the appellant’s evidence which troubled the Tribunal and led it to find that it was not satisfied that she had provided truthful evidence about her personal circumstances and past experiences in Vietnam, the Tribunal found at [60]–‍[61] that:

The features in the applicant’s evidence described above are such that the Tribunal remains unsatisfied that any of the applicant’s claims of past harm are true. Whilst the Tribunal is prepared to accept that the applicant may have been involved in [vehicle] businesses in Vietnam and may still have some business debts, the Tribunal is not satisfied that the applicant was harmed by corrupt government officials who had asked her to pay bribes or by officials who had invested in her businesses or by any gangsters engaged by such officials. The Tribunal is not satisfied that the applicant was threatened or that her children have been threatened by officials, police officers, gangsters or any creditors. The Tribunal is not satisfied that the applicant had a genuine fear of serious or significant harm at the time she departed Vietnam in 2015. The Tribunal is not satisfied that the applicant has a genuine fear of serious or significant harm at the time of this decision. The Tribunal is not satisfied that there is a real chance or risk that the applicant would be threatened, killed, arrested, falsely prosecuted or subjected to another form of serious or significant harm at the hands of, or at the behest of, government officials or police officers in Vietnam.

To the extent that the applicant may experience any difficulties as a consequence of any business debts, the Tribunal is not satisfied on the evidence before it that such harm would be for any of the reasons set out in s 5J(1)(a) of the Act for the purposes of the refugee criterion in s.36(2)(a) In considering the complementary protection criterion in s.36(2)(aa), the Tribunal considers it plausible that if the applicant had unpaid creditors they may have in the past harassed her to repay her debts and that there is a real risk that they may continue [to] do so again. The applicant has not claimed to have been threatened or otherwise harmed by these creditors in the past (although she has speculated that this might happen in the future) and the claim was not raised in the visa application. Given the Tribunal's findings above relating to the applicant’s credibility and subjective fear of harm, the Tribunal is not satisfied that the applicant faces harm from any creditors amounting to significant harm as defined.

(Emphasis added.)

28    Those passages on which the appellant particularly relied in support of this limb of ground 1 are identified by underlining above.

29    The appellant agrees with the primary judge insofar as her Honour found that the Tribunal considered the question of whether the refugee and complementary protection criteria were satisfied together in these paragraphs and that there was no error in it so doing. However, she submits that the fact that the Tribunal could have regard to anterior findings about the refugee criterion does not mean that it could misapply the complementary protection criterion when having regard to those anterior findings. So much can be accepted. However, bearing in mind that the question of whether a visa applicant is at real risk of suffering “significant harm” arises only in relation to the complementary protection criterion, the appellant submits that the reference at [60] to whether the appellant had a “genuine fear of … significant harm” shows that the Tribunal impermissibly applied the requirement for the appellant subjectively to fear harm in order to satisfy the refugee criterion to the question of whether the complementary protection criterion was met. That error, in the appellant’s submission, is repeated at [61] in the second underlined passage. The appellant submits that the Tribunal erred in treating a fear of harm as a necessary element of the complementary protection criterion based on the decision in DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 273 CLR 1 at [21] (the Court),. Alternatively, the appellant submits that the Tribunal erred in treating the appellant’s subjective fear of harm as relevant to the question of whether she satisfied the complementary protection criterion.

30    In support of her submissions, the appellant relies upon the decision in SZVVE v Minister for Immigration and Border Protection [2015] FCA 837. In that case, Perram J considered a claim that the Tribunal failed to consider the applicant’s “subjective belief that if he was returned to Lebanon he would be persecuted”: at [18]. Justice Perram held that the complementary protection criterion in s 36(2)(aa) of the Act (at [21]):

does not pose a question in which the subjective views of the applicant have any part to play. Consequently, it was not erroneous for the Tribunal to leave out of account the applicant’s subjective views. Indeed, it would have been erroneous for it to have done otherwise than it did.

(Emphasis added.)

31    On the basis of this passage, the appellant submits that the decision in SZVVE stands for the proposition that the question of whether an individual has a subjective or objective fear of harm is a mandatory irrelevant consideration in the context of assessing whether the complementary protection criterion is met.

32    As the second limb of ground 1 of the appeal substantially overlaps with ground 2, we consider that limb of the appellant’s first ground in the context of considering ground 2.

3.1.2    Reasons for dismissing the first limb of ground one of the appeal

33    We agree with the Minister that the primary judge correctly held that the Tribunal did not err in its application of s 36(2)(aa) of the Act and conflate the refugee criterion with the complementary protection criterion.

34    First, it is plainly not an element of the complementary protection criterion that the visa applicant have a subjective fear of harm. Rather, as the High Court has held, the complementary protection criterion in s 36(2)(aa) “only requires an assessment of the ‘necessary and foreseeable consequence[s]’ of a person’s return to a receiving country”: DQU16 at [21].

35    Secondly, the “reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). Read fairly and in context, while the Tribunal took into account its finding that it did not believe that the appellant “genuine[ly]” feared significant harm as a relevant factual circumstance in finding that the complementary protection criterion was not met, this does not mean that the Tribunal treated a subjective fear of harm as a necessary element of the complementary protection criterion. Rather, as the primary judge held, that finding was based on the Tribunal’s rejection of the appellant’s claims and finding that she was not a credible witness, and did not suggest that the Tribunal was conflating the two tests. As her Honour held (at [144]):

A full and contextual reading of the Tribunal’s decision does not lend credence to the suggestion that by use of the word “genuine” at [60], the Tribunal was conflating the relevant tests. Rather, I agree with the submission of the first respondent that in its context, the word “genuine” referred to the Tribunal’s overall credit findings, and did not seek to import a subjective element to the complementary protection assessment. The consequence of the Tribunal’s credit findings in relation to the present ground is that the basis for the rejection of the refugee criterion could also be relied on for the rejection of the claim based on the complementary protection criterion: CDY15 v Minister for Immigration and Border Protection [2018] FCA 175 at [41].

36    Furthermore, in its conclusion at [63], the Tribunal correctly articulated and applied the complementary protection criterion in finding that it was “not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the [appellant] being removed to Vietnam, there is a real risk that she will suffer significant harm”.

37    Thirdly, in having regard to whether the appellant had a subjective fear of significant harm at [61], the Tribunal did not fall into error. Rather, the Tribunal recognised, consistently with the reasoning in DQU16, that the question of whether a visa applicant will suffer significant harm in their receiving country involves an assessment of the individual circumstances of the non-‍citizen. Those circumstances included the fact that the appellant had not, on the Tribunal’s findings, suffered harm in Vietnam in the past and that she held no actual fear of significant harm if she were returned to Vietnam because, as the primary judge held at [142], “the factual foundation of [her] claims to fear harm in Vietnam had been rejected”.

38    Fourthly, there is nothing in the language or purpose of s 36(2)(aa) which supports the appellant’s proposition that a person’s subjective belief is a mandatory irrelevant consideration for the purposes of the complementary protection criteria. As Mason J held in Minister for Aboriginal Affairs v Peko-‍Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40:

where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-‍matter, scope and purpose of the statute some implied limitation on the factors to which the decision-‍maker may legitimately have regard…

39    In this regard, the inclusion of the requirement of a “well-‍founded fear” in the refugee criterion in s 36(2)(a) and not the complementary protection criterion in s 36(2)(aa) lends no support to the proposition that the Parliament intended that a fear of harm be mandatorily irrelevant to the determination of the complementary protection criterion. Rather, the inclusion of the requirement that a person have a well-‍founded fear of persecution in s 36(2)(a) picks up the language of Art 1A(2) of the Refugees Convention which the criterion in s 36(2)(a) is intended to implement. On the other hand, the absence of any such requirement from s 36(2)(aa) reflects the fact that no there is no equivalent requirement in the international human rights obligations which the complementary protection criterion is intended to implement, including, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85, [1989] ATS 21 (entered into force generally on 26 June 1987 and for Australia on 7 September 1989), and the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171, [1980] ATS 23 (entered into force generally on 23 March 1976 and for Australia on 13 November 1980): see the definition of “cruel or inhuman treatment or punishment” in s 5(1) of the Act; see also the definition of “non-refoulement obligations” in s 5(1).

40    Nor as a matter of logic are a person’s subjective beliefs necessarily irrelevant to the question of whether there is a real risk that a particular individual will suffer significant harm if returned to their country of origin. To the contrary, it can readily be envisaged that the question of whether an individual has a subjective fear of harm can be an important piece of evidence in assessing the credibility of their claims that they will be harmed if returned. That being so, it would be a perverse and unlikely construction to hold that the section implicitly rendered such evidence mandatorily irrelevant.

41    Fifthly, the decision in SZVVE does not support a contrary view. In that case, the Tribunal rejected a number of aspects of the applicant’s claims including that he had received death threats from Hezbollah and that he was suspected of being a spy by Hezbollah: at [16]–‍[17] of SZVVE. The Tribunal, as summarised by Perram J at [17], found that the applicant would not suffer significant harm if returned to Lebanon. The applicant, however, submitted that the Tribunal fell into error because the fact that he had a subjective belief that if he was returned to Lebanon he would be persecuted “was sufficient to make good the complementary protection claim” (at [18]; emphasis added).

42    That argument was rejected by Perram J who held that “it was not erroneous for the Tribunal to leave out of account the applicant’s subjective views”: at [21]. His Honour’s conclusion in this regard was plainly correct in circumstances where the Tribunal had found that the objective criterion for complementary protection was not satisfied. An individual’s subjective belief cannot, as his Honour held in line with the decision in DQU16, be “sufficient to make good a complementary protection claim”. The further passage from Perram J’s reasons on which the appellant here relies—that “[i]ndeed, it would have been erroneous for [the Tribunal] to have done otherwise than it did”—does not suggest that an individual’s subjective belief is a mandatory irrelevant consideration. Rather, the applicant’s subjective beliefs in SZVVE were irrelevant, in the circumstances of that case, where the objective criterion had been determined against the applicant in any event.

43    The first limb of ground 1 cannot therefore succeed.

3.2    Ground 2: did the Tribunal fail to assess whether harassment from unpaid creditors satisfied the complementary protection criterion?

3.2.1    The parties’ submissions

44    By the second limb of ground 1 and ground 2, the appellant submits that the Tribunal misapplied s 36(2)(aa) of the Act and/or constructively failed to exercise its jurisdiction in failing to consider whether harassment from unpaid creditors satisfied the complementary protection criterion.

45    The appellant relies on the Tribunal’s finding at [60], that it was “prepared to accept that the [appellant] may have been involved in [vehicle] transport businesses in Vietnam and may still have some business debts”. The Tribunal then went on at [61] to consider it “plausible that if the [appellant] had unpaid creditors they may have in the past harassed her to repay her debts and that there is a real risk that they may continue [to] do so again.” The appellant accepts that she did not make a specific claim of harassment. However, she submits that these findings reflect the Tribunal’s acceptance of a lesser claim following its rejection of the full extent of her claims and that together these findings mean that the Tribunal accepted that there was a real risk that the appellant would be harassed by unpaid creditors in the future. In those circumstances, the appellant submits that the Tribunal failed to consider whether this harassment would constitute “significant harm” for the purposes of s 36(2)(aa) of the Act.

46    Against this, when the findings on which the appellant relies are read in the context of [61] as a whole, the Minister submits there were four reasons why the Tribunal was not satisfied that the appellant would face “significant harm” as defined from any other (i.e. non-‍government) creditors, namely:

(1)    the appellant did not claim to have been threatened or otherwise harmed by those creditors in the past;

(2)    the appellant’s claim that those creditors may harm her in the future was speculative;

(3)    this claim was not raised in the appellant’s protection visa application; and

(4)    the appellant was found not to be a witness of credit and not to have a subjective fear of harm if she were returned to Vietnam.

47    In this regard, it will be recalled that the forward-‍looking inquiry required by the complementary protection criterion can legitimately be informed by evidence of past experiences.

48    In reply to the Minister’s submissions, the appellant submits that the first reason identified by the Minister was illogical given the appellant’s claims that she was threatened by government officials and police officers who were creditors (see further amended notice of appeal, ground 1, particular (m)(ii)(A)). The Minister submits that this finding was not illogical because the Tribunal drew a distinction between different types of creditors, being “officials, police officers, gangsters or any creditors”: at [60] (emphasis added). The claim regarding other creditors was identified at [23] of the Tribunal’s decision (extracted below).

49    The Minister also submits that, while the appellant made claims that she was threatened by government officials, police officers and gangsters, she did not claim that she had been threatened or otherwise harmed by the other creditors in the past. Therefore, in the Minister’s submission the finding was not illogical.

3.2.2    Reasons for dismissing ground 2

50    The appellant has not established any error in the Tribunal’s reasons of the kind alleged by ground 2 or the second limb of ground 1.

51    First, it is necessary to consider the findings on which the appellant relies in context. Paragraphs [60] and [61] of the Tribunal’s reasons have earlier been quoted in full at [27] above. We do not accept that the Tribunal failed to consider whether harassment by unpaid creditors satisfied the complementary protection criterion. Rather, when [61] is read in its totality, it is apparent that the Tribunal found that any harassment by unpaid creditors would not amount to “significant harm”. Specifically, while the Tribunal considered it plausible that the applicant may have been harassed by unpaid creditors in the past (as opposed to threatened or harmed which the Tribunal regarded as merely speculative) and may be harassed in the future, it concluded at [61] that it was not satisfied that she faced harm from any creditors amounting to “significant harm” as defined. No error is apparent in that line of reasoning. A bare allegation of an unspecified form of harassment, unaccompanied by threats or actual harm, could not amount to “significant harm” as defined in s 36(2A) of the Act, namely:

(a)    the non-‍citizen will be arbitrarily deprived of his or her life;

(b)    the death penalty will be carried out on the non-‍citizen; or

(c)    the non-‍citizen will be subjected to torture; or

(d)    the non-‍citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-‍citizen will be subjected to degrading treatment or punishment.

52    Second, there is nothing illogical in the Tribunal’s finding that the appellant “has not claimed to have been threatened or otherwise harmed by these creditors in the past”. To the contrary, that finding was open on the evidence before the Tribunal as to the appellant’s claims at various points in time following her protection visa application.

53    As set out in the delegate’s decision, the appellant claimed during the visa application interview:

•    The applicant also gained an aggregate of 25 billion dong from selling all her real estate and managed to pay off the majority of her debts, included to people with links to police who threatened to sue her for fraud and deception, but still owed 33 billion dong (about $1.9 million) to other creditors. It was these people who hired gangsters to threaten her. They took her to authorities and forced to sign a written promise to repay the debt.

•    Her creditors and gangsters they hired know well that she is fully broke now, and switched over to her daughters trying to extort money from them and their families. Her two daughters are married and own family businesses. Her daughters are themselves not in danger, but gangsters threatened to kill the applicant if they refuse to pay as a means of extracting money. As long as the applicant remains out of their reach, they cannot act on this threat.

(Emphasis added.)

54    The Tribunal (at [23]) also summarised the appellant’s claims about the other creditors made during her initial protection visa interview as follows:

The applicant said she had also borrowed money from many other people. The applicant said she still had debts totalling 30 billion dong. Her creditors had tried to force the applicant to pay the money back but when she was unable to do so they began harassing her children. The applicant said that if she returned to Vietnam her creditors may threaten to kill her in order to force her children to pay them money.

55    During the Tribunal hearing, the Tribunal raised with the appellant differences between her claims in the protection visa application and before the delegate. In response, the appellant claimed that “[b]oth the investors and the corrupt officials had hired gangsters to threaten” her: at [46]. However, the appellant’s representative then “sought to clarify the [appellant]’s claims, stating that the government official who had invested in her business hired gangsters to threaten her and the police officers asked their junior officers to threaten her”: at [46]. In this regard, the Tribunal “may act upon concessions made by parties or their representatives”: VTAO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 927; (2004) 81 ALD 332 at [53] (Merkel J). Accordingly, the Tribunal was entitled to consider the appellant’s claim as a claim that gangsters had threatened the appellant at the behest of government officials, and not at the behest of other creditors: see [60].

56    We agree with the Minister that the Tribunal considered the appellant’s claims in the context of different sources, being “officials, police officers, gangsters [and] any [other] creditors”. While the appellant claimed that threats were made by the government officials, police officers and gangsters, she did not claim that the other creditors had threatened her. As such, the Tribunal’s finding was not illogical or irrational but reflected the appellant’s claims.

3.3    Ground 3: did the Tribunal fail to assess whether harassment from unpaid creditors satisfied the refugee criterion?

3.3.1    The parties’ submissions

57    The appellant submits that the Tribunal failed to express any finding on whether the harassment by unpaid creditors constituted “serious harm” for the purposes of the refugee criterion in s 36(2)(a) of the Act.

58    The Minister submits that the Tribunal addressed this issue at [61] in finding that:

To the extent that the applicant may experience any difficulties as a consequence of any business debts, the Tribunal is not satisfied on the evidence before it that such harm would be for any of the reasons set out in s.5J(1)(a) of the Act for the purposes of the refugee criterion in s.36(2)(a)

59    It will be recalled that a non-‍citizen is a refugee for the purposes of s 36(2)(a) of the Act if they satisfy s 5H(1) of the Act (see above at [6]). They can do so only if, relevantly, they are unable or unwilling to avail themselves of the protection of their country of nationality owing to a well-‍founded fear of persecution: s 5H(1)(a) of the Act. The phrase “well-‍founded fear of persecution” is defined in s 5(1) as having the meaning given by s 5J (quoted above at [7]). Section 5J(1), in turn, lists the requirements that must be met for a person to have a well-‍founded fear of persecution, including that they fear persecution “for reasons of … membership of a particular social group”: s 5J(1)(a). The Minister submits that the Tribunal found that the appellant did not satisfy s 5J(1)(a) and therefore had not established that she had a well-‍founded fear of persecution. In those circumstances, the Minister submits that it was unnecessary for the Tribunal to then make findings as to whether the appellant’s fear of persecution involved serious harm to them: see ss 5J(4)(b) and 5J(5).

60    In reply, the appellant submits that the “difficulties” referred to in [61] are different to harassment and, even if it is accepted that the reference to “difficulties” encapsulated harassment, the so-‍called finding by the Tribunal does not rise above bare assertion.

61    Additionally, the appellant submits that a claim of membership of a particular social group (namely, business-‍women harassed by creditors) “fairly” arose from the materials but was ignored by the Tribunal. This contention was not raised in the grounds of appeal or below, and the Court did not grant leave to raise this issue absent the filing of an additional amended notice of appeal. As the appellant did not seek to file an additional amended notice of appeal to include this new ground, it is unnecessary to consider it any further.

3.3.2    Reasons for dismissing ground 3

62    The third ground of appeal must be dismissed for the following reasons.

63    First, fairly read in context, in referring to “any difficulties” which the appellant may experience as a result of any business debts at [61], the Tribunal plainly intended to include any harassment which she may experience from general unpaid creditors. It will be recalled that while the Tribunal did not accept the appellant’s claim that she may experience harm from other creditors (i.e. creditors who were not government officials or police), the Tribunal considered that it was plausible that she may experience harassment from these creditors.

64    Secondly, as the Minister submits, the Tribunal found that the appellant did not have a “well-‍founded fear of persecution” because it was not satisfied that any difficulties from these other creditors, including harassment by them, would be for a Refugees Convention reason as required by s 5J(1)(a) of the Act. The brevity with which that finding is expressed reflects, no doubt, the fact that the appellant did not claim that she feared persecution in the form of harassment from other creditors for a Refugees Convention reason. It follows from this finding that it was unnecessary for the Tribunal to consider whether any harassment might constitute “serious harm” because that issue arises only where the non-‍citizen fears persecution for a Refugees Convention reason: see s 5J(4).

4.    CONCLUSION

65    It follows, for these reasons, that the appeal must be dismissed with costs.

Associate:

Dated:    10 November 2023