EHJ19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 683
•16 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EHJ19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 683
File number(s): ADG 413 of 2019 Judgment of: JUDGE GERRARD Date of judgment: 16 May 2025 Catchwords: MIGRATION – protection visa – decision of the Immigration Assessment Authority – whether the IAA failed to consider a claim which clearly emerged on the material before it – membership of a particular social group – whether the IAA failed to give genuine consideration to the applicant’s claims – illogicality – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 5L, 473CB, 476 Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
DBA17 v Minister for Immigration and Multicultural Affairs [2025] FCA 438
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Leka v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 123
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
SZQMT v Minister for Immigration and Citizenship [2012] FCA 840
Tickner v Chapman (1995) 57 FCR 451
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of last submission/s: 27 February 2025 Date of hearing: 12 March 2025 Place: Adelaide Counsel for the Applicants: Cameron Jackson Solicitor for the Applicants: Oxford Law Group Counsel for the First Respondent: Bernadette Rayment Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 413 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EHJ19
First Applicant
EHK19
Second Applicant
EHL19 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
16 MAY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GERRARD:
INTRODUCTION
The applicants seek judicial review of a decision of the Immigration Assessment Authority (the IAA) affirming an earlier decision of the first respondent (the Minister) to refuse to grant them Safe Haven Enterprise (subclass 790) visas (SHEV). As will be explained, for the applicants to succeed in this Court, they must establish that the IAA decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found jurisdictional error in the IAA’s decision. On that basis, the application cannot succeed.
BACKGROUND
The first applicant (the applicant) is a citizen of Vietnam. The applicant and his wife first arrived in Australia on 19 July 2013 as unauthorised maritime arrivals with three of their four children, the fourth being born in Australia (CB 253-254).
On 28 July 2013, the applicant participated in an Irregular Maritime Arrival Entry Interview (CB 1). In that interview, the applicant claimed that he left Vietnam as he feared he would be arrested, detained and threatened by the Vietnamese authorities following his reporting to those authorities about an incident with Chinese vessels whilst he was fishing in disputed waters (CB 14).
On 20 September 2016, the applicant was invited to apply for a Temporary Protection (subclass 785) visa or a SHEV within 28 days (CB 25-26). On 20 March 2017, the applicants lodged SHEV applications (the visas) with the assistance of a lawyer. The applicant’s wife and children were named as members of the family unit in the visa applications (CB 27-164). The applicants provided a statement of claims and other documentation in support of their application (CB 165-191).
On 13 September 2017, the applicant was invited to attend an interview scheduled for 26 September 2017 (CB 197-198) which was later postponed (CB 199-200) and rescheduled for 31 July 2019 (CB 202-203). The applicants then provided a further statement of claims and other documentation (CB 204-248).
Following that interview, on 21 August 2019, a delegate of the Minister refused to grant the applicants the visas (CB 253-270).
On 26 August 2019, the delegate’s decision was referred to the second respondent, the IAA, for review (CB 271-272).
On 16 September 2019, the applicants’ lawyer provided further submissions and other documents in support of the review application (CB 300-310).
On 30 September 2019, the IAA affirmed the delegate’s decision not to grant the applicants the visas (CB 314-335).
On 31 October 2019, the applicants lodged an application for judicial review in this Court. That application seeks review of the IAA’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE IAA DECISION
To obtain assistance from this Court, the applicants must show that the IAA has fallen into jurisdictional error. It is thus useful to outline the IAA’s decision in some detail.
The IAA began by setting out a procedural history of the applicants’ visa application (at [1]-[6]). The IAA confirmed that it had regard to the material given by the Secretary under s 473CB of the Act (at [7]).
The IAA summarised the applicant’s fear of harm if returned to Vietnam as follows (at [19]-[21]):
·He told people about the incident with the Chinese boats;
·He departed Vietnam illegally;
·He would be unable to return to fishing because the Vietnamese government does not support fishermen;
·He would be unable to find employment to support his family;
·He would be charged and jailed for organising people to escape from Vietnam illegally;
·He and his family’s personal information was made public in the 2014 data breach;
·He has been involved in political activities in Australia;
·He has a profile of asking for human rights, protesting against the Vietnamese government’s activities and for the rights for him to practise his profession;
·His children would have no future if he was put in jail on return to Vietnam; and
·The applicants’ families in Vietnam have been placed on a black list because of the applicants’ illegal migration.
The IAA accepted that the applicant worked as the captain of a fishing boat from 2001 with a crew of ten people, and his second-in-command was his wife’s brother (at [24]). The IAA also accepted that the applicant was arrested and charged with fishing in Malaysian waters in 2011 and spent eight months in detention, returning to Vietnam in February 2013 (at [25]).
The IAA set out the applicant’s claim in his arrival interview that whilst he was at sea, Chinese people were threatening him by parking next to his boat, telling him to get out and spraying his boat with a water hose. The IAA set out that, in this interview, the officer asked the applicant if there was any other reason for which he left Vietnam, to which he responded ‘no’ (at [30]).
Whilst the IAA noted some differences between the applicant’s evidence about this incident in his arrival interview, written statement and SHEV interview, it noted that his overall recount of events was consistent with country information. The IAA accepted that the applicant was approached, harassed, followed, sprayed with water and threatened by Chinese boats while fishing in disputed waters. However, it did not accept he was ever arrested, detained, tortured, beaten, made to report and/or had his boat and other belongings seized by Vietnamese authorities for telling people about what had happened to him, that members of his crew were detained and beaten, or that Vietnamese police still harass his parents at home for this reason. The IAA found that this raised doubts as to the applicant’s credibility (at [35]).
The IAA set out the applicant’s claims in respect of accusations of organising people to escape Vietnam illegally. The IAA set out claims in the applicant’s arrival interview that he organised the diesel and food for the boat with money from his savings, and had asked his wife’s relatives if they wanted to come with him to Australia. He claimed that he came to Australia with his family and 17 other relatives, but did not tell his own parents (at [36]). The IAA noted that the applicant’s written statement claimed that he and the second applicant had already been accused of people smuggling and may consequently be imprisoned for three to seven years. However, in the SHEV interview, the applicant said he had been charged and convicted of organising people to escape Vietnam illegally and will face five to 15 years in prison. When asked by the delegate if he had ever been charged with the offence, the applicant responded ‘not yet’ as he had been in hiding for a few weeks and therefore, there was no opportunity for “such a document to be ‘charged’ for him” (at [38]). Ultimately, the IAA accepted that the applicant purchased supplies and used his own boat to transport him and his relatives to Australia, and that he did not involve or need the assistance of others to facilitate the journey (at [42]).
The IAA first considered the applicants against the refugee criterion. The IAA noted that the applicant is working in Australia but not as a fisherman, and that in his SHEV application, he indicated that his parents and seven siblings continue to reside in Vietnam. The IAA accepted that the applicant may choose not to work as a fisherman upon return to Vietnam, but that there is no evidence before the IAA to indicate he is unable to work or would be prevented from returning to fishing if he wished to do so. The IAA did not accept the applicant would be unable to find employment or would be unable to support his family, or that he would face a real chance of any harm if he was unable to return to fishing in Vietnam (at [57]).
The IAA accepted that the applicants would be returning to Vietnam as failed asylum seekers and, as a result, the Vietnamese authorities may know or infer that they had made claims for asylum (at [58]). The IAA accepted that there are credible reports of some returnees being held for a brief period upon their return to Vietnam for the purpose of confirming their identity where no documentation exists, but that the second to sixth applicants would not be subject to this (at [64]-[65]).
In respect of the first applicant, the IAA accepted that he left Vietnam illegally. The IAA acknowledged the applicant’s actions could constitute organising people to leave Vietnam illegally. The IAA accepted that if the Vietnamese authorities are aware, or become aware, that he used and chartered his own boat, he could be charged with that offence and if convicted, could face a prison sentence or be subject to penalties related to his illegal departure. However, the IAA found that there was no credible evidence before it to indicate that the Vietnamese government was aware of the applicant’s conduct, and found that it is not apparent how the Vietnamese government would become aware of his conduct, and that any chances of them becoming aware are remote. The IAA found that even if the applicant is charged, convicted, sent to jail and/or fined for those offences, this would not be discriminatory conduct but, rather, the general application of a law which applies to all Vietnamese people (at [69]).
Based on all the information before it, and considering all the applicants’ claims individually and cumulatively, the IAA was not satisfied that the applicants will face a real chance of persecution now or in the foreseeable future if they returned to Vietnam because of the claimed reasons (at [70]).
The IAA then considered the applicants against the complementary protection criterion.
The IAA accepted that the first to fifth applicants may be subject to a fine for their illegal departure, but that there is no evidence to indicate they would be unable to pay any such fine (at [75]).
If the applicant were charged and convicted for organising people to leave Vietnam illegally, the IAA found that he could be sentenced to prison but would not face the death penalty. Whilst the IAA accepted prison conditions are harsh, it was not satisfied that such conditions are intended to cause extreme humiliation which is unreasonable, involve intentional infliction of severe or inhumane pain or suffering, or involve intentional infliction of severe pain or suffering directed to one of the purposes set out in the definition of ‘torture’. However, the IAA found that the chances of the Vietnamese authorities becoming aware of the applicant’s conduct in organising people to leave Vietnam illegally are remote (at [76]).
The IAA accepted that the applicants will be subjected to a series of administrative processes upon their return to Vietnam, but that because they do not have adverse profiles with the Vietnamese authorities, the IAA was not satisfied the applicants would personally face any risks associated with these administrative processes and/or having to pay a fine (at [77]).
The IAA was ultimately not satisfied that any of the applicants would face harm amounting to significant harm for the reasons claimed (at [80]).
The IAA affirmed the delegate’s decision not to grant the applicants protection visas.
APPLICATION TO THIS COURT
On 31 October 2019, the applicants filed an application in this Court seeking review of the IAA’s decision.
On 13 February 2025, an amended application for judicial review was filed containing four particularised grounds of review as follows (without alteration):
Ground one
1.The Second Respondent asked or addressed the wrong question and failed to consider an integer of the Applicant’s claim when it determined that there “was no evidence” that the Applicant “would be prevented from fishing” or that he would “face a real chance of any harm – for whatever reason – if he was unable to return to fishing” (CB p326 [57]).
1.1The First Applicant’s claim was first that he came from a family of fishermen, was the captain of a fishing boat in Vietnam, that the Chinese authorities attacked and damaged his boat when fishing in Vietnamese waters, that the Chinese authorities were engaged in an ongoing campaign of harassment of Vietnamese fishermen, and that the Vietnamese government was unwilling or unable to protect them.
1.2The First Applicant’s claim required the Second Respondent to determine whether he was a member of a particular social group (Vietnamese fishermen; a claim which arose on the facts of the claim (NABE v Minister for Immigration (No.2) (2004) 144 FCR 1; Htun v Minister for Immigration [2001] FCA 1802; (2001) 194 ALR 244), whether he was at risk of persecutory harm from which the Vietnamese authorities could not protect him were he to return to fishing, and, if the answer to those questions was “yes”, whether there were reasonable steps that he could take to protect himself from the risk of that harm, including whether it would be reasonable to modify his behaviour and seek other employment.
1.3The Second Respondent “sidestepped” this claim (SZQMT v MIAC [2012] FCA 840 at [25]–[27]), and did not address it.
Ground two
2.The Second Respondent failed to give genuine, realistic, and proper consideration to the claim that the First Applicant would be imprisoned as a “people smuggler” upon return to Vietnam, or reasoned illogically.
2.1The Second Respondent accepted that if the Vietnamese authorities knew that he had prepared and driven the boat on which he and his relatives fled Vietnam that there was a real risk that they would prosecute and imprison him for “people smuggling”;
2.2Accepted that the Second Applicant may be detained and interviewed for a period of time “because the First Applicant prepared and drove the boat to Australia”;
2.3Despite making the finding particularised at “2.2”, inconsistently concluded that the possibility of the authorities knowing that he had “prepared and driven” the boat would be remote, with no explanation of how clause 2.2 and clause 2.3 could be reconciled.
Ground three
3.The Second Respondent asked the wrong question, and erred in the application of section 5J of the Migration Act, in concluding that the prosecution of the First Applicant for “people smuggling” would not be persecutory because it was a law of general application.
3.1The Second Respondent should have asked whether charging and prosecuting the head of family groups leaving Vietnam for “people smuggling” notwithstanding they were a family group and no fee was charged involved the State using the legislation to persecutory effect, with a persecutory intention.
Ground four
4.The Second Respondent failed to give proper, genuine, and realistic consideration to the Applicants’ claims that the children would be “disadvantaged” and “have no future” if the First Applicant were unable to pursue his living as a fisherman or were imprisoned as a result of having assisted them to leave Vietnam, and thus failed to consider an integer of the Applicants’ claims.
4.1The Second Respondent failed to consider whether as children of a Vietnamese fisherman, they were members of a particular social group;
4.2Failed to give genuine, proper, and realistic consideration to whether their father’s deprivation of a livelihood and/or imprisonment would subject them to a real risk of harm;
4.3Failed to give genuine, proper, and realistic consideration to whether that harm would be persecutory or serious.
The materials before the Court include the:
·Amended application for judicial review filed on 13 February 2025;
·Affidavit filed on 31 October 2019 annexing the IAA’s decision (the affidavit being taken as read and in evidence at the hearing on 12 March 2025);
·Court Book numbering 350 pages (marked as Exhibit 1);
·Written submissions filed on behalf of the applicant on 17 February 2025; and
·Written submissions filed on behalf of the Minister on 27 February 2025.
CONSIDERATION
Ground one
Ground one contends that the IAA asked or addressed the wrong question and failed to consider an integer of the applicant’s claim in relation to his vocation as a fisherman, namely, that the IAA erred in determining there was no evidence that the applicant would be prevented from fishing or that he would face a real chance of any harm if unable to return to fishing.
In written submissions, the applicant submitted that, in assessing his claims of being a fisherman and suffering attacks and harassment as a result, the IAA was required to determine whether he was a member of the particular social group of Vietnamese fishermen, which arose on the facts of the claim (citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) and Htun v Minister for Immigrationand Multicultural Affairs (2001) 194 ALR 244). The applicant submitted the IAA was also required to determine whether he was at risk of persecutory harm from which the Vietnamese authorities could not protect him were he to return to fishing, and, if so, whether there were reasonable steps that he could take to protect himself from the risk of that harm. The applicant ultimately contended that the IAA “sidestepped” this claim and did not address it (citing SZQMT v Minister for Immigration and Citizenship [2012] FCA 840 at [25]-[27]).
Requirement to consider claims arising on the material
It is clearly the case that a “failure to respond to a substantial, clearly articulated argument relying upon established facts” is a breach of procedural fairness (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]).
In NABE, it was explained that this extends to an unarticulated claim which clearly emerges on the materials (at [58]):
The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
The application of the relevant principles to a body such as the IAA were explained by the Full Court of the Federal Court in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 as follows (emphasis in original):
[17] By s 473CC of the Migration Act, the IAA is required to “review” the decision referred to it pursuant to s 473CA. In performing its review the IAA is provided the material identified in s 473DB of the Migration Act.
[18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
•The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
•The Tribunal is only required to consider such claims where they are either:
(a)the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).
•These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(Emphasis added.)
•As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b)the fact that a claim might be said to arise from materials is not enough (NABE) at [68]);
(c)to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
In written submissions, the applicants argued that the following matters were established facts and were accepted by the IAA:
… the applicant’s calling in Vietnam was a fisherman, that he was the father of a fisherman, that he was the captain of his own boat, that Vietnamese fishermen who fished the area where he lived and fished were subject to harassment, threats, and attacks from the Chinese authorities who disputed their right to fish there, that he had been subject to such attacks, and that the Vietnamese navy may be powerless to prevent these attacks.
At the hearing of this matter, counsel for the applicants agreed that the characterisation of the applicant having a “calling” as a fisherman was not a claim expressly made by the applicant but a construction that counsel said was reached on the basis of how he had particularised his claims. This ‘construction’ is somewhat problematic and will be returned to later in these reasons.
The applicants submitted that the following matters arose out of the material before the IAA which were required to be considered but were not:
(a)Whether the applicant was a member of a particular social group, being Vietnamese fishermen;
(b)Whether he was at real risk from the Chinese authorities by reason of his membership of that particular social group should he return to Vietnam;
(c)Whether the Vietnamese authorities were unable to protect him from that harm; and
(d)Whether it was reasonable to expect him to modify his behaviour upon his return by abandoning his boat and his livelihood.
In written submissions, the Minister submitted that the IAA dealt with the applicant’s claims relating to his fishing activities, or his status as a fisherman, by:
(a)Accepting that the applicant’s boat was hit by a Chinese boat in disputed waters (at [35]);
(b)Rejecting the assertion that the Vietnamese authorities mistreated the applicant because of anything arising from that incident based on country information that “the Vietnamese authorities publish incidents involving conflicts between Vietnamese and Chinese boats in the disputed waters, encourage Vietnamese fishermen to fish in the disputed waters and provide assistance and/or protection to Vietnamese fishermen” (at [35]);
(c)Finding that the applicant may choose to work as a fisherman or undertake other work in Vietnam (at [57]);
(d)Finding that there was no evidence to indicate that the applicant would be unable to return to fishing if that was his intention (at [57]);
(e)Rejecting the applicant’s claim that he would be unable to find employment or support his family (at [57]); and
(f)Rejecting the applicant’s claim that he would face a real chance of any harm, for any reason, if he was unable to return to fishing in Vietnam (at [70]).
In light of these findings, the Minister submitted that the IAA considered each aspect of the applicant’s claims relating to his fishing activities, and where the applicant criticises the IAA’s consideration of claims about his fishing activities from varying angles, this reflects the diverging way in which the applicant raised such claims.
The Minister further submitted the following, insofar as the applicant asserted the IAA overlooked aspects of his claim:
(a)There was no claim made that the applicant’s “calling” was a fisherman and that he would definitely return to that line of work;
(b)The IAA was cognisant of the fact that the applicant was the captain of his boat, that he owned and drove the boat, and that he was the one operating the radio to ask the Vietnamese Navy for assistance (at [31]-[32] and [42]);
(c)The IAA considered the applicant’s claim about the Chinese boat ramming and the Vietnamese Navy’s assistance with these incidents, accepting the incident occurred with a Chinese boat but rejecting the remaining aspects of the claim (at [35]); and
(d)The IAA was not required to consider whether the applicant was a member of a particular social group, whether he was at real risk of harm, whether Vietnamese authorities were unable to protect him, or whether it was reasonable to expect him to modify his behaviour upon his return.
Counsel for the Minister sought to rely upon their written submissions, however ultimately put forward to the Court that there was never a claim that being a fisherman was the applicant’s “calling”, particularly where he has not worked as a fisherman in Australia. As a result, the Minister submitted that the IAA was not required to consider whether the applicant was part of the social group of Vietnamese fishermen.
Membership of a particular social group – Vietnamese fishermen
There appear to be two somewhat entwined arguments in respect of this ground: firstly, that the IAA did not consider whether the applicant may suffer harm as a member of the particular social group of Vietnamese fishermen, being a claim said to have clearly emerged on the material before the IAA; and secondly, that the IAA did not consider whether the applicant might suffer harm at the hands of the Chinese by virtue of his fishing activities.
‘Membership of a particular social group other than family’ is governed by s 5L of the Act which provides:
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic;
(c) any of the following apply:
(i) the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii) the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 241, Dawson J stated:
…A particular social group…is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society.
In Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387 (at [36] per Gleeson CJ, Gummow and Kirby JJ), the High Court described the task for determining whether a group can be classified as a particular social group as follows:
First, the group must be identifiable by a characteristic or attribute common to all members of the group. Second, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Third, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.
Professor Goodwin-Gill in The Refugee in International Law (Goodwin-Gill GS, McAdam J, Dunlop E (4th ed, Oxford University Press, 2021)) makes the following observation at [117]-[118]:
There is probably no single coherent definition, but rather a set of variables, a ‘range of permissible descriptors’. These include, for example, (1) the fact of voluntary association, where such association is equivalent to a certain value and not merely the result of accident or incident, unless that in turn is affected by the way it is perceived; (2) involuntary linkages, such as family, shared past experience, or innate, unalterable characteristics; and (3) the perception of others.
Goodwin-Gill goes on to observe (at [118]):
[I]t helps to emphasise, not so much that the group is, as it were, ‘set apart from society’, as that it is essentially a group within society which is faced with persecution within the social context of that very society (including its attitudes, prejudices, and actions).
The Court accepts that Vietnamese fishermen may be capable of constituting a particular social group on the basis that fishing in the disputed territory is a characteristic shared by such people and could be said to distinguish them from society. However, the picture that clearly emerges from the material before the IAA, including the material relied upon or sought to be relied upon by the applicant, is that this was not a group of people who were at risk of harm from the Vietnamese authorities, and further, that the Vietnamese authorities clearly encouraged and supported the activities of these fishermen.
Furthermore, the applicant at no time put his case on the basis that he was at risk because he was a member of the particular social group of Vietnamese fishermen. In DBA17 v Minister for Immigration and Multicultural Affairs [2025] FCA 438 (DBA17), Wigney J observed at [35]:
The appellant never clearly or explicitly characterised his claims in terms of being a member of any particular social group or groups. In those circumstances, it was not necessary for the Tribunal to make findings about, or frame its reasons in terms of, the appellant’s membership of any social group. The question is whether the Tribunal fairly dealt with the substance of the appellant’s claims. It is clear from the Tribunal’s reasons, read fairly, that the Tribunal did address, and make findings concerning, the substance of all of the appellant’s claims in support of his protection visa application.
The observations made by Wigney J in DBA17 apply here. The question is whether the IAA addressed the substance of claims made by the applicant in respect of the incident with the Chinese vessels in the context of how that claim was characterised. It was not required to expressly consider whether he was at risk because Vietnamese fishermen were a particular social group which were at risk because that was not how the applicant articulated his claim. Furthermore, it could not be said to arise on the materials because the country information, including that relied upon by the applicant, stood against such a claim.
Did the applicant make the claims alleged?
The principal difficulty for the applicant in advancing this ground is that the applicant did not at any time claim that he had been denied an ability to work as a fisherman because of the incident with the Chinese vessels. The applicant framed his prior employment as a “calling” but there was never any evidence that this was the case. The applicant simply engaged in an occupation common to the area within which he lived. In fairness, counsel for the applicant accepted that this was his own construction rather than the applicant’s. That construction, though, was never part of the applicant’s case. Furthermore, it does not align with the country information adduced by the applicant before the delegate which indicated that children of Vietnamese fishermen were choosing to not follow their parents into that career for a number of reasons, including economic reasons and because the work was hard and dangerous. In any event, the Court does not accept that this was how the applicant categorised his claims in his application or that it arose squarely on the material.
As observed, the categorisation of fishing as a “calling” was not made by the applicant. That is important because his decision to no longer continue fishing was not a modification of his behaviour in the sense identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 and SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18. The IAA did not suggest the applicant could evade harm by relocating and “living discreetly” in order to avoid attracting adverse interest from the authorities. Rather, the evidence was indicative of the applicant choosing an occupation common to the area in which he lived, and one which was supported by the Vietnamese government, but subsequently finding that he was not willing to continue with that occupation because of the inherent risks with that occupation. There was no basis for the Tribunal to make a finding that it was the only way he could earn a living. Such a finding would have been clearly inconsistent with the evidence of the applicant and the country information.
Counsel for the applicant also argued that the IAA should have considered whether the applicant would be at risk of harm from the Chinese vessels if he chose to return to fishing and that the Vietnamese authorities would be unable to protect him if he did. However, the claim actually made by the applicant is that after the incident with the Chinese vessels, he reported the matter to the Vietnamese authorities who became angry with him. The applicant claimed that the Vietnamese authorities detained him, took his belongings and mobile phone, beat him and continued to harass him. His stated reason for not returning to Vietnam was because the authorities there “will arrest me and detain me in prison and give me threats”. The entire basis of his claim was against the Vietnamese authorities.
The IAA correctly described the applicant’s claim that he could not return to fishing if he returned to Vietnam because the Vietnamese government does not support fishermen. However, the country information referred to and relied upon by the IAA identified that the Vietnamese government encouraged and supported fishing around the Spratly Islands. The IAA accepted that the applicant may have been frustrated with the level and extent of that support. However, it did not accept the applicant’s fundamental claim that his complaints resulted in harm. That was clearly open on the material before it.
Furthermore, the claim that the IAA did not consider that the Vietnamese authorities could not protect the applicant from harassment from the Chinese vessels fails on the facts. The IAA did engage with this claim. At [35], the IAA stated quite clearly:
…Country information indicates that the Vietnamese authorities publish incidents involving conflicts between Vietnamese and Chinese boats in the disputed waters, encourage Vietnamese fishermen to fish in the disputed waters and provide assistance and/or protection to Vietnamese fishermen…
This finding was supported by a series of identified country information from CNN, Than Nien News, Radio Free Asia and BBC News (contained at footnote [4] of [35]).
No jurisdictional error arises from this ground.
Grounds two and three – engagement with the people smuggling claim
Grounds two and three contend that the IAA failed to give genuine, realistic, and proper consideration to, or reasoned illogically in relation to, the applicant’s claim that he would be imprisoned as a people smuggler upon return to Vietnam and that people smuggling would not be persecutory because it was a law of general application. At the hearing, counsel for the applicant accepted that both of these grounds needed to be made out in order for the alleged error to be material.
It is well established that a decision will be legally unreasonable where that decision lacks an “evident and intelligible justification” (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ). Black CJ similarly adopts the term “active intellectual process” in Tickner v Chapman (1995) 57 FCR 451 at [39]. In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (Carrascalao), Griffiths, White and Bromwich JJ (at [47]) stated that, in determining whether a decision-maker has engaged in an active intellectual process, the Court must:
…conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case.
However, their Honours noted that a finding by the Court that a decision-maker has not engaged in an active intellectual process is not to be made lightly and must be supported by clear evidence (Carrascalao at [48]). The Court must be watchful that it does not slide into impermissible merits review (Carrascalao at [32]).
This Court has previously considered the principles relating to illogicality and legal unreasonableness in Leka v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 123 as follows:
[80] It is well established that the characterisation of a decision as legally unreasonable because of illogicality or irrationality is not easily made (see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33] (Djokovic) and the cases cited therein).
[81] In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] (SZMDS), Crennan and Bell JJ set out the test for irrationality or illogicality as follows:
…[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[82] The correct approach, according to the High Court in SZMDS, is to enquire “whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it” (at [133]). At [135], the High Court stated:
On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
[83] In Djokovic at [35], it was observed:
Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.
The applicants contended that the main dispute is contained within paragraphs [68] and [69] of the IAA’s decision as follows:
[68] The second, third, fourth and fifth applicants have not claimed to have organised the departure of the boat and the third, fourth and fifth applicants were 7 years, 2 years and 7 months old respectively when they left Vietnam illegally. I accept that, because the first applicant prepared and drove the boat to Australia, the second applicant (his wife) may be detained and interviewed to obtain information about the journey. However, I am not satisfied that being held and interviewed for a period of time would amount to serious harm in this case. Given the ages of the third, fourth and fifth applicant’s when they departed Vietnam, I am not satisfied they would be held and questioned about the first applicant’s conduct.
[69] I accept the first applicant left Vietnam illegally. When the delegate asked the first applicant what would happen if he returned to Vietnam he responded that he will be charged and jailed for organising people to leave Vietnam illegally. I accepted the first applicant purchased supplies and used his own boat to transport him and his relatives from Vietnam to Australia. I accepted the first applicant did not involve or need the assistance of others to facilitate the journey. Article 275 of the Penal Code as it was when the first applicant departed, states it is a crime to organise or coerce others into fleeing Vietnam illegally. I accept the first applicant’s action could fall within the meaning of organising people to leave Vietnam illegally. DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people-smuggling operations. I accept the first applicant could – if the Vietnamese authorities are aware – or become aware - that he used and chartered his own boat from Vietnam to Australia – be charged with that offence and if convicted could face a prison sentence. I accept the first applicant could also be subject to penalties related to his illegal departure. However, there is no credible evidence before me to indicate the Vietnamese government are aware of the first applicant’s conduct and it is not apparent to me how the Vietnamese government would become aware of his conduct. I am of the view the chances of the Vietnamese authorities becoming aware of the first applicant’s conduct of organising people to depart Vietnam illegally to be remote. However, even if the first applicant is charged, convicted, sent to jail and/or fined for those offences this is not discriminatory conduct but rather, the general application of a law which applies to all Vietnamese people. The evidence before me does not suggest the Penal Code is selectively enforced or applied in a discriminatory manner. I find that the investigation, prosecution and punishment for the first applicant’s illegal departure and/or organising others to illegally depart Vietnam under the Penal Code would be pursuant to a non-discriminatory law of general application. As such, it does not involve discriminatory conduct and does not amount to persecution within the meaning of s.5J(4) of the Act. I accept there are reports that prison conditions are considered harsh in Vietnam but generally not life-threatening. I have found that the first applicant does not have an adverse profile with the Vietnamese authorities and if he is sentenced to prison I am satisfied he will not be subjected to discriminatory conduct but to the same general prison conditions which applies to all Vietnamese prisoners.
In written submissions, the applicants submitted that, with respect to the provisions of the Vietnamese criminal law extracted, none of the charges relating to the organising of others distinguishes between relatives and others, nor is an element of any of the offences that any payment be made to the organiser of the trip. The applicants submitted that the IAA accepted that “the first applicant purchased supplies and used his own boat to transport him and his relatives from Vietnam to Australia” (at [42] of its reasons) but failed to address the claim that amongst the 17 people were friends as well as his wife’s relatives. The applicants contended that this finding was illogical as it was inconsistent with the finding that the second applicant might be detained because the first applicant prepared and drove the boat to Australia. Therefore, the applicants submitted it was illogical or legally unreasonable to conclude that there was prospect of the Vietnamese authorities becoming aware that the first applicant was the organiser of the unlawful departure.
In oral submissions, counsel for the applicants submitted that, within [68] and [69] of its reasons set out above, the IAA both accepted that Vietnamese authorities would be aware the applicant was the organiser of the boat trip, and then suggested they would not become aware of it. The applicants submitted that what may happen to the second applicant as a result of the first applicant’s dealings is not a remote chance, but indeed a real chance of harm, and that categorising the applicant’s dealings as “people smuggling” bears the question of whether the law is being used for a legitimate end or in a reasonable way.
In written submissions, the Minister submitted that there is no inconsistency or illogicality in respect of findings made in [68] and [69], where reference to the second applicant’s detention at [68] refers back to [64]. That paragraph referenced country information specifying that only some individuals returning without identity documents, or some of those that the Ministry of Public Scrutiny considers may have information about people smuggling operations, may be interviewed and detained. The Minister submitted that does not mean automatically that Vietnamese authorities are aware, or would become aware, of any people smuggling activities the applicant may have participated in, and it is equally plausible that the Vietnamese authorities do not interview or detain them.
The Court accepts, as it must, that the IAA’s reasons must be read in context and as a whole. In this respect, the IAA’s finding at [64] informs its subsequent assessment of the likelihood of the applicant’s wife being detained. Furthermore, a fair reading of the IAA’s reasons at [69] is that the IAA reached a conclusion that even if the applicant’s wife was briefly detained and interviewed, the authorities would not become aware of any of the details of their departure from Vietnam from her. In the context of a brief interview, it is not axiomatic that the applicant’s wife would inculpate her husband.
In advancing ground three, the applicants asserted that the correct question the IAA should have asked itself was “whether charging and prosecuting the head of family groups leaving Vietnam for ‘people smuggling’ notwithstanding they were a family group and no fee was charged involved the State using the legislation to persecutory effect with a persecutory intention”. On its face, that is an unwieldy question and certainly not a question which obviously arises.
In respect of application of the Penal Code (the Code), the Minister submitted that no such claim was ever made that the Code was applied in a discriminatory manner or was not appropriate and adapted to a legitimate object to warrant any detailed consideration by the IAA. The Minister submitted that the IAA’s finding that the Code was a law of general application was open to it based on country information about the consequences of illegal departure contained within [60]-[67] of its reasons.
In the Court’s view, there is no error in the manner in which the IAA considered the application of the Code. The construction advanced by the applicant was never put to the IAA, nor could it be said that it was a construction the IAA was obliged to consider. All the IAA did was address the principal issue of whether or not the Code was persecutory in nature, or a law of general application in respect of people smuggling. It had careful regard to country information in respect of its application and specifically considered that in the context of how the applicant had framed his case.
No jurisdictional error is made out in respect of grounds two and three.
Ground four
Through this ground, the applicant took issue with the IAA’s finding that it was not satisfied that the applicant’s children would be disadvantaged and would have no future if the applicant was imprisoned. That finding is set out below (at [29] of the IAA’s reasons):
The first applicant claimed that his children would have no future if he was sent to prison (discussed below) on his return to Vietnam. Their representative claimed that the children would be disadvantaged if they had to return to Vietnam. The first applicant’s and their representative’s claims are vague. I do not know why the first applicant and/or their representative believes the children applicants would have no future if the first applicant went to prison or be disadvantaged or what harm the first applicant or their representative believes the children applicants would face in Vietnam. The first and second applicants have relatives still living in Vietnam and the first applicant indicated in his SHEV application that he remains in contact with his parents. Based on all the evidence before me, I am not satisfied the first applicant’s children would have no future and/or be disadvantaged if they returned to Vietnam.
This ground was not the subject of detailed written submissions. At the hearing, while not formally abandoning this ground, counsel for the applicants conceded that “it might have been difficult for the Authority to make a finding of the kind that I suggest on the material before the Authority”.
As observed by the Minister, the applicant’s children did not make any claims in their own right in respect of this issue. The Court was not drawn to any claims which may have emerged clearly on the materials. The IAA’s rationale for rejecting the vague assertion was both cogent and a valid basis for the rejection.
No jurisdictional error is established in respect of ground four.
CONCLUSION
The application for review and additional submissions made by the applicants have failed to identify any jurisdictional error on the part of the IAA.
Accordingly, the application is dismissed.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 16 May 2025
SCHEDULE OF PARTIES
ADG 413 of 2019 Applicants
Fourth Applicant:
EHM19
Fifth Applicant:
EHN19
Sixth Applicant:
EHO19
1
31
1