DIR22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 664
•9 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DIR22 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 664
File number(s): BRG 426 of 2022 Judgment of: JUDGE EGAN Date of judgment: 9 May 2025 Catchwords: MIGRATION– Whether the Tribunal failed to consider a claim said to have been advanced on behalf of the applicant – whether any claim was clearly articulated – whether the Tribunal ought to have raised an unarticulated claim on behalf of the applicant – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss. 36(2)(a), 36(2)(a)(a), 65 Cases cited: Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
AXT19 v Minister for Home Affairs [2020] FCAFC 32
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
Nabe v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of last submission/s: 3 November 2023 Date of hearing: 3 November 2023 Place: Brisbane Counsel for the Applicant: Mr O Jones of Counsel Solicitor for the Applicant: Oxford Law Group Solicitor for the Respondents: Mr D McLaren, MinterEllison ORDERS
BRG 426 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DIR22
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
9 MAY 2025
IT IS ORDERED THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”.
3.The Amended Application for Review filed on 1 August 2023 be dismissed.
4.The applicant pay first respondent’s costs of and incidental to the Application for Review fixed in the amount of $5900.
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 EGAN
Introduction
The applicant is a female citizen of Vietnam who applied for a protection visa under s. 65 of the Migration Act 1958 (Cth) (the Act) on 28 August 2018.
On 4 March 2019, a delegate of the Minister refused to grant the visa application on the basis that the applicant was not a person to whom Australia owed protection obligations pursuant to the provisions of s. 36(2)(a) or s. 36(2)(aa) of the Act.
On 11 March 2019, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision of the delegate.
On 1 September 2022, the applicant appeared before the Tribunal to give evidence and present arguments in support of her application for review.
On 12 September 2022, the Tribunal affirmed the decision of the delegate.
10 October 2022, the applicant filed an Originating Application for Review of the decision of the Tribunal.
On 1 August 2023, the applicant filed an Amended Application for Review of the decision of the Tribunal.
Grounds of Review
The grounds of review as set out in the Amended Application for Review were as follows:
1)The Administrative Appeals Tribunal committed jurisdictional error by failing to consider a claim that clearly arose from the materials before it and the established facts.
Particulars
(a) The Tribunal accepted that the Applicant had participated in anti-Vietnamese government protests in Australia and that this was not done to further her claims for protection.
(b) It logically follows that the Applicant was likely to continue that activity if returned to Vietnam.
(c) The country information established that those who participated in protest activity in Vietnam, particularly Catholics, were at risk of harm from the government.
(d) The Tribunal did not consider this claim to protection.
2) The Administrative Appeals Tribunal committed jurisdictional error by failing to ensure a procedurally fair hearing as a result of not alerting the applicant that a relevant issue was whether she would continue her protest activity if returned to Vietnam.
Particulars
(a) The applicant was unrepresented.
(b) The Tribunal should have made the applicant aware that the question of what she would do on return to Vietnam (and whether she would continue her protest activity) was relevant to her claim to protection and should be addressed by her.
Ground 1 was a complaint that the Tribunal had failed to consider a claim that “clearly arose from the materials before it”, namely that because the applicant was likely to continue to be involved in anti-Vietnamese government protests should she return to Vietnam, she was at risk of harm from the Vietnamese government.
It was submitted on behalf of the applicant that the Tribunal was obliged to consider not only claims expressly particularised by the applicant, but also those claims which clearly emerged from the material before the Tribunal, and from established facts. Reliance was placed upon the judgment of the Full Court of the Federal Court in Nabe v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1 at [55] – [63] per Black CJ, French and Selway JJ, and upon the judgment of the Full Court of the Federal Court in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18] per Collier, McKerracher and Banks-Smith JJ.
It was submitted that because the applicant had participated in anti-Vietnamese government demonstrations in Australia, “ … it logically follows that the applicant’s concerns with the Vietnamese government and her desire to protest against it will remain if she returned to Vietnam.”
Reliance was also placed by Counsel for the applicant upon the joint judgment of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [43] where it was held as follows:
43. The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
It was submitted that by reason of the contents of [14] and [19] of the reasons of the Tribunal, the Tribunal had before it “established facts”, namely the applicant’s assertion that she had been involved in protests against the Vietnamese government, and that therefore, the Tribunal erred jurisdictionally by failing to address such issue, particularly what was submitted to be the likelihood of the applicant continuing to protest against the government if she was returned to Vietnam. Paragraphs [14] and [19] of the Tribunal’s reasons were as follows:
14. The applicant when applying for the visa stated the following as to her claims for protection:
a. the applicant as a student in Vietnam became fully aware of the corrupt an inhumane communist regime. She opposed the regime and was often directly in conflict with the local authorities as a result of her political views and was directly warned about arrest and that she was watched, and she was ignored and maltreated;
b. she joined the ‘Young Student Group’ and opposed the corrupted communist party and supported the overthrow of the communist government, she was arrested by local police for her political views and mistreated to the extent that she could not study due to the mental distress to her and her family;
c. the applicant decided to travel abroad for study and to seek human rights and better working conditions in order to support her parents and family;
d. she has joined the ‘Opposing the Vietnamese Government Group’ in Australia and joined in street protests on many occasions;
e. she is afraid of her possible arrest by the local police in Vietnam for her political opinion and her support for the overthrow of the Vietnamese government and as she is now pregnant this may cause harm to her unborn child; and
f. she states she cannot seek help, obtain financial support or relocate within Vietnam as the country has uniform laws.
Delegate’s Decision
15. The delegate’s decision of 4 March 2019 to refuse the protection visa was made on the information before the delegate. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H(1) of the Act and was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. Additionally, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, that there is a real risk the applicant will suffer significant harm as outlined in s 36(2)(aa) of the Act. Therefore the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Invitation to attend hearing
16.On 28 June 2022 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 21 July 2022. The applicant replied on 1 July 2022, indicating that she would attend and participate in the hearing. On 11 July 2022 the applicant forwarded to the Tribunal the following documents indicating that they were relevant to her hearing and would be referred to at the hearing:
a. A series of six (6) documents which are English translations of purported Vietnamese land transfer documents, one being undated two dated 15/8/2001 and the remainder being dated 5/8/2001, 5/10/2001, and 23/10/2000.
b. A copy of a document/article titled ‘Activities taking advantage of religion to destroy our Party and State by hostile forces.
On 19 July 2022 the applicant contacted the Tribunal by email indicating that she was suffering from flu like symptoms and querying whether she should attend the Tribunal for her scheduled hearing on 21 July 2022. The Tribunal responded to the applicant on 20 July 2022 indicating that given her current circumstances the Tribunal would reschedule her hearing to 1 September 2022 at 9:30 am.
Review hearing – 1 September 2022
17. The Tribunal hearing was conducted at the Brisbane Registry with the assistance of an interpreter in the Vietnamese and English languages.
18. The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The Tribunal confirmed with the applicant that she understood the interpreter and then provided a brief overview of the refugee and complementary protection criterion.
19. The applicant provided the following relevant evidence (in summary):
a. The applicant confirmed that she was born in Vietnam and a citizen of Vietnam.
b. That she had been brought up in Nghe An and later moved to Ho Chi Minh City where she completed her university studies at the City University of Industry obtaining a degree in Business Administration and Tourism.
c. She obtained her Vietnamese passport in 2015 so she could study abroad.
d. In 2016 she travelled to Australia to study Hotel Management at the Curtain University.
e. She did not commence her Hotel Management course as she had received information from home that her father was under pressure to stop work and that he had been assaulted by some men and had suffered a lot of injuries to his body. She became worried about her family, and as she lost her families’ financial support, she ceased her studies and looked for stable employment so that she could become self-sufficient in Australia.
f. She obtained work as a nail technician and continues to support herself through this employment. She has not returned to her studies as she has since married and had a child.
g. She explained her husband, Sy Hoang DOB 15/7/1991, has also made an application for a protection visa and is often away helping friends but not presently working. She explained that his case and her case are separate matters.
h. When queried by the Tribunal as to her husband’s present whereabouts, she stated that he does not tell her where he goes and that what he does is his business, and she concentrates on her baby. She further explained that when her husband was working for the ABN or NBN he was away a lot and she knew he worked for the ABN or NBN but did not know here he was and did not ask as she respects his personal freedom as he respects her freedom.
i. As to her family in Vietnam she explained that her father has since passed away and her mother continues to reside in Nghe An, whilst her older brother is a software Engineer in Ho Chi Minh City. She explained that she occasionally phones them in Vietnam to see how things are with them.
j. She told the Tribunal that all her family are practising Catholics as is she herself.
k. She explained that when she was at university, she was a member of a catholic youth group and that she took part in pastoral activities at the university and the nearby Catholic church. These activities included building Easter and Christmas decorations and displays where they would talk to members of the public about the church and their religion. The group also attended the houses of disabled people and orphanages to talk about their religion. However, the group was summonsed with their Assistant Priest to the Public Security Office where they were ordered to stop these practices as they were disturbing the peace by creating noise which was disturbing other residents. The applicant informed the Tribunal that Father Long had provided a letter from the head priest, Father Thomas, addressing their activities but the police disregarded the letter and warned the group that if they did not desist from their activities, the University would be contacted, and they may be stopped from completing their studies. The applicant informed the Tribunal that the group stopped those activities, and she completed her studies at the University without further incident.
l. When questioned as to the completion of her visa application, the applicant informed the Tribunal that she was assisted by a Mr Lich in completing same. She stated she informed him of her situation, and he completed the form. She has since seen her claims as outlined in the Delegate’s Decision Record and acknowledges that they are her claims. However, she sought to explain and expand firstly on her statement that ‘she could not study due to the mental distress to her and her family’ (see paragraph 14 at b, above). She explained this statement related to her father’s transfer of his land to the Government and his assault in 2014. She explained that her father had been in dispute with the local government going back to 2001 when the Government first approached her father as to the acquisition of his land for community development. After a series of unsuccessful appeals both locally and regionally the land was transferred. However, she stated that during the land acquisition process the local authorities had defamed her father as not being community minded. Further she stated that when her father was assaulted, he had recognised one of his attackers as being from the local security office. In response to the Tribunal’s query as to what if anything has since happened to her mother and brother after the land transfer, she explained they have not been the subject of any adverse treatment by the authorities.
m. Secondly, she clarified her claim as to re-location and stated she was never prohibited from moving within Vietnam.
n. The Tribunal then queried the applicant as to her claims and she stated:
a. She was warned by the authorities as to possible arrest for her church youth group activities whilst at university, but was never arrested or maltreated, and once her youth group ceased their activities, they were allowed to complete their studies without further incident.
b. Her youth group did not demonstrate against the government and she did not express any anti-government views or participate in any anti-government activities whilst she was in Vietnam.
c. She was never monitored or the subject of surveillance by government authorities in Vietnam but for her family being noticed during the land dispute and such attention has now ceased.
d. Before her father’s death he dropped the land dispute in exchange for peace for her mother.
e. Her mother and brother have not been the subject of any adverse government action or treatment since the land dispute was resolved.
f. Her brother and mother do have to limit their activities in the Catholic church to authorised and approved activities, which she conceded is the case for all other Catholic Vietnamese.
g. She has participated in anti-Vietnam communist government demonstrations in Australia. Those being:
i. 11 June 2018 at Inala; Brisbane;
ii. 27 August 2018 at Inala;
iii. 24 September 2018 at Brisbane City in support of the people of Hong Kong; and
iv. Another demonstration in 2019 the details of which she could not recall.
The applicant in response to the Tribunal’s query as to her motivation for joining in these demonstrations was that she had been angry at that time as to her father’s earlier treatment by the authorities in relation to the land resumption and compensation.
o. When questioned as to her delay in making her application she informed the Tribunal that at the time of her arrival in Australia she didn’t realise she could apply for the visa and thought it only related to people who had illegally arrived by boat.
p. When the country information (as outlined below at paragraph 20) was discussed she agreed that those who openly oppose the government in Vietnam will be arrested as she had seen from those joining demonstrations in Vietnam.
q. When the Tribunal questioned the applicant as to her belief of having an adverse profile due to her involvement in local demonstrations in Australia, she indicated that she believed the Vietnamese intelligence authorities were very active. She explained that it was these activities (her involvement in demonstrations) here in Australia that was the source of her fears of arrest if she was to return to Vietnam.
r. When questioned as to her ability to obtain a passport and leave Vietnam without incident she explained that she had not at that time been involved in any anti-Vietnamese government activities and that was why she was not banned from leaving the country. The applicant again confirmed her fears as to arrest if she was to return to Vietnam, related to her conduct here in Australia by way of her participation in anti-Vietnamese government demonstrations.
The submissions made on behalf of the applicant must be viewed in context. The applicant did not mention in either her visa application or in her application for review made to the Tribunal that she had any fear of harm arising out of any intention to participate in anti-government protests if she was returned to Vietnam. In that respect, the relevant findings of the Tribunal at [23] – [29] inclusive of its reasons were as follows:
Analysis
23. The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim or claims. The Tribunal does not have any of the responsibility or obligation to specify or assist in specifying any particulars of claim or to establish or assist in establishing the claim. Nor is the Tribunal; required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
24. The Tribunal notes that it is for the applicant to make their case. In this case the Tribunal finds that the applicant’s claims of fear relate primarily to her asserted belief that she will be arrested by the local police if she was to return to Vietnam due to her having gained an antigovernment profile while in Australia. Such profile she claims arises from her participation in four demonstrations, in which she protested against the Vietnamese Government on three occasions, and in support of the people of Hong Kong on the fourth occasion. All such demonstrations having been conducted between 2018 and 2019 at Inala and Brisbane. In this regard the Tribunal notes it is bound by the provisions of s 5J (6) which provides that any conduct engaged by the applicant in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening their case. The explanation provided to the Tribunal as to the applicant’s involvement in the Australian demonstrations is that she was angry with the Vietnamese regime for the way her father had been treated in relation to his land dispute with the Government. The Tribunal accepts this explanation and has found that her activities in Australia were not undertaken to strengthen her protection claims. However, the Tribunal does note that the applicant only participated in three demonstrations which promoted an anti-Vietnamese government message and that such demonstrations were of a relatively small scale at Inala in Brisbane. For the reasons discussed below the Tribunal finds that the applicant’s evidence before the Tribunal was generally inconsistent with her purported claims and that overall, the applicant does not have a known anti-Vietnamese government profile and as such a well-founded fear of persecution.
25. The Tribunal notes that as to the applicant’s claims relating to her conflict with the local Vietnamese authorities and her membership of a student group that supported the overthrow of the Vietnamese government that her evidence before the Tribunal was not consistent with this claim. The applicant’s evidence was that when she was a student, she had joined a church youth group which prepared displays of church themes and visited handicapped nearby residents and orphanages where they discussed their Catholic religion. Her evidence was that the assistant parish priest together with herself and other members of the youth group were on one occasion required to attend the local Vietnamese security office to explain their conduct. On this occasion they were warned that if they were to continue with their activities they may be removed from their studies at the nearby university. The applicant’s evidence was that after this warning by the authorities both the church and the youth group ceased their public activities and there were no further warnings, or any other action taken by the Vietnamese authorities against them. The applicant also indicated that she was permitted to complete her studies and continue the practice of her Catholic religion.
26. The applicant confirmed that she had not been arrested or mistreated by the Vietnamese authorities due to her involvement as a student in her church youth group. Further she confirmed that she did not whilst a student in Vietnam support or involve herself in any anticommunist government activities.
27. As to the applicant’s claim that she could not study due to the mental distress to her and her family she explained to the tribunal that this related to the ongoing dispute between her father and the Vietnamese government in relation to a land dispute. The applicant prior to the hearing provided the Tribunal with a series of translated land transfer documents. purporting to indicate the acquisition and later transfer of land by her father to the government. The applicant explained that this matter had been resolved by her father prior to his death so as to ensure her mother was left in peace. The applicant explained that after the matter had been resolved and since her father’s death neither her mother or brother have been the subject of any government maltreatment or persecution.
28. In relation to the applicant’s involvement in anti-Vietnamese government activities since her arrival in Australia it is noted as outlined above that her involvement has been limited to three anti-Vietnamese government demonstrations. When queried by the Tribunal, the applicant was unable to provide any evidence that her involvement in these demonstrations had been the subject of any media reporting or was otherwise known in Vietnam. The applicant’s explanation in this regard as to her purported fear of arrest was that the Vietnamese government has an extensive security apparatus and that she would have been recorded by their agents in Australia as having been involved in these demonstrations. Given the limited nature of the applicant’s involvement in these demonstrations the Tribunal does not accept that she would have attained an anti-Vietnamese government profile and would be so known by the Vietnamese authorities.
29. Further as to the applicant’s concerns of a purported adverse profile with the Vietnamese government due to her father’s earlier disputes with the Vietnamese government. The Tribunal notes that the applicant did not experience any difficulties in obtaining her passport in Vietnam in 2015, and in later departing Vietnam for Australia in 2016. Given the country information as to exit and entry procedures outlined above at paragraph 20, the Tribunal finds that the applicant was not a person of interest to the Vietnamese authorities with a purported anti-government profile resulting from either her activities with the Church youth group as a student, or, as a result of her father’s land disputes with the Vietnamese government.
Whether a claim made before a Tribunal has been clearly articulated or not depends on the facts of each case. In AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56], the Court (Flick, Griffiths and Moshinsky JJ) found as follows:
56. Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.
A transcript of the hearing before the Tribunal was annexure KH-01 to the affidavit of Ms Hoang filed on 2 November 2023. At T p. 26.9 – 28.34, the Tribunal member gave to the applicant a reasonable opportunity to clearly articulate what her concerns were should she be returned to Vietnam. The applicant confirmed that she had not participated in demonstrations in Vietnam, and that such demonstrations were prohibited. The member also put to the applicant that there was no evidence before the Tribunal that in relation to any activity in Australia she had been identified, or was likely to be identified, by covert Vietnamese operatives acting on behalf of the government. Even when asked by the Tribunal member at T p. 30.18 whether the applicant wanted to say anything further about her claims, the applicant only referred to her involvement in a demonstration in Australia rather than to her having any intention to participate in demonstrations in Vietnam against the government should she be returned there. The applicant had already said to the Tribunal member that she protested in Australia against the Vietnam government because of the alleged land dispute which her father had had with the government. The applicant conceded that there was no longer a dispute involving land at the time of the hearing before the Tribunal. The reason for her participation in demonstrations in Australia was therefore no longer an issue.
The Court finds that there was insufficient evidence for the Tribunal to find that “ … it logically follows that the applicant was likely to continue to ” demonstrate if she returned to Vietnam. [1] Neither was there any evidence that there was a real chance that the applicant would be persecuted in Vietnam by reason of her Catholic religion.
[1] Ground 1(b) of the Application for Review.
There was no merit to ground 1.
Ground 2 was a claim that the Tribunal had failed to afford procedural fairness to the applicant during the Tribunal hearing because it failed to alert the applicant that a relevant issue for the Tribunal’s consideration was whether the applicant would continue her protest activity if returned to Vietnam. There is no merit to such ground.
The Tribunal relied upon country information in support of the finding that the applicant did not have any high-level profile which would result in her coming to the adverse attention of the government. [2] The applicant agreed that she did not fear persecution by reason of her Catholicism. As found in respect of Ground 1, there was no evidence before the Tribunal which would have justified a finding that if returned to Vietnam the applicant had an intention to participate in protests against the government.
[2] See [20] of the reasons of the Tribunal.
This was not a case where there was any clearly articulated argument which the Tribunal was obliged to have regard to over and above what was found as relevant in its reasons for decision. In Abebe v The Commonwealth of Australia[3] at [187] Gummow and Hayne JJ found as follows:
187.The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
[3] (1999) 197 CLR 510 at [187].
The Tribunal was under no obligation to prosecute possible unarticulated claims on behalf of the applicant.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Grounds of Review are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 9 May 2025
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