ASQ23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 625
•2 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ASQ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 625
File number(s): SYG 493 of 2023 Judgment of: JUDGE DOUST Date of judgment: 2 May 2025 Catchwords: MIGRATION – visa cancellation – refusal of Safe Haven Enterprise (subclass 790) visa application – Tribunal finding that applicant’s brother “retrospectively created” a document to enhance claims – whether intelligible reasons for finding – whether error material – whether jurisdictional error – application dismissed Legislation: Migration Act1958 (Cth) ss 5H(1)(a), 5J(1), 36(2)(a), 36(2)(aa), 476
Migration Regulations1994 (Cth)
Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174
BTF15 v Minister for Immigration and Border Protection (2016) 69 AAR 376; [2016] FCA 647
EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167
House v The King (1936) 55 CLR 499; [1936] HCA 40
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38
Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of hearing: 4 December 2024 Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Ms K Hoang, Oxford Law Group Counsel for the First Respondent: Mr G Jones Solicitor for the First Respondent: Ms D Salehi, The Australian Government Solicitor ORDERS
SYG 493 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASQ23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
2 MAY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant to pay the first respondent’s costs.
THE COURT NOTES THAT:
A.Paragraph [44] of these reasons has been amended to correct a typographical error pursuant to r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE DOUST:
INTRODUCTION
The applicant is a citizen of Vietnam who arrived in Australia by boat in April 2013. He was initially treated as an “unauthorised maritime arrival” under the Migration Act1958 (Cth) (the Act).
On 27 January 2017, the applicant made an application for a Safe Haven Enterprise (subclass 790) visa (1st SHEV application) which application was refused by a delegate of the Minister for Home Affairs on 21 June 2018 on the basis that the applicant did not meet the criteria for the grant of the visa. On 10 March 2020, the applicant sought review of the delegate’s decision by the (then) Administrative Appeals Tribunal (Tribunal).
On 9 June 2020, following a Federal Court decision that affected the status of a group of persons (including the applicant) who had arrived in Australia by boat, the applicant made a further application for a Safe Haven Enterprise (subclass 790) visa (2nd SHEV application). On 4 March 2022, that application was also refused by a delegate, and the applicant applied to the Tribunal for a review of the delegate’s decision on the same day.
The Tribunal conducted a review of both decisions, and on 20 February 2023, the Tribunal affirmed the delegate’s decision in both the 1st SHEV application and 2nd SHEV application (decision).
On 22 March 2023, the applicant applied to this Court for judicial review of the Tribunal’s decision pursuant to s 476 of the Act.
The matter was heard in this Court on 4 December 2024. For reasons that follow, the application is to be dismissed.
BACKGROUND AND RELEVANT FACTS
The description below does not include place names to avoid indirectly identifying the applicant. Documents referred to herein were contained in a Court Book that was tendered by consent at the hearing of the present application on 4 December 2024.
The applicant is a Vietnamese man. On arrival in Australia, he claimed that he had been born in 1997. However, the then Department of Immigration and Citizenship (subsequently differently described) (Department) determined that he was not a minor as he had claimed, and advised him by letter dated 11 September 2013, that he would not be treated as a minor and that the Department would record the applicant’s date of birth as 31 December 1994.
The applicant claimed to have lived in Vietnam in his early life with his parents (a fisherman and a homemaker), and his two older brothers and two older sisters. The applicant was brought up in the Catholic faith. His parents were involved in groups that shared faith and prayer and provided support to other parishioners. That parish was a “registered parish”, that is, it had registered with the government in accordance with the relevant law.
One of the applicant’s older brothers was ordained a priest and, in 2006, was appointed to run a parish about 25 kilometres from the family home (the brother’s parish). That brother (referred to hereafter as the brother) is the only brother who was the subject of any claims by the applicant and is the only brother to whom reference is made in these reasons. The brother’s parish was also a registered parish. The applicant claimed that he left school at the end of year 5 and moved to the brother’s parish (although the point when he had done so was in contention) where he helped look after the chapels in the parish, doing odd jobs. The applicant’s life revolved around the church; he regularly attended mass, took the sacraments of Confirmation, Holy Communion and Confession, and joined the brother’s parish youth group (youth group). He did not undertake any further schooling or paid employment, nor did he marry.
The applicant claimed to have been involved in the youth group, and also a “Life Protection Group”. The latter group advocated against abortion, encouraged and counselled women not to have abortions, and (the applicant claimed) collected the foetuses of aborted babies from clinics and hospitals to give them proper burials. The applicant claimed to have been apprehended by police and taken to the police station for questioning for two hours in 2012 when he was on the way with other group members to hospitals and clinics to collect foetuses for that purpose.
The applicant also claimed to have come to the attention of the police in July 2012 following a “peak incident” in another parish (the other parish) where police and the army stopped people from congregating and conducting masses and vandalised one of the chapels.
The applicant claimed he and other members of the youth group had attended a vigil at a chapel in the other parish sometime after the peak incident. The applicant claimed he and the youth group members were apprehended by police when they were returning on motorcycles to the brother’s parish and taken to the police station for several hours. The applicant claimed police took information about the members of the youth group, questioned them, told them not to go back to the chapel where they had been holding their vigil, slapped them, and threatened them with arrest and incarceration.
The applicant claimed that about three or four weeks later, the police came to a bible class meeting being conducted by his brother, confiscated bibles, vandalised statues, and threatened them.
The applicant claimed that after he left Vietnam (in March 2013), his brother was transferred to another parish, and some gangsters came and vandalised the church.
The applicant provided the Tribunal with a translated document which the Tribunal described as “the parish youth board appointment record” (the appointment record). It purported to be signed by the applicant’s brother as pastor of the parish and was dated 10 August 2011. The translation of that document described the record as regarding “the appointment of Execution Board of the Parish Youth”. The applicant told the Tribunal that there was a mistranslation; it was a “management board”. He claimed there were 15 people on the board, and each member was responsible for a subgroup, with the applicant being responsible for the younger people to whom he taught the bible. The appointment was for the period 2011 to 2014 and the applicant claimed to have served on the board until he left Vietnam.
The Tribunal asked the applicant why he had not referred to the appointment record document in his statutory declaration dated 13 January 2017 (the statutory declaration), and the applicant replied that he was scared and couldn’t remember everything. At the 2nd SHEV application interview, the Department had told the applicant he needed to provide evidence of his involvement in the youth group, so he contacted his brother who subsequently sent the appointment record document. The applicant said that he hadn’t seen the appointment record previously.
The applicant claimed that he was a political activist or anti-government campaigner by reason of his membership of the youth group and the Life Protection group.
The applicant said he felt increasingly insecure and scared due to his encounters with police and felt he was controlled by the government and had no rights and no freedom of religion. His brother told him to leave Vietnam, and he did so with his older cousin.
The applicant claimed to have lost his identity papers on the boat in which he travelled to Australia, and his mother had been unable to obtain replacement documents for him as he had fled the country.
The applicant also claimed his mother told him that after he left Vietnam, the police had come to her house a couple of times looking for him but had not done so for a while.
The applicant submitted that he feared harm if he returned to Vietnam for the following reasons:
(1)His Catholic faith;
(2)His link to his brother who is a Catholic priest;
(3)His membership of his brother’s parish;
(4)His activities in his brother’s parish as a youth group leader up until the time before his escape;
(5)His involvement with his brother’s parish in the fight between Catholic members of the other parish where he came to the attention of police in 2012 and the government;
(6)He came in conflict and was suppressed whilst practising his faith in Vietnam; and
(7)His continued opposition to the Government's suppression of the Catholic churches.
The Tribunal’s decision
References to paragraphs of the Tribunal’s decision appear in square brackets below.
The Tribunal commenced its consideration by noting that the Department had not accepted the applicant’s claims as to his age. The Tribunal noted that whilst the applicant claimed to have been born on 8 August 1997, he also claimed to have gone to live at his brother’s parish in 2006, when he left school at the end of Year 5. The Tribunal noted that the first year of schooling in Vietnam commences at age 6, and the school year commenced in late August. If the applicant left school at the end of Year 5, he would have been 11 years old in 2006 when he said he went to his brother’s parish, and born in 1995, not 1997 as he claimed.
The Tribunal noted that the applicant’s statutory declaration stated that he attended primary school from 2003 to 2008. On that basis, the Tribunal reasoned, he would have turned 11 in 2008, and hence have been born in 1997.
The Tribunal considered it ([41]) most likely that the applicant misrepresented the year of his birth, so as to be treated as a minor when he arrived in Australia. The Tribunal found that by doing so he diminished the credibility of his other evidence about the timing of claimed events, and his age at the time of those events.
The Tribunal considered it unlikely ([42]) that the applicant asked his mother to request replacement identity documents, as such documents would have provided documentary proof he had misrepresented his year of birth.
The Tribunal made the following findings in respect of the applicant’s claims:
(1)the applicant was a practising Catholic in Vietnam ([45]);
(2)the applicant’s brother was a Catholic priest who took on a parent-like role when the applicant lived with him in his parish ([44], [46]);
(3)noting the applicant’s evidence that he joined the youth group at age 14, his later claim that he was a member from 2006, and his inconsistent evidence about his age in particular years, did not accept the applicant’s claims regarding his age or the year he joined the youth group ([47]);
(4)considered it likely the applicant's brother retrospectively created the appointment record to assist the applicant in providing proof of his involvement in the youth group and to give the impression that he held a position of profile and responsibility ([48]);
(5)given the applicant's inconsistent evidence about his age, did not accept the applicant's claims regarding the age he joined the Life Protection group. The Tribunal considered the applicant's evidence about the claimed incident of having been taken to the police station for questioning limited, non-specific, and lacking credibility ([49]). The Tribunal also considered it unlikely that the applicant, when not an adult, would have been involved in collecting and burying aborted foetuses ([49]);
(6)rejected the applicant’s claim that he was involved in a police encounter in the course of collecting aborted foetuses for burial ([52]). The Tribunal noted ([51]) the difference between the description of those activities in letters from the applicant’s brother dated 25 May 2020 and 5 February 2023. The Tribunal reasoned that if the evidence in the later letter (that the applicant was taken to the police station and questioned and threatened when he was going to the hospital to collect and bury foetuses) was true, it would likely have been included in the earlier letter;
(7)accepted that the applicant participated in a range of faith related activities at the brother’s parish under the direction of his brother and was involved in the youth group and parish community outreach as part of the Life Protection Group ([53]);
(8)rejected the applicant’s claim that he attended the chapel in the other parish in the days following an incident there on 1 July 2012, or had an encounter with police when returning from there to his brother’s parish ([62]);
(9)rejected the applicant’s claim that there was an incident three or four weeks after the claimed incident in the other parish where the police came to a bible meeting at the applicant’s brother’s church and confiscated bibles, vandalised statues and threatened the applicant and his brother ([66]);
(10)rejected ([67]-[68]) the applicant’s claims that after his departure, there was an incident at the brother’s parish where gangsters vandalised the church;
(11)rejected ([71]) the applicant’s claim that the police came looking for him at his mother’s house after he left Vietnam, considering that if they had done so, they would have sought him through his brother, noting the applicant had lived with his brother for many years ([70]);
(12)gave no weight to a letter from former Catholic bishops in Vietnam ([74]), on the basis that it made generalised, ambit claims without reference to the applicant’s particular circumstances;
(13)gave no weight to a letter of support from the Chaplain of the Vietnamese Catholic Community in the applicant’s city ([75]), on the basis that the author was not in a position to verify the applicant’s claimed activities in Vietnam, and gave no weight to comments made by another priest regarding the Vietnamese Catholic community in the applicant’s city because they were not relevant to the applicant’s claims;
(14)rejected a claim that the applicant would be perceived as anti-government as a member of the Vietnamese Catholic community in his city, because of a photo of the Catholic Leader showing some of their members displaying the South Vietnamese flag. The Tribunal considered there was no nexus between the photograph and the applicant’s claims ([76]-[78]);
(15)did not accept that the applicant was known to the Vietnamese authorities as someone who had participated in faith-related activities or was considered anti-government ([80]); and
(16)considered it unlikely the applicant is or would be a person of adverse interest to the Vietnamese authorities ([82]).
The Tribunal then went on ([83]-[84]) to consider the country information it had concerning the Vietnamese government’s treatment of Catholics, and those who returned following illegal departure. That country information was attached to the decision and marked as “Attachment B”. The Tribunal noted ([83.1]) the assessment of the Department of Foreign Affairs and Trade (DFAT) that Catholics in Vietnam who belong to registered churches and are not politically active face a low risk of official harassment, and in general are able to worship freely and receive the sacraments.
The Tribunal concluded ([84]) that the applicant:
(1)faced a low risk of official harassment as a practising Catholic;
(2)would possibly be questioned for one to two hours about his departure, but was unlikely to be of adverse interest as he hadn’t been a facilitator of illegal movement;
(3)would possibly face some employment and social services access difficulties on return; and
(4)would not likely be stigmatised for being a failed asylum seeker.
It concluded the applicant did not satisfy the requirements for protection under the refugee criterion or under the complementary protection criteria as there was not a real chance he would be persecuted. Accordingly, he did not have a ‘well-founded fear of persecution' as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act, and there did not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there was a real risk the applicant would suffer significant harm.
The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either ss 36(2)(a) or 36(2)(aa) of the Act (nor as a family unit member of such a person) and affirmed the delegate’s decision in both the 1st SHEV application and 2nd SHEV application.
RELEVANT LEGISLATION
The criteria for the grant of the visa sought by the applicant which are contained in the Act and the Migration Regulations1994 (Cth) were contained in a “Summary of Applicable Law” which was Attachment A to the Tribunal decision. Neither party took issue with that summary, and it is not reproduced herein.
CONSIDERATION
For this Court to grant relief it must be satisfied that the Tribunal’s decision is attended by jurisdictional error.
In the applicant’s originating application lodged on 22 March 2023 he specified one ground as follows (reproduced without alteration):
The Tribunal committed jurisdictional error in concluding at [48] that the applicant’s brother had “retrospectively created” a document to assist the applicant in his protection visa application.
Particulars
a. The Tribunal rejected a number of aspects of the applicant’s brother’s evidence: see [48], [51], [59], [60], [65].
b. The Tribunal’s approach to the applicant’s brother’s evidence was informed, in part, by its conclusion at [48] that the applicant’s brother had fabricated a document in order to support the applicant’s protection visa claim.
c. As a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.
d. In the present case, there was nothing to support the Tribunal’s conclusion that the applicant’s brother had given untrue evidence or fabricated evidence.
e. The Tribunal’s approach to the applicant’s brother’s evidence constituted jurisdictional error.
There is some tension in the manner in which the ground is articulated above. In the ground itself, the jurisdictional error is said to lie in the conclusion at [48] of the Tribunal’s reasons concerning the appointment record, whereas in (e) of the particulars, it is the Tribunal’s approach to the applicant’s brother’s evidence, informed by the finding, that is said to constitute jurisdictional error. The applicant’s position was made clear in his oral submissions.
Paragraph 48 of the Tribunal’s decision is as follows:
The Tribunal notes the parish youth board appointment record and the applicant's evidence that he had never seen the record when he was in Vietnam. The Tribunal considers it is likely the applicant's brother retrospectively created the record to assist the applicant in providing proof of his involvement in the youth group and to give the impression that he held a position of profile and responsibility.
The applicant’s submissions
The applicant’s submissions relied on the following authorities as to the requirement for an evident and intelligible justification for a decision, namely:
(1)Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [76] in the judgment of Hayne, Kiefel and Bell JJ. That matter involved a claim for an adjournment of proceedings before the Migration Review Tribunal. Their Honours there referred to the “second limb” of House v The King (1936) 55 CLR 499; [1936] HCA 40, namely, that part of the judgment of Dixon, Evatt & McTiernan JJ, where their Honours said, referring to the appeal from sentence that was before them:
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
Their Honours considered that the same approach could be applied to the exercise of a statutory discretion; unreasonableness is a conclusion that might be reached in respect of a decision which lacks an evident and intelligible justification.
(2)EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167 at [69]. That matter, like Li, also concerned a review of the exercise of a discretion to refuse to grant an adjournment. At [69], Bell P, with whom MacFarlan and Brereton JJA agreed, opined that failure to accede to a reasonable request for an adjournment may constitute procedural unfairness, and review of the reasonableness of the exercise of such discretion will be informed by the considerations in Li.
(3)Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [66], where Griffiths J quoted a passage from the judgment of Allsop CJ and Katzmann J in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38, to the effect that the Minister may not, in the exercise of a discretion act arbitrarily, capriciously or legally unreasonably.
The applicant submitted that:
(1)although in [48] the Tribunal employed the term “likely” to condition its conclusion about retrospective creation, the paragraph should be understood to contain a definite conclusion that the appointment record was created retrospectively;
(2)the Tribunal did not advance any reasons for rejecting the appointment record as relevant evidence, let alone explain why it had concluded that the applicant’s brother had retrospectively created it to aid the applicant’s claims (submissions of the applicant (SOA) [14]); and
(3)that finding lacked a logical or rational basis and/or was based on a legally unreasonable process of reasoning (SOA [15]).
The applicant contended, in his written submission, that the Tribunal’s approach to the appointment record was relevant to and must have informed its findings about the credibility of the applicant’s brother in other respects ([51], [59], [60] and [65] of the decision were specified), and those conclusions were important to the Tribunal’s overall conclusion that the applicant would not be a person of interest based on his faith and faith-related activities if returned to Vietnam (SOA [7]).
That aspect of the applicant’s written submissions was not pressed at the hearing. At the hearing, the applicant eschewed any suggestion that he needed to demonstrate that the credibility finding in [48] had informed the Tribunal in how it dealt with other aspects of the brother’s evidence in order to demonstrate that the alleged error was material.
In support of his submission, the applicant also relied upon the following passage of Katzman J in in BTF15 v Minister for Immigration and Border Protection (2016) 69 AAR 376; [2016] FCA 647 (BTF15) at [56]:
It is one thing to find that evidence should not be given any weight. It is quite another to conclude that evidence is a fabrication. The High Court has said in a different context that “as a matter of logic and common sense, something more than a mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence” Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268. The Tribunal was entitled to find that the evidence of the two witnesses could not overcome the inconsistencies in the appellant’s account. It was unnecessary and inappropriate, however, for the Tribunal to go further and find that their evidence was a fabrication: Smith at 271–2 (Deane J). In the circumstances, that finding was unreasonable. It should not have been made.
During the course of the hearing, the applicant’s counsel made clear that the applicant did not contend that the error was one that was jurisdictional in nature regardless of any effect it might have had on the decision (a category discussed in the majority judgment in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 (LPDT) at 155, [6]). Rather, the applicant accepted that in order for him to succeed the error had to be material to the decision that was made (in the sense discussed in LPDT at [7]).
The first respondent accepted that the Tribunal required a logical or probative basis to make a finding of fabrication in relation to the creation of a document [first respondent’s outline of submissions (FROS) [12]), referring to ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [83(d)]. However, the first respondent submitted that a stringent standard must be applied in conducting an enquiry about whether there was a logical or probative basis for the Tribunal’s fabrication finding because to impose a lower bar would risk the Court falling into a consideration of the merits of the case.
The first respondent submitted that:
(1)properly understood, [48] of the Tribunal’s reasons should be regarded as a finding that the applicant had not been appointed to the board position (as the document purported to record), as well as a finding that the applicant’s brother had created a false document (FROS [10]);
(2)the Tribunal had before it a number of documents, which are referred to at [19] – [31] of the Tribunal’s reasons (FROS [8]). (They included the applicant’s statutory declaration);
(3)the Tribunal had questioned the applicant about the appointment record and recorded the applicant’s responses at [34.11]. The applicant had explained the mistranslation in the document (that it should have referred to the board as a “management board”, not an “execution board”) and had stated that he was appointed to the board from 2011 to 2014 and had served on the board until he left Vietnam (in March 2013) (FROS [9]);
(4)the Tribunal had asked the applicant why he had not referred to the appointment record in his statutory declaration. The applicant said he had contacted his brother to provide evidence of his involvement with the youth group after the department officer at his 2nd SHEV application interview had told the applicant he needed to provide evidence of his involvement (FROS [9]);
(5)on a fair reading of the Tribunal’s reasons, there was an evident and intelligible justification for its conclusions about the appointment record. The Tribunal’s reasons for such conclusion were:
(a)the applicant’s failure to mention the document in his statutory declaration. The Tribunal questioned the applicant about that failure (at [34.11]) and the applicant said that he was scared and could not remember everything at the time. The first respondent submitted that it was apparent that the Tribunal rejected that explanation (FROS [14]); and
(b)the applicant’s claim that he had not seen the document before, which, of itself would not justify a fabrication finding, but did so when coupled with the applicant’s failure to have mentioned either the document or the facts it purported to prove (FROS [15]); and
(6)in any event, on a proper analysis of its reasons, the Tribunal’s finding about the appointment record did not inform its approach to the other evidence from the applicant’s brother (FROS [19]), and the applicant did not establish, applying the counter-factual required in MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [37]-[38] (MZAPC), that the outcome could realistically have been different.
QUESTIONS TO BE DETERMINED
The determination of the matter requires the Court to consider and determine the following questions:
(1)Whether the Tribunal’s conclusion in [48] of its reasons about the retrospective creation of the appointment record involved error ; and
(2)If, the answer to that question is in the affirmative, whether that error material, in the sense that there was a realistic possibility that the outcome in the Tribunal could have been different had the error not been made.
Those questions are addressed in turn below.
The Question of Error
There was, inarguably, a proper basis for the Tribunal to conclude that the applicant’s brother was the creator of the appointment record. The appointment record purported to be issued under the brother’s hand. It contained the stamp of what had been the brother’s parish in 2011. The applicant said his brother had given him the document.
The more difficult aspect of the consideration of the Tribunal’s reasons is whether, read fairly, they disclose a logical connection between the evidence and the conclusion that the applicant’s brother had retrospectively created the appointment record. The answer to that question requires careful consideration of [48] in light of the Tribunal’s reasons as a whole.
The first respondent submitted that, properly understood, [48] of the Tribunal’s reasons contained two findings. Namely, a finding that the applicant had not been appointed to the board (as the appointment record purported to record), as well as a finding that the applicant’s brother had created a false document.
Whilst the Tribunal does not, in [48] or elsewhere, make an express finding rejecting the applicant’s claim that he held the board position, that appears to be implicit in its conclusion in that paragraph. The “impression” the Tribunal says in [48] that the document was created to convey, must be a false impression. Had the Tribunal intended to make what would have been a quite unusual finding, namely that the document itself was not authentic but the fact it purported to prove was nonetheless true, one would expect to see that conclusion clearly and expressly articulated. Further, at [53], where the Tribunal makes a finding about the extent of the applicant’s involvement in the activities of the brother’s parish, it does not include any reference to holding an office or management role. The Tribunal’s conclusion in [48] should therefore be understood as a rejection of the applicant’s claim that he held the board position as well as a rejection of the bona fides of the appointment record.
The Tribunal’s conclusion as to retrospectivity in [48] should also be understood as a finding that the applicant’s brother created the record following the 2nd SHEV application interview, which is when the Tribunal records in [34.11] that the applicant contacted his brother seeking further evidence of his involvement in the youth group.
The Tribunal does not, either in [48] or elsewhere, reveal any reasoning for its rejection of the applicant’s claim to have held the board position, other than its reasoning about the bona fides of the appointment record. The Tribunal records its questioning of the applicant relevant to the issue, in [34.11], as concerning only the applicant’s failure to previously mention the appointment record (not his failure to mention the appointment itself).
That approach, in which the document itself, rather than the appointment said to be evidenced by the document, became the focus of the Tribunal’s enquiry, was likely a consequence of the manner in which the applicant’s claim was articulated. The applicant did not mention having held any board position in his statutory declaration dated 13 January 2017 which he submitted in support of both SHEV applications, although he does mention having a role organising bible study. There is no mention in the decision refusing the applicant’s 1st SHEV application of any claim to have held a board position. The decision of the delegate refusing the applicant’s 2nd SHEV application indicates the applicant submitted the appointment record on 15 October 2021 (some 8 years after arrival and 4 years after the 1st SHEV application) when he was interviewed in relation to the 2nd SHEV application, but did not make any claims during that interview to have held any leadership role. The delegate who refused the applicant’s 2nd SHEV application also recorded that the applicant made no claim to hold a leadership or executive role in the youth group in his 1st SHEV interview.
In those circumstances, the provision of the appointment record was the principal, if not only means by which the claim of the executive appointment was advanced. That situation contrasts with the (what might be thought to be more common) circumstance where documentary evidence is provided to support a claim articulated in an application, or in a declaration made in support of an application.
Given the claim to have held the executive position only emerged relatively late in the piece, and the appointment record was the principal means of its articulation, it was not surprising either that the Tribunal was concerned about the bona fides of the document (as [34.11] reveals) or that the bona fides of the appointment record became the focus of the Tribunal’s consideration of the executive appointment claim.
The first respondent contended that, fairly read, the Tribunal’s first reason for the conclusion in [48] was the Tribunal’s rejection of the applicant’s evidence that he had not mentioned the appointment record in his 2017 statutory declaration, as he was scared at the time and could not remember everything. That evidence is recorded at [34.11] of the Tribunal’s reasons, but the Tribunal does not, either in [34.11] or [48] explicitly reject that evidence.
The conclusion about retrospective creation in [48] necessarily negated the applicant’s claim of faulty memory in 2017. If the document had only been created after the 2nd SHEV interview, it did not already exist in 2017, and the applicant could not have forgotten about the document’s existence when he made his statutory declaration. However, the Tribunal does not explicitly reject the applicant’s claim of faulty memory. Elsewhere in its reasons where the Tribunal rejected the applicant’s evidence, it did so explicitly, such as in [47], where it rejected the applicant’s evidence about his age, on the basis of the inconsistencies in the applicant’s account. In a similar fashion, it would have been open to the Tribunal to reject the applicant’s claim of faulty memory because the amount of detail in the 2017 statutory declaration showed he had good recall of events from the relevant period. Given the absence of any explicit reasoning about the claim of faulty memory, it is impossible to say whether the Tribunal’s disbelief of the faulty memory claim led to the finding about retrospective creation in [48] or was simply the concomitant of the finding about retrospectivity, which finding was made for other reasons.
The first respondent also contended that the Tribunal should be understood to have justified its decision by reference to the fact that the applicant said he had not seen the document previously. The first respondent contended that such evidence would not by itself justify the finding of fabrication, but did so when coupled with the lack of reference in the applicant’s earlier claims to the document itself or the facts it purported to prove.
It may be accepted that one of the matters to which the Tribunal had regard in reaching its conclusion in [48] was the applicant’s evidence that he had never seen the record as that matter was clearly identified in [48]. However, absent from [48] or anywhere else in the decision is any explanation how the fact that the applicant had not seen the document before supported the conclusion that the applicant’s brother had fabricated the document (as distinct from merely justifying the Tribunal in declining to be satisfied as to its bona fides, and/or declining to give it weight).
Curiously, the Tribunal does not, in [48], refer to the applicant’s failure to mention the appointment record in his earlier claims, although the Tribunal’s question (at [34.11]) about the applicant’s previous failure to mention the appointment record suggested the Tribunal had a concern on that account, and that failure could have supported a decision not to give the document any weight. Elsewhere where the Tribunal relied, in reaching its findings, on a failure to previously mention a matter, such as in [51], [65] and [67], the Tribunal did so explicitly, using a common form of words. The Tribunal might reasonably be expected to have said something similar to that in either [34.11] or [48] if the Tribunal was rejecting the applicant’s evidence as recent invention, or for that matter, was rejecting the appointment record because it had only recently arrived. Although the recent appearance of the appointment record could have provided a proper basis to decline to give it weight, the Tribunal did not merely make a finding about weight, although its conclusion about the appointment record’s provenance necessarily meant the Tribunal was not giving the document any weight.
So far as the Tribunal referred to the document itself, it does not identify any particular feature of the document itself that supports the conclusion that it was not bona fide. The delegate who made the 2nd SHEV decision the subject of the Tribunal’s review referred to the reference in the document to the applicant’s birthdate as “08/08/97”, which birthdate the delegate had not accepted as being genuine, as a reason for declining to accept the document as genuine. The Tribunal did not refer to that issue as a reason for its conclusion about the document, either in [48] or elsewhere. Nor did the Minister suggest that it was a matter to which the Court should have regard.
Nor did the Tribunal refer to the applicant’s name appearing in the list of intended recipients of the appointment record as something supporting its conclusion about retrospective creation. Arguably there was a chain of reasoning open to the Tribunal that if the document had existed in 2011, the applicant, as one of the listed recipients, would have seen it, and the applicant not having previously seen it suggested that the document did not exist at the time it purported to have been made.
However, the Tribunal did not embark on that, or any other course of, reasoning as to how the appointment record itself, combined with the applicant’s evidence he had not previously seen it, led to the positive conclusion that the applicant’s brother had created the document after the fact. The matters to which the Tribunal refers at the commencement of [48] are not connected by any reasoning or argument to the conclusion that appears in that paragraph. The Tribunal did not articulate an intelligible justification for the rejection of the document, let alone one which could be adequate to support the conclusion about the brother’s activity that the Tribunal reached in [48].
In light of the above, the applicant has demonstrated that the Tribunal’s finding in [48] of its reasons lacked an evident or intelligible justification, or a logical or probative basis and the Tribunal erred in making the finding that the appointment record was retrospectively created by the applicant’s brother.
The Materiality Question
The approach the Court is required to take in light of the finding of error above is set out in LPDT at [14], as follows:
The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.
The majority in LPDT also cautions at [15] that:
a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
Further, at [16], the majority in LPDT said:
In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
The applicant’s ground of review and his written submissions contended that the adverse credibility finding in respect of the applicant’s brother in [48] of the Tribunal’s reasons was material as it must have informed the Tribunal’s approach to the applicant’s brother’s credibility in other respects, particularly in paragraphs [51], [59], [60] and [65].
During the course of the hearing, the applicant’s counsel retreated from that position. He accepted that a reasonable reading of the Tribunal’s reasons in [51], [59], [60] and [65] was that the Tribunal rejected the claims the subject of those paragraphs based on its analysis of the evidence concerning those claims; they did not disclose that the Tribunal relied upon the conclusion in [48] about the fabrication of the appointment record in rejecting any of the evidence referred to in them.
However, the applicant’s counsel submitted that his concession about the proper reading to be given to [51], [59], [60] and [65] of the Tribunal’s reasons did not foreclose satisfaction of the “realistic possibility” test in LPDT.
The applicant submitted that if the Tribunal had not made the error in [48], there was a realistic possibility that it would have accepted and placed weight upon the appointment record, and there was a realistic possibility then that the Tribunal would have concluded that the applicant had a position of profile and responsibility within the youth group, and that those two findings alone were sufficient to found satisfaction as to the existence of jurisdictional error.
The applicant further submitted that, in addition, had the Tribunal accepted that the applicant had a position of profile and responsibility within the youth group, the Tribunal may have taken a different approach to the applicant’s claims about the applicant’s pro-life activities and may have also taken a different approach to the various other aspects of the brother’s evidence.
The first respondent submitted that the applicant’s argument fell into the trap of re-writing the Tribunal’s reasons; the exercise to be undertaken is “backward looking” and involves consideration of the “counter-factual” as described by the majority in MZAPC at [37] – [38]. The assessment of the materiality of the error required, the majority there said, an examination of “how the decision that was in fact made was in fact made”.
The first respondent submitted that the applicant never claimed that having been a board member placed him at risk or brought him any particular political profile. Rather, as recorded in [34.11] of the Tribunal’s reasons, the applicant claimed that his role on the board meant he had responsibility for a sub-group of people, being younger people to whom he taught the bible. Nothing in the Tribunal’s reasons provided any basis to suggest that by being a board member of a parish a person would thereby be brought into conflict with the authorities. The first respondent submitted that the Tribunal had accepted the applicant was a member of the youth group and had been found to be an involved and engaged member. The finding in respect of the appointment record was ultimately superfluous to the disposition of the application.
It is necessary to make one particular observation about that submission. Whilst the first respondent’s submission about the applicant’s membership of the youth group reflected the content of [53] of the Tribunal’s reasons (in which the Tribunal found the applicant participated in a range of faith-related activities including being involved in the youth group), the Tribunal had also, in [47], declined to accept the applicant’s evidence as to his age, or the year he had joined the youth group. That left the extent of the finding in [53] unclear. Acceptance of the appointment record would have the consequence that the applicant was accepted to be a member of that group from no later than 1 August 2011, that being the date of the board meeting referred to in the appointment document as resolving on the applicant’s appointment. A reversal of [48] was therefore capable of impacting on the finding in [47]. However, notwithstanding the qualification in [47] of the Tribunal’s reasons, it is apparent from its reasons that the Tribunal accepted the applicant was a member of the youth group as at July 2012; that is the Tribunal accepted the applicant was a member of the youth group at the time of the “peak incident”, and the alleged events in July 2012 that were central to the applicant’s claims connected with such membership. The Tribunal accepted, at [61], that the applicant was involved, as part of the youth group, in some form of ceremony in the brother’s parish, in recognition of the peak incident in the other parish.
The Tribunal’s resolution of the applicant’s application was conditioned upon the conclusion in [84.1] of the Tribunal’s reasons (and also [82]) that it was unlikely that the applicant would be of adverse interest to the Vietnamese authorities due to his Catholic faith or faith-related activities and was at low risk of official harassment. That conclusion was premised on:
(1)the conclusion in [80] that the applicant was not known by the Vietnamese authorities to have participated in faith-related or other activities that were considered anti-government;
(2)the conclusion in [81] that if returned to Vietnam, the applicant would likely live with his brother and participate in similar faith-based activities to those he participated in before he left Vietnam; and
(3)the Department of Foreign Affairs and Trade Country Information referred to in [83.1] (which was Attachment B to the Tribunal decision, the substance of which the Tribunal records having put to the applicant at [34.24] of its reasons) that Catholics belonging to registered churches who were not politically active faced a low risk of official harassment.
The conclusion in [80], that the applicant was not known by the Vietnamese authorities to have participated in anti-government activities was in turn conditioned on the Tribunal’s rejection of a numbers of claims made by the applicant.
First, it was conditioned on the rejection (at [52]) of the claim, recorded in [34.10] and considered at [49] – [51], that the applicant had been intercepted by police in 2012 when he was undertaking activities with the members of the Life Protection group to collect the foetuses from hospitals and clinics and to give them proper burials. The Tribunal rejected that claim because the applicant had given inconsistent evidence about his age when he joined the Life Protection Group and because the applicant’s evidence about the claimed incident was limited, non-specific and lacking credibility. The Tribunal did not accept that the applicant would have been involved collecting and burying foetuses when not yet an adult. The Tribunal also rejected the applicant’s brother’s evidence as limited, non-specific and lacking credibility and observed that if the later evidence of the applicant’s brother were true (about the applicant being taken to the police station when intercepted on the way to collect and bury foetuses), the applicant’s brother would have given that evidence earlier.
Second, it was conditioned on the rejection (at [62]) of the claim, recorded in [34.7] and considered at [54] to [61], that the applicant had attended a vigil in the other parish in recognition of the 1 July 2012 peak incident, and upon return had been intercepted by police, directed to the police station, questioned, slapped, and threatened with arrest and incarceration. The Tribunal did not accept that claim, rejecting the evidence of the applicant and his brother about the vigil itself, as well as the alleged encounter with police, as limited, non-specific and lacking credibility. Whilst satisfied that there had been a ceremony of some sort in the brother’s parish, the Tribunal was not satisfied that the applicant attended the other parish in the days following the 1 July 2012 peak incident or had the claimed encounter with police upon returning to the brother’s parish.
Third, it was conditioned on the rejection (at [66]) of the claim, recorded in [34.8] and considered at [63] to [65], that the police had come to a bible class meeting in the brother’s parish, confiscated bibles, vandalised statues and threatened them. The Tribunal considered the evidence of the applicant and his brother about the incident was limited and non-specific and lacking in credibility. The Tribunal also noted that the applicant’s brother’s first letter, dated 20 May 2020, made no mention of the matter, but the claim was made in his later letter of 2 May 2023. The Tribunal considered that if the claimed police encounter in the brother’s parish had occurred, the applicant’s brother would have mentioned it in his earlier letter.
Fourth, it was conditioned on the rejection (at [68]) of the claim, recorded in [34.9] and considered at [67], that gangsters had vandalised the church in the brother’s parish after the brother left that parish. The Tribunal noted the absence of any reference to the alleged incident in the brother’s letters, considering that if the incident had occurred, he would likely have mentioned it in his letters.
Fifth, it was conditioned on the rejection (at [71]) of the claim, recorded in [34.18] and considered at [69] – [70], that the police had come looking for the applicant at his mother’s house after he left Vietnam. The Tribunal rejected that as implausible, reasoning that if the police had been looking for the applicant, they would have made enquiries of his brother given the number of years the applicant had lived with his brother.
The appointment record did not corroborate the accounts of the applicant and his brother about the events that the applicant claimed brought him to the attention of the authorities. Nor were any of the Tribunal’s findings rejecting claims made by the applicant and his brother conditioned on any general view the Tribunal had reached about the credibility of the applicant’s brother. The Tribunal did not express any general view about the credibility of the applicant’s brother. Rather, the rejection of the applicant’s claims about having engaged in activities that brought him to the interest of the authorities was conditioned on the Tribunal’s analysis of the evidence in respect of each incident, in particular, the inconsistencies between the accounts given by the applicant’s brother about the events. The appointment record did not concern those events and its acceptance did not add to the weight of the evidence concerning them.
Had the Tribunal accepted the appointment record, it does not follow, as a realistic possibility, that the Tribunal would have regarded the applicant as having occupied a position of profile and responsibility which would have been regarded by the authorities as anti-government. The applicant’s evidence about the nature of the board position is recorded in [34.11] of the Tribunal’s reasons. The applicant described the role as involving responsibility for managing a subgroup of younger people to whom he taught the bible. The Tribunal accepted, at [53] of its reasons, that the applicant was involved in the parish youth group and parish community outreach as part of the Life Protection group. Even if the Tribunal had accepted the appointment record, and explicitly accepted that the applicant taught the bible to members of the youth group, that was not activity the Tribunal had found was likely to attract the adverse interest of the authorities. The Tribunal had also noted in its reasons (at [72]) that the applicant’s brother had not experienced any problems with the Vietnamese authorities since transferring out of his parish, and concluded at [73] that it was unlikely that the applicant’s brother was a person of adverse interest to the authorities because of his faith-related activities. There was nothing in the country information which the Tribunal accepted to indicate that the organisation of bible study was regarded as anti-government, or was an activity that exposed those who engaged in them, to the risk of adverse attention from the authorities.
Given the above, had the Tribunal not made the error in [48], the outcome could not, realistically, have been different. When the Tribunal’s decision is read as a whole, the rejection of the applicant’s claim that he held a position on the parish board found in [48], is superfluous to the disposition of the applicant’s application for review.
The application should be dismissed, with costs.
I will hear the parties as to the latter order.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 2 May 2025
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