Federal Court of Australia

DIA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1143

ORDERS

THE COURT ORDERS THAT:

1.    The applications for leave to raise proposed grounds 2 and 3 in SAD 180 of 2020 and proposed ground 2 in SAD 179 of 2020 be dismissed.

2.    The appeals be dismissed with costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    These proceedings are constituted as two separate appeals from a judgment and orders made by the Federal Circuit Court of Australia (FCCA) on 11 November 2020, whereby the appellants’ applications for judicial review of two decisions made by the Administrative Appeals Tribunal were dismissed: DIA18 v Minister for Immigration & Anor and DIB18 & Ors v Minister for Immigration & Anor [2020] FCCA 3049.

2    The adult appellants are a male citizen (DIA) and a female citizen (DIB) of Vietnam who travelled on the same boat to Australia and arrived on 19 March 2011 with no documentation. They met whilst in immigration detention, but were separated relatively soon after their arrival in Australia. On 24 June 2011, DIA escaped from immigration detention and travelled to country Victoria. On 4 April 2012, DIB escaped from immigration detention and travelled to Melbourne where she got in touch with DIA. On 12 July 2012 they were caught by the authorities and released into community detention. In February 2013 they had a daughter (DIC). They were married on 16 February 2014. In November 2014 they had a son (DID).

3    The background to the appellants’ attempts to secure visas to reside in Australia may be summarised briefly as follows:

(1)    On 21 March 2011, DIB took part in an entry interview with an officer of the Department of Immigration during which she claimed to be a 15 year old orphaned minor who would face a real chance of harm for being a homeless child in Vietnam. On 13 July 2011 she made a statement with the assistance of a Vietnamese interpreter and a migration agent, where she claimed she would face harm if returned to Vietnam. On 15 July 2011 she was interviewed again, and she repeated her claims. The Department subsequently rejected her claims for protection.

(2)    On 23 March 2011 DIA took part in an entry interview with an officer of the Department during which he claimed to be a 15 year old orphan.

(3)    DIB sought merits review of the rejection of her claims. On 19 January 2012 she was interviewed by an independent assessor and repeated her claim to fear harm in Vietnam as a result of being a homeless street child. On 15 May 2012 the assessor upheld the Department’s decision not to grant DIB a protection visa. She then sought judicial review of the decision in the Federal Magistrates’ Court (as the FCCA was then known) but subsequently withdrew her application.

(4)    On 23 December 2015 the whole family applied for an XE-790 Safe Haven Enterprise visa (SHEV). DIA and DIB advanced individual claims for protection. Both recanted from their earlier statements that they were orphaned minors, instead advancing the separate claims set out below. Both claimed protection on behalf of their children as part of the family unit.

(5)    A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused to grant the protection visas.

(6)    On 25 October 2016 the appellants applied to the Tribunal for merits review of the delegate’s decision. The Tribunal conducted a hearing for DIB and the children on 19 March 2018 and a separate hearing in relation to the claims advanced by DIA on 21 March 2018.

(7)    On 31 May 2018 the Tribunal delivered two decisions, one in relation to the claims advanced by DIB on her own behalf and on behalf of DIC and DID and the other in relation to the claims advanced by DIA on his own behalf and on behalf of DIC and DID. Both decisions affirmed the decisions of the delegate not to grant the appellants protection visas.

(8)    The appellants then filed separate applications for judicial review of the decisions of the Tribunal, DIA filing one on his own behalf only, and DIB filing one on her own behalf and on behalf of DIC and DID.

(9)    The FCCA considered both applications and dismissed them on 11 November 2020.

(10)    The appellants filed two separate appeals from the decision of the FCCA to this Court. The appeal advanced by DIA is designated SAD179/2020 and the appeal advanced on behalf of DIB and the children is designated SAD180/2020.

4    On appeal to this Court the appellants were represented pro bono by Cameron Jackson of counsel. He filed submissions for the appellants which sought leave to rely on grounds of appeal not raised before the FCCA. During the course of the hearing Mr Jackson sensibly abandoned the first of those grounds. The remaining grounds rely principally upon the claims advanced by DIB concerning her fears of sexual harassment if she and her daughter are returned to Vietnam. In the appeal advanced by DIB, DIC and DID in SAD180/2020 the grounds relied upon are:

2.    The Tribunal failed to comply with section 425 of the Migration Act, because it failed to provide the Appellant with a genuine opportunity to appear before it to present evidence and argument with respect to the issues arising on the review.

2.1    The Tribunal failed to raise the topic of [DIB18’s] history of sexual abuse as a child and sexual harassment as a female worker in Vietnam, and her claim to fear harm for herself and her daughter from similar abuse and harassment should they be returned to Vietnam.

 2.2    The failure was material, because it could have affected the outcome.

3.    The Tribunal failed to give proper, genuine, and realistic consideration to the Appellant’s claims…with respect to sexual abuse and harassment in Vietnam, and/or failed to engage in an active intellectual process with that evidence.

5    The appeal advanced by DIA relies on the same alleged jurisdictional errors, on the basis that the whole family made a single application for a protection visa. The Minister, who was represented at the hearing by Sparke Helmore, solicitors, accepts that the consequence of a finding of jurisdictional error based on DIB’s claims would be that the decision of the Tribunal in the DIA’s claim would also be vitiated. The basis for the Minister’s concession is summarised by the equivalent reasoning approved of by Kenny J in CDN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 699 at [161] and [174], namely, but for the jurisdictional error, the Tribunal may have found that DIB satisfied the requirements of s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) and clause 790.221(2) of Schedule 2 to the Migration Regulations 1994 (Cth). Accordingly, the Tribunal might have found that DIA satisfied the requirements of s 36(2)(b) or (c) and clause 790.221(3) of Schedule 2 to the Regulations on the basis that DIA is a "member of the same family unit" as DIB, and might have granted DIA a SHEV.

6    The hearing proceeded on the basis that the question of leave and, if leave were to be granted, the appeal itself, would be argued at the same time.

7    For the reasons set out below I decline leave to rely on the proposed grounds of appeal and accordingly dismiss the appeal with costs.

2.    THE APPLICATION FOR LEAVE

2.1    The law

8    In SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; 266 FCR 105 (Besanko, Gleeson and Burley JJ) the Full Court said:

[28]    The appellant acknowledges that proposed grounds (1) and (2) are new grounds raised for the first time on appeal. Thus, the proposed amended notice of appeal does not in substance engage with the decision of the FCCA but rather focuses on that of the delegate. The appellant requires the leave of this Court to rely on them. The relevant principles for deciding whether to grant leave to raise a ground of challenge for the first time on appeal are set out in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48], as follows:

[46]    …Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[24] and [38].

[47]    In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

[48]    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

9    The correct approach to the evaluation of the prospects of success of a ground proposed to be advanced on appeal for the first time is to consider the proposed ground of appeal at a reasonably impressionistic level, and enquire whether it is “sufficiently arguable” or has “reasonable prospects of success”: see by analogy MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62]-[63] (Mortimer J).

10    It may be noted that the appellants explain that the proposed grounds were not advanced in the FCCA on the basis that they now have the assistance of counsel, whereas in the proceedings before the FCCA, whilst the grounds of review were drafted by a law firm, the appellants represented themselves at the hearing. They contend that the Minister will suffer no prejudice if the grounds are permitted to be advanced, whereas if meritorious grounds are not permitted to be advanced the consequences for the appellants will be severe and irredeemable. The Minister contends that he will suffer prejudice if leave is granted because to do so would effectively deprive him of any practical right to appeal, his only available avenue of appeal being applying for special leave to appeal to the High Court of Australia.

2.2    DIB’s proposed ground 2

11    In proposed ground 2, DIB contends that the Tribunal failed to comply with s 425 of the Act because it failed to provide her with a genuine opportunity to appear before it to present evidence and argument with respect to the issue arising on the review. In the particulars appended to ground 2 she contends that the Tribunal “failed to raise the topic of the Appellant’s history of sexual abuse as a child and sexual harassment as a female worker in Vietnam, and her claim to fear harm for herself and her daughter from similar abuse and harassment should they be returned to Vietnam”. She submits that the Tribunal failed to explore this aspect of her claims in the interview that was conducted.

12    DIB submits that s 425(1) of the Act requires the Tribunal to invite applicants to appear to “give evidence and present arguments relating to the matters arising in relation to the decision under review”. She submits that the opportunity must be a genuine opportunity to address the critical issues on which the decision turns, citing WACO v Minister for Immigration, Multicultural and Indigenous affairs [2003] FCAFC 171; 131 FCR 511 at [33] (Lee, Hill and Carr JJ). An integer of her claims was that her past experiences of sexual abuse and harassment reflected a real risk of harm, as a woman, both for herself and her daughter should she be removed to Vietnam. She submits that an issue arising out of the review was the failure of the delegate to address any claims made independently of DIA, and the Tribunal was obliged to explore any issue arising from material provided by DIB in order to comply with its obligation to give her the opportunity to appear and give evidence on the review. However, the transcript shows that the Tribunal gave DIB no such opportunity and so erred by failing to comply with s 425.

13    Proposed ground 2 must be considered in the broader context of the claims advanced by DIB. As noted, she initially applied for protection in 2011 on the basis that she would face harm in Vietnam because she was a homeless orphan child. That application was refused. She then applied for a SHEV with her husband and two children in December 2015.

14    DIB filed a declaration entitled “statement of claims” on 23 December 2015 in which she set out various claims, including admissions that her previous claims had not been truthful, and stating that she feared persecution because of her Catholic faith. She also said that she feared for her safety in Vietnam and that she worries for the safety of her children if returned to Vietnam. She said that when she worked in a restaurant in Saigon she was the victim of abuse from male customers. Her statement of claims declaration was supplemented by a second declaration bearing the same date. In its opening line, DIB requested that DIA not be shown its contents. It refers to three separate incidents when she was young and at home in Vietnam when she was indecently touched by a man. She says that she fears returning to Vietnam because her daughter will face similar incidents. She says that in Vietnamese culture it is taboo to mention such things and that whilst in Vietnam the rape of a woman may result in some action by the authorities, other incidents of sexual abuse are not followed up.

15    The appellants were represented by a registered migration agent before the Tribunal. In advance of the hearing the migration agent was asked by the Tribunal to provide a written submission setting out “all claims made and maintained by the [appellants]”. In response, the agent filed a 31 page document which lists the claims and then develops them. The list refers to their claims to be of the Catholic religion and accordingly the subject of religious and political opposition from the communist regime in Vietnam, which will likely lead to their persecution. It also refers to a data breach involving the leak of immigration data, which affected them. It also refers to their statutory declarations. When referring specifically to the claims advanced by DIB, the submission develops the claims, but makes no further reference to her claims concerning sexual abuse. The claims addressing the children likewise make no reference to concerns about the daughter being the subject of sexual abuse.

16    The migration agent’s submissions were accompanied by two further statutory declarations provided by DIA and DIB. In hers, DIB says that she wishes to repeat everything in her declaration of 23 December 2015. She says that if her two children were forced to return to Vietnam she fears that they will be treated badly and be left parentless if she and DIA are sent to prison. She makes no reference to particular concerns for her daughter.

17    At the hearing, the Tribunal member asked DIB and the migration agent to clarify the claims that were being advanced saying “it’s important that I clarify the claims that we [are] dealing with today because since you arrived in Australia, you [have] given [a] lot of different versions, different claims”. The Tribunal then identified each of the claims advanced by reference to the migration agent’s submissions. None refer to or repeat the allegations of sexual abuse or fears arising from them. At the conclusion of the hearing the Tribunal asked DIB to clarify what claims she was making on behalf of her children, and invited her to address any other matters that she wished to. It then invited the migration agent to do likewise. Nowhere were the claims of sexual abuse repeated at the hearing.

18    After the conclusion of the hearing the Tribunal wrote to the migration agent, enclosing a letter addressed to DIB that invited her to respond to a list of inconsistencies that the Tribunal member had identified in her evidence. The agent responded on behalf of DIB with a letter dated 8 May 2018 which enclosed further statutory declarations made by DIA and DIB. This material did not further raise the question of sexual abuse.

19    Nevertheless, the Tribunal was plainly aware of and addressed the second declaration. In its reasons in the decision concerning DIB it said:

148.    The applicant claims she was sexual assaulted [sic] as a young girl in Vietnam. She fears her daughter will face similar harm if she returns to Vietnam.

149.    The Tribunal accepts that the applicant may have been subjected to sexual assault as [a] child growing up in Vietnam. The Tribunal finds however that it is mere speculation to say that all girls face a real chance of sexual assault in Vietnam. The Tribunal also finds that the applicant's personal circumstances have changed since she left Vietnam in 2011. She is now married and has the support of her husband. She also has the continued support of her mother, brothers and sisters in Vietnam.

150.    In considering the applicant's claims the Tribunal has had regard to the following country information prepared by DFAT regarding the role of women in Vietnam:

Article 26 of the Constitution guarantees male and female citizens equal rights in all fields, explicitly bans all forms of discrimination against women, and states that 'men and women shall receive equal pay for equal work'. The National Assembly has also passed a range of domestic legislation including the Law on Gender Equality (2006) and amendments to the Law on Land (2003) and the Marriage and Family Law (2000) that improve the property rights of women in families. Gender equality is identified as a priority in Vietnam's Socio-Economic Development Plan and the Government has welcomed cooperation with development partners, including Australia, to advance gender equality and women's empowerment.

151.    The US Department of State (USDOS) Vietnam 2015 Human Rights Report provides the following information on the treatment of women in Vietnam:

Rape and Domestic Violence: The law prohibits using or threatening violence against women or taking advantage of a person who cannot act in self-defense. It also criminalizes rape, including spousal rape. The law subjects rapists to two to seven years' imprisonment. In severe cases of rape, including organized rape, a repeat offense, or extreme harm to a victim, sentences may range from seven to 15 years' imprisonment. Authorities prosecuted rape cases fully, but the government did not release arrest, prosecution, conviction, or punishment statistics.

152.    Looking into the reasonably foreseeable future, the Tribunal is not satisfied that there is a real chance the applicant and/or her daughter would be subjected to sexual assault in Vietnam.

(Citations omitted)

20    Section 425 of the Act requires the Tribunal to give an applicant a meaningful opportunity – a “real chance” – to appear and present evidence and argument. What is a meaningful opportunity, or a real chance, will be fact dependent in each case: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [51] (Allsop CJ, Robertson and Mortimer JJ).

21    Having regard to the enquiries made by the Tribunal, it is apparent that it was entitled to form the view that the appellants, and DIB in particular, did not wish to elaborate upon or further develop her claims of sexual abuse as set out in her initial declaration. Indeed, after the making of multiple enquiries, neither the appellants nor their representative sought to expand upon or even expressly rely upon the contents of the second declaration.

22    Furthermore, there is nothing in the record to indicate that any further inquiry by the Tribunal could have affected the outcome.

2.3    DIB’s proposed ground 3

23    In proposed ground 3, DIB contends that the Tribunal failed to give proper, genuine and realistic consideration to her claims of sexual abuse and harassment in Vietnam or alternatively failed to engage in an active intellectual process with that evidence, citing Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [44]-[47] (Griffiths, White and Bromwich JJ). She submits that the Tribunal’s treatment of the issue failed to appreciate that the claim advanced was that harassment and abuse were rife, and that conduct short of rape was not acted upon by the authorities. She submits that the claims were of quite serious abuse and harassment, which were not the subject of proper consideration. She submits that the Tribunal failed to explore these claims with her at the hearing and only dealt with them indirectly and very generally in its decision. On this basis, she submits that the Tribunal failed to give genuine, proper and realistic consideration to this aspect of her claims.

24    The principles relevant to the duty of a decision-maker to give proper, genuine and realistic consideration to representations made by an applicant are well-known: see for instance Carrascalao at [44]-[47]; GBV18 v Minister for Home Affairs [2020] FCAFC 17; 274 FCR 202 at [31]-[32] (Flick, Griffiths and Moshinsky JJ); Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [34]-[41] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ). Determining whether or not the decision-maker complied with the statutory task in reaching the requisite state of satisfaction in considering the merits requires the Court to have regard to the available evidence and the reasons provided by the decision-maker: Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [30]-[31] (Burley, Colvin and Jackson JJ).

25    I have set out the relevant reasoning of the Tribunal in relation to this subject at [19] above. I accept the Tribunal’s reasons do not directly refer to the particular contention that harassment and abuse of women, as opposed to sexual assault, were rife in Vietnam and not taken seriously by the authorities. However, having regard to the whole of the Tribunal’s reasoning set out above at [19], I am not satisfied that there is sufficient merit in DIB’s argument that there was a failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim such as to amount to a jurisdictional error. Relevantly, the Tribunal accepted that DIB may have been subject to sexual assault as a child, but found it to be speculative that all girls face a real chance of sexual assault in Vietnam. The Tribunal also noted that DIB’s personal circumstances had changed since she left Vietnam in 2011 because she returns as a married woman. It referred to country information that indicates that all forms of discrimination against women are banned in Vietnam. It also referred to other country information outlining the laws against rape, using or threatening violence against women. It was not satisfied that there was a real chance that DIB or DIC would be subjected to sexual assault in Vietnam. In doing so, the Tribunal discharged its obligation to engage in an active intellectual process with DIB’s claim.

2.4    Leave to raise new grounds

26    In my view neither of the proposed new grounds of appeal has any real prospects of success. Having regard to the reasoning of the Tribunal, the explanation for the failure to raise the grounds earlier, the possible prejudice to the parties and the merits of the proposed grounds, in my view, it is not in the interests of justice that leave be granted to raise those grounds on appeal.

3.    DISPOSITION

27    For the reasons set out above, DIB’s application for leave to rely on proposed grounds 2 and 3 must be refused. The consequence is that DIA’s application for leave to raise proposed ground 2 must also be refused. Accordingly, the appeals must be dismissed. The appellants must pay the Minister’s costs of the appeal.

Associate:

Dated:    28 September 2021