DOT18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 613
•30 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DOT18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 613
File number(s): PEG 93 of 2024 Judgment of: JUDGE CORBETT Date of judgment: 30 April 2025 Catchwords: MIGRATION - Safe Haven Enterprise (Subclass 790) visa – Whether Tribunal failed to consider the totality of the evidence – Consideration of oral evidence provided at Tribunal hearing – translation of evidence – Whether assessment of all the applicant’s claims had been adversely impacted by findings of credibility – Unreasonable or illogical reasoning - Application dismissed. Legislation: Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5(H)(1)(b), 5J(1), 36, 36(2)(a), 36(2)(aa)
Migration Regulations 1994 (Cth), Sch 2
Cases cited: AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1252
Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2
DBB16 v Minister for Border Protection (2018) 260 FCR 447
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 98 ALJR 196
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 77 ALJR 1909
Singh v Minister for Home Affairs [2019] FCAFC 3
SZUXN v Minister for Immigration and Border Protection & Anor [2016] FCA 516
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
WAEE v Minister for Immigration and Indigenous Affairs [2003] FCAFC 184
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of last submission/s: 20 February 2025 Date of hearing: 20 February 2025 Place: Perth Counsel for the Applicant Ms F McNeil Solicitor for the Applicant Direct Access Representation Counsel for the Respondents Mr N Swan Solicitor for the Respondents Sparke Helmore Lawyers ORDERS
PEG 93 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DOT18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
30 APRIL 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs;
2.The name of the second respondent is amended to Administrative Review Tribunal;
3.The amended application for judicial review filed 28 January 2025 be dismissed; and
4.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $6,500.00.
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 CORBETT
The applicant seeks judicial review of a decision of the second respondent (Tribunal) made 8 February 2024. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (visa).
On 28 January 2025 the applicant filed an amended application for judicial review claiming that the Tribunal erred for the following reasons:
Ground 1
The applicant claimed that his parents were regularly summoned to the Vietnamese authority’s offices for interrogation regarding his whereabouts was noted in the Tribunal Decision Under Review (CB 1046 [26], [34], [52], [68]) and that he believed that the local authorities were monitoring his parents so that they would know if he returned to Vietnam (CB 1046 [28]). The Tribunal fell into jurisdictional error by:
(a) Misunderstanding or failing to address the substance of these claims;
(b) Overlooking or failing to have regard to most of the applicant’s evidence in support of these claims; and/or
(c) Failing to give proper and genuine consideration to most of the applicant's evidence concerning the claims.
Particulars
(a) The Tribunal at CB 1065-1066 [146]-[150] failed to engage with the applicant’s claims and the applicant’s evidence over time that his parents were regularly summoned to the Vietnamese authority’s offices for interrogation regarding his whereabouts, including in 2017 (CB 61 [90], CB 63 [95]), 2018 (87.8), 2020 (CB 201) and 2023 (CB 975).
(b) The Tribunal at CB 1065-1066 [146]-[150] failed to engage with the applicant’s claims and the applicant’s evidence over time that the local authorities were “keeping an eye on” and “monitoring” his parents so that they would know if he returned to Vietnam including in 2017 (CB 61 [90], CB 63 [94]), 2020 (CB 201) and 2023 (CB 975).
References in the amended application and these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit “R1”.
BACKGROUND
This application has a complex procedural background.
The applicant is a citizen of Vietnam. He arrived in Australia on 14 April 2013 by sea. He was mistakenly believed to be an unauthorised maritime arrival because he first arrived at the Territory of Ashmore Island.
On 25 February 2015, the applicant was granted a temporary Safe Haven Enterprise visa and in May 2017, was invited to apply for the visa (CB 25-8). The applicant first applied for the visa on 16 June 2017 (CB 29-70).
On arrival in April 2013, the applicant participated in an Induction Interview (CB 1-17) and explained that his reasons for leaving Vietnam were the lack of economic opportunities in Vietnam and lack of religious freedom. He is recorded as saying (CB 9):
“Because of lack of human rights, I can longer leave there. Because the government has confiscated the lamb of the family regrading the religious issue we are not allowed to participate in religious activities. Although religious service is still allowed, we as catholics are not allowed to retain positions in administration or other various hierarchy”.
In the applicant’s visa application form 790, the applicant also claimed that his family was dispossessed of land and suffered religious persecution (CB 30-70). He claimed that his family was monitored by Vietnamese authorities, summoned, then interrogated and beaten (CB 61). The applicant claimed that he had been beaten due to his opposition to nationalisation/confiscation of his family’s land and summoned for a further interrogation, which he refused to attend due to fear of being physically harmed again (CB 61). Furthermore, the applicant claimed that due to his religious belief in Catholicism, he was persecuted and unable to obtain employment. The applicant refused to denounce his Catholic religion. That left him with no option but to work in the fields, on land that became confiscated. The applicant resolved to leave Vietnam.
In response to question 90 of the form 790 application – what do you think will happen to you if you return to that country? The applicant said (CB 61):
“Escaping Vietnam is seen as a serious crime. I would most likely be jailed for my actions.
Further to this, I believe that the government have been keeping an eye on my family and waiting for my return to harm me. I have been informed my my parents that the Vietnamese authorities are summoning them to attend their offices every 2-3 months to interrogate them on my whereabouts. I believe that they are doing this so that if I return, they will beat me, or jail me.”
In response to question 91 of the form 790 application – did you experience harm in that country (or countries)? The applicant said (CB 62):
I was beaten up by the local police because I opposed them for appropriating our land.
In response to question 92 of the application – did you seek help within the country (or countries) after the harm? The applicant wrote (CB 62):
The police believe that opposition of land nationalisation is a crime. As such, the police wanted to arrest me. Therefore, I did not try to get assistance from any authorities in Vietnam.
The applicant annexed to the form 790 application a certified translation of a summons dated 2 October 2013 received from the Deputy Chief of Police of Chau Duc District (Summons). The Summons was addressed to his parents, inviting them to be “interrogated” (CB 68). No other summons or summonses were produced.
On 21 March 2018, the applicant was invited to attend an interview with a delegate of the Minister regarding his application (CB 79-80) (SHEV Interview). The SHEV Interview took place in Perth on 4 April 2018 (CB 86).
On 3 May 2018, a delegate of the Minister refused to grant the applicant the visa (CB 81-93). The delegate found that the applicant was not a person in respect of whom Australia has protections obligations under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Act).
The decision of the delegate was then referred to the Immigration Assessment Authority (IAA) for fast-track review (CB 98-9).
On 6 July 2018, the IAA affirmed the decision of the delegate to refuse to grant the visa (CB 106-118).
On 9 July 2018, the applicant filed an application for judicial review of the decision of the IAA to affirm the decision of the delegate dated 6 June 2018. This application was set aside by this Court (by consent) on the basis that the applicant was not an unauthorised maritime arrival (CB 120-1). This was due to the decision of the Full Court of the Federal Court in DBB16 v Minister for Border Protection (2018) 260 FCR 447 (DBB16). The visa application was remitted to the Minister for reconsideration.
On 27 March 2019, the applicant was notified of a further decision by a delegate of the Minister (CB 125-141). The delegate refused to grant the visa on similar grounds to the earlier decision.
On 17 April 2019, the applicant applied to the Tribunal to review the delegate’s further decision (CB 142-3).
On 26 April 2019, the applicant, with the assistance of a registered migration agent, filed preliminary written submissions for the assistance of the Tribunal (CB 148–151). Those submissions were supplemented by further country information on 29 April 2019 (CB 152–8).
The applicant’s migration agent then sought updates on the progress of the review (CB 159). None were forthcoming.
On 4 September 2020, the Minister informed the applicant’s migration agent that the applicant may now lodge a new application for a protection visa in lieu of the application for a SHEV visa (CB 166-7). This was because the applicant was a person affected by the decision in DBB16.
On 25 September 2020, the applicant made a further application to the Minister, this time for a protection visa (CB 176-225). The applicant maintained the same claims for protection as stated in his previous application (CB 200). The applicant also attended a further SHEV interview on 13 January 2021 (CB 232).
On 27 January 2021, a delegate of the Minister refused to grant the visa (CB 340-355).
On 23 February 2021, the applicant applied to the Tribunal for review of the delegate’s decision refusing to grant the visa (CB 356-363). The applicant again provided preliminary submissions with the assistance of a migration agent (CB 364-8).
The Tribunal then directed that the applicant’s 2019 application for review and the 2021 application for review be heard together by the same member (CB 376).
On 14 April 2023, submissions were provided to the Tribunal by the applicant’s migration agent (CB 974-5).
On 1 June 2023, the applicant was invited to attend a hearing and make submissions (CB 978). The hearing was scheduled to be heard on 16 August 2023 (CB 980).
By August 2023, the applicant had entered a relationship with an Australian citizen and the applicant’s migration agent sought ministerial intervention (CB 994). The applicant also applied for a partner visa (CB 997–1018). The applicant also claimed that he suffered from mental health issues including depression, PTSD and suicidal thoughts (CB 481-2, 947-950 and 1032). The applicant had also established a successful business as a house painter (CB 454-480 and 945-6).
On 16 August 2023, there was a hearing before the Tribunal. The applicant’s de facto partner and former employer attended to give evidence, and the applicant was accompanied by his migration agent and assisted by an interpreter fluent in the English and Vietnamese languages (CB 1019). The two review applications (17 April 2019 and 23 February 2021) were considered together by the Tribunal (CB 1053 [63]). The application for a partner visa had not yet been assessed by a delegate of the Minister and was pending a decision (CB 1029-30, 1032 and 1035).
On 14 February 2024, the Tribunal notified the applicant of its decision to affirm the delegate’s decision not to grant the visa (CB 1040). The notification attached a copy of the Tribunal’s written reasons dated 8 February 2024 (CB 1042-1078) (Decision).
TRIBUNAL DECISION
The Tribunal summarised the procedural history (CB 1043-4 [2]-[13]) and outlined the relevant criteria to be considered for the visa set out in s 36 of the Act and Sch 2 to the Migration Regulations 1994 (Cth) (CB 1044 [14]). The criteria included the definition of refugee under ss 5H(1)(a) and 5(H)(1)(b) and the meaning of well-founded fear of persecution under s 5J(1) of the Act (CB 1044 [16]-[17]).
The Tribunal then considered the applicant’s claims and evidence in considerable detail (CB 1045-1061 [20]-[119]). The Tribunal was not satisfied that the applicant faced a real chance of harm for any of the claimed bases or for mental health issues (CB 1064 [135]). The Tribunal did not accept the claims that the applicant’s family’s land was confiscated by Vietnamese authorities (CB 1066 [150]), or that he suffered persecution based on political opinion and religious affiliation to Catholicism (CB 1066 [153]).
PROCEEDINGS IN THIS COURT
On 14 March 2024, the applicant filed an application for judicial review in this Court. The application contained three grounds of review primarily alleging that the Tribunal failed to consider country information, failed to consider an integer of a claim and failed to place sufficient weight and give proper consideration to the applicant’s evidence regarding his mental health. The application was supported by an affidavit sworn by the applicant on 14 March 2024 that simply annexed a copy of the Decision.
On 28 January 2025, the applicant filed an amended application for judicial review amending the grounds of review (paragraph [2] above). The applicant also filed an outline of written submissions prepared by counsel.
The hearing of the application for judicial review took place before this Court at Perth on 20 February 2025.
Ms McNeill of counsel appeared via video link on behalf of the applicant.
Mr Swan of counsel appeared via video link on behalf of the Minister.
APPLICANT’S SUBMISSIONS
On behalf of the applicant, Ms McNeill sought to rely upon the applicant’s outline of written submissions filed on 28 January 2025 and the affidavit of Ms Nguyet Doan, the applicant’s migration agent, affirmed on 6 February 2025 which annexed a copy of the transcript of the Tribunal hearing on 16 August 2023.
Ms McNeil submitted that the transcript provided context to the Tribunal's reasons regarding what the Tribunal had described as “inconsistent evidence” pertaining to the applicant's claims (CB 1065 [145]-[146]). The affidavit was tendered and marked as exhibit “A1”.
Ms McNeil’s primary submission was that the Tribunal failed to engage with the substance of the applicant’s consistent evidence prior to the hearing and then misunderstood the evidence at the Tribunal hearing concerning land confiscation, his parents being summoned by the Vietnamese authorities and claims that such authorities had been “keeping a close eye on his family” (CB 975 [7]). The failure to consider the totality of the evidence resulted in an error in the consideration of the evidence given at the Tribunal hearing and an error in the Tribunal’s conclusion that the applicant’s evidence lacked credibility.
Ms McNeill submitted that the Tribunal erred by failing to give weight to the consistent evidence of persecution and fear of harm given repeatedly by the applicant over an extended period of time (the initial visa application made on 8 June 2017, the SHEV interview, statements made in his 2020 Protection visa application, and the 15 August 2023 submissions submitted by the applicant’s migration agent), and failed to give proper consideration to the Summons.
Ms McNeil took the Court to two passages of the applicant’s oral evidence before the Tribunal regarding his parent’s land in Vietnam (A1 19-20, 22). To provide proper context, Ms McNeil submitted that the Tribunal member and the applicant appear to be confused as to the present and past tense and the two different tenses are noticeably and interchangeably used. While it was accepted that providing evidence with the assistance of an interpreter can present challenges, the Tribunal fell into jurisdictional error by misunderstanding this evidence when assessing the applicant’s claims. Two passages from the Transcript were read out.
Passage one (A1 19-20):
Tribunal: Are your parents still alive?
DOT18: Yes.
Tribunal: Do they still live in the family home?
DOT18: Yeah.
Tribunal: What do they do for a living?
DOT18: Farming coffee. They’re farming coffee.
….
Tribunal: Now, where is this land located? Is it located around the family home or is it located somewhere else?
DOT18: The coffee was grown near home but they grew something else further away.
Tribunal: what else did they grow?
DOT18: They grew sweet potatoes.
Passage two (A1 22):
Tribunal: So what land do your family use to farm coffee now?
DOT18: No land.
Tribunal: Earlier in the hearing, a few minutes ago, you told me that your parents farm coffee. Why have you changed your story now?
DOT18: I thought your question was that what did my parents do.
Tribunal: No I asked you very clearly, what do they do? What do your parents do in Vietnam?
DOT18: They rest now. They are old now.
Ms McNeill submitted that the two passages were at the heart of the Tribunal's findings as to credit which permeate the entirety of its reasoning. The Tribunal did not believe the applicant's claim as to the confiscation of land, in particular at paragraphs [145] to [146] of the Decision where the Tribunal found that (CB 1065 [145]-[146]):
[145] The Tribunal does not accept these explanations for the inconsistent evidence that the applicant provided at the hearing about this matter as they offer no explanation as to why he told the Tribunal at the commencement of the hearing that his parents still currently carrying on their farming activity if this was not true.
[146] Based on the inconsistent evidence the applicant provided during the second Tribunal hearing about his parents farming activities, the Tribunal finds that the applicant has not been a witness of truth in relation to these claims and that his evidence in this regard lacks credibility. The Tribunal has also placed significant adverse weight on this inconsistent evidence about his parents’ farming activities when considering the applicant’s claims relating to the alleged confiscation of his parents’ land.
It was submitted that these findings form the backdrop to the findings of credibility and the dismissal of the applicant’s claims of persecution and harm. In particular, the “rolled up” findings at CB 1066 [150]. The Tribunal did not correctly engage with the totality of the applicant’s evidence, or all of the claims made. Furthermore, when the Tribunal found that the applicant's evidence lacked credibility (CB 1065 [146]), the Tribunal reasoning then goes on to place no weight on the document that was before the Tribunal, specifically the Summons (CB 1066 [148]). Ms McNeil submitted that the Tribunal should have been mindful of the “what if I’m wrong” test referred to in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [36]. It was submitted that although the Tribunal on its face, appears to have expressed having no doubt as to its finding about confiscation of land and the summoning of the applicant’s parents, the Tribunal should have entertained some doubt (or given the applicant the benefit of some doubt) and should have considered, in the alternative, whether the applicant may suffer significant harm if the evidence was in fact, or could be true. Whether or not that was the correct approach to reasoning, Ms McNeill submitted that this Court need not make any particular finding about that part of the Tribunal’s reasoning because the amended grounds of review have now been expressed in terms of a failure to consider relevant evidence and a substantial claim. Nonetheless, the way the Tribunal approached the issues was unduly harsh given the communication difficulties apparent at the Tribunal hearing.
Ms McNeil submitted that as required by law, the Tribunal did not identify or properly engage with the applicant's claims and oral submissions regarding his parents being summoned by the Vietnamese authorities. That was a material error, in that, had the Tribunal properly engaged with those submissions then there could have been a different assessment of the applicant’s level of risk of significant harm. Ms McNeill referred to the conclusions at paragraphs [149]-[150] of the Decision (CB 1066 [149]-[150]) which could have been different had the Tribunal properly considered the totality of the applicant’s evidence:
[149] On the evidence before it, the Tribunal finds that the applicant’s claims that his parents land was confiscated and that he and his family participated in protests against this confiscation in Vietnam are far outweighed by the lack of details the applicant has provided over time about when this alleged land confiscation and associated protests occurred and by the inconsistent evidence the applicant provided that the second hearing about his parents farming activities over time, including whether they were still farming or not.
[150] Therefore, on the evidence before it, the Tribunal does not accept that the applicant’s parents land was ever confiscated by Vietnamese authorities as claimed or that the applicant ever participated or was arrested at protests associated with this alleged land confiscation or that he ever escaped from custody as claimed or that he ever went into hiding for around a year before he departed Vietnam to avoid the police or that the police have any ongoing interest in the applicant for any reasons related to land confiscation and any associated protests.
It was also submitted that the Tribunal’s assessment of the totality of the evidence was adversely impacted by incorrect findings about credibility. The Tribunal formed a view that the applicant had given inconsistent evidence as to his parent's farming activities and the process of reasoning was affected by that error. Ms McNeil relied on the decision of AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1252 at [82]-[83] (AAI20) where Stewart J highlighted the significance of assessment of credibility and the way in which it can affect the reasoning process:
[83] Undoubtedly, the anatomy of decision-making, particularly with respect to the weighing of different evidence and reaching judgments on credibility, is complex; disbelief of someone at one point might carry over to affect the decision-maker’s disbelief at other points, and vice versa.
It was also submitted that the Tribunal did not engage in a “proper, genuine and realistic” consideration or “active intellectual process” directed at the evidence (see Singh v Minister for Home Affairs [2019] FCAFC 3 at [30]–[37] (Singh)). The applicant’s evidence at interviews with the Minister’s delegates, as well as the statements accompanying the visa applications, was central to the applicant’s claims yet not considered in paragraphs [147]–[150] of the Decision (CB 1065-6). This was a material jurisdictional error.
Ms McNeill then addressed the Minister’s outline of written submissions. The Minister’s submissions at paragraph [18] asserted two points. One: the Tribunal did in fact engage with the applicant’s evidence as summarised in the Tribunal’s Decision (CB 1045-1061 [20]-[119]) and two: the applicant’s claims regarding the authorities “keeping an eye” on his family was not mentioned in his evidence before the Tribunal because it was not a material fact (CB 1055-9 [83]-[89] and [101]-[104]). Ms McNeill submitted that an applicant who appears before the Tribunal is required to attend only to the question asked and then answer it. That is what the applicant did. It was submitted that the applicant should not be criticised for confining his answers to what was asked, especially when the applicant has gone into detail in other documentary evidence before the Tribunal. That the applicant did not mention all aspects of his claim in his oral evidence does not excuse the Tribunal from considering claims or permit a finding that there was inconsistency in the applicant’s evidence.
Ms McNeil also addressed paragraph [19] of the Minister’s written submissions noting that there appeared to be an inadvertent error. The Minister has referred to paragraph [150] of the Tribunal's reasons to submit that the Tribunal gave reasons for not accepting the claims of the applicant regarding land confiscation (CB 1066 [150]). In that paragraph, the Tribunal states that it did not accept that “the police have any ongoing interest in the applicant for any reasons related to land confiscation and any associated protests”. Ms McNeill submitted that the expression “for any reasons” in the Minister’s submission was not the finding made by the Tribunal and is not correct. The finding made was not at large but limited to police interest in land confiscation.
Ms McNeill then addressed paragraph [22] of the Minister’s written submissions, in which the Minister contends that the Tribunal did not refer in express terms, by way of a line-by-line refutation to all of the evidence, because the Tribunal did not see it as material to its Decision (CB 1064-6 [136]-[150]). Ms McNeill submitted that even if the Tribunal considered that it should not place particular weight on each and every aspect of the evidence, one way or another, it was still incumbent on the Tribunal to deal with the claims raised by the applicant which were, in the applicant's mind, relevant. It was submitted that it is no answer for the Minister to say that the Tribunal did not consider evidence because it was not material to the Tribunal. The Tribunal was required to consider all of the evidence that the applicant considered to be relevant.
Ms McNeil also referred to a third passage of the transcript of the Tribunal hearing to demonstrate the challenges faced by decision makers when using interpreters to translate evidence. The passage was at Exhibit A1 page 37. The background to the exchange recorded is regarding questions put to the applicant about proof of membership of the Viet Tan group (A1 37):
DOT18: [interpreted] After COVID, I was busy with work. Well, when I have work, I could not go to the meetings. I have to call the group.
Tribunal: Okay. I think you know I have concerns about it.
Migration Agent: She forgot – the translator forgot about the FaceTime group. He means FaceTime group.
Interpreter: FaceTime group.
Migration Agent: so they have telephone conference. That’s what he means.
The transcript records that the applicant’s Migration Agent interrupts the evidence and comments on the translation in the hearing – “He means FaceTime group”. It was submitted that this exchange demonstrates the challenges faced when evidence is given via an interpreter. Therefore, the Tribunal should not hastily conclude that the witness lacks credibility or is giving inconsistent evidence. Further, if the totality of the evidence was considered and not simply dismissed as unreliable by the Tribunal, then a materially different outcome could be reached by a differently constituted Tribunal (AAI20 at [85] and LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 at [7] and [14] (LPDT)).
The failure to engage with the applicant’s evidence and the totality of the claims made was a material jurisdictional error and the applications for review should be allowed, the Decision quashed and the review remitted to the Tribunal to be considered in accordance with law.
MINISTER’S SUBMISSIONS
On behalf of the respondents, Mr Swan sought to rely upon the Minister’s outline of written submissions filed on 6 February 2025. The substance of which was that there was no failure to consider a claim clearly made or otherwise apparent. The Tribunal was aware of the evidence sought to be relied upon and did not fail to consider any relevant fact or integer of a claim for protection. The Tribunal considered the claims made in their totality in paragraphs [21]–[76] of the Decision (CB 1045-1054).
Mr Swan submitted that this was a one issue case where context is important. Mr Swan referred to the applicant’s answers to questions 89, 90, 91, and 92 provided in his visa application which are stated and summarised above at paragraphs [8], [9], [10] and [11]. They formed the basis of the articulated claims for protection. In those answers there are references to land confiscation and the monitoring of the applicant’s family but when read in context they are not freestanding or distinctly separate claims. In that sense, the monitoring and “keeping an eye” on his family by local authorities was part of a broader claim of unlawful land confiscation, protest, fear of persecution and actual harm all of which was considered by the Tribunal.
In response to the applicant’s submission that the assessment of all the applicant’s claims had been adversely impacted by findings of credibility, the Minister relied on the decision in BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128 (BLBY) at [13] citing Colvin J:
“Mere disagreement with the process of reasoning or the implied rejection of the significance of an argument or evidence by not expressly referring to it in the reasons does not demonstrate jurisdictional error”.
No particular weight was given to the Summons by the Tribunal in relation to the applicants claims however in the delegate’s decision dated 27 January 2021 (CB 348), doubt was cast on the authenticity of the Summons and why it was relevant. The delegate found that the Summons was determined to not be relevant to the claims for protection. The Minister relied on the decision of Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 77 ALJR 1909 at [57] for the proposition that it is up to the applicant to present evidence to the Tribunal to establish the claims made and then for the Tribunal to decide whether the claim has been made out. Further, pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claims and to provide sufficient evidence to substantiate any claims for protection. The applicant was represented throughout the entire procedural history of this application and for whatever reason, the applicant chose not to address the matter of lack of evidence about the Summons and the relevance of it.
Mr Swan referred to the applicant’s written submissions dated 15 August 2023 that were prepared by the applicant’s migration agent and submitted that those submissions do not make reference to the claims now made (CB 998-9). It was submitted that the Tribunal reasons must be read fairly, and not in an unduly critical manner and considered in light of the context of the statutory obligation to decide (see BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at [38]). The Tribunal does not need to expressly refer to every piece of evidence provided by the applicant. A matter may not be referred to because it is incorporated in findings that are, for example, of a greater generality or because a factual premise upon which the claim relies on has been rejected by the Tribunal, or finally, the Tribunal does not consider it material (see Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 (Buadromo) at [46]).
The Decision should be read as a whole, and it should not be inferred that the Tribunal did not deal with evidence in isolation or ignored other evidence merely because the outline of the Decision is sequential (see Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 98 ALJR 196 at [50]). Sequential reasoning does not infer that an omitted fact was not considered at all or overlooked (see WAEE v Minister for Immigration and Indigenous Affairs [2003] FCAFC 184 at [47]).
The reasoning and logic of the Decision is reflected in the four key paragraphs [137]-[140] of the Decision which explain the absence of sufficient proof of all of the claims made.
The Minister submitted that the amended application for judicial review be dismissed with costs.
Ms McNeill did not seek to make any further submissions in reply.
CONSIDERATION
The function of this Court is to review the Decision and determine whether the Tribunal has fallen into error by failing to conduct the statutory task of reviewing the application for the visa in accordance with law.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (Wu Shan Liang), the High Court said at 272:
In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General (NSW) v Quinn (26):
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
Therefore, it is not for this Court to review the merits of the Decision or to reconsider the weight given by the Tribunal to the evidence produced by the applicant before and at the Tribunal hearings. The weight to be given to the evidence is in the domain of the Tribunal and not by a judge conducting judicial review (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J (Tran)).
In LPDT the plurality said at [3]:
[3]…Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
In Wu Shan Liang at 272, the Court warned against construing the decision under review “minutely and finely with an eye keenly attuned to the perception of error”. In Buadromo at [46] the Full Court of the Federal Court (Besanko, Barker and Bromwich JJ) said:
Insofar as the primary judge is suggesting in [42] of his reasons (set out above at [29]) that a decision-maker is required to make a finding of fact with respect to every claim made or issue raised by an applicant, we do not agree. A finding of fact may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality or, to use an example advanced by the appellant in the course of submissions in this case, even assuming fact or proposition A, I (the decision-maker) do not accept that fact or proposition B follows. These are only examples and it is not possible to be comprehensive.
In this case the applicant relies on only one ground of review with three subparts. The claim which the applicant says was misunderstood, overlooked and/or not considered was that the applicant’s parents were summoned to the Vietnamese authority’s offices for interrogation regarding his whereabouts and the applicant believed that the local authorities were monitoring his parents so they would know if he returned to Vietnam. The claim is identified or referred to in paragraphs [26], [28], [34], [52] and [68] of the Decision. It is also referred to in the applicant’s original application for the visa at CB 61 (Question 90). The applicant contends that in making the findings at [146]-[150] of the Decision the Tribunal overlooked a material, cogent and important claim. This Court disagrees for the reasons that follow.
The Tribunal was critical of the applicant’s evidence and found inconsistencies in the applicant’s recollection of material events (CB 1065 [141], [145] and [146]). In reaching the findings regarding the credibility of the applicant’s evidence and claims the Tribunal noted in the Decision (CB 1058 at [102]):
[102] The Tribunal pointed out to the applicant that the police summons issued to his parents, which he had provided, did not mention the applicant and does not mention land confiscation. On this basis, the applicant was asked why the Tribunal should accept that this summons has any relevance to the claims that the applicant is making. The applicant responded that he did not keep his own summons because it was a long time ago, but the family had kept a copy of his parents summons. He added that the government never put a reason in the summons but simply invited people to attend the police station.
The Tribunal also found at paragraph [148]:
[148] The applicant has claimed that a summons he has produced requesting that his parents attend the local police station is evidence that the land was confiscated as claimed and that the police have an ongoing interest in the applicant. However, as pointed out at the second hearing, a thorough reading of this document reveals that it does not contain any reasons for the parents being summoned to appear at the local police station and the document makes absolutely no reference to the applicant himself or any alleged ongoing police interest in the applicant. Accordingly, whilst the Tribunal accepts that the applicant’s parents may have received this summons in their personal capacity, in the absence of any reference whatsoever to the applicant in the summons itself or any reason whatsoever for the parents being summoned by the police, the Tribunal has placed no weight on the summons when assessing whether the applicant’s parents’ land was confiscated as claimed or whether the police in Vietnam have any ongoing interest in the applicant as claimed.
Whilst not specifically referring to the claim as now formulated in the amended application for judicial review, the reasoning of the Tribunal in the Decision (which culminated in the findings at CB 1066 [150]), shows that the Tribunal did consider the substance of the applicant’s assertion that his parents had been summoned and were being monitored by authorities. The Tribunal dismissed the applicant’s assertions as unconvincing.
The claim as now formulated was not mentioned by the applicant during the course of his evidence at the hearing before the Tribunal on 16 August 2023 (Exhibit A1) but the substance of the claim, namely the summoning of his parents by local authorities to be “interrogated”, was considered by the Tribunal and dismissed based on the document produced by the applicant and the credibility of the applicant’s evidence. The Tribunal’s findings as to credit did not undermine the reasoning reflected in the Decision. Those findings were available and open given the absence of corroborating evidence and the inconsistencies in the claims as they evolved. The Tribunal was entitled to rely on the applicant’s evidence at the hearing and whilst the transcript shows that there was the occasional need to clarify or restate questions for the interpreter and applicant, it is not contended that there were errors made by the interpreter that were so material to undermine the conclusions of the Tribunal adverse to the applicant (see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17]). The weight given to the evidence is a matter for the Tribunal and not this Court (Tran at [5]).
The Court also agrees with the Minister’s submission that the Decision must be read as a whole and that not every piece of evidence or contention made by the applicant needs to be referred to by the Tribunal. The omission to refer to a claim or argument does not demonstrate jurisdictional error and does not mean that the substance of the claim was not considered at all (Buadromo at [46]; BLBY at [13] per Colvin J and Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [31]).
The Tribunal was aware of the applicant’s previous statements regarding his parents, the monitoring of his family and the Summons and recorded them in the Decision at [26], [28], [30], [34], [52], [68] and [102] (CB 1046-1058). The failure to expressly refer to the claim as now formulated, does not mean that the Tribunal failed to address a material or important claim. When the Decision is read as a whole, the Tribunal did consider all of the substantive claims made by the applicant in reaching the conclusion that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act.
The Tribunal did not fail to consider the whole of the applicant’s previous evidence in reaching that conclusion but found on balance; after weighing that evidence and the evidence of the applicant at the hearing, the applicant did not meet the statutory criteria for protection. There was no material jurisdictional error in the reasoning of the Tribunal or the consideration of the applicant’s claims. The Decision reflects a proper, genuine and realistic consideration of the applicant’s claims for protection and engaged in “an active intellectual process directed at the matter” to be decided (Singh at [30] per Reeves, O’Callaghan and Thawley JJ). The amended application for judicial review dated 28 January 2025 is dismissed.
Although not expressly raised by the applicant, to the extent that it was to be inferred from the submissions of counsel for the applicant that the Decision was unreasonable and illogical because of a failure to consider relevant facts and issues, the Court is not satisfied that the Decision is one that no reasonable decision-maker could arrive at on the same evidence. Nor is it a decision that is without an evident and intelligible basis (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130]–[135] per Brennan and Bell JJ). The threshold for finding unreasonableness or illogicality is high and simply because reasonable minds may differ as to the findings made and weight to be given to particular evidence, a decision is not unreasonable or illogical (see SZUXN v Minister for Immigration and Border Protection & Anor [2016] FCA 516 at [52]). In this case, the Tribunal articulated the reasoning and evidence relied on with clarity and in a logical sequence, noting the inconsistencies in the evidence and the absence of corroborating evidence to support the claims made. The Decision is both reasonable and has an evident and intelligible basis for the conclusions reached.
COSTS
At the conclusion of the Minister’s submission, the solicitor for the Minister informed the Court that if the application for judicial review was dismissed, the Minister sought costs fixed in the amount of $6,500.00. That is less than the scale amount for costs and disbursements for a proceeding concluded at a final hearing of a migration proceeding as set out in Division 1, Part 2 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and is fair and reasonable in this case.
OTHER MATTERS
Further, the Minister sought to change the name of the first respondent and the title to the proceeding to the current title of the Minister responsible under the Act. Further, due to the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the ‘Administrative Review Tribunal’. Orders will be made amending the name of both respondents and the title to the proceeding.
ORDERS
The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.
The name of the second respondent is amended to Administrative Review Tribunal.
The amended application for judicial review filed 28 January 2025 be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $6,500.00.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 30 April 2025
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