Whether a claim is clearly articulated or not is becoming a hot topic after the M1 decision. In HRZN v Minister for Immigration [2022] FCAFC 133, the Vietnamese appellant had lived in Australia since he was a child and had two adult Australian citizen children. His visa was cancelled on character grounds in trying to persuade the AAT that there was “another reason” to revoke the cancellation he raised issues about impediments to returning him to Vietnam and also Australia’s non-refoulemnent obligations.
There were two grounds of appeal:
- firstly, that it was unlikely that the Appellant (who was suffered from Hepatitis B and D) would have access to treatment for this condition in Vietnam and that it was “unlikely” that he would be able to access the anti-viral medication he requires, with the consequence that his health would likely be adversely affected; and
- the second ground was that as a drug user the Appellant risked: punishment; “mistreatment, ostracisation and harm from the authorities in Vietnam”; and, in particular, “beatings, forced labour … and prolonged arbitrary detention in a compulsory drug treatment centre”.
The problem with the first ground was that the Minister’s submission that the claim was expressed “at a high level of abstraction” was accepted. Non-refoulement obligations are not things in the abstract. They do not arise simply because a person will suffer hardship. They arise having regard to the precise terms of the obligations which are engaged by the ratification of a particular convention. The Full Court found: “We are not persuaded that, before the Tribunal, the appellant clearly articulated a substantial or significant claim that Australia had non-refoulement obligations under the ICCPR or CAT by reason of the limited medical treatment that he might be able to access in Vietnam, or that such a claim clearly emerged (or was squarely raised) on the materials before the Tribunal“.
The second ground was also dismissed but on the very technical ground that although the AAT did misunderstand (this was conceded) the scope of Australia’s un-enacted international non-refoulement obligations, it was not a jurisdictional error. This comes about because in considering the “harsh and degrading conditions” in drug rehabilitation centres, the Tribunal was not considering a mandatory relevant consideration. Therefore it was an error within jurisdiction.
Once again, the case demonstrates the need for thorough preparation of an AAT case. Of course it can be very difficult to get proper evidence about things like the availability of medical treatment from overseas in the limited time which is allowed for review of 501 matters in the AAT.
Creative commons acknowledgment for the photograph
