Federal Court of Australia
CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199
ORDERS
First Appellant CPQ17 Second Appellant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2. The appellants have leave to file and serve the Notice of amended appeal from the Federal Circuit Court of Australia dated 20 November 2020 insofar as it contains Grounds 1, 3 and 5, but not otherwise.
3. The appeal be allowed.
4. The orders made by the Federal Circuit Court of Australia on 28 October 2019 be set aside and in place thereof there be the following orders:
(a) a writ of certiorari directed to the second respondent issue quashing the decision made by the second respondent on 22 May 2017; and
(b) a writ of mandamus directed to the second respondent issue requiring it to determine, according to law, the application for review of the decision of the delegate of the first respondent made on 31 March 2017.
5. The parties be heard as to the costs of the following:
(a) the application for judicial review dated 14 June 2017; and
(b) the appeal to this Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BESANKO J:
Introduction
1 This is an appeal from orders made by the Federal Circuit Court of Australia on 28 October 2019. On that day, the Federal Circuit Court made an order dismissing the appellants’ application for judicial review of a decision of the Immigration Assessment Authority (the Authority) made on 22 May 2017 (CPP17 & Anor v Minister for Immigration & Anor [2019] FCCA 3593). The Authority conducted a review under s 473CC of Pt 7AA of the Migration Act 1958 (Cth) (the Act) of a decision of a delegate of the Minister for Immigration and Border Protection refusing to grant protection visas to the appellants. The Authority decided to affirm that decision.
2 The appellants are mother and daughter and they are citizens of Vietnam. The first appellant made a primary claim for a protection visa and the second appellant made a claim as a dependant. The appellants left Vietnam and arrived in Australia by boat. On 5 October 2016, they lodged their application for protection visas. On 31 March 2017, a delegate of the Minister refused the application. The decision was a fast track reviewable decision and, on 4 April 2017, the decision was referred to the Authority for review under Pt 7AA of the Act. The Authority affirmed the decision of the delegate and the appellants brought an application for judicial review in the Federal Circuit Court. As I have said, that application was dismissed.
3 On 9 November 2019, the appellants, acting in person it seems, lodged a Notice of appeal to this Court and the one ground of appeal is as follows:
The Federal Circuit Court erred in holding that the decision of the Administrative Appeals Tribunal confirming the decision of the Minister to reject the Applicants’ application for a Protection Visa was not affected by jurisdictional error.
As far as I can see from the papers, the appellants had lawyers acting for them in their dealings with the Department and the Authority (CARES Lawyers Pty Ltd) and then different lawyers acting for them at the time of the hearing before the Federal Circuit Court (Camatta Lempens).
4 After 9 November 2019, the appellants engaged solicitors and counsel for the purposes of their appeal to this Court. Before the date fixed for the hearing of the appeal, the appellants made an application to adduce further evidence on the appeal and an application to amend the grounds of appeal. I heard the application to adduce further evidence before I heard the appeal and I refused the application (CPP17 v Minister for Immigration and Border Protection [2020] FCA 1097). At the time I heard the application to adduce further evidence, I accepted the Minister’s submission that I should not deal with the application to amend the grounds of appeal at the time I heard the application to adduce further evidence, but rather, I should deal with that application at the time I heard the appeal (see the reasons at [2]).
5 In my reasons addressing the appellants’ application to adduce further evidence, I set out the background to the appellants’ claim for refugee status under s 36(2)(a) of the Act or complementary protection under s 36(2)(aa) of the Act. I refer to those reasons and I will not repeat the matters set out in them (at [6]–[10]). It is important to bear in mind when considering the Authority’s reasons that, although the only claim relevant in this appeal relates to the first appellant’s relationship with her second husband and his conduct towards her, the appellants also made claims based on, or related to, the first appellant’s religion as a Roman Catholic, her involvement in a land acquisition protest in 2012, a data-breach by the Department and her status as an asylum seeker returning from Australia.
6 The issues on the appeal primarily relate to the first appellant’s claim that in Vietnam she suffered domestic violence over a period of time from her second husband. There is a further and largely separate issue on the appeal involving a claim by the appellants that the Authority made a jurisdictional error in its approach to whether it would consider new information relied on by the appellants. This issue is raised for the first time on the appeal to this Court.
7 To deal with the arguments, it is necessary at the outset to outline the way in which the issues arose and were dealt with by the delegate and by the Authority.
The Claim made to the Delegate
8 The first appellant was interviewed when she arrived in Australia and the contents of that interview were recorded in a document which is conveniently referred to as the arrival interview. The arrival interview was conducted about one to two months after the appellants arrived in Australia.
9 The first appellant made a statutory declaration in October 2016 and this statutory declaration formed part of the appellants’ application for protection visas. In the statutory declaration, the first appellant said that she separated from her first husband when a child of that marriage, a son, was six months’ old. She married her second husband in 1998 and a daughter of that marriage was born in 2009. She describes her second husband as an alcoholic who had beaten her badly on numerous occasions during their relationship, even during her pregnancy. She said that she could not “run away from him”. She said that she wanted to divorce him many times, but the law in Vietnam requires their citizens to engage in reconciliation before a divorce application is approved. She said that if one party bribes the conciliator not to approve an initiating divorce application, then regardless of the other party’s wishes, a divorce cannot possibly occur.
10 The delegate interviewed the first appellant on 20 February 2017 and she considered the material the appellants had provided. This interview is conveniently referred to as the protection visa interview. The information before the Court as to the contents of the protection visa interview is the description of that interview set out in the delegate’s Decision Record.
11 In the Decision Record, the delegate sets out the information the first appellant provided about the violence she suffered at the hands of her second husband. The delegate noted the claim that the first appellant made in her statutory declaration and during the protection visa interview that she was the victim of domestic violence. The first appellant claimed that she was married in 1997 and separated six months prior to leaving Vietnam. She claimed that although she was separated, she was still living in the same house as her second husband. The abuse started when the first appellant was pregnant with her daughter in 2008. She said that her second husband would physically harm her “whenever he was drunk, every day or every second day”. The delegate referred to the evidence the first appellant advanced in support of her claim that she had been the victim of domestic violence. The delegate noted that in her statutory declaration, the first appellant claimed that she was not able to divorce her second husband because the law in Vietnam required couples to complete reconciliation before the authorities would approve a divorce application. However, during the protection visa interview, the first appellant explained the process of divorce and said that she had not gone through the process as she was not legally married. The delegate considered that this statement was inconsistent with the information the first appellant had provided in her statutory declaration in which she had said that she was married and unable to divorce. The first appellant explained that she had been married previously and separated when her son was six months’ old in 1995. She claimed that she had a cultural ceremony with her second husband because she was not legally able to marry again. The delegate accepted that the first appellant was physically harmed and suffered domestic violence at the hands of her second husband. The delegate accepted that the first appellant had sought help from an association known as the Dong Linh Hamlet Women’s Association. The delegate accepted that the first appellant was not legally married and only undertook a cultural ceremony with her second husband.
12 The delegate noted that the first appellant did not need to undergo the process of divorce in Vietnam because she was not legally married. The delegate observed that the first appellant could relocate and live independently from her second husband. The delegate said that, although she accepted that the first appellant had come to Australia “for amenity from her husband”, she did not accept that the first appellant had a subjective fear of returning to Vietnam because of her second husband. The delegate said that during the protection visa interview, the first appellant was given numerous opportunities to state who it was she feared and why she feared returning to Vietnam. The first appellant said that she feared the Vietnamese authorities because she would be a failed asylum seeker and she did not claim to fear her second husband upon return to Vietnam.
13 The delegate summarised the assertions she accepted and those which she rejected. The delegate accepted that the first appellant was a victim of domestic violence and the perpetrator was her husband. The delegate did not accept that the first appellant fears she will be harmed by her husband if she returns to Vietnam. As I have said, the delegate refused the appellants’ application for protection visas.
The Approach of the Authority
14 The Authority had regard to the material referred to it by the Secretary under s 473CB of the Act. In addition, it referred to a submission received on or about 5 May 2017 from Ms Ngoc Tran of CARES Lawyers. That submission contained statements about mental health issues being experienced by each of the appellants. The Authority also referred to the fact that on 18 May 2017, Ms Tran sent to the Authority a letter from the first appellant’s general practitioner to a neurologist. The neurologist was examining the possible cause of the first appellant’s forgetfulness which was a condition about which the first appellant had complained. Ms Tran advised the Authority that further medical reports were expected and would be sent to the Authority. Ms Tran also sent to the Authority a certificate from a registered psychologist who had, since November 2016, provided psychological support in the form of therapy sessions to the second appellant.
15 The Authority refused to delay its decision pending the receipt of further medical reports dealing with the first appellant’s physical or mental health. The Authority made its decision on 22 May 2017.
16 The Authority received as new information under s 473DD of the Act Ms Tran’s submission as to the first appellant’s mental health issues and the letter from her general practitioner to the neurologist. The Authority declined to receive as new information Ms Tran’s submission about the second appellant’s mental health issues and the certificate from the registered psychologist.
17 It is convenient at this point to set out the terms of ss 473DB, 473DC and 473DD of the Act:
473DB Immigration Assessment Authority to review decisions on the papers
(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
(2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).
473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
18 In the case of the first appellant, the Authority considered that the information proffered was credible personal information which was not previously known and, had it been known, it may have affected the consideration of her claims. The Authority said that as the credibility of the first appellant may be relevant to the determination of the review, exceptional circumstances were present for the purposes of s 473DD.
19 In the case of the second appellant, the Authority noted that the psychological support was not mentioned to the delegate before she made her decision and the effect of the information proffered on the appellants’ claims was not stated. The Authority found that exceptional circumstances to consider this information did not exist.
20 I turn now to the Authority’s assessment of the appellants’ claim relevant to domestic violence.
21 The Authority noted the decision of the delegate and, in particular, it noted that the delegate accepted that the first appellant had suffered domestic violence. However, the delegate did not accept that the first appellant feared harm from her second husband should she return to Vietnam. The Authority noted the first appellant’s claims as set out in her application for a protection visa and supporting documents. It noted that the first appellant had expanded on her claims at the protection visa interview on 20 February 2017.
22 In terms of overall approach to all of the appellants’ claims, the Authority began by first setting out its factual findings. It then made a refugee assessment under s 36(2)(a) by reference to those factual findings and then a complementary protection assessment under s 36(2)(aa) by reference to those same factual findings.
23 The critical findings of fact made by the Authority in relation to domestic violence are set out in paragraph 20 of its reasons and may be summarised as follows:
(1) The Authority accepted that domestic violence had occurred.
(2) The Authority noted that the first appellant had at no point during the arrival interview or in the protection visa application process claimed that she feared her second husband or feared that he would harm her in the future should she return to Vietnam.
(3) The Authority said that the first appellant had stated that she is now separated from her second husband, and there is no indication that the threat of violence is ongoing. The first appellant submitted on the appeal that the second part of this statement is an observation by the Authority, not a reflection of the first appellant’s evidence and that the first appellant did not make an express statement that the threat of violence was not ongoing. That submission appears to be correct.
(4) The first appellant and her second husband were not legally married and it follows that the first appellant’s claims that she could not divorce her second husband are irrelevant.
(5) The first appellant’s claim that she had tried to relocate, but was not able to, is not consistent with country information which was to the effect that internal relocation is common, with large scale urbanisation occurring in recent decades alongside other migration for economic purposes. In this context, in a footnote in its reasons, the Authority referred to a Department of Foreign Affairs and Trade Report (DFAT), “DFAT Vietnam Country Information Report August 2015”, 31 August 2015, CISEC96CF13212; 3.47.
(6) It appears that the first appellant owned the farm on which she had lived. The first appellant had said that her parents gave her the land when she first married.
(7) In the course of a discussion about identity documents in the arrival interview, the first appellant stated that those documents were at her home in Vietnam, but that the home was empty. The first appellant said that her mother had recently informed her that the house had been broken into. The Authority concluded from this that the first appellant’s second husband had moved out of the family home at or around the time that the appellants came to Australia.
(8) The second husband’s whereabouts were not discussed at the protection visa interview.
(9) The Authority was not satisfied that there would be ongoing conflict between the first appellant and her second husband should the appellants return to Vietnam.
24 The Authority rejected the first appellant’s claim to refugee status. In the course of doing so, the Authority said that, although it accepted that the first appellant had suffered violence at the hands of her second husband, it had found that the threat of violence was not ongoing and it was not satisfied that there was a real chance that the first appellant would be at risk of harm from her second husband should she return to Vietnam. The Authority said (at [26]):
26 I have accepted that the applicant mother was the victim of domestic violence from Mr [REDACTED]. However, I have found the threat of violence is not ongoing and I am not satisfied there is a real chance that the applicant mother would be at risk of harm from Mr [REDACTED], should she return to Vietnam.
25 The Authority rejected the first appellant’s claim for a favourable complementary protection assessment. In the course of its reasons dealing with that claim, the Authority said that it had concluded earlier in its reasons that the first appellant did not face a real chance of harm from her second husband or in respect of the other matters which were the subject of her claims. The Authority said (at [34] and [36]):
34 I have concluded above that the applicant mother does not face a real chance of harm on the basis that she is a Roman Catholic, that she was involved in a land acquisition protest in 2012, from Mr [REDACTED], as a result of the Department’s data-breach, or as an asylum seeker returning from Australia. I have also not accepted that there is a real chance that the applicant mother’s land will be acquired by the government or that the applicant child will be denied schooling in Vietnam. As ‘real risk’ and ‘real chance’ involve the application of the same standard, I am also not satisfied that the applicant mother would face a real risk of significant harm for the purposes of s.36(2)(aa) on these grounds.
36 There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicants will suffer significant harm. The applicants do not meet s.36(2)(aa).
The Decision of the Federal Circuit Court
26 The grounds of the application for judicial review before the Federal Circuit Court were as follows:
1. The Authority committed jurisdictional error by failing to review the delegate’s decision within the meaning of subs. 473CC.
Particulars
A. As part of its review, the Authority had a duty to consider all claims expressly made or clearly arise [sic] from the material before it.
B. The Authority failed to consider the first applicant’s claims relating to domestic violence in relation to the criteria in s. 36(2)(aa) (the complementary protection provisions).
C. The Authority failure to do was material [sic].
2. In the alternative, the Authority committed jurisdictional error in that it erred in the proper construction and application of subs. 36(2B)(a).
Particulars
A. If it is determined that the Authority did, in fact , [sic] the first applicant’s claims relating to domestic violence by reason of its findings in para. [20] of its Reasons or otherwise discharged its duty to review, the Authority erred in failing to consider whether internal relocation by the applicants was reasonable.
27 The primary judge, after he had summarised the Authority’s key conclusions, said that, in essence, the claim made by the appellants in their application for judicial review was that the Authority had not grappled with a claim that was made well and truly on the case, or facts, or submissions put forward by the appellants. That claim was that the first appellant was a victim of domestic violence and that if she returned to Vietnam she was at risk of further domestic violence (Primary Judge at [44]). The primary judge considered that that matter “goes to the complementary protection criteria more than the refugee criteria”, although his Honour said that there was “somewhat of a cross-over here” (Primary Judge at [45]). The primary judge said that it is clear from the authorities that the Authority must deal with claims that are made by an applicant and claims that are reasonably discernible on the claims that have been brought forward (Primary Judge at [45]).
28 The primary judge said that the first appellant had been consistent in her claims that she had been the victim of domestic violence and he referred to her evidence and to two items of supporting evidence, namely, the minutes of a family conciliation meeting involving the Dong Linh Hamlet Women’s Association and a signed statement of a neighbour dated 20 April 2013.
29 The primary judge said that the argument of the appellants was that it was clear from the information they put before the delegate and, therefore, the Authority, that the first appellant was asserting that she was fearful of domestic violence continuing should she return to Vietnam. His Honour said that the question was whether this claim did truly arise on the evidence that was before the delegate and then the Authority (Primary Judge at [49]).
30 The primary judge noted that the Authority was “technically correct” when it said that the first appellant had at no point during the arrival interview, or during the protection visa application process, claimed that she feared her second husband or feared that he would harm her in the future should she return to Vietnam (Primary Judge at [50]).
31 The primary judge said that the Authority’s conclusion that the second husband had left the house was justified on the evidence that the house was empty and had been broken into. The primary judge said that the first appellant had now left Vietnam and had been away from her second husband for a period of some four years at the time the Authority made its decision.
32 The primary judge then said that in his view, the claim now being advanced by the appellants did not actually arise in “the NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 sense”.
33 I interrupt my description of the primary judge’s reasons to note that this is a reference to the principle articulated in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) to the effect that a failure by the decision-maker to make a finding on a substantial, clearly articulated argument relying on established facts can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction (NABE at [55]). The decision-maker’s review obligation is attracted with respect to a claim apparent on the face of the material before the decision-maker, but not if its exposure depends on constructive or creative activity by the decision-maker (NABE at [58]). The decision-maker is required to consider a case expressly made or one which arises clearly on the materials before the decision-maker (NABE at [61]).
34 Returning to the primary judge’s reasons in this case, his Honour said that the domestic violence that occurred was because the first appellant and her second husband were together and that now they were no longer together, “there is no fear of domestic violence” (Primary Judge at [54]). He said that he did not consider on the evidence before the delegate and the Authority that the first appellant had “truly” said that she had a well-founded fear of domestic violence if she returned to Vietnam. He said that nothing had been put forward that would suggest that there would be a chance of cohabitation resuming with her second husband should the first appellant return to Vietnam (Primary Judge at [55]). His Honour said that he did not accept the claim that was now being made was one that fairly arose on the material. Because the claim did not arise on the material, there was no need for the Authority “to look at the question of relocation” because relocation was a matter the Authority needed to consider only if it was satisfied that a well-founded fear of harm had been established (Primary Judge at [56]).
The Appeal to this Court
35 Initially, the proposed Notice of amended appeal contained four grounds.
36 Ground 1 is in the following terms:
1. The learned Federal Circuit Court Judge erred in law in failing to determine jurisdictional error by the Immigration Assessment Authority (“IAA”) for its failure to properly to make a complementary protection assessment under s36(2)(aa) of the Migration Act and associated provisions in regard to the primary Appellant's claims to fear domestic violence.
37 The Minister accepts that this ground falls within the scope of Ground 1 of the application for judicial review heard and determined by the primary judge and as a result, he does not oppose the appellants being granted leave to raise this ground.
38 Ground 2 is in the following terms:
2. The learned Federal Circuit Court Judge erred in law in failing to determine jurisdictional error, being serious irrationality, by the IAA in its reliance on inference not supported on logical grounds as to the likely non-persecution of the primary Appellant (and on the IAA’s reasoning, consequent likelihood of not experiencing significant harm) if she were to return to Vietnam.
Particulars
The IAA inferred that the primary Appellant would not be the subject of continuing domestic violence from her husband because “there is no indication that the threat of violence is ongoing” (IAA [20]). The primary Appellant had stated in her Statutory Declaration of 4 October 2016, of her common law husband: “I could not run away from him”. An assumption, in the absence of evidence, that the husband will not beat the primary Appellant in the future is inadequate at law.
39 As this ground was developed in the appellants’ submissions before this Court, it involved a contention by the appellants of serious irrationality by the Authority of the type identified by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [119] per Crennan and Bell JJ; at [40] per Gummow ACJ and Kiefel J (as her Honour then was). The Minister submits that this ground was not raised before the Federal Circuit Court and leave to raise it in this Court should be refused. He submits that there is no explanation as to why this ground was not raised in the Federal Circuit Court.
40 Ground 3 is in the following terms:
3. The learned Federal Circuit Court Judge erred in law in failing to determine jurisdictional error on the part of the IAA, being a failure of natural justice.
Particulars
On a critical integer of a claim for protection, as the claim in respect of domestic violence was, it was required of the IAA that it put its concerns (as to what would occur if the applicant/primary Appellant returned to Vietnam) directly to the applicant/primary Appellant, rather than rely on inference from what was or was not discussed at arrival interviews.
41 As will become clear, the submissions in relation to this ground (and the next ground) depart from the error apparently alleged in the ground of appeal.
42 The Minister submits that as argued this was a claim that the Authority’s decision was legally unreasonable because it failed to consider getting new information about the whereabouts of the first appellant’s second husband. The Minister submits that this contention was not raised before the Federal Circuit Court, and that leave to raise it before this Court should be refused. He repeats his submission as to the lack of an explanation as to why the ground was not raised in the trial court.
43 Ground 4 is in the following terms:
4. The learned Federal Circuit Court Judge erred in law in failing to determine jurisdictional error by the IAA for excluding the primary Appellant’s protection claim for reason of her not having claimed that she feared her husband if she were to return to Vietnam. The claim for the existence of domestic violence having been made and accepted by the IAA, the IAA was required to continue to determine the claim by reference to the facts presented to it and the obvious inferences that arose from those facts in the context of a protection application, amongst the obvious inferences being that the principal Appellant feared the husband here and if she were to return to Vietnam.
44 As I understood it, the Minister submits that, as argued, the effect of this ground is to allege that the Authority failed to consider whether the first appellant was a member of a particular social group for refugee assessment purposes, being women who fear domestic violence. The Minister submits that this ground was not raised before the Federal Circuit Court and that leave to raise it before this Court should be refused. Again, he submits that there is no explanation for the failure to raise this ground in the Federal Circuit Court.
45 While my judgment was reserved, the High Court handed downs its decision in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 384 ALR 196 (AUS17).
46 On 30 October 2020, the solicitors for the Minister brought the decision in AUS17 to the attention of the Court and said that, as a result of the decision, the parties had agreed consent orders which would enable the appellants to file further written submissions on the “applicability of this authority”. On that day, I made the following orders by consent:
1. The appellants be granted leave to file and serve written submissions (limited to 7 pages) on the application of AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 by 20 November 2020.
2. The first respondent be granted leave to file and serve written submissions (limited to 7 pages) on the application of AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 by 11 December 2020.
47 On 20 November 2020, the appellants filed their further written submissions pursuant to the first order. The appellants’ written submissions with respect to the application of AUS17, comprised 10 paragraphs. The appellants also sought to add a further ground to the Notice of appeal to reflect these submissions as follows:
5 Further Amended Material: The learned Federal Circuit Court Judge erred in law in failing to determine jurisdictional error by the IAA in finding that the “new information” relating to the claim regarding the Appellant child’s mental illness and the Appellant’s health was not to be considered on the basis that the IAA was “not satisfied that exceptional circumstances warrant consideration of the material”.
48 On 30 November 2020, the Minister filed and served written submissions pursuant to the second order made on 30 October 2020. In those submissions, the Minister indicated that he consented to the appellants being granted leave to amend their Notice of appeal in terms of proposed Ground 5. The Minister also made it clear that, although he consented to the appellants being granted leave to rely on Ground 5 for the first time, his consent was limited to Ground 5 as pleaded. He makes this point because he contends that the appellants’ written submissions go beyond Ground 5 in that they include an allegation that the Authority had unreasonably refused to allow the appellants additional time to provide new information about the mental health issues of the appellants.
49 I turn now to analyse each of the grounds. I will deal with Grounds 1, 2 and 3 together because, as I will explain, they are linked.
Grounds 1, 2 and 3
50 The appellants submit that the Authority did not approach the first appellant’s claim for complementary protection based on her contention that she had suffered domestic violence at the hands of her second husband in the correct manner. The criterion in s 36(2)(aa) is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Vietnam, there is a real risk that she will suffer significant harm. The concept of significant harm is defined in s 36(2A). Section 36(2B) provides that there is deemed not to be a real risk of significant harm if (to summarise) relocation is reasonable or State protection is available or the real risk is one faced by the population generally.
51 The appellants refer to the circumstance that, although the complementary protection provisions employ the concept of a real risk of significant harm, whereas the refugee assessment provisions employ the concept of a real chance of persecution, this Court has held that these two concepts involve the application of the same standard (Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505) and that proposition is not challenged on the appeal.
52 The appellants submit that the provisions dealing with a refugee assessment raise a number of different questions from those raised by the provisions dealing with a complementary protection assessment. The former assessment includes questions as to whether an applicant has a well-founded fear of persecution by reason of race, religion, nationality, membership of a particular social group or political opinion and whether there is a real chance that if returned to his or her country of origin, the applicant would be persecuted for one of the reasons mentioned (s 5J). The appellants submit that, by contrast, the provisions dealing with a complementary protection assessment are different and that means that the Authority cannot without more rely on earlier findings of fact made in a different context. The Authority must instead ask itself the correct questions for a complementary protection assessment.
53 The appellants submit that the correct approach to a complementary protection assessment involves the formulation of a number of questions relating to the claim and that this may be seen by the analysis carried out in ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721; (2016) 242 FCR 11 (ABAR15).
54 ABAR15 was a case which involved a claim for complementary protection under s 36(2)(aa) of the Act based on a real risk of domestic violence should the applicant be returned to her country of origin. The issue in the case was whether the applicant could obtain, from an authority of her country of origin, “protection such that there would not be a real risk that the non-citizen will suffer significant harm” (s 36(2B)(b)). In that context, Charlesworth J said (at [60]–[61]):
60 Consistent with the Full Court’s reasoning in MZYYL, in my opinion s 36(2)(aa), s 36(2B) and the definition of “significant harm” in s 36(2A) of the Act together evince an intention that the decision-maker (here, the Tribunal), be obliged in the appellant’s case to ask itself the following questions:
(a) What is the source and nature of the significant harm at which the appellant claims to be at risk?
(b) What is the nature and degree of protection able to be afforded by Vietnamese authorities, being protection from the specific harm at which the appellant claims to be at risk?
(c) Could the appellant herself obtain from the Vietnamese authorities that protection, again having regard to the source and nature of the harm at which the appellant claims to be at risk?
(d) Would the appellant, upon obtaining that protection from the said authorities, nonetheless be at real risk of significant harm?
61 My expression of the questions to be asked under s 36(2B)(b) should not be understood as a prescription for reasoning that must be addressed systematically in the expression of an administrative decision-maker’s reasons. It is to be accepted that the mixed questions of fact and law that arise under the complementary protection regime are overlapping and that in many instances a decision-maker’s determination of any one of the questions I have identified might fairly be made without detailed elaboration. It is, however, convenient to decide Ground Two on this appeal by assessing whether it was reasonably open to the Tribunal to make the decision that it did, by reference to the four questions I have identified, because it is those questions that encapsulate the subject matter, scope and purpose of the relevant statutory provisions.
55 The appellants submit that, although the precise issue in this case is a different one from the issue in ABAR15, the Authority should have adopted a similar approach and, in fact, failed at the outset to address the nature and source of the significant harm in issue that being the first of the questions identified in ABAR15.
56 It is not easy to discern from these submissions the precise complaints being made by the appellants. It seems to me that they boil down to two key complaints. First, the appellants contend that the Authority never asked itself what is the source and nature of the significant harm of which the appellants claim to be at risk. I do not think the Authority was required to ask itself that question. It was required to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellants being removed from Australia and returned to Vietnam, there is a real risk that the appellants will suffer significant harm. The Authority recognised that as the question and it answered that question as far as a real risk of harm by way of domestic violence is concerned in the negative. Secondly, the appellants seem to complain that the Authority’s findings is relation to its refugee assessment were incorrectly applied to its complementary protection assessment. The difficulty with that submission is that that is not how the Authority proceeded. It made factual findings and then applied them to its refugee assessment and then to its complementary protection assessment. As long as the Authority asks itself the correct question and applies factual findings relevant to that question, there is no error in such an approach.
57 Under Ground 1 of the appeal, the appellants then moved to a critique of the Authority’s reasons in paragraph 20 of its reasons for concluding that the threat of domestic violence is not ongoing. However, before considering that issue, there is a prior issue and that is whether the appellants made a claim that there is a real risk of significant harm to the first appellant by reason of her second husband’s violence should she return to Vietnam. The primary judge held that the appellants had not made a claim on the basis that there was a real risk of significant harm to the first appellant from domestic violence in the future. In my respectful opinion, in that respect, his Honour erred.
58 I refer to what I said earlier about identification of the circumstances in which an applicant will be held to have made a claim even though the claim has not been expressly formulated (at [33]).
59 On the one hand, the appellants put forward as part of their claim a considerable amount of material about the domestic violence the first appellant suffered at the hands of her second husband in Vietnam. On the other hand, as the Minister points out, it is the responsibility of a non-citizen who claims to be a person in respect of whom Australia owes protection obligations “to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish such claim” (s 5AAA of the Act). Furthermore, the Minister points out that the Authority noted, no doubt on the basis of what the delegate said, that at no point during the arrival interview or the protection visa application process, did the first appellant claim that she feared her second husband or feared that he would harm her in the future should she return to Vietnam.
60 This last matter is an important one in determining whether a claim has been made. However, the evidence an applicant does or does not give is not to be confused with whether an applicant has in law made a claim. Generally, they will be the same, but that is not always the case. In this case, the contention that the first appellant had suffered domestic violence in Vietnam was an important aspect of the material she put forward and the fact that she suffered domestic violence in Vietnam has not been doubted at any stage of the decision-making process.
61 In my opinion, the best indication that the appellants made a claim, at least implicitly that if returned to Vietnam the first appellant faced a real risk of significant harm by way of domestic violence at the hands of her second husband, is the fact that the Authority addressed the issue. The Authority made positive findings that the threat of domestic violence was not ongoing (at [26]) and that the first appellant did not face a real risk of harm from her second husband (at [34]). A close examination of the Authority’s reasons in paragraph 20 reveals that it is true that she did not “claim” to fear harm from her second husband if she returned to Vietnam, but after referring to relocation which, in any event, is not relevant unless and until a real risk of significant harm is shown, the Authority made a finding of no ongoing conflict based, in turn, on an inference it drew that the second husband had left the family home. It is not insignificant to note in this context that the delegate also made a finding that she did not accept that the first appellant feared that she will be harmed by the second husband if she is returned to Vietnam.
62 This then leads to Ground 2 of the appeal which is to the effect that the conclusion of the Authority of no ongoing conflict was seriously irrational.
63 Serious irrationality as a species of jurisdictional error was discussed by the High Court in SZMDS. In SZMDS, Gummow ACJ and Kiefel J decided that the decision of the Refugee Review Tribunal was flawed because it made a critical finding of fact by inference which was not supported by logical grounds (at [53]). That error constituted jurisdictional error because it meant that the state of satisfaction determined under s 65 of the Act was irrational, illogical and not based on findings or inferences of fact supported by logical grounds (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [37]–[38] per Gummow and Hayne JJ). Heydon J found that the decision of the Tribunal was not illogical and, in the circumstances, his Honour did not need to address the law. Crennan and Bell JJ said that not every lapse in logic will give rise to jurisdictional error and that the error required for irrationality as a ground of jurisdictional error was, in relation to the state of satisfaction under s 65, “one at which no rational or logical decision-maker could arrive on the same evidence” (at [130]). In the result, their Honours found that the decision in question was not illogical or irrational or unreasonable.
64 The appellants acknowledge that a wrong finding of fact is not a reviewable error (Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744; (2001) 65 ALD 141 at [34] per Sundberg, Emmett and Fickelstein JJ). They submit, however, that, in light of the evidence, the appropriate inference was that the threat of domestic violence was ongoing and that a failure to draw that inference was a reviewable error. It is true that if the inference drawn by the Authority meets the description in SZMDS, then the drawing of that inference would constitute a jurisdictional error.
65 The fact that the first appellant, during the protection visa interview, was given numerous opportunities to state who it is she fears and why she fears returning to Vietnam and, in that context, she did not claim to fear her husband upon return is a powerful factor in support of the Authority’s reasoning. However, the other aspect of the Authority’s reasons based on the finding that the second husband had moved out of the family home is less convincing because there are a number of unexplained possibilities as to the significance of that circumstance in terms of the ongoing risk of conflict.
66 The appellants relied on two matters to support their argument that the Authority’s reasoning was seriously irrational, but in my opinion, neither of the matters lead to that conclusion.
67 First, it is not correct to say, as the appellants contend, that the Authority somehow relied on the fact that the first appellant had not suffered domestic violence in Australia and that, therefore, the Authority’s reasoning was seriously irrational Certainly, the primary judge referred to the lapse of approximately four years while the first appellant was in Australia, but it seems to me that that was to make the point that the lapse of such a period made the resumption of domestic violence less likely. Secondly, the presumption of continuance does not advance the appellants’ case of serious irrationality as argued by the appellants. The application of reasoning involving an inference of continuance of conduct depends on all the circumstances and does not apply here in light of the Authority’s reasoning as summarised above.
68 On the information before it, the Authority’s conclusion of no ongoing conflict between the first appellant and her second husband was not seriously irrational or beyond the boundaries of legal reasonableness. However, the key phrase in that conclusion is on the information before it. The Authority had the power to get new information and the question is whether, in the circumstances, it was legally unreasonable for the Authority not to consider the exercise of that power or to consider and, in fact, exercise the power. That question is raised in Ground 3 of the appeal.
69 Ground 3 is expressed in terms of a failure of natural justice, not in terms of the Authority acting beyond the bounds of legal reasonableness. In other words, it is alleged that the Authority breached the rules of natural justice by not making inquiries of the first appellant relevant to a claim of domestic violence should the appellants return to Vietnam. In the context of Pt 7AA of the Act, subject to (relevantly in this case) s 473DC, the Authority is bound to conduct its review without accepting or requesting new information and without interviewing the referred applicant. Furthermore, s 473DA provides that Div 3 of Pt 7AA, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
70 The obligations to accord natural justice and the obligation to act within the bounds of legal reasonableness are closely linked and overlap to some extent (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 367 per Deane J; Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 36–37 per Brennan J; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2018) 249 CLR 332 (Li) at [92] per Gageler J; BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 373 ALR 196 (BVD17) at [34] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
71 In BVD17 (at [34]), the High Court said that the codifying effect of s 473DA(1) meant that, except to the extent that procedural fairness overlaps with legal unreasonableness, procedural fairness is not the “lens” through which the content of procedural obligations imposed on the Authority in the conduct of a review is to be determined.
72 Perhaps with these considerations in mind, and despite the reference in Ground 3 to a failure of natural justice, the appellants put their submissions in terms of legal unreasonableness and the statutory power in s 473DC of the Act to get new information. I do not think that there is any unfairness in this departure from the ground of appeal. The Minister had an ample opportunity to address the argument. Of course, whether the appellants should be allowed to raise a new ground not raised in the court below is a different issue which I will address in due course.
73 I turn to identify a number of general principles. First, it is clear that since the decisions of the High Court in Li and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW), unreasonableness is not restricted to decisions that are so unreasonable that no reasonable person could make them (Li at [30] per French CJ; at [68] and [76] per Hayne, Kiefel and Bell JJ; SZVFW at [10]–[11] per Kiefel CJ; [51]–[53] per Gageler J; at [81]–[82] per Nettle and Gordon JJ; at [131]–[135] per Edelman J). Second, it is also clear that the obligation to act within the bounds of legal reasonableness in considering the exercise of a power, or in exercising a power, arises by reason of an implication as to the intent of Parliament in conferring that power. Third, it is clear that the obligation of legal reasonableness attaches not only to the decision, but also to the decision-making process. In other words, not only must the decision have an intelligible justification, but it must also be a decision arrived at through an intelligible decision-making process (Li at [105] per Gageler J; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 383 ALR 407 (ABT17) at [20] per Kiefel CJ, Bell, Gageler and Keane JJ). Fourth, in the case of Pt 7AA, the obligation to act within the bounds of legal reasonableness attaches not only to the Authority’s obligation to conduct a review (s 473CC), but also to the individual procedural powers it has, including the power to get new information under s 473DC (ABT17 at [3] per Kiefel CJ, Bell, Gageler and Keane JJ). Finally, in terms of general principles, it is important to note the distinction between an allegation that it is legally unreasonable for the Authority not to consider the exercise of the power in s 473DC and an allegation that it is legally unreasonable for the Authority not to consider and exercise the power in s 473DC. In the former case, and in light of the fact that the Authority is under no obligation to give reasons for the exercise or non-exercise of its procedural powers, it may often be difficult, absent an admission, for the applicant who carries the onus to prove that the Authority did not consider exercising the power and then declined to do so (BVD17 at [38]–[40] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
74 In this case, although it was not as clear as it might have been, the appellants’ submission includes both a failure to consider the exercise of the power in s 437DC and a failure to exercise the power in that section. Had the appellants’ case stopped at a failure to consider the exercise of the power, they would have been faced with the difficulty of establishing the initial requirement of a failure by the Authority to consider the exercise of the power. The Minister makes no admission in this case that the Authority did not consider the exercise of the power in s 473DC of the Act. It might be inferred in certain circumstances that the Authority did not consider the exercise of the power in s 473DC, but the absence of reasons from the Authority and even the fact that the Authority received new information in relation to other matters, does not mean that the inference will be drawn as BVD17 illustrates (at [40]) (see also DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 (DPI17) at [44]).
75 There have been a number of cases in this Court where the issue of whether the Authority’s failure to consider the exercise of the power in s 473DC was beyond the bounds of legal reasonableness has been considered.
76 In Minister v Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475, the primary judge found and the Full Court of this Court agreed that the Authority had not considered the exercise of the power in s 473DC (at [75]). There was no ground of appeal by the Minister directed to that finding. The Full Court held that the Authority had acted beyond the bounds of legal reasonableness in failing to consider the exercise of the power in s 473DC to get new information from the applicant about his particular circumstances and the impact upon him if he relocated to Beirut. The question of relocation, either at all or to Beirut, was not explored, or the subject of findings by the delegate and the Authority knew that it did not have, and the applicant was likely to have, information relevant to the matter (at [82]).
77 In Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526, it was common ground that the Authority did not consider acting under s 473DC (at [79]). The Full Court of this Court held that the Authority had acted beyond the bounds of legal unreasonableness in failing to consider the exercise of the power to get new information in circumstances in which the issue was whether it was practicable for the applicant to relocate and it had received country information as new information relevant to that question and the delegate had asked the applicant questions about relocation to Kabul in his visa interview, but not Mazar-e-Sharif (at [81]).
78 In DPI17, the Minister did not contest the proposition that the Authority had not considered whether to exercise the power in s 473DC. The issue in the review concerned a sexual assault and whether it had occurred and certain inconsistencies in the information. The Authority considered certain inconsistencies to be significant to its decision which the delegate had considered to be inconsequential. The Full Court of this Court held that the fact that the Authority did not consider the exercise of the power in s 473DC to get new information from the applicant was legally unreasonable.
79 Two cases in which the Full Court of this Court held that the fact that the Authority did not consider the exercise of the power in s 473DC, or exercise the power in the section, did not amount to legal unreasonableness are DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 (DGZ16) and FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456 (FSG17).
80 In DGZ16, the Full Court of this Court (at [46]) found that it could not be inferred that the Authority was unaware of or ignored its powers under s 473DC. The Court rejected the applicant’s argument in that case that, if there had been a failure by the Authority to consider the exercise of the power, that that was legally unreasonable. In that case, the applicant’s credibility had been a live issue before the delegate who had made a number of factual findings. The Authority had reassessed the material and dismissed the applicant’s application for review on the basis of factual conclusions that differed from those of the delegate.
81 In FSG17, the Court endorsed a distillation of the relevant principles by O’Bryan J in BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079 at [31]. I will not set out what the Court said in that respect (see at [59]). The Court concluded in the circumstances of that case that it was not legally unreasonable for the Authority to decide the issue without exercising the power under s 473DC(3) of the Act to invite the appellant to give new information. The Court said (at [60]):
In the present case, the question of statelessness was considered by the delegate, including the possibility that the appellant had obtained Iranian citizenship (at p 12), and the appellant’s representatives had provided written submissions on the issue (submissions dated 13 September 2017 at pp 5–6 and 12). The Authority reached its conclusion on the issue based on the same information that was before the delegate. Within the decision-making framework established by Part 7AA, the fact that the Authority came to a different conclusion to the delegate did not trigger an obligation to seek further information from the appellant. In those circumstances, it was not legally unreasonable for the Authority to decide the issue without exercising the power under s 473DC(3) of the Act to invite the appellant to give new information.
82 The cases to which I have referred, except for FSG17, have addressed whether the Authority acted in a legally unreasonable manner in not considering the exercise of the power in s 473DC to get new information. They provide useful illustrations of the application of the relevant principles in that context. A key requirement in these type of cases is a finding that the Authority did not consider the exercise of the power. As I have said, that fact is not admitted or conceded by the Minister in this case and there is no finding by the primary judge to this effect because the argument was not raised in the court below. In light of the approach to the issue taken in cases such as BVD17, it seems to me to be difficult in this case to draw the inference that the Authority failed to consider the exercise of the power in s 473DC to get new information. However, that does not exhaust the appellants’ legal unreasonableness argument.
83 The appellants submit that the Authority’s non-exercise of the power in s 473DC to get new information from the first appellant was, in the circumstances, legally unreasonable.
84 In addition to FSG17, two recent decisions of the High Court have addressed legal unreasonableness for the non-exercise of the power in s 473DC of the Act.
85 In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [49], the High Court made observations which were obiter dicta about the circumstances in which it may be legally unreasonable for the Authority not to invite an applicant to give new information pursuant to s 473DC(3). That may be the case in circumstances where the delegate had relevant information within s 57(1) of the Act, but did not disclose it pursuant to s 57(2) and the Authority is provided with the information and proposes to act on it as the reason, or part of the reason, for refusing the application.
86 In ABT17, the delegate saw and heard the applicant and, relevantly, accepted his account. The Authority heard the audio interview of the applicant and proposed to reject his account based on its assessment of his performance during the interview. The Court held that the Authority acted in a legally unreasonable manner in not using the powers at its disposal to get and consider new information in order to supplement the review material so as to place itself in as good a position as the delegate to assess the applicant’s credibility.
87 In terms of whether the appellants should be allowed to rely on Ground 3 for the first time on appeal, the following matters are relevant.
88 First, the ground has merit as I explain below.
89 Secondly, the appellants proffered no express explanation for their failure to raise the ground in the Federal Circuit Court. I infer that the introduction of new counsel has led to the formulation of new arguments.
90 Thirdly, the Minister did not identify any specific prejudice to him should the appellants be granted leave to rely on Ground 3. However, it does not follow from that circumstance that leave to raise a new ground will be granted (VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 (VAUX)).
91 Finally, although Ground 3 raises a new ground in terms of the type of jurisdictional error alleged, broadly speaking, the appellants’ complaint has been consistent throughout the legal proceedings and that is that the Authority did not properly recognise and deal with the appellants’ claim in terms of the first appellant’s fear of domestic violence in the future.
92 Having regard to all the circumstances, I am of the view that the appellants should be granted leave to rely on Ground 3 of the appeal.
93 In my opinion, Ground 3 of the appeal should be upheld. I have already expressed the view that a claim for complementary protection based on the risk of the first appellant suffering domestic violence at the hands of her second husband if she returned to Vietnam was made by the appellants and that claim needed to be addressed. It is reasonable to assume that the first appellant was in a position to provide information about the risk. It is true that the first appellant did not claim to fear harm from her second husband during the arrival interview or in her protection visa application process, but the fact is that the circumstances were such that both the Authority and the primary judge went on to draw conclusions about the ongoing risk based on, in my respectful opinion, slender circumstantial evidence about the home being empty and the house being broken into. The limited information itself raised a number of questions and it is reasonable to suppose that the first appellant would have at least some information which would throw light on the relevant issues and which she could have been invited to provide to the Authority under s 473DC(3). In my opinion, it was legally unreasonable for the Authority not to exercise the power in s 473DC to get new information from the first appellant about the risk of ongoing domestic violence.
94 I grant leave to the appellants to raise Ground 1, but I reject the ground. I refuse leave to the appellants to raise Ground 2. I grant leave to the appellants to raise Ground 3 and I uphold the ground.
95 It is not strictly necessary for me to address Grounds 4 and 5, but I do so for the sake of completeness.
Ground 4
96 The appellants’ written submissions in support of Ground 4 of the appeal raise matters which are quite different from the matters suggested by the terms of Ground 4. The appellants did not make any oral submissions in support of Ground 4.
97 The appellants submit that the first appellant must be taken to have claimed to be a member of an identifiable social group being “married Vietnamese women”. The appellants submit that membership of a social group such as that indicated in the instant case, combined with evidence of violence from a husband or family member towards a member of that group, has been the basis for successful refugee claims. They referred to Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1 and AZAAR v Minister for Immigration and Citizenship [2009] FCA 912; (2009) 111 ALD 390. The appellants submit that if they established those matters, then there would have to be evidence before the Authority that the husband posed no further threat to her before the Authority could refuse to draw the “obvious” inference that violent behaviour in the past might be expected to be repeated in the future. In this case, there was no evidence that the threat no longer existed and, the appellants submit, that the incorrect inference drawn by the Authority “was irrationally done and hence, reviewable”. The appellants, as I understood it, sought to advance a claim of this nature in order to take advantage of the approach adopted in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (Chan).
98 In that case, Dawson J said (at 399):
Of course, the circumstances in which an applicant for recognition of refugee status fled his country of nationality will ordinarily be the starting point in ascertaining his present status and, if at that time he satisfied the test laid down, the absence of any substantial change in circumstances in the meantime will point to a continuation of his original status.
Gaudron J said (at 415):
If an applicant relies on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality.
99 The Minister submits that Ground 4 as articulated in the appellants’ written submissions involves an invitation to the Court to conduct a review of the merits of the decision. He also submits that the appellants never articulated a claim to fear harm on the basis of a particular social group of “married Vietnamese women” and that the first time such a claim has been raised is in the appellants’ written submissions on the appeal. Further, the Minister submits that the first appellant did not fall within this particular social group because the first appellant had never, in fact, married the second husband, at least formally. The Minister submits that, in any event, there was nothing in the material before the Authority to suggest that the appellants expressly made such a claim or that such a claim arose squarely on the material such that the Authority was obliged to consider it. The Minister submits that the Authority was entitled to make the factual findings it did and further, the Authority did not have to have rebutting evidence before concluding that particular assertions were not made out.
100 In my opinion, Ground 4 of the appeal is without merit for the following reasons.
101 First, this ground was not raised in the appellants’ application for judicial review before the Federal Circuit Court. The appellants were legally represented before that Court and there is no explanation as to why this ground was not raised before that Court (VUAX at [48]).
102 Secondly, the Authority appears to have proceeded on the same basis as the delegate, that is to say, that the first appellant was not legally married to her second husband. It follows that she does not fall within the social group now identified by the appellants.
103 Thirdly, assuming an appropriate social group can be formulated, the fact is that the Authority did consider a claim based on domestic violence as part of its refugee assessment. The Authority was not satisfied that there was an ongoing threat of domestic violence from both the absence of such a claim by the first appellant and inferences drawn from the evidence before it. I have already addressed that reasoning in connection with Ground 3, but the important point for present purposes is that the Authority was not obliged to take the approach taken in Chan.
104 I refuse leave to the appellants to raise Ground 4.
Ground 5
105 The terms of Ground 5 are set out above (at [47]). Sections 473DB, 473DC and 473DD are also set out above (at [17]).
106 As I have said, the Authority refused the appellants’ request for more time to provide further medical evidence. A complaint about this refusal is not raised in Ground 5 of the proposed Notice of amended appeal. Nor is such a complaint within any of the other proposed grounds of appeal. The topic was broadly alluded to on the application to adduce further evidence, but as I noted in the reasons dealing with that application, it was not put forward as a separate ground of challenge (at [25]–[26]).
107 A complaint that the Authority did not allow additional time to put forward further medical evidence is not within the leave I granted to make submissions about the High Court’s decision in AUS17 (see [46] above). That case deals with the proper approach under s 473DD of the Act to the new information in existence and before the Tribunal and not with a decision whether or not to allow an applicant for review further time to obtain and provide further information.
108 I make these points because some of the submissions made by the appellants with respect to Ground 5 suggest that a challenge is also being made to the Authority’s decision not to allow the appellants additional time. That is not a matter before the Court and it is not a matter which I would allow the appellants to raise at this late stage.
109 The only matter before the Court is whether the Authority erred with respect to the existing new information concerning the second appellant identified above (at [14]). The existing new information with respect to the first appellant was held by the Authority to satisfy the requirements of s 473DD and the complaint in Ground 5 is not relevant to that information.
110 The relevant principle to emerge from AUS17 was identified in [12] of the joint reasons of Kiefel CJ, Gageler, Keane and Gordon JJ as follows:
The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and (ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
(footnotes omitted.)
111 The relevant passage in the Authority’s reasons dealing with the new information concerning the second appellant is as follows:
5 … As noted above, medical evidence provided to the IAA states that the applicant child has been receiving psychological support from a registered psychologist since November 2016. No other details are provided and this support was not mentioned prior to the delegate making her decision. The effect of this on the applicants’ claims is not stated. I am not satisfied that exceptional circumstances warrant consideration of Ms Ng’s attendance certificate or Ms Tran’s assertion that the applicant child suffers from mental illness
112 In my opinion, although the Authority does not use the statutory language in s 473DD(b)(i) and (ii) in this passage, the matters it identifies indicate that it considered those paragraphs. The “information” is that the second appellant had been receiving psychological support from a registered psychologist since November 2016. In terms of s 473DD(b)(i), whilst this information was not before the delegate who made the decision to refuse the appellants’ application on 31 March 2017, it is implicit in the Authority’s approach that it considered that it could not be satisfied that the information could not have been provided to the delegate before the decision was made. In those circumstances, it seems to me to be implicit that the Authority addressed s 473DD(b)(i). In terms of s 473DD(b)(ii), the Authority was clearly aware of the terms of this requirement as can be seen from the Authority’s reference to credible personal information in its discussion of the new information in the case of the first appellant. It seems to me that the Authority was not satisfied of that part of s 473DD(b)(ii) that requires the new information to have the feature of had it been known, it may have affected the consideration of the second appellant’s claim. That appears to be what the Authority is saying when it observes that the effect of the new information concerning the second appellant on the appellants’ claims “is not stated”.
113 In my opinion, the Authority did not err in its application of s 473DD to the new information concerning the second appellant.
114 Even if this conclusion be wrong and the Authority failed to consider, or consider properly, s 473DD(b)(i) and (ii) of the Act before reaching a conclusion with respect to s 473DD(a), I am not satisfied that any such error was material. I cannot see a realistic possibility of a different result because a finding that, neither s 473DD(b)(i) nor s 473DD(b)(ii) were satisfied, was inevitable on the evidence. The appellants could have provided information of the second appellant receiving psychological support to the delegate. In light of the fact that both the delegate and the Authority accepted that the first appellant had been the victim of domestic violence, there is nothing to suggest that the information may have affected the critical issue in the consideration of the appellants’ claims, being the likelihood of domestic violence occurring in the future should the appellants return to Vietnam. At best for the appellants, it might be inferred that the second appellant’s trauma related in part to past acts of domestic violence, not the critical issue of the risk of domestic violence occurring in the future (Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29]–[30] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]–[50] per Bell, Gageler and Keane JJ). It follows from what I have said that even if there were an error, it did not result in the invalidity of the decision.
115 I grant leave to the appellants to raise Ground 5, but I reject the ground.
Conclusions
116 I will grant leave to the appellants to file and serve the Notice of amended appeal from the Federal Circuit Court of Australia dated 20 November 2020 insofar as it contains Grounds 1, 3 and 5, but not otherwise.
117 I uphold Ground 3 of the appeal. I reject Grounds 1 and 5 of the appeal.
118 In the result, the appeal will be allowed and the orders of the Federal Circuit Court of Australia on 28 October 2019 will be set aside. In place of those orders, there be orders as follows: (1) a writ of certiorari directed to the second respondent issue quashing the decision made by the second respondent on 22 May 2017; and (2) a writ of mandamus directed to the second respondent issue requiring it to determine, according to law, the application for review of the decision of the delegate of the first respondent made on 31 March 2017.
119 I will hear the parties as to the costs of the following: (1) the application for judicial review dated 14 June 2017; and (2) the appeal to this Court.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko. |
