CJB23 v Minister for Immigration and Multicultural Affairs

Case •

[2025] FedCFamC2G 400

•

21 March 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CJB23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 400

File number(s): ADG 338 of 2023
Judgment of: JUDGE GERRARD
Date of judgment: 21 March 2025
Catchwords: MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal engaged in an active and intellectual process – whether the Tribunal was legally unreasonable – jurisdictional error established – writs issued
Legislation: Migration Act 1958 (Cth) ss 5AA, 5J(6), 48A, 91K, 476
Cases cited:

ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680

AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352

DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Tickner v Chapman (1995) 57 FCR 451

Division: Division 2 General Federal Law
Number of paragraphs: 49
Date of last submission/s: 13 February 2025
Date of hearing: 20 February 2025
Place: Adelaide
Counsel for the Applicant: Oliver Jones
Solicitor for the Applicant: Oxford Law Group
Counsel for the First Respondent: Nicola Gollan
Solicitor for the First Respondent: Sparke Helmore
Solicitor for the Second Respondent: Submitting appearance, save as to costs

ORDERS

ADG 338 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

CJB23

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE GERRARD

DATE OF ORDER:

21 MARCH 2025

THE COURT ORDERS THAT:

1.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 20 September 2023.

2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the applicant’s review application according to law.

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 GERRARD:

INTRODUCTION

  1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Safe Haven Enterprise visa (SHEV). For the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). This Court cannot undertake a review of the merits of the decision under review.

  2. For the reasons set out below, the Court has found a jurisdictional error in the Tribunal’s decision. On that basis, the application has succeeded.

    BACKGROUND

  3. The applicant is a citizen of Vietnam. He is a Catholic Kinh (Court Book (CB) 3). He arrived as an unauthorised maritime arrival on 22 April 2013 on the territory of Ashmore and Cartier Islands (CB 547).

  4. On 7 August 2013, the applicant participated in an Irregular Maritime Arrival Entry Interview (CB 1). In his interview, the applicant claimed that he left Vietnam due to religious discrimination for being Catholic. He claimed that on holidays of significance, he was concerned that he was being monitored by undercover police (CB 8). If returned to Vietnam, he fears that he will be accused of co-operating with those fighting against the government and may be imprisoned as a result (CB 9).

  5. On 20 June 2016, the applicant was invited to apply for a Temporary Protection (subclass 785) visa (TPV) or a SHEV (CB 21-22). On 3 August 2016, the applicant lodged a SHEV application (the first visa) with the assistance of a migration agent (CB 24-61). The applicant provided a statutory declaration and other documentation in support of his application (CB 62-77). On 19 December 2016, the applicant was invited to attend an interview scheduled for 16 January 2017 (CB 89-90), which was later rescheduled for 27 March 2017 (CB 93-94).

  6. Following that interview, on 16 May 2017, a delegate of the Minister refused to grant the applicant the visa (CB 105-118).

  7. On 19 May 2017, the delegate’s decision was referred to the Immigration Assessment Authority (the IAA) for review (CB 121-122).

  8. On 9 June 2017, the applicant engaged a lawyer as his authorised representative (CB 137). The applicant’s representative provided a statutory declaration and other documentation for the IAA’s consideration (CB 138-236).

  9. On 5 July 2017, the IAA affirmed the delegate’s decision not to grant the applicant the visa (CB 240-255).

  10. On 1 September 2017, the applicant lodged an application for judicial review in the Federal Circuit Court of Australia (CB 256-261). On 6 December 2018, the Federal Circuit Court remitted the matter to the Tribunal as the applicant was not deemed to be an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act 1958 (Cth) (the Act) (CB 265-266).

  11. On 18 January 2019, the applicant applied to the Tribunal for review of the delegate’s decision remitted by the Federal Circuit Court (CB 267-268).

  12. On 13 February 2020, the applicant lodged another SHEV application. On 9 October 2020, a delegate of the Minister advised that the application was deemed invalid due to the Full Court of the Federal Court’s judgment handed down in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178, and consequently, the bar under s 91K of the Act (CB 287-289). The applicant did not seek review of this decision by the Tribunal (CB 547).

  13. On 28 October 2020, the applicant made a valid application for a protection visa (the visa) (CB 298-323). On 9 November 2021, a delegate of the Minister refused to grant the applicant the visa as the application was barred under s 48A of the Act (CB 324-327, 548).

  14. On 26 November 2021, the applicant applied to the Tribunal for review of the delegate’s decision made on 9 November 2021.

  15. On 21 December 2022, the applicant was invited to attend a hearing on 2 March 2023 (CB 352-356).

  16. On 1 March 2023, the applicant’s representative wrote to the Tribunal to provide submissions and supporting documentation in relation to the review application (CB 403-523).

  17. On 2 March 2023, the applicant attended the hearing, accompanied by his representative and a Vietnamese interpreter (CB 525). 

  18. On 3 July 2023, the applicant was invited to attend a further hearing on 1 August 2023 (CB 533-535).

  19. On 1 August 2023, the applicant attended a second hearing, accompanied by his representative and a Vietnamese interpreter (CB 537).  

  20. On 20 September 2023, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 546-571).

  21. On 24 October 2023, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Act.

    THE TRIBUNAL’S DECISION

  22. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.

  23. The Tribunal began by noting the applicant’s Departmental history involving his applications for protection (at [5]-[11]) and set out the relevant criteria for a protection visa in this regard (at [15]-[18]).  

  24. The Tribunal noted that on 1 August 2023, in light of the second visa application being invalid, the applicant consented to the Tribunal’s proposal to consider any claims and evidence raised, and any submissions in relation to the second visa application, to review the first visa refusal decision (at [14]).

  25. The Tribunal confirmed that the applicant had appeared before it on 2 March 2023 and 1 August 2023 to give evidence and present arguments. The applicant’s representative was present and the hearing was conducted with the assistance of a Vietnamese interpreter on both occasions (at [12]-[14]).

  26. The Tribunal confirmed that the applicant made protection claims in various forums, including:

    ·His departmental interview on 7 August 2013 (at [22]-[31]);

    ·Statement provided on 4 September 2013 (at [32]-[41]);

    ·Statutory declaration dated 1 August 2016 (at [42]-[54]);

    ·His departmental interview on 27 March 2017 (at [55]-[76];

    ·Statutory declaration dated 7 June 2017 (at [77]-[100];

    ·Submissions dated 9 June 2017 (at [101]);

    ·SHEV interview dated 15 February 2021 (at [103]-[133]);

    ·Statutory declaration dated 28 February 2023 (at [134]-[160];

    ·Submissions dated 1 March 2023 (at [161]-[184]); and

    ·Country information and submissions provided to the Tribunal (at [224]).

  27. The Tribunal outlined the applicant’s primary protection claims as follows:

    ·He left Vietnam because he was discriminated against on the basis of his Catholicism, and due to restrictions on freedom of expression and human rights in Vietnam (at [23], [136]);

    ·On Christmas Day, the applicant and the other Catholics were forced to take a test and were not allowed to celebrate the important feast (at [24]);

    ·He was monitored by undercover police on big holidays or when he went to church (at [25]);

    ·In 2012, his father became responsible for the parish youth and he organised a protest to oppose the Vietnamese government’s oppression of Catholics, by restricting access to birth certificates and fining people for having a third child. The protest took place in front of the Communal Chairman’s house, and the police and military attended to resolve it (at [35]-[36], [43], [64]);

    ·He was worried about his own wellbeing, as his father was often questioned by police and threatened with arrest in an apparent effort to disrupt the family’s religious and protest activities (at [50]-[51], [61], [65]);

    ·He was worried that he would be imprisoned for praying and participating in activities organised by the parish (at [40]);

    ·In Australia, he has been involved in protests relating to the Vietnamese government’s involvement in dealing with a toxic chemical spill by Formosa Plastics, as well as protests on 30 April for Vietnam Independence Day (at [72]-[73], [90], [140]-[141]). He says the Vietnamese authorities would know about his involvement in these protests, and would identify and view him as a dissident, because photographs were taken and put onto the internet and had been linked to his social media accounts (at [74], [91]);

    ·His father had been threatened and was at risk of imprisonment or death as a result of the applicant sharing political articles in Australia criticising the Vietnamese government (at [115], [120]-[121], [135]). He claims he will face extreme persecution and a long prison sentence for his “blogging” activity (at [153]) and he fears being considered an accomplice to terrorism due to an affiliation with Viet Tan, having previously shared Viet Tan content on his Facebook page (at [155], [167], [187]).

    ·If returned to Vietnam, he might be accused of giving Vietnam a bad name and co-operating with those fighting against the government, which may cause him to be imprisoned (at [27], [46], [52], [70]-[71]);

    ·He believes he may be imprisoned upon return due to being interviewed by Vietnamese police at Yongah Hill Immigration Detention Centre, and because his name was one of various names accidentally made public in an online data breach by the Department (at [47]-[48], [52]).

  28. In respect of the claims set out above, the Tribunal made the following findings.

  29. The Tribunal accepted that the applicant was involved in protests with others in the same congregation, and that these protests were organised by his father, who was questioned by the police in relation to the protests (at [241]-[242]). The Tribunal accepted that the applicant himself was neither questioned or harmed because of his involvement in these protests in Vietnam, nor was he harmed due to his involvement in the Catholic Church (at [243]-[244]). The Tribunal was not satisfied that the applicant faces relevant harm due to his Catholicism, or his involvement in protests and other activities arranged by his father (at [245]-[246]).

  30. The Tribunal was not satisfied that the country information provided suggests that reposting information from other websites without creating content is likely to draw the attention of the authorities (at [248]). The Tribunal noted that the applicant’s online and protest activity undertaken in Australia relates to different matters than those protested in Vietnam (at [249]).

  31. The Tribunal was not satisfied that the applicant’s online and other protests in Australia were engaged in otherwise than for the purpose of strengthening his claim to be a refugee (at [250]). As a result, it disregarded the protests and online activity in Australia in considering whether the applicant has a well-founded fear of persecution (at [276]). The Tribunal was not satisfied that he would continue to engage in such activities if he returned to Vietnam, and that any of his activism in Vietnam or Australia would increase the risk or chance of him suffering harm if returned to Vietnam (at [251]-[252]).

  32. The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (at [294]).

    APPLICATION TO THIS COURT

  33. The application for judicial review filed on 24 October 2023 contains two particularised grounds of review. However, at the hearing of this matter on 20 February 2025, the applicant confirmed that ground one was no longer pressed. The remaining ground is as follows:

    2. The Administrative Appeals Tribunal made findings that lacked a logical or rational basis and/or adopted a legally unreasonable process of reasoning in concluding that it was not satisfied that the applicant’s activities in Australia were engaged in otherwise than for the purpose of strengthening his claim to be a refugee.

    Particulars

    (a) The Tribunal accepted that the applicant was involved in protests against the Vietnamese authorities when in Vietnam: Decision, [241], [245].

    (b) The Tribunal accepted that the applicant had been involved in protests against the Vietnamese authorities when in Australia: Decision, [72], [73], [228], [247], [249], [250], [251], [252].

    (c) The Tribunal accepted that the applicant had posted material online that was critical of the Vietnamese authorities when in Australia: Decision, [133], [187], [249], [250], [252].

    (d) The Tribunal concluded that it was not satisfied that the applicant’s activities online and as part of protests were engaged in otherwise than for the purpose of strengthening his claim to be a refugee: Decision, [250], [276].

    (e) The Tribunal did not set out any rational or logical basis or evident or intelligible justification for its conclusion in relation to the purpose of the applicant’s activities in Australia.

  34. The applicant filed an affidavit with the judicial review application on 24 October 2023. The affidavit annexed a copy of the Tribunal’s decision.

  35. The materials before the Court include a court book numbering 571 pages (marked as Exhibit 1); an application and written submissions filed on behalf of the applicant on 24 October 2023 and 6 February 2025, respectively; and written submissions filed on behalf of the Minister on 13 February 2025.

    CONSIDERATION

  36. The applicant contends that the Tribunal lacked a logical and rational basis, and reached legally unreasonable conclusions, in relation to why the applicant engaged in protest activity in Australia.

  37. A decision will be legally unreasonable where that decision lacks an “evident and intelligible justification” (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ). Black CJ similarly adopts the term “active intellectual process” in Tickner v Chapman (1995) 57 FCR 451 (Tickner) at [39]. In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (Carrascalao), Griffiths, White and Bromwich JJ (at [47]) stated that, in determining whether a decision-maker has engaged in an active intellectual process, the Court must:

    …conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case.

  38. However, their Honours noted that a finding by the Court that a decision-maker has not engaged in an active intellectual process is not to be made lightly and must be supported by clear evidence (Carrascalao at [48]). The Court must be watchful that it does not slide into impermissible merits review (Carrascalao at [32]).

  39. In written submissions, the applicant submitted that in considering whether a decision is legally reasonable, the Court is required to consider the legality of the Tribunal’s approach in respect of the reasons it gave for its decision (citing Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [47] per Allsop CJ, Robertson and Mortimer JJ (endorsed in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [122])). The applicant submitted that the Court should treat what the Tribunal said as a complete explanation, in that the approach should not go beyond that explanation (citing AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 at [60]-[61] per Tracey and Mortimer JJ (with whom Charlesworth J agreed)). An absence of reasoning to justify a conclusion made in the Tribunal’s reasons, the applicant submitted, leads to the result that there is no evident or intelligible justification, and thus, that it is unlawful.

  40. The critical finding impugned by the applicant was at [250] where the Tribunal stated:

    However, the Tribunal is not satisfied that the applicant’s online and other protests in Australia were engaged in otherwise than for the purpose of strengthening his claim to be a refugee.

  41. The applicant submitted that there was no discernible evident or intelligible justification for the Tribunal’s conclusion that the applicant had only engaged in such activities to strengthen his claim for protection. In this respect, the applicant noted that the context for the finding appeared to lie in the preceding paragraph where the Tribunal observed that the applicant’s online and protest activity in Australia related to different issues than his protests whilst in Vietnam. The Tribunal went on to observe that this was explicable because the issues he protested about in Vietnam were not the subject of protests in Australia. The applicant submitted that, in this paragraph, the Tribunal appeared to accept that there was a sensible and identifiable reason why the protest activity was different between the two countries. The Court accepts that this is a reasonable inference in the absence of any further explanation by the Tribunal.

  42. The applicant then submitted that, having accepted that there was a rationale for the differing protest activities, the Tribunal’s conclusion that the protest activities were solely for the purpose of bolstering his protection claims appeared in the subsequent paragraph without any rational explanation. The applicant accepted that the Tribunal (at [256]) observed that the applicant had decreased his attendances at protests in more recent times but submitted there was nothing which identified that as the basis for finding that his protest activities in Australia were solely for the purpose of bolstering his protection claims. The applicant also noted that. whilst the Tribunal was correct to say his attendances at protests had decreased, the same could not be said for his online protest activity. In any event, the Tribunal did not explain what it may have found significant about the decrease in recent protest activity and certainly did not state that there was any nexus between that reduction and its conclusion at [250].

  1. The Minister argued that any time you have an applicant who has engaged in conduct after they have arrived in Australia which they claim is a basis for them fearing harm if they return to their country of origin, the decision-maker necessarily has to consider whether or not that conduct was engaged in for the purpose of strengthening their claim. Counsel for the Minister submitted that was made clear by the requirements of s 5J(6) of the Act, which requires the decision-maker to disregard such conduct unless it is positively satisfied that it was not engaged in otherwise than for the purpose of strengthening a claim.

  2. Understood in that context, the Minister submitted that it is relevant that the applicant had engaged in certain protest activities in Vietnam regarding religious and church activities and did not continue to protest the same types of activities in Australia, instead protesting different matters and relying on those different protests in support of his application for protection. The Minister submitted that this was the very scenario envisioned by s 5J(6) where it is recognised that the decision-maker must be conscious of whether or not that activity may have been engaged in to strengthen their claim rather than for genuine protest reasons.

  3. The difficulty with accepting the Minister’s argument in this respect is that, whilst it could be argued that the change in protest activities might be a rational basis (or at least part of a rational basis) for the Tribunal’s finding, there is nothing in the decision which indicates that this was the basis for its conclusion. Neither can it be said that it is an inference that is so obvious it should be accepted. Indeed, whilst accepting it might be a matter within decisional freedom, there is no obvious nexus between changing protest activities and a finding that those protest activities were undertaken solely to strengthen the applicant’s claims. In fact, if such a nexus was suggested, that in itself would invite a submission of illogicality. However, there is nothing in the Tribunal’s reasoning which indicates this was the basis for its finding and, as correctly submitted by the applicant, it would contradict the Tribunal’s earlier finding that it was not surprising that the applicant’s protest activities were different in Australia.

  4. The Tribunal’s finding that the applicant’s online and other protests were engaged in only to strengthen his claims for protection is an important and central finding in respect of the ultimate dismissal of the applicant’s claim. As observed, it is not logically supported by its earlier finding that it was not surprising that the applicant’s protest activities in Australia were different from those engaged in while in Vietnam. Neither can it find support in the Tribunal’s subsequent findings that those activities would not attract the attention of the Vietnamese authorities or lead to consequences upon his return to Vietnam. Those findings are premised upon the earlier finding that the applicant’s claims were not genuinely engaged in. In any event, those findings are themselves conclusory statements without any explanation for their rationale. The Court readily accepts that the Tribunal is not required to disclose its thought processes in respect of each and every finding. Nevertheless, where there is an absence of an evident and intelligible justification for a critical finding, that is sufficient, on the authorities, to establish illogicality.

  5. The Court finds that the Tribunal’s conclusion that the applicant only engaged in protest and online activities for the purpose of strengthening his claims lacks an evident and intelligible justification. The applicant’s ground of review is made out.

    CONCLUSION

  6. The applicant has succeeded in his application.

  7. Accordingly, the decision will be set aside and the matter will be remitted to the Administrative Review Tribunal for reconsideration.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.

Associate:

Dated:       21 March 2025

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