SZQHF v Minister for Immigration and Citizenship

THE GROUNDS OF APPEAL 8 The amended notice of appeal raised the following issues: 1. The appellant seeks the leave of this Honourable Court to amend her Notice of Appeal to raise a new ground of appeal in the following terms in addition to the grounds raised herein which were pleaded at first instance: i) The Second respondent failed to determine a discreet integer of the Appellant's claims being the claim that she and her son attempted to defend their land and protested against the authorities and are now considered political dissidents. 2. His Honour erred in not finding that the Second Respondent erred in law and thereby exceeded its jurisdiction in that by imposing a test which required evidence to "convince" her, the reviewer erred in applying a standard of proof well beyond sanctioned by the Refugees Convention and/or did not turn her mind to the established meaning of a "real chance". 3. His Honour should have held that the Tribunal erred in law and thereby exceeded its jurisdiction in that by imposing a test which required evidence to "convince" her, the reviewer erred in applying a standard of proof well beyond sanctioned by the Refugees Convention and/or did not turn her mind to the established meaning of a "real chance".

the proposed new ground of appeal 9 Whether the Court should allow the appellant to raise on appeal an argument which was not raised before the federal magistrate depends upon whether it is expedient in the interests of justice to do so. That test often involves consideration of the chances of success of the new proposed ground, consideration whether the respondent would suffer any prejudice by reason of the new ground being raised, and consideration whether there is some explanation for the fact that the ground was not raised at first instance. In the present appeal, consideration of the merits of the proposed new ground is determinative. Consequently, the arguments on that question will now be outlined. 10 The Court has been particularly assisted in this case by the very extensive experience of both counsel. As a consequence, the central arguments have been put succinctly and clearly. 11 For the appellant, Mr Gibson of counsel, contended that the second respondent failed to consider a claim by the appellant that she had a political profile generated from her objection to the confiscation of her land in Vietnam. This, he argued, was a distinct and separate profile from that which she asserted came from her allegiance to the previous government in Vietnam. Mr Smith, who appeared on behalf of the first respondent, contended that such a claim had not been raised before the second respondent. He accepted that, if it had been raised, then it was not dealt with. Consequently, the fairly narrow issue left for determination by the Court is whether the suggested ground was raised before the second respondent in a way that compelled her to deal with it. 12 The basis upon which Mr Gibson said that the claim was before the second respondent depended on the matters which were before the assessor and the reviewers, and the way in which the second respondent explained the matters that she regarded as emerging from the unusual history of the claim. 13 In her reasons for the recommendation, the second respondent set out the claims made in the previous stages of the case, including the comprehensive written submissions which were relied upon before the refugee status assessment officer. That submission contained a claim, which was set out in the second respondent's reasons, as follows: The claimant and her son attempted to defend their land, and protested against the authorities very strongly, and are now considered political dissidents. In the context of the submission as a whole, it is clear that this was relied upon as a discreet and separate basis upon which the actual or imputed political opinion ground was to be argued. 14 The second respondent then set out, at length, the reasons of the first reviewer, which included the following passage: I accept but give no weight to the fact that there was a clash between officials and the claimants in their home at the time they were advised of the intended expropriation, but am of the view that this was not unexpected by the authorities. I accept that an officer slapped Mr Bang. Although the process appears to have been harsh and flawed, I do not accept that the claimants lost their property for Convention-related reasons. I am not satisfied on the evidence before me that the authorities would have regarded the claimants' complaints or even anger towards the state at that time as dissidence to any significant degree. They were in a position to arrest family members on the spot when they came to visit and did not; evidently they dealt with conflict "in the moment" and left. I am concerned about Mr Bang's claims about having lodged a form or letter in June 2006 seeking justice in the matter of compensation, as little or no time had yet passed in June 2006 for the compensation promise to appear unfulfilled. Mr Bang's evidence about what followed after the house was expropriated is generally marked by inconsistency and implausibility, both internally and when seen beside the evidence of Mrs B [the appellant]. The two claimants provided very different recollections as to what they last knew of the fate of the house; Mr Bang was entirely unconvincing in his evidence about taking up the concerns of neighbours and encouraging them to protest; he told the Department in a statutory declaration that Mrs Be was, up to that time, unaware that he had been detained and had had his collarbone broken by the police, whereas Mrs Be herself later claimed in writing to have known of his detention the very day he was detained and also claimed in writing to have found out whilst still in Vietnam about his collarbone having been broken; Mr Bang claims not to have discussed purportedly important issues of common interest with Mrs Be; Mr Bang claimed to have gone into hiding and later claimed that he only hid in the day, enabling him to see what had become of the seized house in the middle of one night; Mr Bang gave inconsistent evidence as to when he went to the provincial office to try to obtain ID documentation. In tying claims about his personal campaign for justice to claims about encouraging neighbours to rise against the authorities, Mr Bang left me unconvinced that he took any significant or potentially significant action arising from the expropriation of his family's property. Even the evidence as to how he came to be detained is inconsistent: in one version he was led away by police from the house in which he was staying and in another version he was detained when he went to the police station to petition. Added to this, I find the claim about the police saying to Mr Bang that they were releasing him until his collarbone had time to heal whereupon they were going to arrest him again quite far-fetched. Ultimately, I do not accept that Mr Bang or Mrs Be or, for that matter, Mrs Be's husband attracted negative political profile as a result of their disaffection over the expropriation of their property. 15 In support of the argument that the claim in question was before the second respondent, Mr Gibson also referred to some passages in the lengthy written submission made to the first reviewer which were before the second respondent. The passages include the following: At the time the authorities came to confiscate the applicant's land, the police chief gave an order to his officers to strike the applicant's son because he attempted to defend her land. Approximately one month later, the police chief returned to arrest the applicant's son while she was away selling clay pots. Her son was detained and beaten for 10 days sustaining a broken collar bone. The applicant and her son attempted to defend their land and protested against the authorities very strongly and are now considered political dissidents. The applicant claims she has been discriminated against because of her and her husband's association with the former Dai Dau Tjieu Ky regime. They have continued to be discriminated against and persecuted for defending their rights as citizens of their country and have so far, been denied the right to compensation since the confiscation of their land in 2006. The applicant claims this is because the authorities want to silence her and her son's protests against them for not providing adequate compensation for confiscating her family's land. 16 Mr Smith argued that, whilst the claim in question was made to the first reviewer, it was, in effect, abandoned before the second respondent. He relied on the written submission, incorrectly dated 22 February 2010, which was sent from the appellant's advisors to the second respondent, following the interview on 9 February 2011 conducted by the second respondent. Mr Smith submitted that it was significant that this submission did not refer to the claim in question. 17 He then relied upon the evidence given by the appellant to the second respondent on the subject of land confiscation. The second respondent set out that part of the interview relevant to the issue as follows: The claimant then said that because the house was near the authorities, the government wanted it for government use. She said that she was very upset when the land was taken from her, and that this was the reason she decided to come to Australia. I advised the claimant that even if the government had taken her land, it did not necessarily mean she was a refugee. 18 Mr Smith contended that there was no reference in this evidence to the claim that the appellant gained any profile as a result of objecting to the confiscation of her land. He said this was particularly significant because the second respondent had indicated that the evidence, as it then was, would not necessarily mean that the appellant was a refugee. Mr Smith also argued that the appellant was legally represented before the second respondent, and that the legal representative had not taken any issue with the advice given by the second respondent. 19 Mr Smith referred to Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 (Dranichnikov), where at [24] Gummow and Callinan JJ with whom Hayne J agreed, said: To fail to respond to a substantial, clearly articulated argument relying upon established facts, was at least to fail to accord Mr Dranichnikov natural justice. 20 The matters to which Mr Smith referred, he contended, demonstrated that no such clearly articulated argument had been made by the appellant. Mr Smith distinguished the circumstances of the present appeal where, it was said, a claim which was before the first reviewer was abandoned before the second respondent, with those in Dranichnikov, where the majority was satisfied that the case presented to the Tribunal was no different to that which was before the delegate. 21 Finally, Mr Smith submitted that, in any event, the evidence demonstrated that the claim concerning a profile gained following the confiscation of her land related to the appellant's son and not to the appellant herself.

CONSIDERATION 22 The claim that the appellant had gained a political profile, or an imputed political profile, as a result of her objection to the confiscation of her land was clearly made to the first reviewer. It was dealt with, at length, by him. The submissions in which that claim was made were before the second respondent. They were set out by her and were not expressly withdrawn by the appellant. 23 The final written submissions of the appellant sent after the interview on 9 February 2011 were explicitly incomplete and supplementary in nature. The appellant's legal representative introduced the submissions by stating: As I was unable to complete the oral submission due to technical difficulties on the 9th of February 2010 (sic) I wish to forward same in written form. (emphasis added) This written submission was two pages long. It referred to the previous written submission, and was obviously an attempt to summarise the remaining part of the case which could not be addressed on 9 February 2011. This supplementary submission should not be taken as limiting the scope of the previous comprehensive submissions made to the first reviewer and repeated in the reasons of the second respondent. 24 In any event, it is arguable that this further submission does make reference to the claim that the appellant had gained a profile from protesting against the confiscation of her land. In summarising the bases of the appellant's well founded fear, the submission includes that her fear is "also due to her capacity to subsist being threatened." It is possible that this summarised claim was intended to encapsulate the claim presently under consideration. 25 The lack of evidence expressly directed to the issue of the appellant's response to the confiscation of her land does not itself establish that the claim was abandoned. There were other reasons for a failure of communication between the appellant and the second respondent specific to the circumstances of the hearing before the second respondent. More likely, the lack of evidence reflects the fact that the interview was conducted by video and through an interpreter. The appellant had a very limited education. The legal advisor of the appellant asked the second respondent to consider the appellant's ability to answer even simple questions. Further, it is apparent from the description of the interview in the reasons of the second respondent that the questioning on this aspect was quite inadequate. There was no attempt to raise with the appellant the details of this claim. Rather, the second respondent appears to have provided a fairly immediate negative response, which is likely to have inhibited the response of the appellant on the issue. 26 In relation to the suggestion that the claim was limited to the appellant's son, Mr Gibson pointed out correctly that the written submissions to the first reviewer made it quite clear that the claim was not so limited. Those submissions provided: The applicant lodged a formal complaint with the provincial office and he and his mother are now considered political dissidents. (emphasis added) 27 The argument that the second respondent failed to deal with the appellant's claim that she had gained a political profile opposed to the government as a result of her objecting to the confiscation of her land should be accepted. The proposed new ground of appeal thus has merit. The entire argument before the Court revolved around the question of the merits of the proposed new ground of appeal. The first respondent did not contend that leave to argue the new ground should be refused if the Court found that the proposed new ground of appeal has merit. In any event, no substantial prejudice would flow from the grant of leave. It is therefore expedient in the interests of justice to permit this ground to be argued. It also follows that the new ground of appeal should be upheld and the appeal allowed. 28 The grounds particularised in [2] and [3] of the amended notice of appeal largely reflect the argument which the appellant lost before the federal magistrate on the question of whether the reviewer applied the real chance test in considering her claim. Mr Gibson only faintly pressed these grounds at the hearing of the appeal. For the reasons given by the federal magistrate at [32] to [51] of his Honour's judgment, these grounds should be rejected. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.