DIS24 v Minister for Immigration, Citizenship & Multicultural Affairs
[2025] FedCFamC2G 775
•28 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DIS24 v Minister for Immigration, Citizenship & Multicultural Affairs [2025] FedCFamC2G 775
File number: MLG 1750 of 2024 Judgment of: JUDGE SYMONS Date of judgment: 28 May 2025 Catchwords: MIGRATION – protection visa – judicial review of a decision of the Administrative Appeals Tribunal – where applicant feared he would be placed in a compulsory drug treatment facility upon return to Vietnam – where applicant claimed he would be denied access to a methadone program - whether Tribunal failed to apply the “real risk” test – whether Tribunal considered the applicant’s claim or integral part of his claim concerning access to methadone program – finding of jurisdictional error – writs issued – costs order in applicant’s favour Legislation: Migration Act 1958 (Cth), ss 36, 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Sch 1
Cases cited: BYH19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 157
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379); [1989] HCA 62
DQU16 v Minister for Home Affairs (2021) 273 CLR 1; [2021] HCA 10
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration v SZQRB (2013) 210 FCR 505
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of last submissions: 22 October 2024 Date of hearing: 22 October 2024 Place: Melbourne Counsel for the Applicant: Mr M Kenneally Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Dr D Gang Solicitor for the First Respondent: HWL Ebsworth Lawyers Solicitor for the Second Respondent: Submitting appearance, save at to costs ORDERS
MLG 1750 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DIS24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
28 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”.
3.A writ of certiorari issue to quash the decision made by the Administrative Appeals Tribunal on 6 June 2022.
4.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
5.The first respondent pay the applicant’s costs fixed in the amount of $8,371.30.
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 SYMONS:
INTRODUCTION
Before the Court is an application for judicial review of a decision of the (former) Administrative Appeals Tribunal (Tribunal) made on 6 June 2022, by which it affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (subclass 866) visa (visa).
BACKGROUND
The applicant is a citizen of Vietnam, who first arrived in Australia on 20 August 1985 as the holder of a class of visa in the Special Humanitarian Program for Vietnamese nationals.
On 25 May 2020, the applicant’s visa was cancelled due to criminal offending, predominantly relating to drug use. Efforts by the applicant to have the cancellation decision set aside were not successful.
On 23 February 2021, the applicant applied for the visa (Court Book (CB) 1-77).
On 24 June 2021, a delegate of the Minister refused to grant the visa (CB 188-218).
On 4 July 2021, the applicant applied to the Tribunal for review of the delegate’s decision (CB 219-224)
On 10 July 2021, the applicant’s representative requested that consideration of the applicant’s matter be accelerated, citing the applicant’s poor physical and mental health (CB 234-235). On 12 July 2021, the Tribunal declined the request for priority processing (CB 239-40).
On 13 August 2021, the applicant was invited by the Tribunal to attend a hearing scheduled on 8 September 2021 (CB 247-252).
On 29 August 2021, the applicant’s representative requested the date of submission be extended. On 30 August 2021, the Tribunal granted the applicant an extension to 6 September 2021 (CB 255-257).
On 6 September 2021, the applicant’s representative provided the Tribunal with a written submission in support of the application, which was accompanied by the following documents: (CB 273-346)
·Psychological Report dated 5 September 2021;
·Psychological Report dated 8 June 2021;
·Psychological Report dated 4 September 2019;
·Psychological Report dated 9 November 2020;
·Research paper published in the Harm Reduction Journal titled “Preferences for methadone clinics among drug users in Vietnam: a comparison between public and private models”;
·Two letters of support; and
·DFAT 2019 County Information for Vietnam.
On 7 September 2021, the applicant’s hearing was postponed, and he was invited by the Tribunal to attend a rescheduled hearing on 13 October 2021 (CB 347-352).
On 6 October 2021, the applicant’s representative provided the Tribunal with a supplementary submission dated 6 October 2021, Vietnamese newspaper articles, a report authored by Dr Allen Tran, a report of Human Rights Watch, and two articles published by Human Rights Watch (CB 367-431).
On 11 October 2021, the Tribunal postponed the hearing (CB 473-474). On 18 October 2021, the Tribunal wrote to the applicant to inform him the Member who was allocated to his case was unavailable (CB 479).
On 20 January 2022, the applicant was invited by the Tribunal to attend a hearing scheduled on 4 February 2022 (CB 487-492).
On 25 January 2022, the applicant’s representative provided the Tribunal with a document which identified the submissions and documents that had been provided to the Tribunal since 6 September 2021 (CB 501-502).
On 4 February 2022, the applicant attended a telephone hearing, with support from his representative and assistance from an interpreter in the Vietnamese language (CB 513-514).
On 6 June 2022, the Tribunal affirmed the decision of the delegate and provided a written statement of Decision and Reasons (R) (CB 528-544).
THE DECISION OF THE TRIBUNAL
In circumstances where the applicant’s grounds of review concern the Tribunal’s treatment of his claim to fear harm relating to placement on return in a compulsory treatment (06 or 601 centre) this summary focuses on such matters. It is not suggested by the applicant that in other respects, the Tribunal’s decision miscarried.
Under the heading “claims raised by the applicant”, the Tribunal noted the applicant’s concession (made through his migration agent) that he did not face a real chance of serious harm due to his race, religion, nationality, membership of a particular social group or political opinion (R, [34]).
Instead, the applicant claimed that his circumstances engaged Australia’s complementary protection obligations on the following grounds (R, 34).
First, as a methadone user, the applicant would be liable to detention in a “601” treatment facility upon his return to Vietnam and this would have a negative effect on his underlying health conditions, including the risk of suicide.
Second, and in the event that the applicant was not detained in a “601” treatment facility, he would nonetheless face significant harm because he would be denied treatment for his various medical conditions, which included PTSD, drug dependency, hepatitis A and C, bipolar disorder, social and generalised anxiety disorder, and mixed personality disorder.
The Tribunal noted that in support of his first claim, the applicant had provided a copy of the DFAT Country Information Report on Vietnam dated 13 October 2019 (2019 DFAT Report) (R [37]). The Tribunal had earlier noted that it was required, in accordance with Ministerial Direction No. 84, to take account of country information, including the most recent DFAT Report on Vietnam which was published on 11 January 2022 (2022 DFAT Report) (R [18]).
The Tribunal extracted passages concerning the 06 centre from both versions of the DFAT Report (R [38]-[41]) before recording the following (R [42]):
It was submitted at the Tribunal hearing that the applicant would be placed into the 06 centre upon his return to Vietnam. It was suggested that this would occur because the applicant had fled Vietnam. When asked whether there was an evidential basis for that submission, it was submitted that ‘reports’ suggested that this was the case. The Tribunal considered the material provided by the applicant in support of his protection claims but could find no evidentiary basis for that submission. Indeed, the 11 January 2022 DFAT reports only goes as far as to state that drug users ‘might’ be required to register with the police and may be detained at the 06 centres. At the Tribunal hearing, the applicant told the Tribunal that he had been on the methadone programme for over 20 years and that his current dose is currently 100ml. It was higher before he went to prison. Given the applicant is currently on the methadone programme, the Tribunal is satisfied that upon his return to Vietnam, the applicant would engage in one of the methadone programmes offered in Vietnam. Nothing has been presented to the Tribunal to suggest that the applicant would not be able to access the methadone programme in Vietnam. While the Tribunal is prepared to accept that the applicant was previously known by the Vietnamese authorities as he has previously been imprisoned, and that he escaped Vietnam successfully ‘illegally’ in about 1985, the Tribunal does not accept that the applicant would be a person of interest to the Vietnamese authorities and liable to being required to register with the local authorities as a drug user or subject to any adverse action by the Vietnamese authorities as a ‘failed asylum seeker/person who departed Vietnam illegally given the time that has passed since he was in Vietnam and the fact that the recent DFAT report details the fact that DFAT is not aware of any cases where the provisions of the Vietnamese Penal Code have been used against failed asylum seekers who have returned from Australia (at 5.29).
The Tribunal was similarly unpersuaded that the applicant had provided evidence to support his claim that outside of the 06 centre he would suffer harm due to the inadequacy of health resources to treat his health conditions. The Tribunal noted that the applicant was unable to provide it with any information to suggest that any treatment for his medical conditions “would be deliberately withheld from him” (R [43]).
The Tribunal extracted passages from the 2022 DFAT Report concerning the Vietnamese health system and mental health treatment (R [45]-[49]) before recording the following at R, [50]:
While the Vietnamese health and mental health system may not be comparable to Australia, the DFAT reports suggests that there is an adequate health and mental health system. The applicant did not claim that he would not be able to access whatever services were available in Vietnam to treat his various medical conditions, but rather suggested that the lack of available services meant that he faced risk of harm in Vietnam. The Tribunal does not accept the applicant’s characterisation of the Vietnamese health and mental health system. The Tribunal is satisfied that adequate supports are available to the applicant in Vietnam.
Later, under the heading “Application of the statutory criteria to the facts as found by the Tribunal” the Tribunal recorded its satisfaction that the applicant was a drug addict who was currently on the methadone programme (R [72]) and that he suffered from the range of health problems that had been detailed in the reports of Professor Metzer which had been provided to the Tribunal by the applicant’s representative (R [73]).
The Tribunal concluded with respect to the claim of interest in this proceeding that (R [74]):
The Tribunal is not satisfied that upon his return to Vietnam, the applicant would be placed into a 06-detention centre. There is no need to detail the material provided by the applicant which seeks to address the conditions provided by such a facility.
The Tribunal found that the applicant was unable to satisfy either s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (Act).
JUDICIAL REVIEW
The applicant seeks judicial review of the Tribunal decision on three grounds identified in an amended application that was filed on 4 October 2024 (a fourth ground was abandoned at the start of the hearing).
The application was filed out of time but in circumstances where the Minister consented to an extension of time being granted, the parties proceeded on the basis that the application was competent, and no formal ruling was required on the issue.
In support of his application, the applicant relies on his written submissions filed on 4 October 2024 and an affidavit of lawyer Malek Kazimi dated 30 September 2024 which annexes a copy of Direction No. 84 – Consideration of Protection Visa Applications and a copy of the 2022 DFAT Report. The affidavit was read without objection.
The Minister relies on his written submissions filed on 14 October 2024.
The hearing of the application took place on 22 October 2024 on which occasion Mr Kenneally of counsel represented the applicant and Dr Gang of counsel represented the Minister.
GROUND ONE
Ground one reads:
1.The Tribunal asked itself the wrong question or failed to complete the statutory task in failing to apply the real risk test or failing to consider the risk of significant harm to the applicant.
Particulars
a.The applicant claimed he faced a real risk of significant harm as a methadone user as he could be detained in a compulsory drug treatment facility in Vietnam.
b.The Tribunal was required to consider whether there was a real risk the applicant could be placed in such a facility and face significant harm as a necessary and foreseeable consequence of return to Vietnam.
c.The Tribunal applied a standard higher than the real risk test in finding that it was not satisfied the applicant would be placed in a compulsory drug treatment facility.
Applicant’s submissions
The applicant submits as a starting point that the “real risk” test is the same as the “real chance” test and as such requires that an applicant merely face a real prospect of harm, which may arise in circumstances where the chance of the event occurring is well below 50 per cent. The authorities acknowledge that the risk must be real as opposed to remote or farfetched (referring to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379).
The applicant submits that there are four reasons why it should be inferred from the Tribunal’s decision record that the Tribunal did not apply the correct test (emphasis from the applicant’s written submissions).
First, the Tribunal did not include an explanation of the real risk test in its reasons. It did not, for example, set out the principles from Chan or from Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.
Second, the Tribunal’s findings were not expressed in terms of the real risk test. At R [74] the Tribunal concluded the applicant would not be sent to a compulsory treatment centre, rather than finding that there was not a real risk of this occurring or that the prospect was remote. The Tribunal’s only finding that the applicant did not face a real risk of harm was in the conclusion at R [81]. However, the conclusion was merely a re-statement of the statutory test without analysis.
Third, the Tribunal’s reasoning at R [42] left open the possibility the applicant could be detained in a compulsory treatment centre. The Tribunal noted that the 2022 DFAT Report only indicated that a drug user might be required to register with police. The applicant submits that something that might occur, could still satisfy the real risk test. The applicant is also critical of the Tribunal’s reasoning that nothing had been presented to it to “suggest” that the applicant “would not” be able to access the methadone program. The applicant submits that the mere fact that he had not established that he would not be able to access the methadone program, did not leave out the prospect that he might not. The reasoning at [42] left open a possibility the applicant may be unable to access methadone and therefore redirected to a compulsory treatment centre. The Tribunal did not identify that risk to be remote or farfetched or fanciful.
Fourth, the country information the Tribunal relied on was consistent with their being a possibility of the applicant being sent to a 06 centre. The 2022 DFAT Report contained the following at [2.23], which the applicant described as equivocal on the subject of whether a drug user would be able to access methadone or not because at its highest it said simply that people who access treatment through the health system are likely to receive substitution treatment:
It is difficult to say who will be taken to an 06 Centre rather than given drug substitution treatment. Substitution treatment is only available to opioid users…In general, if a drug user is referred to treatment through the health system, they are more likely to receive substitution treatment; if referred through police, they are more likely to be placed in an 06 Centre. DFAT understands people caught by police more than once are more likely to be taken to an 06 Centre.
Minister’s submissions
I did not understand the Minister to take issue with the applicant’s submissions concerning the standard to be applied on an application of the “real risk” test.
The Minister acknowledges that the Tribunal did not make an express finding as to the quality of the risk of the applicant being detained in a 06 centre. However, the Minister submits that this is not fatal in circumstances where the Tribunal applied the evidence and country information available to it and adopted the view recorded in the country information that it was more likely the applicant would engage in a methadone program upon return to Vietnam.
The Minister cautions that the Tribunal’s reasons must be read fairly and submits that this approach when applied to R [42] supports the inference that the Tribunal found (without being explicit about it) that there was no real risk that the applicant would be placed in a compulsory drug treatment facility on his return to Vietnam.
The Minister submits that the Tribunal found no evidentiary basis for the submission that the applicant would be placed into an 06 centre upon his return, including because he would be detected by authorities, by weighing the evidence in the 2022 DFAT Report, by engaging with the applicant’s submissions and by taking into account the amount of time that had passed since the applicant left Vietnam. The Minister submits that country information extracted by the Tribunal in its decision (see R [41]) supported the conclusion that there was no real risk to the applicant of placement in a 06 centre. The Minister submits that the Tribunal’s finding that there was “no evidentiary basis” to support the claim that the applicant would be placed in an 06 centre is the equivalent of a finding of “no risk”.
Ground one - resolution
I accept, as does the applicant, that a decision-maker can use language other than “real risk” when applying the objective element of the test for complementary protection without necessarily disclosing jurisdictional error. There may be other components of the reasoning applied by the decision-maker which when read fairly mean there is no basis upon which to conclude that the decision-maker was applying a standard other than one consistent with proper consideration of the “real risk” test. In other words, there is some latitude given to the use of different language, provided the correct standard is applied.
However, in this case, there are good reasons why the latitude that might otherwise be afforded to a decision-maker in the expression of his or her reasons should not be extended.
In resolving this ground of review, I have evaluated the reasons of the Tribunal for evidence of some more detailed analysis of why on the “real risk” test (properly understood) there is no real risk that the applicant would be placed in a 06 centre on his return to Vietnam.
There is no debate that the Tribunal dealt substantively with this claim at R [42]. Although this is a lengthy paragraph, the Tribunal offered only one clear reason for why the claim was ultimately rejected. The Tribunal found that there was no “evidential basis” for the applicant’s submission that he would be placed into a 06 centre because he had fled Vietnam. In this context, the Tribunal noted that the 2022 DFAT Report, being country information that the Tribunal was statutorily required to take into account, “only goes as far as to state that drug users ‘might’ be required to register with the police and may be detained at 06 centres”.
The Tribunal evidently understood this statement from the 2022 DFAT Report as being inconsistent with the maintenance of the applicant’s 06 claim including, as the emphasis on “might” indicates, because the prospect of the applicant (as an acknowledged drug-user) being required to register with the police and detained at a 06 centre was synonymous only with a “possibility”.[1]
[1] Oxford English Dictionary (online at 23 May 2025) 'might' expressing objective possibility.
However, as the authorities referred to earlier make plain, a “real risk” (or “real chance”) of harm requires a prospect that is “not remote” or “far-fetched”; it does not require a likelihood of relevant harm on the balance of probabilities: DQU16 v Minister for Home Affairs (2021) 273 CLR 1 at [10], citing Chan; Minister for Immigration v SZQRB (2013) 210 FCR 505 at [242] (Lander and Gordon JJ). It is therefore a level of risk that in appropriate circumstances could be comprehended by a possibility.
The manner in which the Tribunal reasoned by reference to this item of country information, coupled with its failure to explain why, in the circumstances of the applicant, the appreciable risk there identified was not capable of satisfying the statutory threshold satisfies me that the Tribunal did misapply the “real risk” test to the consideration of the applicant’s 06 centre claim.
Further, I accept the submission of the applicant that other parts of the 2022 DFAT Report that was before the Tribunal disclosed at least a chance that the applicant might form part of the not insignificant cohort of drug addicts who are placed in a 06 centre. There is no evidence that the Tribunal turned its mind to assessing the nature of that chance and whether, taking the applicant’s claims as a whole (a matter which is discussed in more detail in relation to ground two) there was a real risk that the applicant would suffer the same fate.
The Minister submits that further justification for or explication of the Tribunal’s finding about risk in the context of the 06 centre claim can be found in the balance of R [42]. It is not at all clear to me however that the Tribunal was still addressing or evaluating this claim in the second part of this passage. Instead, the focus appears to have shifted to a consideration of whether there would be any impediment to the applicant gaining access to a methadone program, including because he might come to the adverse attention of authorities. Nothing said in the balance of R [42] alters my conclusion about the deficiencies in the approach of the Tribunal to the 06 centre claim.
Materiality was not put in issue. Jurisdictional error is established by ground one.
GROUND TWO
Ground two reads:
2. The Tribunal failed to consider the applicant’s claim or integral part of his claim that he faced a real risk of significant harm on return to Vietnam in a compulsory drug treatment facility being that he would have difficulty accessing the methadone program as a returnee and/or failed to comply with s 499 of the Act and/or failed to consider critical corroborative evidence.
Particulars
a.The applicant’s representative claimed that as a new returnee to Vietnam the applicant would be unable to access the methadone program, and therefore liable to be sent to a compulsory treatment centre.
b.The Tribunal found there was nothing to suggest the applicant could not access the methadone program.
c.The Tribunal was required by s 499 and Direction no 84 to consider the DFAT Report dated January 2022 for Vietnam.
d.The DFAT Report stated at [5.32] that returnees may face challenges accessing social services.
e.The Tribunal failed to consider the applicant’s claim or integer of his claim that he would have difficulty accessing the methadone program as a returnee to Vietnam.
f.Further or alternatively the Tribunal failed to consider [5.32] of the DFAT report and therefore:
i.failed to comply with s 499 of the Act and Direction no. 84; and/or
ii.failed to consider corroborative evidence that was critical and significant in the context of the review.
Applicant’s submissions
The applicant submits that he claimed before the Tribunal that he may be unable to access the methadone program because he was a new returnee to Vietnam and therefore would be sent to a 06 centre. The claim was articulated in a written submission lodged with the Tribunal on the applicant’s behalf by his migration agent on 6 September 2021 (dated 4 September 2021). It acknowledged the applicant’s continued methadone dependency before stating (at [36] CB 283) that “[the applicant] as a recent returnee (if he were deported), would not have priority in terms of treatment and would more likely, therefore, be targeted for incarceration in a 06 centre than given outpatient treatment in a clinic”.
The applicant submits that the 2022 DFAT Report corroborated this submission by restating the obvious, namely, that returnees to a country may have difficulty accessing social services on return (at [5.32]). The relevant part of the 2022 DFAT Report states:
Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased….Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
The applicant submits that the Tribunal made no reference to the submission but instead found that “nothing had been presented” to suggest the applicant would be unable to access the methadone program. The applicant submits that it may inferred from this unequivocal statement that the Tribunal failed to consider his claim regarding inability to access based on his returnee status and failed to consider the 20022 DFAT Report, to the extent that it contained country information relevant to the topic of the difficulties faced by returnees, a cohort to which the applicant unquestionably would belong.
The applicant notes that the Tribunal was required by Direction no. 84 (made pursuant to s 499 of the Act) to consider the 2022 DFAT Report where relevant. The applicant acknowledges that the Tribunal referred in its decision to several passages from the 2022 DFAT Report. However, he submits that the Tribunal’s finding that there was nothing to suggest the applicant would be unable to access the methadone program cuts across the clear statement in the 2022 DFAT Report that returnees could struggle to access social services. The applicant submits that the failure of the Tribunal to refer to this statement in its reasons supports the inference that the Tribunal failed to consider the 2022 DFAT Report in relation to a relevant claim (referring to BYH19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 157, [46]-[54]). Alternatively, the Tribunal’s error could be described as involving a failure to consider cogent and significant corroborative evidence in support of the applicant’s claims (referring to Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, [111]-[120]).
The applicant acknowledges that the Tribunal sought to clarify his claims at hearing but submits that what was communicated on his behalf was confirmation that his claims engaged the complementary protection (rather than refugee) criterion and fell broadly into one of two categories. The first being the claim that as a methadone user, the applicant would be liable to detention in a “601” treatment facility upon his return to Vietnam. The applicant submits that this claim comprehended his submission about access to the methadone program and any argument the Minister made about abandonment was misplaced. The applicant submits that his continued reliance on this submission or claim was reinforced by the letter sent by his migration agent to the Tribunal on 25 January 2022 which identified the “various submissions and attachments that have been provided to the Tribunal since September 2021” and explained that they were a “comprehensive list of the evidence presented to the Tribunal…”. The submission of 4 September 2021 was amongst the documents identified.
Minister’s submissions
The Minister invites the Court to approach this ground from the starting point that it is for the applicant to make his own case (referring to Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [76]).
The Minister submits that there was no claim about access to the methadone program before the Tribunal, or one that it was obliged to consider, in circumstances where the Tribunal had asked the applicant to clarify his claim that he would be placed into an 06 centre upon his return to Vietnam and his agent had “suggested that would occur because the applicant had fled Vietnam” (R [42]). The Tribunal had also asked the applicant, via his migration agent, to clarify the claims that he made at the beginning of the hearing. In that context, no independent claim was made that the applicant would be unable to access the methadone program (R [35]). The Minister also relies on the Tribunal’s statement at R [66] that “to the extent that any claims or potential claims are suggested as arising from the submissions provided by the applicant, the Tribunal rejects those claims on the basis that they were not raised at the Tribunal hearing”.
The Minister submits that in any case, the finding by the Tribunal that there was “no evidentiary basis” for the submission that the applicant may be sent to an 06 centre if he was to be detected by the authorities subsumed and involved a rejection of the claim that the applicant may be unable to access the methadone program because he was a new returnee to Vietnam and would be placed in an 06 centre.
The Minister submits that if the applicant had otherwise wished to rely upon [5.32] of the 2022 DFAT Report, it was for the applicant to put on evidence that there was something specific about him that would bring him into the group of returnees identified by DFAT that may have difficulties accessing social services. The Minister submits that the Tribunal was not required to fill in gaps in the applicant’s claims and evidence and was not required to take country information into account where it was not made “relevant and cogent” by the way the applicant put his application (referring to BYH19 at [54]).
Ground two - resolution
In circumstances where both parties took me to BYH19 I have commenced my evaluation of this ground by considering what it might say about the present case.
One of the grounds considered by Anastassiou J was whether the Tribunal had erred by failing to consider relevant parts of a DFAT Country Information Report in determining that the appellant would not face a real chance of persecution in Pakistan. The Tribunal had been subject to an equivalent Ministerial Direction that required it to take into account country information prepared by DFAT where that information was relevant to its decision making.
The appellant had argued that the DFAT Report contained relevant information which was consistent with his claim to fear harm from violence in Peshawar but despite this, the Tribunal had only referred to the DFAT Report once and in a different context.
In resolving the ground in the appellant’s favour, Anastassiou J noted (at [49]) that the Tribunal had made findings, including that it was not satisfied on the evidence that the appellant would be unable to available himself of effective state protection, and that the level of state protection was sufficient, where such findings were made despite evidence to the contrary outlined in the DFAT Report.
His Honour accepted that the Tribunal was not required to refer to every piece of information or evidence before it in the discharge of its function and its obligation to give reasons. However, in circumstances where there was “little or no evidence referred to that supports [the Tribunal’s findings], then a failure to refer to evidence to the contrary takes on a greater significance. Indeed, the present circumstances are such that if the material had been considered by the Tribunal, one could expect that it would be referred to, even if it were the rejected” (at [52]).
Here, the inference that the Tribunal failed to consider [5.24] of the 2022 DFAT Report is more irresistible because not only did the Tribunal fail to refer to it in its statement of reasons, but it also failed to refer to, let alone demonstrate any engagement with, the applicant’s claim that he would have difficulty accessing a methadone program because of his returnee status. The closest that the Tribunal got was consideration of whether because of his status as a “failed asylum seeker/person who departed Vietnam illegally”, the applicant might be a person of interest to the authorities. This finding was made after the Tribunal had already recorded an emphatic finding that the applicant “would engage” in one of the methadone programmes offered in Vietnam.
I am not persuaded by the argument that the applicant (through representations made by his migration agent at hearing) had effectively abandoned this claim because it had not been mentioned in the summary of claims extracted from the agent at hearing and referred to at R [35]. That claim was part of the material identified by the migration agent for the purpose of the Tribunal’s consideration of the applicant’s review and plainly capable of being comprehended by or understood as an integral part of the applicant’s 06 claim.
The Tribunal was clearly frustrated with the manner in which the applicant had presented his case, describing it on two occasions and unfairly in my view having regard to the number of times his hearing was adjourned and therefore delayed, as “piece-meal” (R [33], [34]). While there is nothing wrong with the Tribunal taking steps to clarify the claims that are before it, the view taken (evident from what the Tribunal said at R [66]) that it was appropriate to hermetically seal what was said explicitly at the hearing as representing the extent of matters the Tribunal was required to consider offends the settled principle that the Tribunal is obliged to consider claims before it, both express and implied, including a claim that is apparent on the face of the material or arises as a result of findings made and evidence accepted by the Tribunal.[2]
[2] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58].
Materiality was not put in issue. Jurisdictional error is established by ground two.
GROUND THREE
Ground three reads:
3. The Tribunal failed to consider the applicant’s claim or integral part of his claim that he faced a real risk of significant harm on return to Vietnam in a compulsory drug treatment facility being that he would be identified as a drug user on return to Vietnam because he was a person being deported from Australia who had been imprisoned.
Applicant’s submissions
The applicant submits that he claimed in his protection visa application that he would be identified on arrival in Vietnam as a person who had been imprisoned and diverted to compulsory treatment (CB 195). He submits that the Tribunal failed to consider this claim when it considered the prospect that the applicant would be placed into a 06 centre upon his return to Vietnam at R [42]. The applicant submits that the Tribunal confined its consideration to whether returnees who had left Vietnam illegally or sought asylum might face harm.
The applicant submits that this error was material because had the Tribunal considered the claim, it might have found favourably to the applicant that he may have been identified as a drug user on arrival and diverted to compulsory treatment.
Minister’s submissions
The Minister repeats his submission under this ground that the Tribunal had established the parameters of the applicant’s claims when it questioned him about them during the hearing and identified those that were “squarely put” (R [35]). The Minister submits that the evidence before the Court does not suggest that the applicant claimed at the hearing that he would be identified on arrival in Vietnam as a “person who has been imprisoned and diverted to compulsory treatment”.
The Minister submits that despite this, the Tribunal at R [42] when it recorded that it was prepared to accept that the applicant “was previously known by the Vietnamese authorities as he has previously been imprisoned” engaged with the proposition that the applicant had been imprisoned and known to authorities for this reason but dismissed the claim on the basis of the time that had passed since the applicant’s escape, and on the basis of country information dealing with the application of the Vietnamese Penal Code to failed asylum seekers or illegal departees from Vietnam.
Ground three – resolution
While it is true that the Tribunal’s finding that it did not accept the applicant would be a person of interest and susceptible on that basis to adverse treatment did not explicitly engage with the applicant’s status as a person who had been imprisoned in Australia, I do not consider that this omission involved error.
Instead, having regard to the manner in which the claim was raised – in the protection visa application form and not subsequently repeated in either of the two sets of written submissions filed on the applicant’s behalf – and the lack of corroborative evidence to support the claim, I consider that the unqualified finding that the applicant would not be of interest to the Vietnamese authorities upon return was a sufficient and proportionate response to a claim that was not given prominence by the time that the applicant’s review was before the Tribunal. By way of analogous reasoning, it has been said on many occasions, that the extent the decision maker is required to engage will be contingent, among other things, on the length, clarity, and relevance of the representations.[3]
[3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [25].
Orders
In circumstances where I have found that grounds one and two are established, it follows that writs of certiorari and mandamus will issue to quash the decision of the Tribunal and require the Administrative Review Tribunal to reconduct the review of the delegate’s decision according to law.
Given the applicant’s success in his application, it is appropriate there will be a further order that the first respondent pay the applicant’s costs fixed in the amount that is set out in Part 2 of Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for a proceeding concluded at final hearing.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 28 May 2025
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