Should the Court accept the orthodox claim of procedural unfairness?
74 For the following reasons, I consider that the appellant has established procedural unfairness in the assessor's failure to provide her (or her guardian and/or migration agent) with an opportunity to comment on the assessor's adverse views regarding the half-brother's credibility.
75 In my respectful opinion, the primary judge erred in concluding that, because of the appellant's age and incompetency to give evidence or make submissions, the procedural fairness obligations of the assessor were "taken to be owed" to her half-brother. There are two difficulties with this approach. First, the appellant lodged a separate claim to protection from her half-brother. Matters were raised in support of her claim which included but went beyond the matters raised by the half-brother in support of his own application. Secondly, the half-brother was not the appellant's guardian or representative. The appellant herself was entitled to procedural fairness albeit that the content of procedural fairness requirements necessarily had to take into account her age, the fact that she was represented by Ms Murphy as her migration agent and that she also had a legal guardian by dint of the operation of the Immigration (Guardianship of Children) Act 1946 (Cth).
76 It is well settled that where procedural fairness requirements apply (and it was not disputed by the Minister that those requirements applied to the Independent Protection Assessment process), a decision-maker must provide an affected person with "an opportunity…to deal with adverse information that is credible, relevant and significant to the decision to be made": Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629 per Brennan J. The particular content to be given to the requirements of procedural fairness depends upon the facts and circumstances of the particular case, noting that there is no relevant statutory framework applicable to the Independent Protection Assessment: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (SZBEL) at [26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
77 It is equally well settled that a decision-maker need not give a "running commentary" on his or her thought or deliberative processes. The relevant principles were described by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 (Alphaone) at 591-92:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
78 See also SZBEL at [32], where the plurality referred approvingly to the Full Court's statement in Alphaone at 590-91 that the opportunity of being heard:
…would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
79 The separate claims for protection made by the appellant and her half-brother for the purposes of the Independent Protection Assessment overlapped to some extent, but they were not identical. Their common claims related to such matters as their fears of persecution on account of their religion (Catholic); imputed political opinion of being opposed to the Vietnamese regime because of the profile of the half-brother's father as a former Catholic seminarian; and their membership of particular social groups constituted inter alia by being part of a family of Catholic clergy and/or failed asylum seekers returning from a Western country. It was claimed that the feared persecution related to curtailment of their human rights, including access to education and healthcare because they both were unable to obtain formal identity papers. Additional claims were made on behalf of the appellant which reflected her particular personal circumstances, especially the fact that she was said to be a girl child orphan and was vulnerable to sexual exploitation and human trafficking if she was returned to Vietnam.
80 The essence of the appellant's claims for protection are reflected in the conclusion to the detailed written submissions which Ms Murphy prepared on her behalf and provided to the assessor (emphasis in original):
VI. CONCLUSION
We submit that in the particular circumstances of the Applicant, there is a real chance, which is not remote or speculative, that she will suffer serious harm in Vietnam because of her Catholic religion, and/or imputed political opinion, and/or because she is a member of the particular social group constituted by children living in poverty, and/or girl child orphans living in poverty, and/or failed asylum seeker returning from a western country. The risks of serious harm to her will be exacerbated by the fact that she is a vulnerable, orphan girl child of 6 years old.
We submit that there is a real chance that the Applicant would suffer persecution for a Convention reason should she return to Vietnam, now or in the reasonably foreseeable future, and we invite you to make a recommendation that the Applicant engages Australia's obligations under the Refugees Convention.
81 It is convenient to now turn to the assessor's statement of reasons for deciding not to recommend that the appellant met the criteria for protection. It is clear from those reasons that the assessor's disbelief of the half-brother's evidence was central to his decision to reject the appellant's claims.
82 In his statement of reasons, the assessor referred to the interviews which were conducted with the appellant and her half-brother. At [83], the assessor stated:
I conducted interviews with [the half-brother] and his sister [the appellant]… on 2 May 2012 at the Darwin Airport Lodge APOD. Their migration agent was present. The interview was conducted with the assistance of an interpreter in the Vietnamese-English medium. I first interviewed [the half-brother] with [the appellant] present. [The half-brother] was happy to speak on [the appellant's] behalf, since she was a minor, and I assured the adviser that she was welcomed to be robust in putting [the appellant's] case; nevertheless, I undertook to interview [the appellant] herself in case there was any useful information she might be able to provide.
83 The assessor then summarised the interviews with both the half-brother and the appellant. The following paragraphs of his statement of reasons summarise that part of the interview which related to the appellant:
98. [The appellant] told me she was born on 14 May 2005. She said she did not know where she was born. She said she did not know how long it had been since she last saw her mother. She said she did not know where her mother is now. She said she did not know what had happened to her mother.
99. [The appellant] said she can read and write a little. I saw her reading and writing during the course of the day's interview. I asked her in our interview where she learned to read and write and she said she learned from her "brother and adults and uncle".
100. I introduced a break in the interview to allow the claimants time to confer with their adviser and to provide for a short rest for the interpreter. When we resumed, I interviewed [the half-brother] alone.
84 The assessor then summarised the second part of his interview with the half-brother. At [128] of his reasons for decision, the assessor described a submission by Ms Murphy regarding his concerns about the credibility and reliability of the half-brother's evidence:
128. On their behalf, the claimants' adviser addressed concerns, expressed earlier by me, as to the credibility and reliability of [the half-brother's] evidence. She said it was "irrelevant to challenge the validity" of the claims [the half-brother] was making, as he was just repeating what he heard from his uncle. She said that whether [the half-brother] is 18 years or 20 years old matters little if he ends up being detained in Vietnam where detainees are mistreated. She said that whether it was true that [the half-brother's] father had been a seminarian or not did not matter so much as how his father's predicament left him.
85 The assessor's reasons then summarised that part of the interview with the half-brother in which he was asked by the assessor about his mother's circumstances after he had been left by his mother with his uncle. After noting that the half-brother had not talked about his mother after he was left with his uncle, the assessor said he then asked the half-brother if the claim about his mother having committed suicide was a fabrication. Paragraph 132 of the reasons then states: "In reply, he said he was not able to invent this; he said he had heard it from his uncle."
86 At [139]-[141] the assessor then summarised some further matters relating to the appellant after he invited the half-brother to speak further on her behalf. The relevant summary is as follows (emphasis in original):
139. … He said [the appellant] has a good life in Australia compared to life in Vietnam. He said he hoped she would be allowed to continue to improve her circumstances and enjoy life here. He said life was stressful for them both in Vietnam. He said that here in Australia they both have a chance of a better life.
140. The adviser invited [the half-brother] to describe what stress had been placed on his sister, and he said, "I'm just a normal person. I haven't been able to do anything because [I have] no documents". The adviser again invited [the half-brother] to talk about any stresses faced by his sister and he said that if she were ever to fall ill in Vietnam she would not be able to be admitted to hospital, due to being undocumented. He said that the family would have to rely on the pharmacist instead.
141. I asked [the half-brother] who looked after his sister while he and his uncle were working here and there and he said their neighbours would "keep an eye on her". I asked if the neighbours were registered and/or otherwise documented, and he seemed to digress or evade the point of the question: he said they had "good hearts". He then said they were not "registered carers". I asked [the half-brother] if his neighbours were ho khau registered and he said, "I think they were". He said he, his uncle and sister rented a room in a dormitory or boarding house-style building, as did the neighbours we were just discussing.
87 The assessor found at [180] that there were "a number of discrepancies in [the half-brother's] evidence that, on close consideration, are not satisfactorily explained", including the fact that he had told the half-brother several times that he was concerned about whether he could rely on "whole parts of his evidence, such as the subject and circumstances of his mother's alleged suicide". The assessor emphasised that the half-brother's credibility, consistency and reliability was a concern and that he had been put on notice of that matter. The assessor further noted at [181] that, after inviting the half-brother and his advisor to comment on the proceedings, and as to his concerns about credibility, "the claimants' adviser said it was irrelevant to challenge the credibility of [the half-brother's] claims, as he was simply repeating what he heard from his uncle." The assessor added that he found that the half-brother had given inconsistent evidence about what his uncle said to him.
88 On the issue of whether the children's mother had suicided, the assessor set out his findings at [197] of his reasons:
Looking at the evidence overall I find that the information about [the half-brother's] mother having suicided, or even being deceased, is unreliable and that it is [the half-brother] himself who has been unreliable on the subject. [The appellant] also says she does not know where her mother is. I have considered if these were the words of a child in psychological and emotional denial, or the response from a person too young to understand death but I do not accept that [the appellant] is as young as claimed and I do not accept on what I heard from both claimants that she was in genuine denial. There is so much evidence in this case negating the claims about the claimants' mother having died that I do not accept that she has. I do not accept on the evidence before me that the experiences or current status of [the half-brother's] mother give rise to a real chance of his being persecuted for a Convention-related reason in Vietnam in the reasonably foreseeable future.
89 It might be noted that the finding regarding the appellant's age is inconsistent with what the assessor subsequently stated at [226] where, although recording that he had concerns, he found that he was "prepared to accept that [the appellant] was born on the date she provided, making her seven years old". Nothing of significance turns on this inconsistency.
90 In [224]-[257], the assessor set out his reasons why he was not satisfied that the appellant was entitled to protection. At [224], he described the appellant's circumstances as:
…particularly sensitive as she is a female minor with little education whose overall case depends largely on the evidence of [her half-brother] and the submissions of her adviser.
The assessor added that he "felt it was her right to be able to give evidence directly to me, particularly as her adviser expressed concern that she was not previously interviewed…".
91 The assessor noted Ms Murphy's contentions as to the appellant's vulnerability to exploitation as an unregistered orphaned minor and made other relevant submissions including the fact that her lack of documentation meant that she would have to rely on pharmacists rather than doctors in hospitals if she were to fall ill.
92 After finding that the appellant was aged seven, the assessor said at [227] that he appreciated that she was still too young and vulnerable to represent herself adequately and in his "considered view", she was "almost totally dependent on the evidence of her brother, who I have found after much consideration to be an unreliable witness".
93 The assessor then found at [228] that he was not satisfied on the evidence that the appellant's father had died, nor did he accept that she was an orphan. (In fact, no claim was ever made in the appellant's case that her father was dead: the claim was that her father's whereabouts were unknown). The assessor found that although there was evidence indicating that the appellant had enjoyed "continuity of adult care throughout her life in Vietnam", the assessor did not accept the half-brother's explanation that this was achieved by neighbours looking after his sister while he and the uncle worked itinerantly. That evidence was described as not being consistent with the claim that the uncle and the half-brother took the appellant with them when they worked in various places. The assessor concluded at [228] that he was not satisfied that the father was beyond contact with the appellant, her half-brother and their uncle. The assessor also made adverse findings at [229] relating to the claim that the appellant was undocumented and unable to be registered. That was because the assessor did not accept the evidence of the father's history and he described his "impression" that the appellant "has had stable domicile under the care of adult family members". Adverse findings were also made in respect of the claims relating to religion and political opinion, leading to an interim conclusion in [232] by the assessor as follows:
To sum up so far, I do not accept on the evidence before me that [the appellant] would be denied an education, denied identity documents, harassed because of her religion, or harassed because of her family's political profile, let alone for any Convention-related reason.
94 At [235], the assessor set out his reasons why he did not accept that the appellant was an orphan (emphasis added):
I accept that [the appellant] would not be a ho khau-registered person as at the time of her return to Vietnam and would have to apply for registration in a household. However, as discussed earlier, I do not accept as credible the basis upon which it is claimed she has never been household-registered in the past; the claims about [the half-brother's] father. On the evidence before me, I find that [the appellant] has continuously been under the protective care of adults in Vietnam, even though I do not accept the particular claim suggesting that the adults in question were outside of her own family. I do not accept that she is an orphan. [The half-brother's] claims about [the appellant's] immediate family do not credibly account for her own father and his status. I do not accept on the evidence before me that she has no ho khau-eligible household to re-join in Vietnam. I acknowledge that she will be dependent on the adults in her family to apply for her restoration to a ho khau but I do not believe on the information before me that such assistance would be withheld or delayed.
95 As to the claims made on the appellant's behalf that impoverished children were at a heightened risk of abuse and serious harm due to a lack of effective child protection in Vietnam, the assessor repeated at [239] that he did not accept that the appellant would be an unaccompanied minor or that she was an orphan.
96 Furthermore, as to the specific claims regarding the appellant's membership of particular social groups, being "children", "impoverished children", and "female children", the assessor concluded at [240] that he did not accept that the appellant had lived in an impoverished environment. At [242] the assessor stated:
On the evidence before me, recalling my findings to the effect that she is neither an orphan nor an unaccompanied minor, I am not satisfied that [the appellant] would be vulnerable to trafficking, sexual exploitation, or forced labour or exposure to diseases such as HIV.
97 The assessor concluded at [257] that he was not satisfied that the appellant met the criterion in s 36(2)(aa) of the Migration Act 1958 (Cth).
98 It is beyond dispute that the assessor's disbelief of the half-brother's evidence was essential to his rejection of the appellant's own claims to protection.
99 Given the appellant's immature age, it may be accepted that the requisite notice and opportunity to comment did not need to be given to her personally. In my view, however, procedural fairness principles required that the requisite notice and opportunity be given either to her legal guardian or to Ms Murphy.
100 It was not suggested that Mr McDougall (who was the delegated legal guardian of the appellant) was provided with such notice and opportunity. The relevant issue then is whether the requisite notice and opportunity was given to Ms Murphy as the appellant's migration agent. The Minister contended that Ms Murphy was given adequate notice and an opportunity to respond on behalf of the appellant to the assessor's concerns about the half-brother's credibility. In particular, the Minister relied on [83], [128] and [144] of the assessor's reasons as supporting that contention. In fact, none of those paragraphs supports that contention and it should be rejected.
101 Paragraph 83 of the assessor's statement of reasons is set out in [82] above. Reference is made there to the half-brother speaking on his sister's behalf because she was a minor and the assessor having assured "the adviser that she was welcome to be robust in putting [the appellant's] case". The assessor noted that he undertook to interview the sister in case there was any useful information she might be able to provide. Nothing in that paragraph constitutes the giving of the requisite notice and opportunity referred to above.
102 Paragraph 128 is set out in [84] above. On the first reading of that paragraph it might be thought to provide some support for the Minister's contention, however, on closer analysis I consider that it does not. There is a reference in that paragraph to Ms Murphy addressing the assessor's concerns regarding the credibility and reliability of the half-brother's evidence. Ms Murphy responded by saying that it was irrelevant to challenge the validity of the claims that the brother was making as he was just repeating what he heard from his uncle. At this point in the transcript the half-brother had not given evidence in support of the appellant's case which was based on his own observations; rather, he was simply repeating what his uncle had told him.
103 It is also evident from [128] of the statement of reasons that the assessor was confirming that he had invited Ms Murphy, acting in her capacity as the half-brother's advisor, to respond to the credibility concerns. There is nothing in this paragraph to suggest that the opportunity afforded to Ms Murphy extended to include the ramifications of those concerns for the appellant's case.
104 As to [144] of the assessor's reasons, it stated:
144. The claimant's adviser made a number of brief of (sic) legal submissions. She argued that, mindful of Australian jurisprudence, I should consider the threshold of a "real chance of persecution" to be a low one. She posited that foreign courts dealing with questions of complementary protection had tended to regard the "real risk of significant harm" test also as one involving a low threshold.
105 There is nothing in that paragraph which supports the Minister's contention.
106 For completeness, nor is there anything in the transcript of the assessor's interviews which records the assessor giving either the appellant or Ms Murphy (or anyone else for that matter) notice of his disbelief of the half-brother's evidence and the possible ramifications for the appellant's claims and an opportunity to respond.
107 I do not consider that Ms Murphy was put on adequate notice of these matters because of her awareness of the assessor's concerns regarding the half-brother's credibility. Separate claims for protection were made by the appellant and her half-brother. The half-brother gave evidence in support of the appellant's claim relating to such matters as her being an orphan. He also gave detailed evidence to the assessor on matters such as the appellant being looked after by neighbours while the half-brother and their uncle were away working. Indeed, the half-brother told the assessor the address of those neighbours. Similarly, he gave evidence to the assessor regarding the appellant's lack of access to education and healthcare. He said that because she lacked documentation she could not be admitted into hospital and each time she fell seriously ill their uncle could only seek medical advice and products from a pharmacist. The assessor disbelieved this evidence.
108 The assessor did not disbelieve all the half-brother's evidence. For example, he accepted that the appellant and the half-brother were at least nominally Catholic, were both baptised and could be cognisable as Catholics in Vietnam. He also accepted that they were siblings and that they shared the same mother but had different fathers. He also accepted that the mother remarried and gave birth to the appellant. These findings must have been based on the assessor's acceptance of the half-brother's evidence on these matters. In circumstances where the assessor was prepared to accept the half-brother's evidence on some issues but not on others, procedural fairness obliged him to give notice of his disbelief of those aspects of the half-brother's evidence which had adverse ramifications for the appellant's claim for protection. Assuming that it would have been sufficient for these matters to be disclosed to Ms Murphy as the appellant's migration agent, this did not occur. Accordingly, procedural fairness was denied.
109 This is not a case where it would be open to find that the procedural unfairness produced no practical injustice (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] per Gleeson CJ). If appropriate notice had been given, Ms Murphy may well have made further enquiries of the appellant directly or, alternatively, sought an adjournment so that either she or the appellant's legal guardian could initiate enquiries of people in Vietnam who might be able to corroborate the appellant's claims. For example, enquiries could have been made of the neighbours whom it was said looked after the appellant when her half-brother and uncle were away. The neighbours, whose address was provided during the interview, might have been able to confirm the appellant's orphan status and that she lacked formal identity papers. Or enquiries might have been made with a view to obtaining a death certificate to confirm the fact that the appellant's mother was dead. Ultimately, however, the nature and scope of any such enquiries would be a matter for Ms Murphy and/or her legal guardian.
110 For these reasons, I consider that the appellant was denied procedural fairness.
111 In my view, the appropriate orders are:
(1) The appeal be allowed.
(2) The judgment and orders made by the primary judge on 9 April 2015 be set aside.
(3) In lieu of the orders made by the primary judge:
(a) the Court declares that:
in recommending to the first respondent that the appellant not be recognised as a person to whom Australia has protection obligations, the second respondent failed to observe the requirements of procedural fairness; and
(b) the first respondent be restrained from removing the appellant or causing or allowing the appellant to be removed from Australia until:
(i) the appellant's claims to be a person to whom Australia has protection obligations have been assessed according to law; and
(ii) the first respondent has decided that the appellant is not a person to whom Australia has protection obligations; and
(c) the first respondent pay the appellant's costs of the proceeding as agreed or assessed.
(4) The first respondent pay the appellant's costs of the appeal as agreed or assessed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.