Blo21 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 939

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BLO21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 939

File number(s):	ADG 158 of 2021 ADG 160 of 2021
Judgment of:	JUDGE VASTA
Date of judgment:	26 July 2023
Catchwords:	MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth) Part 7 Division 4
Division:	Division 2 General Federal Law
Number of paragraphs:	102
Date of last submission/s:	26 July 2023
Date of hearing:	26 July 2023
Place:	Brisbane
In ADG 158 of 2021
Counsel for the Applicant:	The Applicant appearing on their own behalf with the assistance on an interpreter
Solicitor for the First Respondent:	The Australian Government Solicitor

ORDERS

ADG 158 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BLO21

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The application filed on 1 June 2021 be dismissed.

3.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $2,700.

IT IS NOTED THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

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).

ADG 160 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BLS21

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	26 JULY 2023

THE COURT ORDERS THAT:

4.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

5.The application filed on 1 June 2021 be dismissed.

6.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $2,700.

IT IS NOTED THAT:

B.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

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
(Ex Tempore)

JUDGE VASTA

1. On 27 April 2021, the Administrative Appeals Tribunal (“AAT”) affirmed a decision not to give the applicant, BLO21, a protection visa.  The next day, 28 April 2021, the AAT affirmed a decision not to give the applicant, BLS21, a protection visa.  On 1 June 2021, both BLO21 and BLS21 asked this Court to review those decisions.  The Court has heard both applications together because they are based upon the same factual matrix. 

2. The AAT decisions were made by the same member of the AAT.  In the decision regarding BLS21, the AAT has said that that decision needed to be read in conjunction with the decision in BLO21. 

3. After both matters had been filed in this Court, they became part of the National Migration Docket. 

4. On 5 July 2023, I was about to embark upon the hearing of the application by BLO21.  At that hearing, the applicant, BLO21, was represented by a lawyer, Sam Nguyen.  Mr Nguyen was the solicitor on the record and had not withdrawn from the matter.  When he appeared before me, he told the Court that he did not actually have instructions to run the application by BLO21. 

5. BLO21 also appeared, however, there was no interpreter and Mr Nguyen acted as an interpreter for her on that day.  Mr Nguyen asked for the matter to be adjourned, but informed the Court that the matter should be heard with BLS21.  A quick search of the Court docket showed that BLS21 still did not have an allocation to any particular judge. 

6. Mr Nguyen asked for the adjournment so that the matters could be married up together, which would be convenient for the Court and all the parties.  However, he foreshadowed that he may not get instructions to act on any adjourned date. But the Court was able to ascertain from both BLO21 and BLS21, through Mr Nguyen’s interpretation, that they would be able to appear, even if unrepresented, on any adjourned date. 

7. The Court adjourned the matters to today, 26 July 2023, and ordered that they be heard together.  Both applicants have appeared before me today, unrepresented, but assisted by an interpreter. What needs to be known about the background of the matters are the following. 

8. BLO21 is a female and BLS21 is a male.  They are both citizens of Vietnam and are married to each other.  They made their applications for protection visas on the same day.  However, the applications for visas seem to have been pre-prepared.  Neither applicant referred to the other applicant when they made their application. 

9. The part of the application that was prepared beforehand had been typed.  In that typed part of the application, both applicants have claimed that:

   I LEFT MY OWN COUNTRY BECAUSE DISTRUST OF THE JUDICIARY AND LOW ENFORCEMENT, POOR SYSTEM OF GOVERNMENT, BURREACRACY STARTING FROM THE LOWEST LEVER UP TO THE TOP. THE DISTRUCTION OF THE GLOBAL ECONOMY IMPACT ON THE NATIONS ECONOMY, POVERTY AND UNEMPLOYMENT ARE STILL BIG, DUE TO SUCH PROBLEMS, AS THE PEOPLE OF VIETNAM, I HAS BEEN LIVING IN HARSH CONDITION SO I HAD TO BORROW MONEY FROM MY RELATIVES BECAUSE OF THAT I FINALLY COULD NOT PAY THE DEBT. I LIVE IN MENTAL DISTRESS AND FEAR. MANY PEOPLE IN VIETNAM HAVE PROBLEM LIKE ME, WHO BORROWED MONEY HAD BEEN HIT, INJURED AND KILLED.

   HOPE THE MENISIER OF IMMIGRATION CAN GIVE ME HOPE TO APPROVE MY PROTECTION APPLICATION TOGETHER WITH WORK RIGHT.

   THANK YOU THE GOVERNMENT OF AUSTRALIA. (sic)

10. In the next question which was asked:

    What do you think will happen to you if you return to that country(s)? 

    Both applicants had in their application the following typed sentence:

    IF I RETURN TO MY COUNTRY, I WILL GET CAUGHTBY PREDATOR AND COULD BE BEATEN, INJURED, OR KILLED.  THEY WILL SEARCHING ME (sic).

11. Question:

    Did you experience harm in that country(s)? 

    The following typed response was given in both the applications:

    YES I ALREADY EXPERIENCE HARM IN THAT COUNTRY BECAUSE I ALREADY RECEIVED VERBAL THREATENED FROM THEM TO HURTING ME.  BESIDES THAT, I LIVE IN HARDSHIP (BECAUSE THE BAD ECONOMY) (sic)

12. In another section which the question was:

    Do you think you will be harmed or mistreated if you return to that country(s)? 

    Both applicants had this typed response.  The typed response was:

    YES I WILL LIVE IN HARSH CONDITIONS, SUFFERED DISCRIMINATION FOR TAIWANESE WOMEN

13. Obviously, the applicants are not Taiwanese.  They are Vietnamese.  And the applicant, BLS21, is not a woman, let alone a Taiwanese one.  The AAT ignored what was in the application for the visa because it would not have assisted the applicants.  The AAT did not take any regard to what was in that application.

14. The AAT noted the evidence of the applicants that the application for protection visa was arranged with the assistance of someone living in Melbourne.  The AAT said at paragraph 40:

    It is clear that someone has prepared the application form in a manner that is materially inaccurate, and the content does not reflect the evidence the applicant gave.

15. The AAT, though, were at pains to say that they had reached their conclusions of fact independently of the application. 

16. Instead, what the AAT did, was listen very carefully to what, firstly, the applicant, BLO21 had to say.  That applicant said that she has relatives who are living in Australia.  She said though, that she had grown up in Vietnam and had gone to school there, and after school she had stayed in the house, helping her mother with household duties for two or three years.  She said that she then secured employment in a garment factory in Saigon, or Ho Chi Min City (as it is now officially known).  She said that her work involved sewing garments and that she worked there for five or six years. 

17. She said she met her husband, who is BLS21, whilst working at the factory.  She said that they got married in June 2009.  She said that after they got married, they decided to open their own garment business operating out of their home in Ho Chi Min City.  She said that the business was a joint enterprise between her and her husband.  She said they would get sewing fabric delivered to their home.  This business went well initially, but then they sought to expand the business. 

18. BLO21 said that she and her husband tried to borrow money from two or three banks, but those banks had refused to lend them money.  She said that the banks had told them that they did not have sufficient assets to serve as collateral for a loan. 

19. She said that her husband’s brother-in-law then introduced them to a loan shark.  She said that her brother-in-law, who was also in the garment manufacturing business, had borrowed money from that loan shark and he had been successful in a venture that was funded by the loan shark.

20. She said that she and her husband then borrowed money from the loan shark.  The AAT asked BLO21 why she did not borrow money from the brother-in-law himself.  She replied that they had already borrowed 100,000,000 dông (Vietnamese currency) from him.  She said they had also borrowed other amounts from other family members, including relatives in Australia. 

21. She said that the total debt to family members was already 200,000,000 dông, but that was not sufficient to fund their expansion plans.  She said that they needed a substantially larger amount so that they could buy fabric. 

22. The applicant said that they ended up borrowing 1.2 billion dông.  The money was given in two lots of 600 million dông.  The interest on this loan was 36 per cent per annum or three per cent per calendar month.  The applicant, BLO21, said that they were able to pay back the agreed interest at three per cent per month, that is, 36 million dông per month, but they were only paying back interest and not any principal. 

23. She told the AAT that they began to make larger quantities of garments for supply to a shop, or shops, in a market, but when the AAT asked about what firm forward orders she had, the applicant said that they did not have any firm forward orders for large numbers of garments at the time they borrowed the money.

24. She said that she and her husband had decided to take a calculated risk in borrowing the money and expanding the business.  She said that, by 2014, the orders began to decline gradually and, in 2015, her customers began to start closing their shops. 

25. She said that by the end of 2015, the loan shark began to demand payment of interest and principal because he could see that the business was no longer doing well.  They then defaulted in paying interest on one particular month.  She said that the loan shark, who had become dissatisfied with their delayed payment, threatened that if no money was forthcoming, he would arrange for their son to be kidnapped.

26. The applicant, BLO21, said that she and her husband went into hiding in the village where she had grown up.  She said that they had stayed with relatives and then began to move from one safe house to another because of the fear they had for their safety. 

27. The AAT asked the applicant whether they approached the police because of the threat of kidnap.  The applicant said that she and her husband did not approach the police, but a family member did approach them.  She said that the family member returned with a message from the police asking the husband to come into the station, but she said that her husband was too afraid to do so.  The applicant said that the police had said that they could look after them, but they could not do so 24 hours per day. 

28. In October 2016, the applicant, BLO21, arrived in Australia by herself.  She arrived here on a six-month tourist visa.  The AAT asked how she came here, and she said that her older sister, in Australia, paid for the ticket.  The AAT asked why the husband, and especially the son, did not come to Australia at that time in order to hide.  The applicant said that her sister could only manage one application.  The applicant said that she returned to Vietnam after approximately six months and stayed with her aunt in the village for five months after that.  The applicant said that her husband and son stayed with the aunt as well. 

29. When she returned to Vietnam, the applicant did not go to the police and did not explore any ways of securing protection for her family.  The AAT said that they noted that there was no application for a protection visa made during this first trip to Australia.  The AAT said that the applicant came back to Australia with her husband and son in September 2017.  I make the note that the applicants have both told me today that their son is in Vietnam and did not come to Australia with them.  This aspect may be a factual error on the part of the AAT. 

30. The applicant told the AAT that she had felt safe in Vietnam when she came back and lived with her aunt and was not as scared as she had been.  The applicant said that her sister applied for the whole family to come over to Australia once the applicant had returned to Vietnam.  The AAT looked at making a number of critical findings of fact from what the applicant, BLO21, had told them. 

31. The applicant, BLS21, gave evidence to the AAT the day after his wife had spoken to the AAT.  I note that the hearing regarding BLO21 occurred on 18 January 2021 and the hearing regarding BLS21 occurred on 19 January 2021.  The AAT noted that BLS21’s evidence was consistent with that of BLO21, in that he gave the same story as to where they were working, and how they met, and when they were married. 

32. He told the AAT that the decision to expand their business was partly because a particular woman in the market asked them to produce garments.  That woman had a business selling garments in the market and she was looking for more suppliers.  The arrangements were that they would give, to this woman, a number of finished products and she would pay them an agreed amount of money at the end of each month. 

33. The applicant, BLS21, said that he and his wife had first borrowed 200 million dông from family members to purchase machinery and fabric.  He told the AAT that that amount also allowed for a reserve to be set aside to be drawn upon when needed.  The applicant, BLS21, confirmed the evidence given by BLO21, that they had borrowed two lots of 600 million dông totalling 1.2 billion dông from a loan shark. 

34. He said that he and his brother-in-law, that is, the husband of his sister, went and met the loan shark and arranged the loan.  The applicant said that the interest rate was three per cent per month, or 36 per cent per annum, which he conceded was an extremely high interest rate.  The applicant said that, by June 2014, the family had been paid back entirely their 200 million dông. 

35. The applicant said that because the family members were not well off, he and his wife decided to pay them back first rather than to reduce the principal of the sum that he said was owed to the loan shark.  He said that this was a conscious decision made by him and his wife to pay the family members back first.  And notwithstanding that there was a very high interest rate on the loan to the loan shark, they still wanted to pay their family back first. 

36. The applicant said that, at that time, he believed that if business had stayed the way it was, that they would have paid off the total loan to the loan shark within two to three years. But the applicant said that the main customer closed her shop very suddenly and left the area at the end of 2015.  This meant that there was a serious interruption to their cashflow and to their business model. 

37. The AAT asked why, if business had been so good, did the applicants not pay back principal and interest during that time.  The applicants said that they were managing to pay back the interest and they did not see the need to pay back principal and they wanted to retain capital to continue their work. 

38. The applicant confirmed the evidence given by BLO21, that the loan shark threatened the couple at the end of 2015 with the kidnap of their son.  The applicant said he realised, in 2016, that they would not be able to continue their business and he also confirmed the wife’s evidence that the couple went into hiding. 

39. The applicant confirmed the evidence of his wife that there had been an approach to the local police station.  The applicant said that the relative came back with a message from the police that they might be able to look after them but not all the time. 

40. The applicant said to the AAT that he did not know why his wife had come to Australia on a holiday visa the first time she came here.  He said that he did not know that the wife’s sister had sponsored her.  He said that he and his wife did not discuss the idea of travelling to Australia and living there at that point in time. 

41. He said that his wife returned after about six months but neither she, nor he, were aware, at that stage, about the possibilities of claiming a protection visa in Australia.  The AAT wrote, at paragraph 24, that the applicant confirmed that the entire family came to Australia in 2017 and he and his wife claimed protection visas shortly after their arrival in Australia. 

42. The findings of fact that the AAT made, in both matters, were focused upon the evidence of each of the applicants.  The AAT was at pains to say that the evidence of BLO21 did not influence the decision in regards to BLS21, and the AAT was also at pains to point out that the evidence of BLS21 did not influence the deliberations in regard to the application made by BLO21. 

43. The AAT did say that nothing of BLS21’s evidence was persuasive of the truth of BLO21’s account, but the conclusion reached was irrespective of that evidence.  With regard to the application by BLS21, the AAT noted that nothing that BLO21 had said persuaded the AAT of the truth of BLS21’s account, but the AAT reached a conclusion irrespective of BLO21’s evidence in respect of the application of BLS21. 

44. With regard to BLO21, the AAT came to the following conclusions.  The AAT did not accept BLO21’s evidence in respect of the alleged loan moneys and did not accept that the couple borrowed money from a loan shark.  The AAT did not accept that their lives, or the life of their son, was at risk on account of their having defaulted in the repayment of loan moneys. 

45. The reasons for the conclusion were as follows.

46. Number 1, the AAT found it inherently unlikely that any family member, especially one with a business background, would have introduced a young couple to a loan shark who charged interest at 36 per cent per annum.  The AAT said that the loan was self-evidently imprudent, and the brother-in-law had already lent the couple money.  The AAT said that the risk to the young family of failing to pay back a loan shark would have been obvious to the brother-in-law and to the two applicants themselves. 

1. The AAT bore in mind that the applicants were attempting to expand the business but said that it would have made much more sense for them to expand gradually and within their means.  Given that the couple had already borrowed 200 million dông from family members, the AAT could not see how any person would prudently recommend to the couple that they approach a loan shark, particularly as the couple had already borrowed from that same relative, and whilst the AAT accepted that young people may not have knowledge and may do imprudent things, the AAT could not believe that within a family there could have been any recommendation to approach a loan shark. 

2. For that reason, the AAT did not believe that there was any recommendation from the brother-in-law that the young couple should begin their expansion with a loan from a loan shark. 

3. Number 2, the evidence of BLO21 was that 600 million dông was borrowed in June 2013 and a further 600 million dông was borrowed in October 2013.  The AAT said that it made no sense for a second loan to be taken out before it became clear that a first loan was able to be serviced. 

4. Number 3, the AAT said that, if BLO21 genuinely feared for her son’s safety, the AAT was of the view that she would have tried to at least bring him to Australia on the visa on her first trip.

5. The AAT noted that had the family been under threat. The AAT was of the view that the applicant would have disclosed to her relatives in Australia the absolute urgency of her departure from Vietnam with, at least her son, especially since the son was the target of the kidnap threat that had been made by the loan shark. 

6. The AAT said that they did not find the explanation that the sister could only make or sponsor one application a convincing explanation. 

7. Number 4, the applicant did not take any steps to apply for a protection visa when she was here on her first trip.  The AAT found that this was odd given her claim that the family was under threat. 

8. Number 5, the AAT said that if the applicant, her husband and her son were genuinely at risk, the evidence that the applicant gave that she felt she could live safely with her aunt when she returned from Australia to Vietnam is contradictory to what the applicant had said about her fear. 

9. The AAT said that they could not understand how the entire family could live with a single relative, in the home village of BLO21, when the applicant claimed that the family was under such a serious threat.  The AAT said that, in their opinion, there was a contradiction in this account which had not been explained adequately. 

10. Number 6, The AAT said that the evidence about the refusal to contact police was unconvincing.  The evidence of BLO21 was that BLS21 was too scared to go to the police station.  The AAT said that it was strange that a family member could attend the police station and make inquiries but that BLS21 would not make those inquiries, or seek police involvement for his family’s protection, even when police asked him to come to the station. 

11. The AAT said that the suggestion by BLO21 that BLS21 was too scared to attend does not sit well with their decision, later, to live at the aunt’s house for five months continuously. 

12. Looking at those six areas, the AAT said that they did not find that BLO21 was threatened by a loan shark in the way that she maintained she was threatened or that her husband or son were in any danger.  The AAT said that the claim for a protection visa, on the basis of threats from a loan shark, must therefore fail. 

13. The AAT said that they appreciated that economic circumstances may well be difficult for the family upon return to Vietnam but that was not a basis for granting a protection visa. 

14. The AAT looked at what, if anything, might happen to the applicant if she were to return to Vietnam and had regard to the most recent DFAT country information report.  The report suggested that returned, or failed, asylum seekers coming back to Vietnam would not face any serious risk of persecution or harm. 

15. The AAT said that they were mindful that BLO21 and BLS21 have lived in Australia for a considerable period of time and they were keen to continue building a life here but that was not the job of the AAT to give them a visa for that reason.  The applicant, BLO21, according to the AAT, did not meet the criteria for refugee and did not meet the complementary protection criteria and therefore the decision not to give her a protection visa was affirmed. 

16. When looking at BLS21’s application the AAT, as I have said, was at pains to say that they had looked at that application on its own merits without regard to the evidence of the wife, but that there was nothing she said that assisted the husband’s application for a protection visa. 

17. The AAT said that they did not accept BLS21’s evidence that he and his wife borrowed 1.2 billion dông from a loan shark in Vietnam.  The AAT relied upon the reasoning that it had given in the decision regarding BLO21 but added that there were two other aspects of the evidence that added to the implausibility of the loan shark tale. 

18. These were, firstly, that BLS21 said that the business was doing well from mid-2014 to the end of 2015.  The applicant had said that he estimated that they would be able to have paid off the principal and interest within two to three years if business had kept going as it had from mid-2014, yet there had been no effort made to reduce principal at all in the 18 months from mid-2014 to the end of 2015.  The AAT found that this scenario was quite implausible. 

19. The second aspect was that BLS21 gave evidence that he did not discuss with his wife why she travelled to Australia the first time.  If this is true, the AAT said it contradicted BLS21’s claims that he was living in fear.  The AAT said, if they had been living in fear, then they would have actively discussed any possibility to take their son out of danger. 

20. The AAT said that a trip to Australia was such a possibility that one would have thought the two of them would have spoken about.  The fact that it did not do so added to the implausibility of the whole tale that the applicant has told. 

21. The AAT was also at pains to say that they did not regard any of the inconsistencies, which were relatively minor, in the versions of events presented by BLO21 and BLS21, to be of any relevance to the decision that the AAT made about each application.  The AAT said that, for the same reasons that the wife’s application failed, the husband’s application failed. 

22. For those reasons, the AAT affirmed the decision not to grant the applicant, BLS21, a protection visa. 

23. In the applications that were filed in this Court on 1 June 2021, both BLO21 and BLS21 had the same six grounds of application.

24. I will deal with those six seriatim, notwithstanding that neither applicant sought to expand at all on those grounds before me.

25. Ground 1 is:

    That the Tribunal failed to take into account the Applicant's individual circumstances.

26. It would seem to be nothing could be further from the truth.  The AAT was at pains to speak of what each applicant was claiming.  The AAT was also at pains to ensure that they treated each of the applicants as an individual, in their deliberations.  When one looks at both sets of reasons given by the AAT, ground 1 must necessarily fail.

27. Ground 2 is:

    That the Tribunal did not consider the applicant's fear of prosecution by creditors ("loan sharks"), or whether the government of Vietnam could be able to protect the application from prosecution of that source.

28. It is true that the AAT did not consider that fear, because it came to a conclusion that the applicants did not borrow money from the loan sharks in the first place.  The AAT could only consider whether they had a fear of the loan sharks if the AAT had been satisfied that the applicants had borrowed money from the loan sharks.  Because the AAT had made a finding of fact, and that finding was open to it on the evidence, there is no jurisdictional error illustrated by this ground.

29. Ground 3 is:

    That the Tribunal erroneously assumed that the authorities of Vietnam keep accurate records concerning the applicant and will protect the application

30. The AAT did not have to assume that the authorities of Vietnam would do either of those things, because the AAT did not accept that the applicants were persons in need of protection from the Vietnam authorities.  Having come to the conclusion that the applicants did not borrow money from a loan shark, there was no need to consider as to whether the Vietnam authorities could keep them safe from the loan shark.  So that ground fails.

31. Ground 4 is:

    That the Tribunal erred in inferring that the Applicant's did not borrow monies from Creditors (sic)

32. This was a finding made by the AAT on the evidence.  It was a finding that was open on the evidence.  Because of that, it does not illustrate any jurisdictional error. 

33. Ground 5 is:

    The Tribunal misconstrued and misapplied the definition and notion of "prosecution" and "well found Fear" against the Application (sic)

34. The only way to properly understand this ground would be to substitute the word “prosecution” for “persecution”.  There is nothing in the evidence before the AAT and nothing in looking at their reasons that would show to me that the AAT did misconstrue or misapply any definition. 

35. The terms “persecution” and “well-founded” fear need to be looked at objectively, not subjectively.  There was a very rigorous objective test applied by the AAT in looking at these two aspects.  Having completed the task and not misconstruing or mis-applying the terms, the AAT has not committed any jurisdictional error. 

36. Ground 6 is:

    The Tribunal failed to take into account relevant considerations namely the compelling and compassionate circumstances leading to the major changes beyond the applicant's control

37. It is trite to say that a relevant consideration is a consideration that the AAT must take into consideration.  Unlike other sections of the Migration Act 1958 (Cth) (“the Act”), the AAT does not look at whether there are compelling and compassionate circumstances for the grant of a protection visa. The considerations that the AAT must take into account are whether the criteria for refugee status has been satisfied and whether complementary protection criteria have been satisfied. Compelling and compassionate circumstances do not enter into those considerations. This ground was not further particularised and was not spoken of by the applicants in their submissions to me. I do not find that there is any jurisdictional error illustrated by this ground either.

38. The applicants made oral submissions to me, though, these mainly were submissions as to the merits of their application. 

39. Applicant BLO21 said that the AAT could not see how frightened she was. 

40. BLO21 said that she did not believe that the decision was fair and she believed that the AAT rushed to make a decision. The applicant’s submission that the decision was not fair simply seems to be a contention, because decision was not favourable to her, it could not have been fair. But ‘fairness” must be seen within the prism of the Act.

41. The complete statement of procedural fairness and natural justice are contained in sections 422B and following of the Act. The AAT has complied with all of the requirements in those sections. The complaint that the AAT decision was not fair therefore does not have any merit to it.

42. The applicant, BLS21, made similar submissions regarding the merits of the application.  He said that he did not have any evidence in the form of documents or other corroborating material to support his claims regarding the loan sharks.  He said that he was too frightened when he left Vietnam to bring anything of that nature with him. 

43. Somewhat contrary to what had been said before the AAT, BLS21 said to me that the police could not, and would not, assist him because “if you have no money in Vietnam, no one will protect you”.  None of these complaints illustrate any jurisdictional error. 

44. I can understand that the applicants are aggrieved by this decision because they are of the view that the AAT should have uncritically accepted everything that they had told the AAT.  The applicant, BLS21, went as far as to say words to the effect that, “I know we did not put enough evidence before the Tribunal, but that does not mean that we are not genuine in what we are saying to this Court.” 

45. Because the applicants are self-represented, I have looked through both decisions of the AAT to assure myself that there is no other jurisdictional error.  I do note that in both decisions the AAT refers to the son of the applicants having come to Australia and that they travelled as a family. 

46. The AAT said, in the BLS21 decision, that the applicant had confirmed that the entire family came to Australia in 2017 and that is at paragraph 24 of their reasons.  That seems to be only explainable as an error in communication. 

47. Having a look at the original visa application by BLS21 at CB 27, the list of other family members not included in this part, included the son of BLS21, who was noted to have been born on 24 January 2010, and that his country of current residence was Vietnam. 

48. In the application by BLO21, at Court Book 32, in that application on the same form, other family members not included, she has written, “son”, and the same date of birth, 24 January 2010, and has also marked the country of current residence for the son as Vietnam. 

49. It would seem to me that the AAT did proceed upon an erroneous assumption that the son had come to Australia with the applicants BLO21 and BLS21.  Whilst that may be a factual error, it does not seem to me to be a jurisdictional error. 

50. BLO21 said to me that their son did not come to Australia, that he lives with his paternal grandparents, and the paternal grandparents are not in stable accommodation.  She said that she misses her child, and she has not seen him since she has been here in Australia, which is nearly six years, but she believes that, if she went back to Vietnam, the loan sharks would know that she was back and that would then put her son in danger.  She said that she wanted to live peacefully here and to bring her son here. 

51. BLS21 had said that he did not want his son feeling the need to escape all the time and that he wanted him to have a peaceful life in Australia as well, which they believe would happen if they had been granted protection visas and were then able to bring the child out to Australia.  

52. I do not find that this factual error by the AAT (that the child was in Australia) is a jurisdictional error because it was not material to the assessment.  If anything, it was more advantageous to the applicants for the AAT to have believed that the son was actually in Australia.  This is because the AAT was critical of the decision not to bring the child to Australia in 2016 when the mother came on a six-month tourist visa. 

53. The AAT described this as implausible for the mother to leave with the son being threatened in Vietnam.  If the AAT knew that the son was still in Vietnam and the parents were here in Australia, the AAT may very well have been even more critical and unbelieving of the tale of the applicants.  For that reason, that aspect does not illustrate any jurisdictional error. 

54. I cannot find that there has been any jurisdictional error.  As I explained to both applicants on a number of occasions, my task here was to look at whether the AAT had made any errors in the manner in which they came to their decision.  Having found that there has been no error, I dismiss the application. 

55. The Minister has asked that the parties pay costs in the sum of $5400 in each application.  However, I am of the view that, because both matters were dealt with together at the same time, the expenditure of time and energy has been halved.  That is, that there really has not been any further expenditure having heard both matters today than there would have been if the Court were only hearing one matter, and then the Court would have to expend the same again if it heard the other matter. 

56. For those reasons the applicants will have to pay the first respondent’s costs in the sum of $5400 for both matters. In BLO21, the application is dismissed with costs fixed in the sum of $2700; and, in BLS21, the application is dismissed with costs fixed in the sum of $2700.

I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       26 July 2023