FEDERAL COURT OF AUSTRALIA

BAK15 v Minister for Home Affairs [2018] FCA 1173

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This appeal is from a decision dated 1 March 2018 by the Federal Circuit Court of Australia (FCCA). The judgment is reported as BAK15 v Minister for Immigration and Border Protection [2018] FCCA 489. The appellant failed in her judicial review challenge to a decision of an assessor who conducted a second International Treaty Obligation Assessment (ITOA) in respect of the appellant for the purpose of assessing whether Australia had non-refoulement obligations. The second ITOA was conducted following what has now become a notorious data breach by the Department in February 2014.

Summary of background facts and ITOA process

2    The appellant is a citizen of Vietnam who arrived at Christmas Island by boat in June 2010. Her claims for protection were assessed by the Minister’s delegate and were rejected on 11 January 2011. Following an Independent Merits Review (IMR), that decision was affirmed on 16 July 2011. The reasons for decision of the IMR noted that the appellant claimed that she would be at risk of harm if she returned to Vietnam because she had left illegally. The reasons also record the reviewer discussing information with the appellant about re-entering Vietnam, including an opinion in 2005 by Professor Carlyle A. Thayer, which was shown to the appellant’s agent, in which Professor Thayer said he was not aware of any reports of prosecutions of returned asylum seekers by the Vietnamese authorities on the grounds that they had sought asylum unsuccessfully in Australia.

3    An earlier ITOA assessment was finalised on 12 January 2012 in which it was found that Australia did not have non-refoulement obligations to the appellant. After the data breach in February 2014, the appellant was interviewed for the purposes of a second ITOA. The appellant did not raise the data breach during either the ITOA process nor in the judicial review proceeding below.

4    The appellant’s lawyers and migration agents provided a submission dated 13 January 2015 for the purposes of the ITOA. The submission repeated the appellant’s claims that she had suffered a long history of harassment, intimidation and abuse by the Vietnamese police, including denying her ho khau (a kind of official residency permit or identity document which enables the holder to access social services, work and residency entitlements), and beating and arresting her for her involvement in protests in 2009 and 2010 against the closure and destruction of a Buddhist Temple. The submission was accompanied by copies of a Human Rights Watch Report dated September 2014 and headed “Public Insecurity: Deaths in Custody and Police Brutality in Vietnam”.

5    After the appellant was interviewed by the ITOA assessor, her agent emailed an additional submission on 8 April 2015. One of the attachments to that submission was a copy of a report dated January 2014 by an organisation called Campaign to Abolish Torture in Vietnam, and headed “Vietnam: Torture and Abuse of Political and Religious Prisoners” (Report). The agent drew specific attention to section 5 of that Report and said that it provided a detailed account of torture of asylum seekers and refugees on return to Vietnam. It was submitted that the Report supported the appellant’s claim that if she were returned to Vietnam she would be at risk of significant harm. The Report was 137 pages long. It included the following information at page 96 concerning “Legal Standards: Asylum” (footnotes omitted):

Legal Standards: Asylum

The Convention against Torture provides that states should not expel, return (“refouler”) or extradite a person to another state where there are substantial grounds for believing that the person could be in danger of being subjected to torture or cruel, inhuman, or degrading treatment or punishment.

In Vietnam, charges of “fleeing abroad to oppose the people’s administration” (Penal Code article 91) are often filed against peaceful dissidents who flee Vietnam because of harassment and persecution to seek safety and political asylum in Cambodia, Thailand, or other countries.

Rather than recognizing that international law provides for the right to seek asylum, the Vietnamese government brands this a hostile anti-government act and then criminalizes it. People who simply exit the country illegally are not sanctioned under Article 91, whose criminal penalties apply only against those who flee abroad “with a view to opposing the peoples’ administration.” Immigration law specialist Grover Joseph Rees argues that article 91 “explicitly limits its sanctions to those who hold a particular political opinion,” with the government using it to punish anti-government activists and as a deterrent to others thinking of trying to flee:

Article 91, on illegal exit, is per se persecutory. Unlike most such laws in other countries around the world, this law does not simply punish illegal exit from the country. Rather, Article 91 punishes only those who flee abroad ‘with a view to opposing the peoples’ administration’. That is, it explicitly singles people out for criminal prosecution and imprisonment on account of their political opinions.

Others who engage in identical conduct for some other motive – economic, social, or even political so long as the political opinion in question is not antigovernment - are not punishable.

In addition, by detaining, torturing, and sometimes imprisoning people who have assisted asylum seekers to realize their rights to asylum under international law, Vietnamese authorities are in violation of international recognized protections for human rights defenders. Anyone assisting asylum seekers, including individuals and non-governmental organizations working to protect human rights and provide humanitarian assistance, should not be seen as acting unlawfully and should not be subject to harassment, threats, or other reprisals. They are simply assisting asylum seekers to realize their rights under an international law.

6    The second ITOA, which is the subject of the proceeding, is dated 10 April 2015. The ITOA assessor noted the appellant’s claims as to why she feared that she would be harmed by Vietnamese authorities. They included claims that she would be assaulted by the police because she is a woman without any ho khau, that she had been involved in protests in 2009 and 2010 and had been recognised by the authorities and that she faced a real risk of significant harm upon her return for breaching Vietnamese law by departing illegally and seeking asylum overseas.

7    In a section of the ITOA’s reasons headed “Procedural Fairness”, the assessor summarised various “adverse information” which had been put to the appellant for comment at the interview and summarised her responses (see further [41] below). The assessor also noted that the appellant was repeatedly told during her interview that only adverse information would be put to her for comment and that any favourable country information would not be raised by the assessor during the ITOA interview, even if such information was inconsistent with other adverse information put to her for comment.

8    The ITOA found that the appellant had not provided sufficient information to satisfy the assessor that she had a profile of any particular interest to the Vietnamese authorities. He found, however, that she had “demonstrated strong antipathy towards the Vietnamese government and the police in her region”. But the assessor was not satisfied that she had been subjected to harm which surpassed the regulatory enforcement of law generally applied to all members of Vietnam society.

9    Adverse credibility findings were made by the ITOA in respect of some of the appellant’s claims. In particular, the ITOA assessor found that the appellant had embellished some of her circumstances, particularly in relation to her claims of harassment as a temple goer and her claims of coming to the notice of Vietnamese authorities as a result of participating in demonstrations in Vietnam against the leasing of land which was being used as a market. In respect of her claim that she had been refused a ho khau, the ITOA assessor found that the appellant was a victim of Vietnamese laws of general application and poverty in her home region, rather than persecution.

10    In a separate section of the ITOA’s reasons headed “Are there substantial grounds for believing that there is a real risk of significant harm?” (which forms part of the assessor’s consideration of the appellant’s claim for complementary protection), the assessor explained why he did not accept the appellant’s claim that she feared harm because she would be returning to Vietnam as a failed asylum seeker. It is desirable to set out the entirety of this section, despite its length, because it is at the heart of the appeal (footnotes omitted and bold emphasis added):

Evidence and Reason

In 2007, in response to an Australian Department of Immigration and Citizenship (DIAC) question - ‘whether it is likely authorities would take punitive action against a national who left Vietnam illegally, acquired permanent residence in Australia and who was deported to Vietnam because of a criminal conviction in Australia’ - DFAT’s advice was that ‘It is unlikely that a person who departed illegally would suffer punitive action from Vietnamese authorities if deported back to Vietnam, even after committing criminal offences in Australia.’ Examples of particular criminal offences warranting various levels of prosecution are outlines as is followed:

Vietnam’s 2007 Decree On Vietnamese citizens’ exit and entry gives the Ministry of Public Security uniform management of ‘lists of citizens not yet permitted to leave the country’. Persons not permitted to leave the country, nor even to be granted travel documents, include persons ‘being examined for penal liability or involved in criminal investigation’, obliged to serve criminal, civil or economic sentences, or awaiting the settlement of civil or economic disputes: decisions not permitting such persons to leave may be made by ‘[i]nvestigative agencies, procuracies, courts or judgment enforcement agencies at all levels’.

Other persons not permitted to leave are those obliged to comply with decisions on sanctioning administrative violations, pay taxes or perform other financial obligations, on grounds of safeguarding national security and social order and safety, and who commit acts of administrative violation related to exit and entry: decisions not permitting such persons to leave can be made by various other specified authorities. Vietnamese who violate the Decree’s provisions ‘shall, depending on the nature and severity of their violations, be administratively sanctioned or examined for penal liability in accordance with the law.’

Though the Decree On Vietnamese citizens’ exit and entry does not specify the ‘law’ ‘in accordance’ with which violators of its provisions should be ‘administratively sanctioned or examined for penal liability’, Vietnam’s Decree No.49-CP of August 15, 1996 of the Government on Sanctions Against Administrative Violations in the Domain of Security and Order provided for fines for ‘[v]iolations of the regulations on exit, entry and transit’. The highest fine band was for specified acts ‘not serious enough to warrant examination for penal liability’: including for faking papers to obtain a passport, exit/entry/transit visa or temporary/permanent residence certificate; for counterfeiting a passport, exit/entry/transit visa, temporary/permanent residence certificate or control seal; and for using such papers or any other faked papers to exit, enter or transit Vietnam. Vietnam’s Penal Code (No. 15/1999/QH10), as amended in 2009, provides for a fine or a prison term for those who, after having been administratively sanctioned, re-offend by illegally entering, exiting or remaining in Vietnam:

Those who illegally enter or leave the country or stay in Vietnam and have been administratively sanctioned for this act but relapse into it shall be imposed a fine of between five million and fifty million dong or a prison term of between three months and two years.

In determining if the client faces a real risk of significant harm, I am guided by MIAC v SZQRB [2013] FCAFC 33 (20 March 2013), Lander and Gordon JJ, which stated (in part):

In our opinion, the [real risk] test is as for s36(2)(a) [of the Act]…is there a real chance that SZQRB will suffer significant harm…were he to return to Afghanistan.

Based on the country information listed above, I consider that the client departed Vietnam illegally for reasons other than evading criminal, civil or economic sentences and she is not awaiting the settlement of any civil or economic dispute. Furthermore, based on her statements the client was not obliged to comply with any decisions following any sanction of administrative violations, or to avoid certain financial obligations (such as paying taxes). I find that [the appellant] held no position of authority and/or public influence before her departure from Vietnam nor has she engaged in certain activities abroad whereby she now risks being convicted by the authorities on the grounds of safeguarding national security and social order and safety. Furthermore I do not find that [the appellant] has committed any crime prior to her departure from Vietnam (including that of departing illegally and committing acts of administrative violation related to exit and entry) which is serious enough to incur any penalty other than being fined upon her return.

As per my assessment under the refugees convention, I therefore consider that there is only a remote chance, and therefore not a real chance (which amounts to a real risk), that the client will be harmed by the Vietnamese authorities on account of departing Vietnam illegally and seeking asylum overseas. Based on the evidence before me I am therefore not satisfied that the client would face a real risk of significant harm in any foreseeable future under the CAT and ICCPR. I therefore find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to Vietnam, there is a real risk that [the appellant] will be subject to significant harm.

11    It may be noted that there is no express reference in this part of the assessor’s reasons to the Report which was provided by the appellant’s agent after her ITOA interview. It is common ground that, apart from the Penal Code, the other specific laws referred to in the extract above were not specifically put to the appellant for comment.

FCCA decision summarised

12    The primary judge rejected all three grounds of judicial review set out in the amended application. The first ground was that the appellant was denied procedural fairness because the country information relied upon for rejecting her claim to complementary protection was not put to her for comment.

13    The primary judge stated at [9] of his Honour’s reasons for judgment that the country information relied upon by the appellant in support of ground 1 is the material referred to by the assessor and which is set out in [10] above. As noted above, this material did not include the Report.

14    The primary judge summarised the assessor’s reasoning and findings by reference to the various laws of Vietnam applying to citizens exiting and entering the country, which laws and findings are set out in [10] above.

15    The introductory words “Based on the country information listed above” in the second last paragraph in the passages in [10] above make abundantly clear that the findings set out therein relate to the country information concerning the various relevant Vietnamese laws set out immediately above in the assessor’s reasons. They do not relate to the country information provided by the appellant’s agent in the form of the Report.

16    After summarising relevant caselaw, the primary judge stated at [23] that the relevant issue for the assessor was whether or not the appellant was at real risk of significant harm as a returnee or failed asylum seeker. His Honour then said at [24] that this issue was first raised by the appellant herself and was central to her claim, referring to the Report which the appellant’s agent sent to the assessor under cover of the 8 April 2015 post-interview submission. After setting out that part of the Report which referred to Article 91 of the Penal Code, the primary judge reiterated that the appellant herself had raised the issue. It is evident that the primary judge viewed this fact as a sufficient and complete answer to the appellant’s complaint of procedural unfairness.

17    The primary judge then proceeded in [25] and [26] to make two additional points as to why he rejected ground 1. The first was that the assessor’s conclusion that the appellant was not at risk of penal sanction was consistent with the country information put forward by the appellant herself and that the assessor “simply referred to additional publicly available and general information confirmatory of the position taken in the [appellant’s] country information”. Accordingly, the primary judge found that the assessor’s conclusion was “obviously… open on the known material”, which is a reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (SZBEL) at [38] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

18    The second additional matter raised by the primary judge was that, absent any claim by the appellant that she was included in any of the categories of people who were at risk of penal sanction or a submission that, had the matters been put to her, she would or could have made a submission about them, there was no “practical injustice”, referring to Gleeson CJ’s observations in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37].

19    The second ground of judicial review below was that there was procedural unfairness because the assessor did not disclose to the appellant for comment country information that was favourable and which contradicted other adverse country information which had been put to the appellant. The primary judge noted that the appellant submitted that not telling her about country information that contradicted other adverse country information meant that an “incomplete or misleading account” of the material on which the ITOA was based was given to her.

20    At [31] and [32], the primary judge explained why he rejected this ground:

(a)    procedural fairness requirements were not concerned with the truth or accuracy of the information provided to the person concerned; and

(b)    there was no appropriate analogy with the law relating to misrepresentation or misleading or deceptive conduct.

21    The third ground of judicial review was that the ITOA assessor failed to consider an integer of the appellant’s claim to protection, namely that she feared harm from the police and this was said to be apparent from the material before the assessor. This ground was rejected because the primary judge found that the factual premises on which the appellant’s claimed fear of the police was based were rejected by the ITOA assessor, citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47]. In particular, the primary judge pointed to the assessor’s finding that he did not accept that the appellant had played a significant part in any demonstration, nor was she of interest to the authorities for a political reason. His Honour also pointed to the assessor’s finding that the police harassment experienced by the appellant because she did not hold a ho khau was because she was a victim of Vietnamese laws of general application and the poverty which existed in her home region (at [36]).

22    The appeal relates only to the primary judge’s rejection of ground 1 of the judicial review application below.

The appeal

23    The three grounds of appeal are:

1.    The primary judge erred at [25] in finding that the assessor conducting the International Treaty Obligations Assessment had not denied the appellant procedural fairness by failing to put country information to the appellant upon which the assessor relied, for the reason that the assessor's conclusion was obviously open on the known material.

Particulars

(a)    At CB 326-327, the assessor found that there was only a remote chance that the appellant will be harmed by Vietnamese authorities on account of departing Vietnam illegally and seeking asylum overseas.

(b)    At CB 326, the assessor said that “[ba]sed on the country information” summarised above at CB 325-326, the appellant had not engaged in activities and did not have a profile disclosed in that country information that would suggest that she would be harmed upon her return to Vietnam.

(c)    The respondent conceded that this country information had not been put to the appellant for comment (see Reasons at [18)).

(d)    The primary judge held that whether the appellant had engaged in certain activities or had a certain profile such as to expose her to risk for leaving Vietnam illegally and seeking asylum was an issue obviously open on the face of the material on CB 247.

(e)    These matters were not obviously open on CB 247, and procedural fairness obliged the assessor to put the country information to the appellant.

2.    The primary judge erred at [26] in finding that the appellant suffered no practical injustice as a result of the assessor not putting country information to her because the appellant had not claimed to have engaged in the activities or had the profiles referred to in the country information.

Particulars

(a)    Procedural fairness required these matters to be put to the appellant precisely so that she could address them.

(b)    That her material did not previously address the matters relevant on the country information is not a proper basis to conclude that she suffered no practical injustice.

3.    The primary judge erred at [26] in finding that the appellant suffered no practical injustice as a result of the assessor not putting country information to her because the appellant did not submit to the primary judge that she would or could have made a submission responsive to the country information.

Particulars

(a)    It is unnecessary for the appellant to have made such a submission in order to demonstrate a denial of procedural fairness.

(b)    The appellant reserves the right to make submissions to the effect that this submission was made, after a transcript of the hearing before the primary judge is obtained. Contrary to the notation on the reasons published by the primary judge, the appellant was represented by CJ Tran of counsel (pro bono) at the hearing. The hearing having taken place almost a year prior to the delivery of judgment, notwithstanding that the appellant was in detention and had been in detention for some seven years prior to the hearing, counsel drawing this notice of appeal cannot recall precisely the submission that was made. To the best of counsel's recollection, the submission which it is said was not made was put orally during the hearing.

24    Given their significance to the appeal, it is desirable to set out [24], [25] and [26] of the primary judge’s reasons for judgment:

24.    This issue was first raised by the applicant herself and was central to her claim. In support of her claim she relied on country information including a publication of the Campaign to Abolish Torture in Vietnam, Vietnam: Torture and Abuse of Political and Religious Prisoners, published in January 2014. This publication referred to Article 91 of the Penal Code of Vietnam which creates an offence of “fleeing abroad to oppose the people’s administration”. It said that this charge was often filed against peaceful dissidents who fled Vietnam. It went on to say that “people who simply exit the country illegally are not sanctioned under Article 91, whose criminal penalties apply only to those who flee abroad ‘with a view to opposing the people’s administration’” (Court Book 247).

25.    It can be seen that the issue was raised in the applicant’s own material. Further, the adverse conclusion reached by the assessor that, although the applicant departed Vietnam illegally, she was not at risk of penal sanction was consistent with the country information put forward by the applicant herself. The assessor simply referred to additional publicly available and general information confirmatory of the position taken in the applicant’s country information. For this reason the assessor’s conclusion was, in my view, “obviously … open on the known material”.

26.    Further, in the absence of a claim by the applicant that she was included in any of the categories of the laws of Vietnam identified by the assessor or a submission that had these matters been put to the applicant she would or could have made a submission about them I am not satisfied that she has been subjected to any “practical injustice” in the sense referred to in Re Minister for Immigration; Ex Parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ.

The appellant’s submissions summarised

25    The appellant was represented by the same pro bono counsel, both below and in the appeal.

26    The appellant properly accepted that, for her appeal to succeed, she had to succeed on each of the three grounds of appeal because they relate to three separate bases for the primary judge’s decision. Her contentions in support of each of those grounds may be summarised as follows.

27    (a) Ground 1: This ground challenges the primary judge’s finding that the assessor’s findings were open on the material which had been submitted by the appellant, thus it was unnecessary for the assessor to put her on notice of what the appellant described as the “issues” upon which the assessor reached an adverse finding. The appellant accepted that a decision-maker may not need to give notice of matters which would obviously be open on the known material, but she submitted that this principle had no application to her case. That is partly because it was only one page in a 136 page long report which the appellant provided to the assessor which raised the issues upon which the assessor ultimately made adverse findings. That single page referred to the view of an immigration law specialist that a particular Vietnamese law was especially egregious because it specifically sanctioned those who held an anti-government view, with no sanction applying to those who acted on any other bases. The relevant page is set out at [5] above.

28    As mentioned above, in her written outline of submissions, the appellant submitted that the primary judge found that the issues upon which the assessor made findings were apparent from the single page in the Report. The appellant then submitted at [14] of that outline that these findings were as follows (without alteration):

I consider that the client departed Vietnam illegally for reasons other than evading criminal, civil or economic sentences and she is not awaiting the settlement of any civil or economic dispute. Furthermore, based on her statements the client was not obliged to comply with any decisions following any sanction of administrative violations. or to avoid certain financial obligations (such as paying taxes). I find that [the appellant] held no position of authority and/or public influence before her departure from Vietnam nor has she engaged in certain activities abroad whereby she now risks being convicted by the authorities on the grounds of safeguarding national security and social order and safetv. Furthermore I do not find that [the appellant] has committed any crime prior to her departure from Vietnam (including that of departing illegally and committing acts of administrative violation related to exit and entry) which is serious enough to incur any penalty other than being fined upon her return. (emphasis added in underlining)

29    This extract from the appellant’s outline of written submissions is to be contrasted with the full contents of the second last paragraph of the assessor’s reasons in the passage which is set out in [10] above of these reasons for judgment. It is notable that the extract in the appellant’s written submissions omits the introductory words to that paragraph, namely “Based on the country information listed above,…”. These omitted words make plain that the assessor’s findings relate not to the Report but to the various Vietnamese laws relating to exit and entry which are analysed by the assessor in that section of his reasons. This suggests that the appellant’s submissions in support of ground 1 of her appeal are predicated, at least in part, on a false premise.

30    The appellant contended that a comparison of the assessor’s findings with the single page of the Report demonstrates that not all those matters emerged obviously from that page. She submitted that the primary judge erred in finding to the contrary.

31    The appellant added that even if these matters did emerge obviously from that page, their significance did not. The assessor was obliged “to bring the critical issue or factor on which the decision was likely to turn to the attention of the person” (citing Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [19]).

32    Finally, (and presumably in the alternative) the appellant contended that the assessor did not purport to base the decision upon that single page of the appellant’s material but rather based the decision on country information which was never put to the appellant for comment. She cited Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 at [91] where it was stated:

The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not.

33     (b) Ground 2: This ground relates to the primary judge’s finding that the appellant suffered no practical injustice from the failure to put her on notice of what she described as the “determinative issues” and country information in circumstances where the appellant’s own material did not suggest that those issues could be determined in her favour. This was said to be in error because it wrongly assumed that the material provided by the appellant said everything that she wished to say about her claims. She submitted that she should have been given the opportunity to supplement that material by being given proper particulars of the critical issues on which the decision was likely to turn.

34    (c) Ground 3: This ground challenges another aspect of the primary judge’s finding that the appellant did not suffer practical injustice, namely that relating to the fact that the appellant made no submission to the primary judge that she would or could have said anything on the issues if she had had notice of them. The appellant submitted that there was no obligation on her to make any such submission or put on evidence as to what she would have said in response had she been given the opportunity to respond to those issues, citing Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 (WZARH) at [58]-[60] per Gageler and Gordon JJ. The appellant contended that her counsel made such a submission to the primary judge.

The Minister’s submissions summarised

35    It is unnecessary to summarise the Minister’s submissions as they are substantially reflected in my reasons below for dismissing the appeal.

Consideration and determination

36    It is convenient to address each of three grounds of appeal in turn.

(a)    Ground 1

37    The appellant did not challenge the primary judge’s summary of the relevant principles concerning procedural fairness at [20]-[22] of his Honour’s reasons for judgment:

20.    Broadly speaking, procedural fairness requires a person affected by a decision to “know the case sought to be made against him and to be given an opportunity of replying to it”: Kioa v West (1985) 159 CLR 550 at 582 per Mason J. In Hala v Minister for Justice [2015] FCAFC 13 the Full Court of the Federal Court said that procedural fairness ordinarily required the party affected by the decision to be given the opportunity to:

(a)    ascertain the relevant issues and be informed of the nature and content of the adverse material (SZBEL v Minister for Immigration (2006) 228 CLR 152 at [32] (“SZBEL”), approving Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590 – 591);

(b)    deal with adverse information that is “credible, relevant and significant” to the decision to be made (Kioa v West at 629 per Brennan J; Applicant VEAL of 2002 v MIMIA (2005) 225 CLR 88);

(c)    be advised of any adverse conclusion the decision-maker has reached “which would not obviously be open on the known material” (Alphaone at 590-591)

21.    It is also accepted that “fairness is not an abstract concept … the concern of the law is to avoid practical injustice” (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ).

22.    In SZBEL the High Court emphasised the importance of correctly identifying the relevant issue in order to determine whether the adverse conclusion reached by the decision-maker was “not obviously … open on the known material” (SZBEL at [38]). Although the High Court in SZBEL was concerned with a different statutory provision a similar inquiry is required in this case.

38    His Honour then identified the relevant issue as whether or not the appellant was at real risk of significant harm from Vietnamese authorities as a returnee or failed asylum seeker. His Honour stated at [24] that this issue was first raised by the appellant herself and was central to her claim. These findings are undoubtedly correct. It was the appellant herself who put at the forefront of her claims that she was at risk of significant harm as a returnee or failed asylum seeker and she provided country information in support of that claim, both before and after the ITOA interview.

39    Equally, there can be no doubt that the appellant was put on notice that this was an important issue for the assessor to determine. Procedural fairness required that the appellant be given the substance of credible, relevant and significant information which was available to the assessor and related to an issue in relation to which the appellant was not already on notice (see Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223 (SZQHH) at [30] where Rares and Jagot JJ said:

30.    However, the reviewer’s obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country or other information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice. The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to deal with its potentially adverse consequences by responding to the decision-maker on those consequences. That enables the decision-maker to take into account the person’s answer to the substance of information that has the potential of being used adversely to his or her interests. Affording the person an opportunity of dealing with some matter that he or she has not already had a chance to address in the process ensures that the process itself is fair.

40    In SZQGL v Minister for Immigration and Citizenship [2012] FCA 1011; 206 FCR 474, Cowdroy J cited SZQHH in support of his conclusion that, provided an applicant in an Independent Merits Review process is on notice that a particular issue discussed in country material is a relevant issue upon which the reviewer could rely in the course of the review process, there is no obligation to provide the specific country material to the applicant for comment. Obviously, the application of this principle will depend very much on the particular facts and circumstances of an individual case, but I consider that the principle applies here in circumstances where the appellant was plainly on notice that a relevant issue in her case was whether there was a risk of significant harm if she were returned to Vietnam as a failed asylum seeker who departed Vietnam illegally. Indeed, she herself raised this very issue and it was central to her claims.

41    It is also evident that the appellant was given a fair opportunity to respond to that issue. That opportunity had at least two aspects to it. First, as is evident from the assessor’s reasons, it was put to the appellant during the course of the ITOA interview that, according to DFAT advice in 2012, “returnees who are failed asylum seekers are not targeted by the authorities for harassment or discrimination”. The appellant is recorded as saying “how could you know?” and, after explaining the DFAT report to her, she further responded “each person has his own [view], no one is the same”. Secondly, that the appellant plainly appreciated this was an important issue is reflected not only in what occurred during the course of the interview, but also in the fact that both before and after the interview her agent gave the assessor country information reports in support of her claim that she faced a real risk of significant harm upon her return for breaching Vietnamese law by departing illegally and seeking asylum overseas.

42    It appears that part of the appellant’s complaint under this ground is not that she was not put on notice of that “critical issue”, but rather that she was not put on notice that the assessor would rely upon one page of the lengthy Report which she had provided in support of her claim. There are several difficulties with this contention. On a fair reading of the assessor’s reasons, no reliance was placed by the assessor on any part of that Report in concluding that there were no substantial grounds for believing that the appellant was at real risk of significant harm. The assessor’s analysis of that Report appears in an earlier section of the assessor’s reasons. The assessor acknowledged that the Report “outlines some case specific examples of failed asylums seekers (sic) being detained and tortured”. The assessor then stated that the appellant did not fit the same profile as the cases discussed in the Report and that she did not have a political profile of interest to Vietnamese authorities. The assessor then identified the publishers and contributors to the Report before concluding that he did

… not find, based on the aims of these groups, that this report objectively investigates all matters concerning failed asylum seekers and returnees from developed countries who migrated for financial or other economic opportunities. I also consider that this report does not address [the appellant’s] personal circumstances in Vietnam or the context of her claims for protection in Australia. I have therefore given more weight to aforementioned reports from DFAT and the IRBC which I consider are more reliable sources for the purposes of this assessment.

43    The assessor proceeded to state that the appellant did not hold a political, ethnic or religious profile of interest to the Vietnamese Government and there was no information to indicate that as a failed asylum seeker she would be perceived by Vietnamese authorities as holding pro-western, pro-democracy or anti-government views such as to be a threat to Vietnam’s national security. Accordingly, the assessor concluded that the appellant’s fear of facing serious harm as a failed asylum seeker was not well-founded. The assessor then referred to Article 91 of the Vietnamese Penal Code and the offence of “fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration”. He stated that he would consider the question whether the appellant might be viewed as having breached Article 91.

44    Under the heading “Finding: Political opinion”, the assessor made a finding that the appellant’s involvement in protests was not significant enough to warrant adverse attention or for her to obtain a profile of interest to Vietnamese authorities. Having concluded that the appellant would not be of any interest to those authorities for a political reason, the assessor stated that he was not satisfied that the appellant would be persecuted and/or harmed upon her return because she applied for asylum in Australia. None of these findings depended upon the Report. Indeed, it is evident that the assessor gave that Report and the particular page which is now the focus of the appellant’s case as warranting little if any weight.

45    Although in the notice of appeal and the appellant’s outline of written submissions, it is stated that ground 1 is directed to [24] and [25] of the primary judge’s reasons for judgment, in truth it is directed to reasoning by the primary judge which was not essential to his Honour’s rejection of ground 1 of the amended judicial review application.

46    Having stated that the appellant herself had raised the issue of whether she was at risk as a returnee or failed asylum seeker (which was sufficient of itself to dispose of that ground of judicial review), the primary judge added that the assessor’s conclusion that the appellant was not at risk of penal sanction was consistent with the appellant’s own country information. The primary judge’s reference at [25] to the assessor having referred to “additional publicly available and general information confirmatory of the position taken in the applicant’s country information” refers to the section of the assessor’s reasons which is set out in [10] above of these reasons for judgment. This information, as identified by the assessor, included the DFAT response in 2007 and various Vietnamese laws relating to exiting and entering Vietnam, including the 2007 Decree on Vietnamese citizens’ exit and entry, Decree No 49-CP of August 15, 1996 of the Government on Sanctions Against Administrative Violations in the Domain of Security and Order and Vietnam’s Penal Code (No. 15/1999/QH10).

47    The reference to the Penal Code is a reference to Article 91, a provision which was identified in the single page of the Report. The assessor’s conclusion that there was not a significant risk that the appellant would be harmed by Vietnamese authorities on account of departing Vietnam illegally and unsuccessfully seeking asylum overseas was an issue raised by the appellant herself. It was she who drew attention to Article 91 of the Penal Code. Her claim was rejected by the assessor with reference not only to Article 91, but to other Vietnamese laws which were to similar effect.

48    In the particular circumstances here, procedural fairness did not require the assessor to give the appellant notice of these other Vietnamese laws and invite her comments. That is for three reasons.

49    First, as the High Court emphasised in SZBEL, it is critical to identify the relevant issue in order to determine whether the adverse conclusion reached by the assessor was not obviously open on the known material. The relevant issue here was the matter which the appellant herself raised, namely that she was at significant risk of harm if she returned to Vietnam because she had departed Vietnam illegally. This issue, as identified by the appellant herself, raised for assessment and determination the potential application of various Vietnamese laws to the appellant’s circumstances.

50    Secondly, the laws or Decrees to which the assessor referred were all publicly available information which the assessor had apparently accessed at the Vietnam Ministry of Justice Legal Normative Documents website, as referred to in footnote 83 of the assessor’s reasons. Procedural fairness did not require the assessor to provide the appellant with an opportunity to make submissions in relation to this information as it was publicly available (see Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156; 230 FCR 82 at [218]-[221] per Middleton and Wigney JJ).

51    Thirdly, there was no practical injustice in not providing that information to the appellant. It was never part of her case that she was at risk of harm because any of those Vietnamese laws, apart from Art 91, applied to her circumstances. Accordingly, it was unnecessary for the assessor to consider those other laws. As the Minister submitted, the assessor may have been “over diligent”. Importantly, however, the assessor explained not only why those laws did not apply to the appellant (and she never claimed that they did), but he also gave clear reasons as to why Art 91 had no application, an issue which the appellant herself had squarely raised.

52    For these reasons, ground 1 of the notice of appeal is rejected. That is sufficient to dispose of the appeal generally in circumstances where, as the appellant correctly acknowledged, she needed to succeed on all three grounds of appeal. For completeness, however, I will explain why I consider that, even if the primary judge erred in the manner raised by grounds 2 and 3 of the notice of appeal, any such error is immaterial.

(b)    Ground 2

53    The appellant confirmed in her outline of written submissions that this ground is directed to [17] and [26] of the reasons for judgment. The latter paragraph is set out at [24] above. Paragraph 17 is as follows:

17.    It should also be noted that the claims advanced by the applicant did not suggest that she was included in any of these categories and she did not submit, nor was there evidence, that had these matters been put to the applicant she would or could have made a submission about them.

54    The two paragraphs are plainly related. What is critical, however, is the significance of the word “Further” at the commencement of [26]. This indicates that the primary judge’s reasoning in that paragraph was additional to, and separate from, his earlier reasoning, including that relating to his finding that the central issue was known to the appellant because it was raised in her own material.

55    In her outline of written submissions, the appellant stated that ground 2 challenges the primary judge’s conclusion that the appellant suffered no practical injustice on account of the assessor’s failure to put her on notice of the determinative issues and country information, because the appellant’s existing material did not suggest that those issues could be determined in her favour.

56    The reference to “the determinative issues and country information” is a reference back to the assessor’s findings as to why the appellant did not fit any of the categories of persons who were at risk of sanctions for having left Vietnam illegally or who had a relevant profile which placed them at risk if they were to return. As I have already indicated, the primary judge did not view those matters as being “determinative”. Rather, the determinative matter, as found by the primary judge, was the central issue, namely whether the appellant was at risk as a person who had left Vietnam illegally and might be at risk under Article 91 as a person who fled Vietnam with a view to opposing the Vietnamese government.

57    Ground 2 is predicated on a false premise. Moreover, even if the primary judge fell into error in what he said at [26], the error is immaterial for two reasons:

(a)    his Honour’s observations at [26] relate to a matter which is not determinative for the reasons I have stated above; and

(b)    in any event, as is made plain by the opening word of that paragraph, the reasoning is additional to the central reasoning at [23], [24] and the first sentence of [25], which is sufficient of itself for the primary judge to have rejected ground 1 of the judicial review application in the FCCA.

(c)    Ground 3

58    The appellant confirmed in her outline of written submissions that this ground of appeal is directed to [26] of the primary reasons for judgment (which is set out in [24] above) and the primary judge’s statement that the appellant did not suffer practical injustice because she had made no claim that she was included in any of the categories of the laws of Vietnam which were identified by the assessor as being potentially relevant to the risk of significant harm as a returnee or failed asylum seeker.

59    Any error of legal principle which is revealed in this paragraph (see, in particular, the pertinent observations of Gageler and Gordon JJ in WZARH at [58]-[60] regarding what must be shown by a person seeking to establish a denial of procedural fairness depends upon the precise defect which is alleged to have occurred in the decision-making process) is immaterial. That is because [26] also commences with the word “Further”, indicating that the reasoning therein is additional to, and separate from, the primary judge’s reasoning in [23], [24] and the first sentence of [25], which are the subject of ground 1 of the notice of appeal. Accordingly, it is unnecessary to determine whether in fact there is an error of legal principle as raised by ground 3.

60    As I have stated, the appellant correctly acknowledged that she had to win on all three grounds of appeal. Her failure to succeed on ground 1 is fatal to her appeal. In any event, any error of the kind raised in grounds 2 and 3 would be immaterial for the reasons given above.

Conclusion

61    For these reasons, the appeal will be dismissed and the appellant ordered to pay the Minister’s costs as agreed or assessed. The Court expresses its gratitude to Mr Tran, who acted as pro bono counsel for the appellant and put the appellant’s case as well as it could have been put.

Associate:

Dated:    29 August 2018