CPP17 v Minister for Immigration and Border Protection

BACKGROUND 5 The appellant left Vietnam on 29 May 2013 and she arrived in Australia on 18 June 2013. The appellant took part in an arrival interview on 17 July 2013. 6 On 5 October 2016, the appellant made an application for a protection visa. In her application, and putting the matter generally at this stage, she claimed that she had a well-founded fear of persecution because of her religion. She claims to be a practising Catholic from a traditional Catholic family in Vietnam. In a statutory declaration made on 4 October 2016, the appellant referred to her religious practices and the disadvantages she has suffered and will suffer in Vietnam as a result of those practices. 7 The appellant has been married twice. She has a son by her first marriage and a daughter by her second marriage. In her statutory declaration, she claims that her second husband who, for convenience, I will refer to as the appellant's husband, is an alcoholic who has beaten her. She states that she has wanted to divorce her husband on a number of occasions, but the law in Vietnam requires its citizens to engage in reconciliation before they approve a divorce application. Furthermore, there are (she claims) bribery and other difficulties associated with a divorce application. 8 The appellant also states in her statutory declaration that she fears that if she returns to Vietnam she will be put in prison because she had previously left the country. 9 On 31 March 2017, the appellant's application for a protection visa was refused by a delegate of the Minister. On 4 April 2017, the appellant was advised by letter that the Minister had referred the matter to the Authority. The appellant was represented by a lawyer during the process before the Authority and the lawyer made a submission on her behalf to the Authority on 5 May 2017. In that submission, the lawyer referred to, among other matters, the fact that the appellant belonged to a particular social group, namely, failed asylum seekers who leave Vietnam unlawfully and the complementary protection criteria assessment in s 36(2)(aa) of the Migration Act. On 22 May 2017, the Authority decided not to grant the referred appellant a protection visa. 10 In its reasons, the Authority referred to the claims made by the appellant. Of present relevance for reasons which will become clear, are the appellant's claims to have suffered domestic violence from her husband. The Authority considered the appellant's claim that she suffered domestic violence from her husband and said that it accepted that domestic violence had occurred. However, the Authority went on to note that the appellant had, at no point during the arrival interview, or in her protection visa application process, stated that she fears her husband, or fears that he will harm her in the future, should she be returned to Vietnam. She said that she is now separated from him and there is no indication that the threat of violence is ongoing. She said that her mother had recently informed her that her home in Vietnam which was empty, had recently been broken into. The Authority concluded from this that the appellant's husband had moved out of the family home at or around the time the appellant came to Australia. The Authority said that the whereabouts of the appellant's husband was not discussed at the protection visa interview. The Authority said that it was not satisfied that there would be ongoing conflict between the appellant and her husband, should the appellant return to Vietnam (at [20]). In its conclusions, the Authority stated that it accepted that the appellant was the victim of domestic violence from her husband. However, it found that the threat of violence was not ongoing and it was not satisfied that there is a real chance that the appellant would be at risk of harm from her husband should she return to Vietnam (at [26]). The Authority found that the appellant did not satisfy the requirements of the definition of "refugee" in s 5H(1) of the Migration Act. In addition, the Authority found that she was not entitled to complementary protection under s 36(2) of the Migration Act. 11 As I have said, the Federal Circuit Court made an order dismissing the appellant's application for judicial review. That was done on 28 October 2019 (CPP17 & Anor v Minister for Immigration & Anor [2019] FCCA 3593). 12 The primary judge referred to the appellant's claim to have suffered domestic violence from her husband and then said (at [44]-[46]): 44. In essence, the claim made by the Applicant is that the IAA did not grapple with a claim that was made well and truly on the case, or facts, or submissions put forward by the Applicant; that is, that the Applicant was a victim of domestic violence and if she is returned to Vietnam she is at risk of further domestic violence. 45. This is really a matter that goes to the complementary protection criteria more than the refugee criteria. However, I am of the view that there is somewhat of a cross-over here. The authorities are clear that the IAA must deal with claims that are made by the Applicant and claims that are reasonably discernible on the claims that have been brought forward. 46. In this matter it is clear that the Applicant has been consistent that she has been a victim of domestic violence. She said so in her arrival interview, she said so in her application, and she said so in her interview for the protection visa. 13 His Honour then referred to evidence that supported the appellant's claim and then said (at [53]-[57]): 53. The Applicant, though, has now left Vietnam and has been away from the husband since 2013. That was a period of some four years at the time the IAA was making their decision. 54. Having looked at that evidence, it does not seem to me that the claim that is now being put forward, that supposedly arises in the NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 sense, is a claim that actually did arise. The domestic violence that occurred, occurred because the Applicant and the husband were together. Now that the Applicant and the husband are not together there is no fear of domestic violence. 55. It seems to me that it cannot be said that, on the evidence that had been placed before the delegate and the IAA, that the Applicant was truly saying that there would be a well-founded fear of domestic violence if she returned to Vietnam. Nothing that has been put forward that would suggest there would be a chance of cohabitation resuming with the husband upon the Applicant being returned to Vietnam. 56. Because of these reasons, I do not accept that the claim that is now being made was one that fairly arises on the material. Because that claim does not arise on the material there was no need then for the IAA to look at the question of relocation. Relocation will only become a matter that the IAA needs to look at if it is satisfied that there is a well-founded fear that has been established. 57. For those reasons I am of the view that the grounds of the application do not illustrate any jurisdictional error.

The Further evidence the appellant seeks to adduce 14 The further evidence which the appellant seeks to adduce consists of eight paragraphs in an unsworn affidavit of the appellant which, in turn, is an annexure to an affidavit of her solicitor, and a statement of approximately two-and-a-half pages which is the first annexure to the appellant's unsworn affidavit. 15 The evidence in the appellant's unsworn affidavit is as follows. The appellant states that she was formally interviewed twice in the Wickham Point detention facility in Darwin in July and August 2013. She states that after those formal interviews, one of the guards in the detention centre, a woman by the name of Elizabeth, helped her write some further statements to be given to the Department. The appellant does not know Elizabeth's last name. She states that Elizabeth wore a uniform and she helped her write the statements. One such statement is dated 11 October 2013 and it is the first annexure to her affidavit. The appellant states that the second statement she made at the detention facility is dated 23 October 2013 and she annexes a true copy of that statement with its translation into English as the second annexure to her affidavit. That annexure is not part of the further evidence the appellant seeks to adduce. 16 The appellant states that Elizabeth was either a centre management officer, i.e. guard, or an immigration officer. She had been involved in interviewing the appellant. The appellant states that she gave the statements to one of the people who had interviewed her. She states that she had the originals with her, so at the time she gave them to that person, she thinks that the person copied them. However, she states that she cannot remember them for certain. She states that she definitely gave them to the interviewer, because they were statements intended to be given to the Australian government and that is why she wrote them. She states that she still has the originals of those statements as she thought that copies were made and kept by the Department. She states that Elizabeth was definitely based at the detention centre and working there. She states that Elizabeth was not a visiting person. She states that Elizabeth's job was to help with things, look through files, tell refugee people like her when to do things for their applications, and to help them make applications for being refugees and applying for visas. 17 The first annexure to the appellant's unsworn affidavit is a typewritten statement of the appellant which is in English. It is dated 11 October 2013. It is said to have been translated from a handwritten copy which is in Vietnamese by a translator who has apparently signed the typewritten statement and dated it 17 January 2020. She states in her typewritten statement that she has not previously declared the information in her case due to personal reasons. She states that at the time she did not want to recall her past which was "full of hurting and bitter". She states that now that the Department has considered her case as not eligible for refugee status, she would like to mention what happened to her and what she has had to bear in life. She refers to her first marriage and then her marriage to her husband. Her husband beat her and she states that she had to be hospitalised for urgent treatment. She states that her life became worse upon the birth of her daughter. Her husband has beaten her and neglected her and her children on a regular basis. It became worse when he declared that her daughter was not his daughter. He tortured her and even threatened to kill her daughter "to get rid of his burden". He evidently drank heavily and at one point about three years ago woke her up after he had returned home and hit her in the head and face with a glass bottle. Her eye required three stitches. She states that in the last year or so her life became so unbearable that she decided to live separately and the house was divided into two parts with her living in one part and her husband in the other. She thought that this would settle the problem, but in fact the situation became worse. Her husband threatened to kill her and her daughter. On many occasions she had to leave home and stay with friends at their homes. Her husband beat her as recently as 17 April 2013. She refers to a report prepared by the Women's Union branch in Dong Linh hamlet where she was living as proof that they had come to her house and made a report with the presence of her husband. She states that after this incident, her husband did not change his behaviour "after he signed in the reconciliation report" but, in fact, he became more violent. She states that the domestic violence that she suffered is the reason she chose to escape from her country regardless of danger on the open sea to be able to come to Australia where human rights are protected and to apply for refugee status. 18 Also part of the annexure is a handwritten copy of the statement which is in Vietnamese.

Proposed Grounds of Appeal 19 In summary, the four proposed grounds of appeal are that the Federal Circuit Court erred in law in failing to hold that the Authority had exceeded its jurisdiction or failed to exercise its jurisdiction in that the Authority: (1) failed to carry out a proper complementary protection assessment in relation to the appellant's fear of domestic violence; (2) decided, irrationally, that there was no indication that the threat of domestic violence was ongoing; (3) committed a breach of the rules of natural justice in not putting "its concerns" as to what would occur to the appellant if she returned to Vietnam to her directly; and (4) failed to infer from the appellant's claims of the domestic violence she suffered from her husband that she feared such violence from him if she returned to Vietnam and to consider her claims for protection on that basis. 20 It seems to me to be clear from these grounds that, in one way or another, the appellant's case of jurisdictional error(s) centres on the Authority's decision as to whether there was an issue as to a fear of domestic violence on the part of the appellant from the husband should she be returned to Vietnam.

Submissions 21 The appellant submits that the further evidence is relevant to the process of judicial review and "goes to the heart of her domestic violence claim". It contains two threats to kill on two separate occasions. The Authority made its decision with no further inquiry about whether the appellant could return to Vietnam without facing the risk of domestic violence. 22 The appellant submits that the Authority failed to make relevant inquiries. 23 First, the authority said the following (at [20]): …It appears that the farm was owned by the applicant mother, as she stated that her parents gave her the land when she first married. During a discussion about identity documents in her first arrival interview, the applicant mother stated that they were at her home in Vietnam but that the home was empty. She added that her mother had recently informed her that the house had been broken into. I conclude from this that Mr [REDACTED] moved out of the family home at or around the time that the applicants came to Australia. His whereabouts were not discussed at the PV interview. I am not satisfied that there would be ongoing conflict between [sic] and Mr [REDCACTED], should the applicants return to Vietnam… 24 The appellant submitted that the Authority assumed from this that the husband had "gone away" and made no further inquiry in circumstances where it ought to have done so. 25 Secondly, the Authority said the following (at [3]): I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act). On 5 May 2017 the IAA received a submission on behalf of the applicants from their representative, Ngoc (Teresa) Tran of CARES Lawyers P/L. In this submission Ms Tran also requested that the IAA defer making a decision in this matter until after the applicants were able to provide reports on their mental health. On 18 May 2017 the IAA received an Attendance Certificate certifying that the applicant child had attended four therapy sessions with registered psychologist Wen Ng, and a letter to neurologist Dr Aaron Tan from GP Dr Pham, referring the applicant mother for assessment. Ms Tran submits that the applicant mother is waiting for further medical reports, which will be provided when they are available. No timeframe for when these reports may be expected was given. I note that the applicants were represented before the Department by the same registered migration agent. No medical evidence of this nature was sought or provided at that time, and no indication of these issues were given to the delegate during the interview or in the period following the interview and prior to a decision being made. I am not prepared to delay the matter further and have proceeded to make a decision. 26 The appellant submits that the medical evidence about the appellant's mental condition was referrable to the domestic violence issue. As I understood it, this is not put forward as a separate ground of challenge to the decision, but rather as an indication of the Authority's "cavalier attitude", to use counsel for the appellant's words, and that it shows that an inquiry by the Authority could have elicited the statement which the appellant described as "critical" and one she assumed was before the Authority, but was not. An inquiry should have been made about what had happened to the statement. 27 The appellant submits that the circumstances establish that there was no lack of reasonable diligence on her part, particularly having regard to her lack of fluency in the English language and the fact that she was in the hands of her lawyers who themselves were doing their best in circumstances where the Authority would not allow further time. 28 The appellant submits that the further material which refers to two threats to kill by the husband was "quite capable of affecting the result". 29 The particular jurisdictional error which the appellant identified in this context was legal unreasonableness. The legal unreasonableness was in the Authority not making further inquiries. The additional information was available in the form of the further evidence and the specialist medical evidence. The appellant sought to draw support from Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 (CRY16) where the Full Court of this Court said (at [82]): Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority's statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority's failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of "practicable", in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error. 30 I note two things about that decision. First, it centred on s 473DC and the Authority's statutory power to get new information. Secondly, present in that case, but, as the appellant acknowledged, not in this case, was the circumstance that the Authority knew that it did not have relevant information on an issue not considered by the delegate, but one which the Authority ultimately considered dispositive. 31 The appellant also referred to what Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ said in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 93 ALJR 1091; (2019) 373 ALR 196 (at [33]-[34]): 33. The argument would deprive s 473DA(1) of any meaningful operation. It cannot be accepted. The evident purpose of s 473DA(1) in prescribing that the provisions to which it refers are to be taken to be an "exhaustive statement of the requirements of the natural justice hearing rule" is to require that those provisions be construed as a codification of the incidents of the Authority's acknowledged obligation of procedural fairness. The prescription does not preclude all implications. Importantly, it does not preclude an implication that a statutory power within the provisions to which s 473DA(1) refers must be exercised only within the bounds of legal reasonableness. What the prescription does preclude is an incident of the Authority's obligation of procedural fairness arising as a matter of implication through the application of the common law principle of statutory interpretation according to which, where the exercise of a power or the performance of a duty is conditioned by a requirement to afford procedural fairness, "regard must be had to the circumstances of the particular case to ascertain what is needed to satisfy the condition" with the result that "[i]t is not possible precisely and exhaustively to state what the repository of a statutory power must always do to satisfy [the] condition". 34. The consequence of the codifying effect of s 473DA(1) was correctly stated by the Full Court of the Federal Court constituted by Robertson, Murphy and Kerr JJ in Minister for Immigration and Border Protection v CRY16 and in Minister for Immigration and Border Protection v DZU16. The consequence is that, except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the "lens" through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined. (Citations omitted.) 32 The appellant's written submissions conclude as follows: 16. The fresh evidence is not sought to be put on to controvert the findings of fact by the IAA, but rather that the 2013 statement highlights the extent of the process of flimsy inference indulged in by the IAA. The actual state of affairs regarding the husband (the amplitude of his propensity for violence and whether it had a future component; his presence in the house or otherwise) was never sought out by the IAA, as it could and should have. Rather the IAA rested on inferences based in inadequate information. The fresh evidence illustrates what further information was available if sought out. 33 The Minister submits that there are two issues which are relevant to whether this Court, exercising appellate jurisdiction, should receive further evidence related to the proceeding in the Federal Circuit Court, that is to say, the proceeding at first instance. The two issues are whether the evidence could, by the exercise of reasonable diligence, have been put before the Federal Circuit Court and, had the evidence been before the Federal Circuit Court, whether it is likely to have led to a different result. The Minister submits that there is no evidence from the appellant which would enable the Court to find that the further evidence could not, by the exercise of reasonable diligence, have been adduced by the appellant before the Federal Circuit Court. It is to be remembered, submits the Minister, that the appellant was represented by solicitors and counsel before the Federal Circuit Court. Further, and critically, according to the Minister, the appellant has not shown that if the further evidence had been before the Federal Circuit Court, it is likely to have produced a different result. First, the further evidence cannot support a ground of a failure to consider a claim which, according to the Minister, is the gist of the first ground in the Amended Notice of Appeal. Secondly, the third ground, on the face of it a complaint about a breach of the rules of procedural fairness, is in fact a complaint of legal unreasonableness which is to be determined by reference to the claims made and material put before the Authority. Furthermore, the decision in CRY16 is readily distinguishable because in that case, unlike the present case, the issue which the Authority considered dispositive was entirely new and one with respect to which the Authority knew that it did not have all relevant information and that the referred applicant had relevant information. A failure by the Authority to inquire is not a ground of appeal. There was no link between the proposed specialist medical report and the risk of domestic violence in the future. With respect to the fourth ground, as developed in the appellant's written outline on the appeal itself, being that the Authority failed to consider a claim advanced by the appellant to belong to a particular social group, the Minister submits that that ground could only be determined by reference to the material before the Authority and that further evidence, particularly a statement which was not translated until 17 January 2020, could not be relevant to that exercise. As the Minister correctly pointed out, there is no suggestion, and nor could there be, that the English translation made in January 2020 was before the Authority. 34 Counsel for the Minister referred to the authorities as to what must be shown before there is a favourable exercise of the discretion to receive further evidence. It is sufficient for present purposes to refer to the following authorities. 35 In NASB v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 24, the Full Court of this Court (Beaumont, Lindgren and Tamberlin JJ) said (at [42]): In order for this Court to receive further evidence, generally speaking (cf : Cottrell v Wilcox [2002] FCAFC 53 ; [2002] FCA 232 at [18]-[21], citing CDJ v VAJ (1998) 197 CLR 172 at 184-186 per Gaudron J, 199-201 per McHugh, Gummow and Callinan JJ and 230-238 per Kirby J) it will be found that two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, 'probability', and at the highest, 'certainty', of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 ('of such importance as very probably to influence the decision' and 'of such weight as, if believed, would probably have an important influence on the result'); Orr v Holmes at 636 ('high degree of probability that the admission of the new evidence would result in a different verdict'); Florance v Andrew (1985) 58 ALR 377 at 381 ('such a different complexion on the case that a reversal of the former result ought certainly to ensue'); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) 'almost certain that, … , an opposite result would have been reached by the primary judge'). 36 In Sami v Minister for Immigration and Citizenship [2013] FCAFC 128; (2013) 139 ALD 1, the Full Court of this Court (Jagot, Barker and Perry JJ) said (at [7]): The requirements of r 36.57 reflect the principles which apply to questions of fresh evidence on appeals. Generally, if the evidence could have been adduced below by the exercise of reasonable diligence it will not be admitted on appeal (see, for example, Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236; [2007] FCAFC 134 at [4]-[7]). Further, unless the evidence is of such relevance and weight that its admission would be likely to lead to a different result it also will not usually be admitted on an appeal. In the present case, the potential relevance and weight of the proposed fresh evidence must be assessed having regard to the limits on the Court's jurisdiction to review the decision of the AAT - that is, for jurisdictional error only, no review of the merits of the AAT's decision being permissible by this Court either at first instance or on appeal. 37 In this case, I must have regard to the limits on the jurisdiction of the Federal Circuit Court when hearing an application for judicial review. As the Minister submits, on appeal, this Court must decide whether the Federal Circuit Court wrongly decided that there was no jurisdictional error in the Authority's decision.

Disposition of the Application to Adduce Further Evidence 38 I have decided that the application to adduce further evidence should be refused. 39 As I understand it, the 2013 Vietnamese handwritten statement was before the Department in 2013. So much is conceded by the Department. However, the 2020 English version of the statement was not before the delegate, the Authority or the Federal Circuit Court and it is that document which the appellant advances as the further evidence. There is nothing to indicate that the 2020 English version of the statement of the appellant is information that could have been provided by the appellant at any time. 40 More significantly, I am not satisfied that the appellant's statement is likely to have produced a different result. The appellant submits that the significance of the information in the 2020 English version of the statement is that it is a "game changer" and had it been before the delegate and/or the Authority, it would have provided "a base for understanding the gravity of the violence suffered by the Appellant and its enduring quality: threats to kill have a future aspect beyond a beating". However, I am unable to see how the result of the trial before the Federal Circuit Court is likely to have been different had the further evidence been admitted before that court. This is to assume and apply the less demanding of the two tests referred to in the authorities set out above (i.e., likely to lead to a different result, rather than very probably leading to a different result). It is important to remember that the test is a different result in the Federal Circuit Court, not the Authority. In view of the limited nature of that Court's jurisdiction on an application for judicial review and the proposed grounds of appeal, it is difficult to see how the further evidence would have been admissible in that Court, other than perhaps as to materiality, if that had been raised as an issue. Even if relevant to materiality, it does not pass the test of likely to lead to a different result. Furthermore, even if one was to ask whether the further evidence was likely to have led to a different result by the Authority, if it had been admitted before the Authority, which is not the correct question, the answer to that question would be in the negative because it does not directly contradict the Authority's conclusion that there is no indication that the threat of violence from the husband was ongoing (at [20] and [26]). I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.