ASQ23 v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2025] FedCFamC2G 625

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

  1. The applicant is a citizen of Vietnam who arrived in Australia by boat in April 2013.…

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AGLC
ASQ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 625
Case
[2025] FedCFamC2G 625
Decision Date

CaseChat Overview and Summary

In the case of ASQ23 v Minister for Immigration, Citizenship and Multicultural Affairs, the applicant, a Vietnamese man, sought judicial review of a decision by the Tribunal affirming the Minister's decision to refuse his application for a Safe Haven Enterprise visa (subclass 790). The applicant claimed to have been born in 1997 and alleged that his Catholic faith, association with his brother (a priest), and involvement in youth and anti-abortion groups had led to him being persecuted by the Vietnamese government, necessitating his departure from Vietnam.

The key legal issues before the court were whether the Tribunal's reasons for finding that the applicant's brother had "retrospectively created" a document to bolster the applicant's claims were intelligible, whether any errors were material, and if the Tribunal had made a jurisdictional error in its decision-making process. The applicant argued that the Tribunal's findings lacked clarity and failed to properly consider the evidence provided.

The court found that the Tribunal's reasons were sufficient to demonstrate that the appointment record document had been created after the applicant's departure from Vietnam, as the Tribunal noted inconsistencies in the applicant's claims about his age and schooling. The court held that the Tribunal's findings were intelligible and based on a proper consideration of the evidence. Furthermore, the court determined that any errors made by the Tribunal were not material and did not affect the outcome of the decision. The court concluded that the Tribunal had not made a jurisdictional error and dismissed the application for judicial review.

The final orders of the court were that the application for judicial review be dismissed, and the Minister's decision be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.