ABAR15 v Minister for Immigration and Border Protection

(No 2) [2016] FCA 721
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This case addresses whether a protective visa under Australia’s Migration Act should be granted when appellant fears for her safety on return to her country because of domestic violence at the hands of her husband.

A 54-year-old Vietnamese woman (appellant) was detained for being an unlawful non-citizen in Australia in 2014. She had remained in Australia after her sponsored family visa issued Visa expired in November 2008. In April 2014, 6 days after she was detained, the appellant applied for a Protection Visa on the grounds that there was “a real risk that she would suffer significant harm should she be returned to Vietnam.” Appellant said she had suffered severe domestic violence at the hands of her husband in Vietnam and that he had threatened to kill her if she returned, and she remained in Australia out of fear for her life and safety and because she did not think that she would be protected by authorities in Vietnam given her husband’s Communist political influence and the non-effective implementation of the domestic violence laws.

A delegate of the Minister for Immigration and Border Protection denied Appellant’s visa application. The Refugee Review Tribunal affirmed the denial on the grounds that she could obtain protection from Vietnamese authorities should she return to Vietnam and thus she did not satisfy the criteria to obtain a Protection Visa under 36 (2) (a) and others of Australia’s Migration Act. The Tribunal found that while her fears of harm upon return to Vietnam were well founded, the violence was not politically motivated and thus she should be able to seek protection from Vietnamese authorities.

Appellant then sought judicial review of the denial in Australia’s Federal Circuit Court. On March 24, 2016 the Federal Circuit Court dismissed her application for judicial review of the denial. Hence, the appellant filed an appeal of the Federal Circuit Court’s judgment, before the Federal Court of Australia on June 17, 2016. The relevant provisions are as stated below:

Australia’s Migration Act, Section 36 Protection Visas:

“2A) A non citizen will suffer significant harm if:

(a) the non-citizen will be arbitrarily deprived of his or her life; or …

(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that: …

(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm;”

Section 5 of Australia’s Migration Act:

“cruel or inhuman treatment or punishment means an act or omission by which:

(a) severe pain or suffering, whether physical or mental, is intentionally inflicted 
on a person; or

(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

.     but does not include an act or omission:

(c) that is not inconsistent with Article 7 of the Covenant; or

(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant”

The Court held that the Tribunal must evaluate whether there is a risk of “significant harm” and “cruel and inhuman treatment” as defined in Australia’s Migration Act, not whether there is a risk of “domestic violence” as defined by the laws of Vietnam.

The Court found that Vietnam’s domestic violence laws were not “effectively implemented” or “practically protective,” because they required victims to sustain injury to 11% or more of their bodies for the case to be considered criminal domestic violence.

The Court said that the standard for assessing “real risk” of domestic violence/significant harm on return to Vietnam was that it was a “reasonable possibility.” A showing that it was “more likely than not” was not required.

The Court held that the Tribunal’s decision was an abuse of its statutory powers because the Tribunal either ignored relevant and important material before it, or it “failed to reason within the limits set by the subject matter, scope and purpose of ss 36(2)(aa), 36(2A) and 36(2B) of the Act,” or its decision was not rational. Accordingly, the Court granted appellant’s appeal and ordered that her application for a review of the Minister for Immigration and Border Protection delegate’s Protective Visa denial be remitted to the Administrative Appeals Tribunal, which merged with the Refugee Review Tribunal in 2015, for rehearing.

Section 36(2)(aa) of the Act, together with ss 36(2A)36(2B) and 36(2C) were inserted by the Migration Amendment (Complementary Protection) Act 2011 (Cth). Together, these provisions form what is commonly known as the “complementary protection regime” and give effect, according to their terms, to Australia’s obligations under the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child: Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211 (MZYYL) (2012) 133 ALD 465; [2012] FCAFC 147 at [18]–[20] (Lander, Jessup and Gordon JJ).” (Para 13)

It should be noted that the definition of cruel or inhuman treatment or punishment does not import any notion about the infliction of physical injury.  The act against which the appellant sought protection was the intentional infliction of pain or suffering that was either severe within the meaning of paragraph (a) of the definition, or “cruel or inhuman” in nature within the meaning of paragraph (b).  The Act recognises that a person may suffer harm by the infliction of physical pain or suffering irrespective of whether the act causes a demonstrable injury to the person’s body.  This was a further circumstance the Tribunal was obliged to take into account when applying s 36(2B)(b) to the facts of the appellant’s case, particularly when addressing the issues that now follow.” (Para 65)

In light of the observations I have made above, the Tribunal’s statement at [62] of its reasons that “the reports are varied on [the law’s] effectiveness” has no support in the country information materials the Tribunal considered: none of the information contained any statement or opinion to the effect that the laws were effectively implemented by the Vietnamese authorities. Nor was there contained in the country information any statistics from which the Tribunal could independently and indirectly infer that domestic violence laws in Vietnam were effectively implemented. (Para 86)

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