BVM21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 620
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BVM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 620
File number(s): PEG 131 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 4 August 2022 Catchwords: MIGRATION – Temporary Protection visa – decision of the Administrative Appeals Tribunal – whether the length of the Tribunal’s written reasons indicates an error – whether the Tribunal erred by failing to expressly mention the Department’s data breach – whether an error in that regard would be material – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36(2)(a), 36(2)(aa), 358, 476 Cases cited: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27
Applicant A v Minister for Immigration and Ethnic Affairs (Chinese One Child Policy case) (1997) 190 CLR 225
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62
Craig v State of South Australia (1995) 184 CLR 163
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 257
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22
Minister for Immigration and Multicultural Affairs v Darboy [1998] FCA 931
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
Saliba v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 38
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
X v Minister for Immigration and Multicultural Affairs [1999] FCA 697
Division: Division 2 General Federal Law Number of paragraphs: 108 Date of hearing: 7 June 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms C Taggart Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 131 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BVM21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
4 AUGUST 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
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 KENDALL:
BACKGROUND
The applicant is a citizen of Vietnam (Court Book (“CB”) 12). He first arrived in Australia in April 2013 via Ashmore Reef and was, at that time, considered an “unauthorised maritime arrival” (CB 1012). He has not departed Australia since his arrival.
On 18 September 2014, the applicant was granted a Humanitarian Stay (Temporary) (Class UJ) (Subclass 449) visa. That visa ceased on 25 September 2014.
On 5 October 2016, the applicant first applied for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (the “first SHEV”) (CB 27-70). The applicant withdrew that application on 15 June 2017 (prior to a decision being made in relation to that application) (CB 1012).
On 20 June 2017, the applicant filed a further Safe Haven Enterprise (Class XE) (Subclass 790) visa (the “second SHEV”) (CB 71-120). Upon lodgement of the application for the second SHEV, the applicant was granted an associated bridging visa. That bridging visa was cancelled on 22 November 2018 because the applicant had various criminal convictions. The applicant sought review of the decision to cancel his visa, however, on 7 December 2018, the Administrative Appeals Tribunal (the “Tribunal”) affirmed the decision to cancel his visa (CB 1013).
On 6 August 2018, the Full Court of the Federal Court of Australia handed down its decision in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 (“DBB16”). That judgment declared that the proclaimed port in the Territory of Ashmore and Cartier Islands was invalidly proclaimed. That meant that persons who arrived via the Territory of Ashmore and Cartier Islands between 23 January 2002 and 1 June 2013 (and did not subsequently enter Australia at an “excised offshore place”) were not unauthorised maritime arrivals.
On 30 March 2020, the Department of Home Affairs (the “Department”) notified the applicant that he was affected by the decision in DBB16 such that his second SHEV application was rendered invalid (CB 124-127).
On 30 April 2020, the applicant applied for the Safe Haven Enterprise (Class XE) (Subclass 790) visa the subject of this proceeding (the “visa”) (CB 128-150). The applicant made a number of protection claims. Those claims will be discussed below.
On 17 September 2020, the Department invited the applicant to attend an interview on 23 September 2020 (CB 231-233).
On 21 September 2020, the applicant’s representative provided the Department with a copy of the applicant’s statutory declaration (CB 118-120) and various media articles and country information reports (CB 237-944).
On 1 October 2020, the applicant’s representative provided written submissions to the Department in support of the applicant’s visa application (CB 954-959).
On 7 October 2020, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 965-979). The delegate was not satisfied that the applicant met the requirements of ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”).
On 12 October 2020, the applicant applied to the Tribunal for review of the delegate’s decision (CB 980-981).
On 27 November 2020, the Tribunal invited the applicant to attend a hearing before it on 11 December 2020 (CB 985-988).
On 11 December 2020, the applicant appeared at a hearing before the Tribunal with the assistance of a Vietnamese interpreter. The applicant’s representative did not attend that hearing (CB 994-997). The hearing was ultimately adjourned (CB 996).
On 16 December 2020, the Tribunal invited the applicant to attend a resumed hearing scheduled for 21 January 2021 (CB 998-1003).
On 21 January 2021, the applicant appeared at the resumed hearing. He was again assisted by a Vietnamese interpreter. His representative did not attend the resumed hearing (CB 1004-1007).
On 21 May 2021, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 1010-1044).
On 24 June 2021, the applicant lodged an application for judicial review in this Court
(CB 1-6). That application was supported by an affidavit which annexed a copy of the Tribunal’s decision (CB 7-9). The applicant seeks review of the Tribunal’s decision pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
When determining whether the Tribunal has fallen into jurisdictional error it is helpful to set out the Tribunal’s decision in some detail. This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring instead to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention, in some detail, to the Tribunal’s reasoning process and to properly consider and address the contentions raised against the Tribunal: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29]-[32]. This is particularly the case when applicants are unrepresented and have struggled to clearly articulate their concerns. In those circumstances the Court will, in its duty to the self-represented litigant, remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
The Tribunal’s decision is 35 pages long and spans 94 paragraphs. It also includes 10 pages of extracts from a DFAT Country Report and three pages containing extracts of relevant legislative provisions.
The Tribunal began by identifying the type of visa under review and explained that the delegate had refused to grant the applicant the visa (at [1]). The Tribunal noted that the applicant was a citizen of Vietnam and that he had applied for the visa on 30 April 2020 (noting further that that visa had been refused by a delegate (at [2])).
The Tribunal confirmed that the applicant appeared at hearings before it on 11 December 2020 and 21 January 2021. The Tribunal noted that, because the applicant was in immigration detention, it had determined that it was reasonable to conduct those hearings via video link and was satisfied that the applicant had been given a fair opportunity to participate in those hearings. The applicant was assisted by a Vietnamese interpreter at the hearings (at [3]-[4]).
The Tribunal then set out the criteria for the grant of protection visa, outlining the provisions of ss 36 and 36(2)(a) of the Act (at [6]-[7]) and setting out the relevant explanations of specific terms and the refugee criteria outlined in ss 5H(1)(a) and 5H(1)(b), 5J(1), 5J(2)-(6) and 5K-LA of the Act (noting further that extracts of those provisions were attached to its decision)
(at [8]-[9]).
The Tribunal also canvassed the complementary protection criterion outlined in s 36(2)(aa) of the Act (at [10]) and detailed the mandatory considerations it was obliged to take into account in accordance with Ministerial Direction No. 84 (being the “Refugee Law Guidelines” and “Complementary Protection Guidelines” prepared by the Department and country information reports prepared by the Department of Foreign Affairs and Trade” (“DFAT”)) (at [11]).
The Tribunal noted that the applicant claimed to have been born in Vietnam and had arrived in Australia in April 2013 with two of his siblings but without any identity documents. The Tribunal acknowledged that the applicant had provided an IMMI card and Queensland driver’s licence but has consistently maintained that he has no Vietnamese identity documents (at [12]).
The Tribunal then detailed the applicant’s criminal charges in Queensland and noted that a differently constituted Tribunal had affirmed a decision to cancel the applicant’s bridging visa. The Tribunal confirmed that the applicant’s identity details had remained consistent across all proceedings (at [13]). Further, the Tribunal found that there was no evidence to suggest that the applicant had a right to enter or reside in any other country and that Vietnam was his “receiving country” (at [14]).
The Tribunal then outlined the applicant’s migration history, noting that the applicant had:
(a)arrived in Australia in April 2013 as an unauthorised maritime arrival (via Ashmore Reef) and was granted a temporary Humanitarian Stay visa from 18 September 2014 to 25 September 2014 (at [15]);
(b)initially applied for the first SHEV on 5 October 2016 but that application was withdrawn before a decision had been made by the Department (at [16]);
(c)applied for the second SHEV on 20 June 2017 and was granted an associated bridging visa. That bridging visa was cancelled due to the applicant’s criminal convictions and the Federal Court found that the second SHEV application was invalid (at [17]);
(d)lodged a third SHEV application on 30 April 2020. That application was refused by a delegate of the Minister on 7 October 2020 (at [18]); and
(e)indicated that he had not departed Vietnam prior to coming to Australia (at [19]).
The Tribunal then set out the applicant’s evidence, noting that the applicant had claimed that:
(a)he is a Vietnamese Catholic who was born in Vietnam and can speak, read and write Vietnamese (at [20]);
(b)his mother remains in Vietnam but two of his brothers now live in Brisbane. He has no contact with relatives outside of Australia as his father is deceased and he is estranged from his mother (who has remarried). The applicant has an Australian citizen spouse or de facto partner (though she was not mentioned at the Tribunal hearing) (at [21]);
(c)he worked as a fisherman in Vietnam prior to coming to Australia in 2013. He has worked in a variety of roles in Australia and completed “middle school level education in 2002 in Vietnam” (at [22]);
(d)he lived with his parents in a village in Vietnam for approximately 12 years, however, this conflicts with evidence that his father had died and his mother remarried and lived with her new husband. The applicant also claimed that he and his brothers were left alone and lived in the house until authorities forced them out (at [23]);
(e)in or about 2012, their house was taken and dismantled to clear the land. The house belonged to his parents but his mother took relevant paperwork with her when she left. Three men came to the house asking the applicant to sign paperwork for compensation for the land, however, when he refused, he was beaten by a gang (including being pinned down by three men and hit in the leg with a club). The house was dismantled while he was on a fishing trip and they received no compensation and wrote to authorities in this regard but did not receive any reply (at [24]);
(f)he “abused the police officer in charge of the village” over the phone (a man known as “Han”) and that he will be harmed upon his return for that reason. He will need to obtain identification papers for the land when he returns and would be identified by authorities as a result (at [25]);
(g)he came to Australia because life in Vietnam was difficult and because of his Christian religion, noting that the church was a long distance from his village. He attended bible classes in a local house, however, because most people in the village were Buddhist, he was pressured not to attend. Further, the authorities would not allow them to meet and they were beaten and bible classes stopped by village members (at [26]);
(h)if he returns to Vietnam, he will not be left alone by the officer in charge (at [27]);
(i)he converted to Protestantism in January 2020 )at [28]); and
(j)he will be harmed upon his return because he left Vietnam illegally. In the alternative, because he arranged for his two brothers to come to Australia with him, the applicant claims that he will be will be charged with the crime of organising or brokering illegal emigration (at [29]).
The Tribunal also reproduced the applicant’s answers to questions in the first SHEV application (at [30]) and detailed the delegate’s summary of the applicant’s protection claims (at [31]).
The Tribunal outlined the material that the applicant had provided to the Department (including an Evidence of Immigration Status Card, a Queensland driver licence, country information relating to Vietnam and a statutory declaration made by the applicant on 15 June 2017) (at [32]). The Tribunal also detailed additional information provided by the applicant’s migration agent via email on 20 September 2020 (at [33]).
The Tribunal also reproduced the delegate’s summary of the applicant’s submissions regarding his protection claims dated 1 October 2020 (at [34]).
The Tribunal confirmed that, in accordance with Ministerial Direction No. 84, it had had regard to relevant sections of the DFAT report on Vietnam dated 13 December 2019 (with extracts annexed to the decision) (at [35]).
The Tribunal noted that it was required to make findings of fact in relation to the applicant’s claims, being mindful of difficulties faced by refugee applicants (including stress, nervousness and anxiety) and noting that there may be memory or cultural issues affecting responses. Further, it was noted that an applicant who is generally credible but cannot substantiate all of their claims ought to be given the benefit of the doubt (at [37]).
The Tribunal explained that claiming fear of persecution does not establish the genuineness of the asserted fear and noted that a decision-maker is not required to make an applicant’s case for them, nor is the Tribunal required to accept (uncritically) all claims made by an applicant (at [38]). The Tribunal stressed that a “reasonable approach” ought to be taken when making credibility findings (at [39]).
The Tribunal then detailed the accepted facts as follows:
40.Having considered the applicant’s claims and the relevant country information the Tribunal accepts and finds that the applicant:
(a)was born on 17 July 1990 in Binh Thuan City, Phan Thiet Province, Vietnam.
(b) has two brothers with whom he arrived in Australia on 14 April 2013.
(c)father is deceased. His mother has remarried and is estranged from the applicant.
(d) the applicant worked as a fisherman in Vietnam.
The Tribunal then discussed the “applicant’s relevant grounds”, stating:
41.The applicant’s claims fall within the scope of s.5J(1)(a) of the Act.24 That is, by reason of his race, religion, nationality, membership of a particular social group or political opinion. The applicant submits that he will be persecuted if he returns to Vietnam by reason of his religion as Christian. The applicant’s religious activities as claimed potentially may give rise to an imputed anti-government political opinion. Further by reason of the applicant’s claimed land dispute and of being a failed asylum seeker may give rise to him being imputed with an anti-government political opinion.
The Tribunal noted that the applicant had claimed to fear persecution on the basis of his religion (being a practicing Christian) (at [42]).
The Tribunal explained the scope of “religion” (referencing the decisions of Minister for Immigration and Multicultural Affairs v Darboy [1998] FCA 931; Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 and Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 257) (at [43]) and outlined the overview of the scope of religion as set out in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (at [44]).
The Tribunal accepted that the applicant’s religion fell within the scope of s 5J(1)(a) of the Act and, noting that the applicant claimed he would be imputed as holding an anti-government political opinion (on the basis of his religion and because of the land dispute), considered the case authorities discussing political opinion (citing Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22 (“Guo”) referring to Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 (“Chan”); Saliba v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 38; Applicant A v Minister for Immigration and Ethnic Affairs (Chinese One Child Policy case) (1997) 190 CLR 225 and X v Minister for Immigration and Multicultural Affairs [1999] FCA 697) (at [45]-[46]).
The Tribunal found that:
47.In this case, for the reasons expressed below, the Tribunal has some reservations about the applicant’s evidence concerning his claimed land dispute. Nevertheless, the Tribunal accepts that as a result of the land dispute be may have been imputed as holding an antigovernment sentiment as claimed and as a failed asylum seeker pursuant to s.5J(1)(a) of the Act as claimed. Although for the reason expressed below the Tribunal has rejected his claims and found that there is no reach chance that he would be seriously harmed by reason of being imputed with any political opinion as claimed.
The Tribunal then explained the meaning of “well-founded fear” (as outlined in s 5J of the Act) (at [48]) and the relevant definitions and case authorities in that regard (citing the decisions of Chan and Guo) (at [49]-[52]).
In that regard, the Tribunal determined as follows:
53.In this case, the Tribunal accepts the applicant’s evidence that he departed Vietnam illegally by boat. Therefore, in such circumstances and the fact that he has made multiple SHEV applications, the Tribunal accepts that he holds a subjective fear of persecution if he is returned to Vietnam. However, having considered the available country information and the applicant’s own evidence to the Tribunal, for the reasons expressed below the Tribunal does not accept that the applicant has a well-founded fear of persecution if he is returned to Vietnam on an objective basis.
Under the heading “applicant as a Catholic”, the Tribunal determined and noted as follows:
(a)the applicant’s evidence regarding his faith was “vague and lacking in any specific details”, noting that he had claimed that he experienced harm due to his religion and that the Vietnamese government “causes difficulty” for practicing Christians. Further, it was noted that the applicant claimed that he was prevented from attending Church and, on one occasion, was hit by local authorities while attempting to do so (though no specific details were provided in that regard) (at [54]);
(b)country reports suggest that Catholics are able to “practice freely at registered churches” and reports regarding an increase in independent “house churches” in remote areas are not relevant to the applicant’s situation (noting that the Catholic diocese associated with the applicant’s province has approximately 147,000 believers, 80 priests and 64 parishes) (at [55]); and
(c)country information also states that authorities do not permit the Catholic Church to have “official publications” and several Catholics involved in political activism have been arrested or left the country. Further, the Catholic community has been affected by land appropriation and property of the Catholic Church has been destroyed (at [56]).
The Tribunal continued:
57.Nevertheless, the country information states that Catholics who belong to registered churches who are not politically active face a low risk of official harassment. Catholic adherents who are perceived to challenge the government and are politically active are said to face a moderate risk of harassment from authorities, while Catholics belonging to house churches are likely to come under surveillance by authorities. In this case there was no evidence for the applicant that he was politically active. For the reasons expressed below the Tribunal does not accept that the land dispute as claimed would constitute the applicant being politically active so far as his faith is concerned. The applicant’s evidence was that he had challenged officials who had attended his premises for the purposes of removing him and his brothers from their home. In addition, he claims that he has attempted to obtain the title deeds of the property for the purposes of seeking compensation from the government. While his actions to attempt to save his home may have placed him in direct conflict with the authorities, it is not evidence of him being politically active in the name of his religion. That is, there is evidence that on behalf of his faith he had challenged the policies or authorities of the government. As such as a practicing Catholic belonging to a registered church who was not politically active, based on the available country information, the Tribunal finds that there is no real chance he will be seriously harmed if he is returned to Vietnam.
58.However, the applicant’s evidence was that he had been assaulted by local Buddhists and blocked from attending church gatherings for the purposes of his religion. As a result, he claimed that he attended a house church at which he attended bible readings. For the reason expressed below the Tribunal does not accept that the applicant was assaulted and blocked from attending church by locals Buddhists. Nevertheless, accepting that he did attend the house church as claimed for bible readings, then based on the available country information, the Tribunal finds that he will likely come under surveillance by the authorities as a result of attending the house church bible readings. However, as a person who has no political connections or agenda and has not been politically active, based on the available country information, the Tribunal finds that there is no real chance that he will be seriously harmed by the authorities. As such, based on the available country information Tribunal finds that there is no real chance that the applicant will suffer serious harm from the authorities if he is returned to Vietnam because of his Catholic faith.
Under the heading “applicant as a member of the Vietnamese United Revival Ministry Inc” (the “VURM”), the Tribunal:
(a)noted that the applicant claimed to have joined the VURM whilst in detention and has “a burning desire to share his faith with others”;
(b)noted that no evidence was provided to the Tribunal in this regard – however, the applicant did state that he would try to “help others who were on the wrong path”;
(c)noted that a letter from a Senior Pastor dated 19 September 2020 was provided to the Tribunal which confirmed that the applicant studies the bible each week and attends online Sunday services;
(d)accepted that the applicant had joined VURM but noted that there was no evidence of the applicant preaching about his faith (either in Vietnam or in Australia) and the applicant did not provide any evidence to suggest he would do so upon his return to Vietnam;
(e)found that the applicant would not express his faith in a way that would bring him to the attention of authorities in Vietnam (at [59]);
(f)noted that country information suggests Protestant church members are able to conduct religious activities without significant government interference – however, in some provinces, official Protestant groups have been prevented from registering their organisations;
(g)noted that the Tribunal had no evidence to suggest VURM was a registered Church in Vietnam and accepted that the applicant would likely attend an independent Protestant church if he is returned to Vietnam;
(h)accepted that, if returned, the applicant would face a moderate chance of harassment, including surveillance, but not arrest or violence; and
(i)found, on that basis, that any harassment faced by the applicant as a result of being a member of a Protestant church would not amount to significant physical harassment and he would not be seriously harmed (at [60]).
Under the heading “societal discrimination against the applicant as a Christian”, the Tribunal:
(a)noted that the applicant had claimed that a lot of people in his village were Buddhists who placed pressure on him not to practice his faith and he and his family suffered societal discrimination within the community and thus attended bible classes at a local house (at [61]);
(b)noted that no specific evidence was provided in relation to the pressure the applicant claimed he faced from local Buddhists (at [62]);
(c)noted that the Constitution of Vietnam provides for freedom of religion – however, the practice of religion is restricted by a range of government controls (at [62]);
(d)accepted that the applicant may be subject to some societal discrimination but was unable to find country information to suggest that he would be subject to discrimination from other religious groups (at [62]);
(e)did not accept that Christians are discriminated against within society or that the applicant was pressured by Buddhists not to attend church (at [62]); and
(f)did not accept that the applicant’s brother was bullied at school because of his religion to an extent that represented serious harm (at [63]).
Overall, the Tribunal found as follows:
64.As such the Tribunal finds that there is no real chance that he would be seriously harmed if he was returned to Vietnam by reason of societal discrimination based on his religion as a Christian as claimed.
The Tribunal then assessed the “applicant’s land dispute”, as follows:
(a)the applicant stated that he and his brother were involved in a land dispute, claiming that in 2010 or 2011, the house they were living in was confiscated for road development and that the land was confiscated prior to the applicant departing Vietnam (at [65]);
(b)the Tribunal found the applicant’s evidence regarding the land dispute was “relatively vague and lacking in detail”, but noted that it had been consistent since his arrival interview in 2012;
(c)the Tribunal was willing to accept that the authorities confiscated the applicant’s home in or about 2012 (at [66]);
(d)the applicant claimed that he was offered low compensation for the land (which he refused). He further claimed that the refusal resulted in him being threatened and assaulted by gang members hired by police, including being pinned to the ground and clubbed. Further he claimed that, after pushing an officer, he was threatened with being jailed for obstruction (at [67]);
(e)the applicant claimed that the house was dismantled in or about 2012 and the applicant received no compensation for it (at [67]);
(f)there was no evidence to suggest that the applicant was being pursued by authorities as a result of anything that happened when he was confronted by the gang (including pushing an officer) (at [68]);
(g)given that the house had been dismantled and a significant period of time had passed, the Tribunal found that there was no real chance that the applicant would be seriously harmed for having pushed an officer as claimed (at [68]);
(h)the applicant maintained that he remained fearful of the officer he pushed, claiming that in 2016 he asked a neighbour to obtain title documents for him for the house and that, out of frustration, he contacted the officer and insulted him (by telephone) and was told that when he returns to Vietnam, “his life is gone” (at [68]);
(i)the Tribunal noted that the phone call was approximately four years after the land confiscation and approximately five years prior to the Tribunal decision. Given the passage of time and limited interaction between the applicant and the officer, the Tribunal did not accept the applicant’s claim that he would be seriously harmed by the officer if he was returned to Vietnam (at [69]);
(j)the Tribunal accepted that the applicant’s former home in Vietnam had been destroyed and that he would not have any family in Vietnam to rely on, however, it did not accept that the applicant would suffer serious harm as a result of his “economic circumstances” (at [70]);
(k)the applicant claimed that, upon his return, he would seek land identification papers and that, by doing so, he would be identified by the authorities and those who harmed him (including the officer he pushed); and
(l)given the passage of time, the Tribunal did not accept that the applicant would be harmed or prosecuted for “what appear[ed] to be relatively minor incidents” (that is, for pushing the officer and insulting him on the telephone) and that there was thus no real chance he would be seriously harmed upon his return (at [71]).
The Tribunal then considered the “applicant’s illegal departure” and accepted that the applicant would be considered a “failed asylum seeker upon his return to Vietnam (at [72]).
The Tribunal then outlined information contained in country reports about freedom of travel in Vietnam and limits on movement imposed by the government (at [73]) and noted that those departing the country illegally may need to pay a fine upon their return. The Tribunal also explained that poor labourers would not face serious punishment (if any), whereas dissidents may face a higher level of punishment, including jail (at [74]).
On the basis of the applicant’s evidence (including that he was poorly educated and worked as a fisherman), the Tribunal considered that the applicant would likely be considered a poor labourer and receive a minor fine for his illegal departure. Further, the Tribunal found that there was no real chance that the applicant would face serious harm as a result of departing the country illegally (at [75]).
The Tribunal went on to consider the “applicant’s claims as a failed asylum seeker”, noting that the applicant claimed to have “encouraged” his brothers to come to Australia and (he claims) he will be charged with the “crime of organizing, brokering illegal emigration or forcing another person to illegally emigrate” under Vietnamese law. Further, it was noted, the applicant claimed to have paid a boat owner for his brothers’ passage to Australia but, because of a lack of funds, offered his services on the boat in exchange for his own passage. The Tribunal noted that the applicant was not a member of the people smuggling operation and simply worked to pay for his own passage. The Tribunal did not accept that the applicant would be so charged and found that there was no real chance of serious harm on that basis (at [76]).
The Tribunal also discussed articles in the Vietnamese Criminal Code regarding “fleeing abroad” and “defecting to stay overseas” but noted that country reports did not indicate any cases where the provisions had been used and that Australia returned people to Vietnam on the understanding that they would not face charges as a result of applying for protection in Australia (at [77]),
The Tribunal also noted that individuals involved in people smuggling are reportedly held for questioning upon their return for one or two hours and that questioning focused on movements of the people smugglers. Further, long term detention investigations and arrests were conducted only in relation to those suspected of conducting a people smuggling operation. The Tribunal found that the applicant was merely a person seeking the services of a people smuggler and, as such, there was no real chance of harm on the basis of being a failed asylum seeker (at [78]).
In relation to the applicant’s criminal convictions, the Tribunal stated:
80.On 21 August 2018 the applicant was charged and convicted of contravention of a police protection notice and possession of dangerous drugs for which he was fined $900. On 7 September 2018 he was charged and convicted of contravention of a domestic violence order and fined $900. On 27 November 2018 he was again charged with contravention of a domestic violence order (aggravated offence), possession of utensils or pipes etc for use and three common assault domestic violence offenses, for which he received a sentence of 12 months’ probation.
81.In arriving at its decision, the Tribunal has considered only those matters relevant to determining if the applicant is owed protection obligations pursuant s.36(2) of the Act. In this case the mere fact that the applicant has a criminal history is not a relevant issue to the Tribunal’s consideration as to whether there is a real chance, or a real risk of the applicant being seriously or significantly harmed if he is returned to Vietnam. However, it was open to the applicant to claim that he may be persecuted if he is returned to Vietnam by reason of him having a criminal history in Australia. However, according to the Ministry of Justice, the principle of double jeopardy applies in Vietnam. That is, persons convicted overseas of serious crimes who have completed their sentences and returned to Vietnam cannot be subjected to further trial in Vietnam for the same crimes. The principle of double jeopardy is regulated in the Vietnamese Constitution, Penal Code and Criminal Code (2015). It is referenced in the Law on Mutual Assistance (2008) between Australia and Vietnam. However, Article 6 of the Penal Code provides ‘that Vietnamese citizens who commit offenses outside the territory of the Socialist Republic of Vietnam may be examined for penal liability in Vietnam according to this Code.’ Therefore in circumstances where the applicant has been convicted of criminal offences in Australia and has served the penalty imposed, the Tribunal finds that there is no real chance the applicant will be seriously harmed in Vietnam by reason of having been convicted of a crime in Australia.
The Tribunal also noted that the applicant had also claimed (before the Department) that his brother was bullied because he was gay but that no evidence was provided in relation to the applicant’s brother’s sexuality. Further, no evidence was provided to explain how the applicant would be persecuted by reason of his brother’s sexuality. The Tribunal noted that country information showed that same sex relationships are legal in Vietnam and, on that basis, found that there was no real chance the applicant would be harmed because of his brother’s sexuality (at [82]).
The Tribunal ultimately found as follows:
83.The Tribunal has considered the applicant’s evidence, the available country information and has had regard to the applicant’s circumstances and profile including his claim as a Christian, threats arising out of a land dispute, his alleged involvement with the people smuggler, his level of education, his Australian criminal record, his economic circumstances upon his return to Vietnam and any threat of being charged or detained upon being returned to Vietnam. Having considered these matters individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing there is a real chance the applicant will be seriously harmed in the event that he returns to Vietnam by reason of any land dispute or consequential threats by an official, his religion or by reason of his membership of a particular social group as a failed asylum seeker. As such the Tribunal finds that there is no real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act in the receiving country.
84.As such, the Tribunal finds that the applicant is not a refugee as defined in s.5H of the Act and the criteria in s.36(2)(a) of the Act is not satisfied for this reason. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36.2(a).
The Tribunal then considered whether the applicant met the complementary protection criterion under s 36(2)(aa) of the Act, outlining the requirements under the Act and citing the relevant case authority in that regard (Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33) (at [85]-[87]).
The Tribunal continued:
88.The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from the applicant’s claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia.
The Tribunal found that there were no residual claims to be considered (at [89]) and, having regard to the applicant’s circumstances and the Tribunal’s findings above, found that there was no real risk that the applicant would suffer significant harm as required by s 36(2)(aa) of the Act (at [90]).
The Tribunal was ultimately not satisfied that the applicant was a person in respect of whom Australia had protection obligations (at [91]-[92]) and affirmed the decision refusing to grant the applicant the visa (at [93]).
APPLICATION IN THIS COURT
The application for judicial review filed by the applicant on 24 June 2021 contained two “grounds of review” as follows (without alteration):
1.The matter to be return to the AAT to detemine the applicant application by Law.
2.Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the grounds of the application
The applicant also filed an affidavit in support of the application for review. In effect, that affidavit sets out the relief sought by the applicant in this matter. The affidavit does not raise any additional grounds of review.
On 29 July 2021, procedural orders were made by Registrar Carney of this Court giving the applicant an opportunity to file an amended application, any affidavit evidence and written submissions. Unfortunately, no further materials were filed.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 24 June 2021, a Court Book numbering 1044 pages (marked as Exhibit 1), written submissions filed by the Minister on 24 May 2022 and the affidavit of Jonathon Papalia sworn and filed on 7 June 2022 (“Papalia affidavit”).
This matter was heard by this Court on 7 June 2022. The applicant appeared without legal representation and was assisted by a Vietnamese interpreter. Ms Taggart of counsel appeared for the Minister.
The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions.
The Court notes that on 30 May 2022, prior to the hearing, the applicant contacted the Minister’s representative and requested an adjournment of the hearing, stating that (Papalia affidavit, p 5):
I have been trying to find a free legal aid service for my case.
Unfortunately, I have not found one. I also wait for a financial support for a lawyer fee, n case.
I would like to apply for an extension period of time for my next court’s appointment, as long as possible.
I do appreciate for your consideration and compassion.
On 31 May 2022, the Minister’s representative notified the applicant that the Minister did not consent to the hearing being adjourned and indicated that he would need to bring an application for an adjournment to the Court (Papalia affidavit, p 4).
No formal application for an adjournment was filed with the Court by the applicant.
At the commencement of the hearing (on 7 June 2022), the applicant was asked if he still sought an adjournment. The applicant (through the interpreter) advised that he did still seek the adjournment.
The applicant’s adjournment “request” was denied for the reasons that follow.
The Court notes that, when determining whether or not an adjournment ought to be granted, the Court will take into account the following factors:
(a)the evidence in support of the adjournment request and the explanation for that request;
(b)the parties’ choices in the litigation to date and whether the parties will be able to adequately present their case if an adjournment were not granted, such that there is a “just resolution” of the proceeding;
(c)any prejudice to the respondent that cannot be mitigated by costs; and
(d)modern principles of case management (including the avoidance of undue delay) and wastage of public resources;
(see: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44]).
The applicant’s “reason” for requesting that the matter be adjourned was because he had “just found out that he could have a lawyer” but that lawyer was away on holidays and would return in two weeks. The applicant told the Court that he had the name, phone number and email address for that lawyer “written on a piece of paper” but said that he did not know much about the lawyer and that he was referred to him by someone in immigration detention who recommended the lawyer.
Ms Taggart gave submissions opposing the adjournment on the basis that the application before the Court had been filed some time ago and that the applicant had already had sufficient time within which to obtain a lawyer. Ms Taggart further submitted that, even accepting that the applicant was in immigration attention, it appears as though he had made no proactive steps to either secure legal representation or to secure an adjournment with the Court (other than immediately prior to the scheduled hearing). Ms Taggart also submitted that, even if the hearing were adjourned, there was no evidence to suggest that the applicant would be able to obtain legal representation prior to the adjourned hearing. The Minister, on the other hand, had prepared for and was ready to proceed with the hearing as scheduled.
While the Court is sympathetic to the concerns of all applicants who appear before this Court without legal representation (and will do all that it can to assist them where it can), the Court notes that the matter has been on foot since 24 June 2021. There is no concrete evidence before the Court to suggest that the applicant sought legal assistance at any point, that he is doing so now, or that he will, in fact, obtain legal assistance. Further, the Minister had prepared detailed written submissions and briefed counsel to appear at the hearing and the applicant had been brought from immigration detention to appear at the hearing in person. Finally, had the matter been adjourned, it would be quite some time before the matter could be re-listed and brought back before the Court.
In the circumstances, the Court determined that granting the adjournment would not be in the interests of the administration of justice and considered it appropriate to proceed with the hearing.
Noting, however, that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the visa that the applicant now seeks. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the applicant explained that, when he appeared before the Tribunal, the Tribunal member asked the applicant “very few questions” and his answers to those questions were brief. When the written reasons were received, the applicant was thus “surprised” at the length of the Tribunal’s reasons.
This issue will be addressed below.
CONSIDERATION
Grounds of review
Unfortunately, the applicant’s grounds of review are unclear and they are not particularised.
Despite the Court’s best efforts to explain to the applicant what this Court can and cannot do, the applicant was unable to “elaborate” on his grounds of review when given an opportunity to do so. This should not be seen as a criticism of the applicant. The Court is sympathetic to the difficulties that unrepresented applicants face when trying to deal with complex legal concepts such as “jurisdictional error” and “judicial review”.
While there is certainly jurisprudence to the effect that “a failure to particularise a ground of review” can warrant the dismissal of an application on that basis alone (WZATH v Minister for Immigration and Border Protection [2014] FCA 969), this Court’s preferred approach (noting the reasoning in Bala v Minister for Immigration & Border Protection [2019] FCA 600) is to note that the applicant is unrepresented, read the applicant’s grounds of review as broadly as possible and consider for itself whether any arguable case of jurisdictional error arises on the materials: MZAIB.
The length of the Tribunal’s decision
As outlined above, in his oral submissions at the hearing of this matter (on 7 June 2022), the applicant raised a concern about the length of the Tribunal’s written reasons. He noted, in particular, that the Tribunal had asked him “very few questions” and that he had given “very short answers” in response to those questions. In the circumstances, it appears that the applicant is concerned that “a mistake” might have been made by the Tribunal. Arguably, read broadly, similar concerns arise from the applicant’s grounds of review.
When making a decision, the Tribunal has regard to a variety of information and material, in addition to the oral evidence provided by the applicant at any Tribunal hearing. In that regard, s 358 of the Act sets out the documents which are required to be provided to the Tribunal, as follows:
358 Documents to be given to the Tribunal
(1) An applicant for review by the Tribunal may give the Tribunal:
(a)a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
(b)written arguments relating to the issues arising in relation to the decision under review.
(2)The Secretary may give the Tribunal written argument relating to the issues arising in relation to the decision under review.
Here, the materials provided to the Tribunal by the Department were included in the Court Book. That Court Book contained a large number of documents (totalling 1044 pages). The Tribunal’s written reasons addressed not only the applicant’s answers given orally at the hearing before the Tribunal, but also the written material provided by the applicant and written material provided by the Department.
Relevantly, the Tribunal discussed the applicant’s migration history since his arrival in Australia in April 2013 (CB 1012-1013 at [15]-[19]), the applicant’s evidence (CB 1013-1014 at [20]-[29]), the applicant’s claims for protection (as outlined in his first SHEV application made on 5 October 2016) (CB 1014-1017 at [30]-[33]) and the applicant’s submissions related to his protection claims (CB 1017-1018 at [34]).
The Tribunal then assessed the applicant’s claims, based on the information referenced above, as well as the applicant’s oral evidence provided at the Tribunal hearing and relevant country information and reports. For example, the Tribunal discussed:
(a)the applicant’s status and identity as a Catholic (CB 1022 at [54]-[56]) and made findings in that regard (CB 1022-1023 at [57]-[58]);
(b)the applicant’s status and identity as a member of the VURM (CB 1023-1024 at [59]-[60]);
(c)societal discrimination against the applicant as a Christian (CB 1024-1025 at [61]-[64]);
(d)the applicant’s evidence in relation to an alleged land dispute (CB 1025-1027 at [65]-[71]);
(e)the applicant’s “illegal departure” (CB 1027-1028 at [72]-[75]);
(f)the applicant’s claims as a “failed Asylum Seeker” (CB 1028-1029 at [76]-[79]);
(g)the applicant’s criminal convictions (CB 1029-1030 at [80]-[81]); and
(h)the applicant’s brother’s imputed homosexuality and its relevance to the applicant (CB 1030 at [82]-[84]).
The Tribunal then discussed whether the applicant met the complementary protection criterion under s 36(2)(aa) of the Act (CB 1030-1031 at [85]-[90]) and ultimately concluded that the applicant did not meet the refugee criterion in s 36(2)(a) of the Act or the alternative criterion in s 36(2)(aa) of the Act (CB 1031 at [91]-[93]). On that basis, the Tribunal affirmed the decision refusing to grant the applicant the visa (CB 1031 at [94]).
The Tribunal’s decision is best described as “forensic”. The Tribunal’s assessment of the extensive material before it (including all of the applicant’s evidence provided to the Department in relation to each of his SHEV applications, material provided by the applicant to the Tribunal (including oral evidence provided at the Tribunal hearing) and relevant country information) was thorough. All relevant material was assessed. No irrelevant materials were assessed and/or relied on by the Tribunal.
No error arises in relation to the applicant’s apparent concerns about the length of the Tribunal’s decision and assessment of the material before it. Indeed, lest it be suggested otherwise, the Tribunal’s findings in this matter are entirely logical and reasonable. It cannot be said here that the Tribunal made a decision (or reached a state of satisfaction) that was so lacking a rational or logical foundation that the decision (or state of satisfaction) was one that no rational or logical decision-maker could reach: Djokovic at [33]. Further, and for finality, the Tribunal’s findings are not lacking an independent reasoning process or logical connections and are not based on subjective grounds or insecure assumptions: CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 at [26]-[28]. The decision and reasoning process is entirely sound.
Department’s data breach
In both written and oral submissions, counsel for the Minister raised an issue for the Court’s consideration in her capacity as a model litigant. Specifically, counsel drew the Court’s attention to the Tribunal’s failure to reference a Departmental data breach addressed in the delegate’s decision.
The delegate’s consideration of the data breach was set out in its decision as follows (CB 973 and 978):
On 13 March 2014 applicant was notified that some of his personal details were briefly made public on the Department’s website. The information did not include any protection related information. The applicant was questioned about any concerns he may have due to this if he were to return to Vietnam.
The applicant stated that he was not sure, however he fears he will be arrested and the authorities will interrogate him and lay charges against him for enticing his siblings to flee Vietnam. He fears he will have to pay a bribe or that he will be arrested.
I will assess the chance of harm to the applicant returning to Vietnam for this reason further below.
…
The applicant was in Australian immigration detention on 31 January 2014 and, as such, his personal information may have been available to unintentional access in the public domain. The data breach resulted in individual’s personal information being publicised for eight days. The applicant is concerned he may now experience harm due to this breach.
The extent of the dissemination of the data is speculative. I note the countries identified as the location of the IP addresses do not include Vietnam, however given it is impossible to track the sharing of information in the digital age I accept that the information in the breach may have been disseminated to and accessed by Vietnamese authorities. However, based on the information before me, I am satisfied any details regarding the applicant’s claims for Protection have not been made available to the Vietnamese authorities. DFAT assesses that the Vietnamese authorities consider that Vietnamese citizens generally seek asylum abroad for economic reasons and do not treat failed asylum seekers differently to other returnees. Also, it is reasonable to conclude that many if not most involuntary removals and many voluntary removals would have been held in immigration detention and that the Vietnamese authorities would be aware that Vietnamese nationals who returned to Vietnam would have been in detention. I find no evidence to indicate being in immigration detention prior to return to Vietnam, in itself, will result in persecutory harm by the Vietnamese authorities.
Given the country information above concerning failed asylum seekers returning to Vietnam and given the applicant’s lack of a public profile in Vietnam, I do not accept that even if the applicant’s personal details came to the attention of the Vietnamese authorities due to the privacy breach, he would be targeted as a suspected anti-government activist if he was to return to Vietnam.
Taking into account the applicant’s claims individually and cumulatively, I am not satisfied that the applicant faces a real chance of persecution basis of his religion, being a Christian, and for a potential member of a particular social group (PSG), failed asylums seekers who departed illegally, and who were affected by the data breach.
As outlined above, in considering the data breach, the delegate acknowledged that some of the applicant’s personal information had been “briefly made public on the Department’s website” (CB 973). However, the delegate noted that the information “did not include any protection related information” (CB 973). Further, the delegate explained that, when questioned about any concerns he may have due to the data breach, the applicant said that “he was not sure, however he fears he will be arrested and the authorities will interrogate him and lay charges against him for enticing his siblings to flee Vietnam” and that he “fears he will have to pay a bribe or that he will be arrested” (CB 973).
As explained by counsel for the Minister (at [27]-[31] in written submissions filed in this Court on 24 May 2022), the Tribunal’s written reasons do not expressly reference the data breach. However, for the reasons that follow, the Court is satisfied that this is not an error in and of itself.
The Tribunal accepted that the applicant departed Vietnam illegally and that, if he were to return to Vietnam, the applicant would be considered a failed asylum seeker (at [72]). However, the Tribunal found that there was no real chance that the applicant would be seriously harmed on that basis if he returned to Vietnam (at [75]).
As submitted by counsel for the Minister, when considering the Tribunal’s reasons as a whole, having already considered whether the applicant would be identified as a failed asylum seeker upon his return to Vietnam (and further considering whether the applicant would suffer serious harm on that basis), it was not necessary for the Tribunal to specifically reference the data breach.
This is so because, if any claim for harm were to arise out of the data breach, it would be on the basis that the applicant would be identified (upon his return to Vietnam) as a failed asylum seeker who departed Vietnam illegally. In circumstances where the Tribunal already considered that scenario, specifically referencing the data breach would not have resulted in any additional discussion or consideration in that regard.
Further, in the event that the Court is wrong and that an error does arise in relation to the Tribunal’s failure to specifically reference the Department’s data breach, the Court is satisfied that an error in that regard (should any exist) would not be material.
An error will only be a “jurisdictional error” where it is material or where the error in question would have realistically deprived the applicant of the opportunity of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (“SZMTA”); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (“MZAPC”).
MZAPC confirmed that, as set out in SZMTA, the “existence or non-existence of a realistic possibility that the decision could have been different” is a “question of fact”. Further, the applicant in a matter of this sort (being a judicial review application) “bears the onus of proof” in that regard: MZAPC at [2]-[3].
The question for the Court in this matter is: if the Tribunal had specifically referenced the Departmental data breach, is there a “realistic possibility” that the Tribunal’s decision would have been different? In this matter, the Court considers that no “realistic possibility” arises.
As outlined above, the Tribunal, in its written reasons, accepted that, upon his return to Vietnam, the applicant would be considered a failed asylum seeker (at [72]). Considering this issue again (but within the context of the data breach) would not have altered the Tribunal’s decision.
No material error arises in the Tribunal’s failure to expressly discuss the Departmental data breach.
CONCLUSION
The application for judicial review (filed by the applicant on 24 June 2021) and the applicant’s oral submissions (made at the hearing before this Court on 7 June 2022) fail to identify any jurisdictional error. The Court is otherwise unable to identify any material error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 4 August 2022
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