Eln20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 474
•19 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ELN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 474
File number(s): PEG 301 of 2020 Judgment of: JUDGE VASTA Date of judgment: 19 March 2021 Catchwords: MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed Legislation: Migration Act 1958 (Cth), ss 65, 424A, 430 Cases cited: EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Tahiri v Minister for Immigration and Citizenship [2012] HCA 61
Number of paragraphs: 93 Date of last submission/s: 10 March 2021 Date of hearing: 10 March 2021 Place: Brisbane Counsel for the Applicant: Mr Boccabella Counsel for the First Respondent: Mr McGlade ORDERS
PEG 301 of 2020 BETWEEN: ELN20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVIECS AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
19 MARCH 2021
THE COURT ORDERS THAT:
1.The Application filed on 13 October 2020 is dismissed.
2.The Applicant pat the First Respondent’s costs of and incidental to the application fixed in the sum of $7,467.00.
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION
On 9 September 2020, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant, ELN20, a protection Visa. On 13 October 2020, the Applicant asked this Court to review that decision.
The background to the matter is that the Applicant was born on 3 May 1973. He was born in what was then South Vietnam, but since 1976, has been known as the Socialist Republic of Vietnam.
History in Australia
The Applicant left Vietnam by boat in 1983, when he was aged 10. He left with his brother who is his elder by 12 years. They both went to a refugee camp in the Philippines. The Applicant arrived in Australia on 30 January 1986 as a refugee on a special humanitarian program (Vietnamese) K4011 Visa.
In August 1993 he applied for Australian citizenship, but this application was refused. In January 1994, he was granted a resident return (BS155) Visa.
Using that Visa, the Applicant returned to Vietnam on five occasions. These were:-
·3 February 1994 to 2 May 1994
·9 October 1998 to 24 October 1998
·24 April 1999 to 13 May 1999
·13 November 1999 to 10 March 2000
·27 October 2000 to 3 February 2001
In late 2001, the Applicant was charged with serious offences and remanded in custody between 3 December 2001 and 28 October 2002. He was later given bail, but that bail meant that he could not leave the State of Queensland. On 28 May 2004, the Applicant was convicted of attempted murder, grievous bodily harm, and unlawful wounding. He received sentences of imprisonment of 14 years, 6 ½ years and 2 ½ years, respectively, all to be served concurrently.
In August 2013, the Applicant was issued with a notice of intention to consider cancellation of his resident return Visa on character grounds. That visa was cancelled on 11 September 2014. That matter is still being litigated in the Federal Court.
On 26 October 2015, the Applicant had completed his term of imprisonment. He has been held in immigration detention since that date.
Protection Visa application and claims
On 15 December 2019, the Applicant applied for the protection Visa which is the subject of these proceedings. On 30 April 2020, the delegate of the Minister refused the application for the protection Visa. The Applicant asked the AAT to consider this matter.
There were three claims for protection made by the representative of the Applicant on 17 August 2020. These claims are:-
·on the basis of complementary protection, because the Applicant is stateless, were he to return to Vietnam he would face significant harm
·as a member of a social group being persons who were historically opposed, politically, to the Socialist Republic of Vietnam, on return to that country on a permanent basis, the Applicant would resume his political opposition and therefore would face persecution
·because the Applicant is a stateless person, if he returned to Vietnam he would be perceived as a person who left illegally for political reasons and would be seen as a failed asylum seeker
The AAT considered a number of issues in relation to the Applicant. One of those issues was whether the Applicant was “stateless”. The AAT found that the Applicant was not stateless and was, in fact, a citizen of Vietnam. I will talk more of the AAT findings in this respect later in these reasons.
AAT findings – return to Vietnam
The AAT found that the Applicant would be able to apply for household registration in Vietnam and would not be prevented from accessing housing employment and medical services. The AAT rejected any claim that the Applicant would be forced to work illegally and may be arrested or detained by the police. The AAT found that the Applicant could easily register upon return to Vietnam.
The Tribunal did find that the Applicant is currently an undocumented Vietnamese national but found that he could obtain fresh identity documents upon return to Vietnam. The Tribunal noted that the Applicant’s father and four siblings continue to live in Vietnam and that the Applicant had lived with his family during the times that he had travelled to Vietnam in the past.
The Tribunal found that the Applicant’s family would be able to provide him with an address and an ability to obtain the necessary registration upon return to Vietnam. This would mean that the Applicant would not be denied access to services or the ability to subsist.
AAT Findings – Protests
The Applicant said that he had been involved in anti-Vietnamese political activism in Australia. He said that he took part in many anti-government protests in Australia before he went to prison claiming that the last time he protested was in 2003 at Brisbane City Hall.
The Applicant provided vague details about these protests but continually pointed to the fact that he attended these protests with his brother who was well-known for his anti-government stance. The Tribunal found his evidence about his role, in anti-Vietnamese government protests activity, lacking in credibility. The Tribunal was conscious that the events in question occurred many years ago and that the Applicant has not been able to take part in protest activity because of his time in custody.
The Tribunal had regard to quite a deal of country information about persons who openly protested about the government in Vietnam. At paragraph 104 of their reasons, the Tribunal said that they were
…prepared to accept that the applicant may have taken part in some anti-Vietnamese government protests activity with other members of the Vietnamese community in Australia in the past. The Tribunal has had regard to the applicant’s evidence and finds he is not an organiser or an anti-Vietnamese government political activist. Given the applicants limited involvement in protest activity in Australia, the Tribunal does not accept the applicant will take part in an anti-government political protests if he returns to Vietnam in the reasonably foreseeable future.
AAT Findings – Family in Vietnam
The Tribunal looked at the Applicant’s family profile in Vietnam. The Applicant said that his father, who had fought for South Vietnam, went into hiding after the fall of Saigon. He was subsequently taken to a re-education camp and released because of illness.
The Applicant said that his father was monitored by authorities and assaulted when he was released from the camp. The Applicant provided no evidence of the adverse treatment of his family in Vietnam after this time. The Tribunal found that there was no evidence before the Tribunal that the Applicant’s family, living in Vietnam, have come to the adverse attention of the authorities at the time that the Applicant claims he was engaging in anti-Vietnamese government political protests in Australia.
The Tribunal accepted that the Applicant’s father was a soldier who fought for the South Vietnam army. The Tribunal accepted that the father was sent to a re-education camp and that his family may have been monitored and treated harshly by the Communist authorities at that time. The Tribunal found, however, that there was no evidence that the family is still being subjected to continued persecution since that time.
AAT findings – Trips to Vietnam
The Tribunal looked at the fact that the Applicant has made five trips to Vietnam between February 1994 and February 2001, with two of those trips being for longer than three months. The Applicant explained that he went back in 1994 because his mother had died. He said that the father was now in his 80s and in poor health.
The Tribunal asked the Applicant about any problems he had when he was in Vietnam and found that the Applicant’s evidence was vague and lacking in detail when answering this query. The Applicant said that he was spoken to by authorities and looked at “with suspicion”. He said that he had been asked what the purpose of his visit was and whether he was against the Communist Party. He said that he replied that the purpose of his trip was to visit his family.
He was asked about how he knew that the authorities were interested in him and he replied that he could “tell by the way they looked at him… The way they talked”. He could tell that they were watching him and that he was the focus of their intention. The Tribunal asked him why he would voluntarily return to Vietnam in circumstances where he claims he came to the attention of Vietnamese authorities on his first three trips. The Applicant claimed that he travelled under the protection of the Australian government and that he felt safe because he was travelling on an Australian passport.
The Tribunal noted that the Applicant was not an Australian citizen and did not have an Australian passport but simply was the holder of a return Visa. The travel document, which the Applicant did have, stated that the Applicant was a “national of Vietnam”. These documents were used by the Applicant to enter and exit Vietnam and would have been apparent to the Vietnamese authorities when he arrived and departed Vietnam. The fact that the authorities allowed him to freely enter and exit on each occasion was a significant aspect according to the AAT.
The Tribunal found that the Applicant was not a person of interest to the Vietnamese authorities at the time. The Tribunal found it significant that the Applicant did not engage in any anti-government political activity or speak out against the authorities when he travelled to Vietnam on those five occasions. The Tribunal found that this evidence did not support any claim that the Applicant had that he would express his political opinions if he were to return to Vietnam in the future.
The Tribunal was not satisfied that there was a real chance that the Applicant is a “member of a social group being persons who were historically opposed, politically, to the Socialist Republic of Vietnam and on return to that country on permanent basis would resume the political opposition and would therefore face persecution”. Any claim of persecution was therefore not well-founded.
AAT Findings – the Brother, Criminal Conviction, Failed Asylum Seeker and Illegal Departure
The Tribunal looked at the information regarding the brother of the Applicant. The Tribunal found that the Applicant’s fear of persecution because of his family affiliation with his brother, or because of any imputed political opinion, was not well-founded.
The Tribunal then looked at the criminal convictions of the Applicant, his status as a failed asylum seeker and the fact that he had left Vietnam illegally in 1983. The Tribunal had regard to quite a deal of material from DFAT. The Tribunal considered all of those factors separately and then cumulatively with every other factor. The Tribunal concluded that the claims of persecution made by the Applicant were not well-founded.
AAT Conclusions – Refugee and Complementary Protection
The Tribunal found that the Applicant did not meet the criteria for protection as a refugee.
The Tribunal then looked at the complementary protection criteria. The Tribunal found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Vietnam, that there was a real risk that he would suffer significant harm.
The Tribunal concluded that the Applicant was not a person in respect of whom Australia had protection obligations, and affirmed the decision not to grant the Applicant a protection Visa.
GROUND OF THIS APPLICATION
The grounds of this application are extremely vague. The Court is indebted to Mr Boccabella, Counsel for the Applicant, for defining the issues to a very clear point. The true ground of this application is that the AAT acted unlawfully in that it made an “unreasonable” finding that the Applicant was not stateless and was a citizen of Vietnam.
This finding was based on the consideration of Vietnamese legislation. Because this finding was based on non-Commonwealth, or foreign, law, it is therefore not a legal finding but a factual finding.
Principles
It is trite to say that, pursuant to s. 65 of the Migration Act 1958 (“the Act”), the decision-maker must come to a state of mind as to whether a visa applicant has satisfied the criteria for the granting of the Visa. If the decision-maker is so satisfied, the decision-maker must grant the Visa. If the decision-maker is not so satisfied, the decision-maker must refuse to grant the Visa. There is no discretion for the decision-maker.
The power to grant the visa depends upon the state of mind of the decision-maker. But once a decision maker has reached a particular state of mind, the power that is exercised by the decision-maker is, for all intents and purposes, a formality. Many applications for judicial review of migration decisions are based on grounds that a decision to refuse to grant a visa is “unreasonable”. It is a near impossibility to say that the granting of a Visa was either “reasonable” or “unreasonable”. This is because there can be no discretion; once a particular state of mind has been reached, the granting, or refusal to grant, a Visa is automatic.
A great majority of such applications are really applications to review a jurisdictional fact. It may be that the finding of that fact was intrinsic to the state of mind as to the satisfaction, or non-satisfaction, of the fulfilment of the criteria for the Visa.
The leading authority on this point is Minister for Immigration and Citizenship v SZMDS [2010] HCA 16. At paragraph 130, their Honours, Crennan and Bell JJ, relevantly said:-
130. In the context of the Tribunal's decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the 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.
132. Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal's conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal's finding that the first respondent's return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged.
133. However, the correct approach is to ask 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.
135. 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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was.
In performing their task, a decision-maker may use their discretion. A decision-maker may, for example, adjourn a proceeding or ask for more evidence or even invite an applicant for a further interview as well as many other such actions. The power given to a decision-maker, when using their discretion, must be used “reasonably”.
There is a difference between the task of a decision-maker to decide facts upon which a state of mind is based and the task of the decision-maker to perform their discretionary tasks reasonably. Unfortunately, these two tasks have been often conflated.
The Applicant contends that what was said in SZMDS (Supra), has been overtaken by what the High Court has said in Minister for Immigration and Citizenship v Li [2013] HCA 18. I cannot agree with this submission.
There is a very big difference between the factual scenarios that obtained in SZMDS (Supra) and Li (Supra). The former involved a fact found by the Tribunal and the reasoning involved in reviewing the jurisdictional fact on the basis of “illogicality, irrationality and unreasonableness”. The latter involved the use of a discretion by the Tribunal not to allow the Applicant to do a certain thing.
What was said by the High Court in both matters sits comfortably with each matter. To my mind, what was said by their Honours, Crennan and Bell JJ in SZMDS, is still the state of the law.
It seems to me that, in the present case, the Applicant is truly asking for a review of a jurisdictional fact (See the very erudite examination of this concept by Derrington J in EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681). That jurisdictional fact may lead to jurisdictional error if it was made irrationally or illogically and is a material error.
The question that I am been asked to answer is whether the AAT has set out their findings on material questions of fact and whether there has been a logical or rational train of thought that has led to the finding of fact that the Applicant was a citizen of Vietnam and was not stateless. What was said by Crennan and Bell JJ in SZMDS is quite apposite to this application.
Background
It is common knowledge that, from about 1955, Vietnam was divided into two countries; North Vietnam and South Vietnam. There was conflict between these two countries which culminated in the fall of Saigon on 30 April 1975. On 2 July 1976, North and South Vietnam were merged to form the Socialist Republic of Vietnam.
The Applicant was born in 1973, in what was then South Vietnam. The Applicant claims that, as he was born in South Vietnam as distinct from the Socialist Republic of Vietnam (because such a country did not exist when he was born), he is stateless.
The Applicant said that he became stateless upon the fall of Saigon in 1975 but certainly when the Socialist Republic of Vietnam came into existence on 2 July 1976. He said that he remained stateless, and was certainly stateless, when he left Vietnam when he was aged 10. Since 1983, the Applicant has not lived in the Socialist Republic of Vietnam and so any laws or decrees made by that nation have not applied to him.
The Applicant goes further and claims that his parents were born in 1930 in the “Vietnamese territories”. They were not citizens of the Socialist Republic of Vietnam when he (the Applicant) was born in 1973. The Applicant said that this is obviously the case because the Socialist Republic of Vietnam did not exist in 1973.
AAT Findings Regarding Citizenship
The AAT correctly determined that whether a person is a national of particular country is to be determined solely by reference to the law of that relevant country. The AAT also correctly determined that for persons without nationality, the receiving country is the country of former habitual residence with the added qualification that it did not matter whether return to that country would be possible.
The Tribunal noted that a new constitution was enacted for the Socialist Republic of Vietnam in 1980. Article 49 of that Constitution stated that “a citizen of the Socialist Republic of Vietnam is a person with Vietnamese nationality”.
The Tribunal noted that a new Nationality Law was adopted on 15 July 1988. That law was replaced by the Nationality Law of 1998. That 1998 law was subsequently replaced by the current 2008 Nationality Law. This law came into effect on 1 July 2009.
Articles 2, 4, 14 and 15 of the current Nationality Law state as follows:-
Article 2. Rights to citizenship
1. In the Socialist Republic of Vietnam, every individual is entitled to a citizenship.
Vietnamese citizens will not be deprived of their Vietnamese citizenship, except for cases prescribed in Article 31 of this Law.
2. The State of the Socialist Republic of Vietnam is a unified state of all ethnic groups living in the Vietnamese territory; all members of ethnic groups are equal in their right to have Vietnamese citizenship.
Article 4. The citizenship principle
The State of the Socialist Republic of Vietnam recognizes that Vietnamese citizens have a single citizenship, Vietnamese citizenship, unless it is otherwise provided for by this Law.
Article 14. Grounds for identification of persons having Vietnamese citizenship
A person is determined to have Vietnamese citizenship on one of the following grounds:
1.By birth, as prescribed in Articles 15, 16 and 17 of this Law;
2.Having been naturalized in Vietnam;
3.Having Vietnamese citizenship restored;
4.On the grounds defined in Articles 18, 35 and 37 of this Law;
5.On the grounds defined in international treaties to which the Socialist Republic of Vietnam is a contracting party.
Article 15. The citizenship of children whose parents are Vietnamese citizens
A child born inside or outside the Vietnamese territory whose parents, at the time of his/her birth, are both Vietnamese citizens has Vietnamese citizenship.
The Tribunal also had regard to a 2017 report on citizenship law in Vietnam that was published by a European body known as the Robert Schuman Centre for Advanced Studies.
The Tribunal noted that Article 2 was significant in that it referred to Vietnam as a unified state and it drew no distinction between ethnic Vietnamese people born in South or North Vietnam.
The Tribunal particularly noted that Article 15 stated that a child born inside or outside the Vietnamese territory, with his parents being Vietnamese citizens, has Vietnamese citizenship.
The Tribunal accepted that the biological parents of the Applicant were born in, what became South Vietnam, in 1930. The Tribunal noted that the mother continued to reside in Vietnam until her death in 1994 and the father still resides in Vietnam. The Tribunal noted that it had never been suggested that the parents were stateless.
The Tribunal also noted that the Applicant declared, in his protection Visa application, that four of his siblings are citizens of Vietnam, and that one of those siblings resides in Australia. The Tribunal found that, as the father and siblings continue to reside in Vietnam, they would be required, under Vietnamese law, to have a household registration. The Tribunal found that every citizen was to be registered as a resident in one household at the place of permanent residence.
The Tribunal noted that the Applicant declared, in his protection Visa application, that he had attended primary school in Vietnam between 1980 and 1983, which by then had become the Socialist Republic of Vietnam. The Tribunal said that this strongly suggested that the Applicant would have had to have been registered on the household registration at the time.
The Tribunal had regard to the Applicant’s evidence that his father was taken into a re-education camp after the fall of Saigon and was subsequently released. Country information confirmed that people released from the camps were given Vietnamese citizenship. Specifically, the persons who had been in the re-education camps had their citizen’s rights restored so that they could vote in the upcoming elections.
At paragraph 65, the Tribunal said
The Tribunal finds there is strong evidence to support the finding that the applicant’s parents are citizens of Vietnam and therefore the applicant is a citizen of Vietnam by virtue of Article 15 of the 2008 Nationality Law.
The Tribunal went on to discuss the status of overseas Vietnamese who were residing abroad and how amendments made, in 2014, have given those persons more flexibility to have their Vietnamese nationality recognised.
The Tribunal noted that although the Applicant had not registered with the Vietnamese authorities, this would have no effect on his ability to have his Vietnamese nationality recognised. The Tribunal then concluded that they were satisfied that the Applicant remains a Vietnamese national.
At paragraph 73 the Tribunal said
In conclusion, the Tribunal was satisfied that the applicant is not stateless, and he is a Vietnamese national. Further, after questioning the applicant at the hearing, the Tribunal finds there is no evidence that he has renounced, or been deprived of, his Vietnamese citizenship.
Did the AAT set out their findings of fact pursuant to s 430?
In my view, the AAT clearly set out their findings of fact. They found that the Applicant was born in the area that was South Vietnam, but is now part of the Socialist Republic of Vietnam.
The AAT had regard to the Nationality Law of 2008 and especially that the principal of that law was that there was “a unified state of all ethnic groups living in the Vietnamese territory” such that there was no distinction as to whether people were born in the former North Vietnam or the former South Vietnam.
The AAT found that the father of the Applicant had all his rights as a citizen restored upon his leaving the re-education camp so that he could vote in the April 1976 elections. The AAT found that the mother had always lived in the same area in Vietnam until her death in 1994.
The AAT found that the parents of the Applicant were Vietnamese citizens. The AAT found that this meant that the Applicant was also a Vietnamese citizen.
Assertions of the Applicant
The Applicant made many bald assertions that did not seem to have any evidentiary basis. When asked to explain where such evidence was, the Applicant (through his counsel) avoided the question and went into lengthy dissertations as to what he believed was incontrovertible truth and history.
As best as I can make it, the Applicant was contending that persons born in the Vietnamese territory before 1954, were citizens of Vietnam. This would seemingly include the parents of the Applicant. When the country was “temporarily” divided into North Vietnam and South Vietnam, those persons were no longer citizens of Vietnam. The Applicant could not tell me what their citizenship was, except that he asserted that they could no longer be Vietnamese citizens.
The Applicant’s assertions continued in this way: persons who were born in the Vietnamese territories between 1954 and 1976 were either citizens of North Vietnam or citizens of South Vietnam.
The Applicant further asserted that when the Socialist Republic of Vietnam came into existence on 2 July 1976, the persons born between 1954 and 1976 (and presumably those born pre-1954 as well) all became stateless. They could not become citizens of the Socialist Republic of Vietnam unless there was a law that conferred citizenship upon them.
The Applicant asserted that these contentions were simply common sense and any contention to the contrary could only come from someone “living in cuckoo land”.
Submissions of the Applicant
The Applicant submitted that when one took into account those assertions of fact, the train of thought promulgated by the AAT was obviously illogical, irrational and unreasonable.
The Applicant then submitted that the AAT could not point to any law that actually confers citizenship upon the Applicant. He submitted that the findings of the AAT could mean that there were hundreds of thousands of persons living in corners of the world who were still Vietnamese citizens.
The Applicant submitted that the AAT made no determination as to what the status of the Applicant was when he left Vietnam in 1983. The AAT also may no determination as to the status of the Applicant once he arrived in Australia in 1986. The Applicant submitted that the AAT spoke about the Nationality Law that was adopted in July 1988, but by that time the Applicant was in Australia and had not been in Vietnam for five years.
The Applicant submitted that the AAT did not make any findings as to whether the 1988 law made the Applicant a citizen of Vietnam while he was in Australia. Neither did the AAT make any findings is whether the 1998 law applied to the Applicant.
The Applicant submitted that Article 2 of the 2008 Nationality Law spoke of unifying all ethnic groups living in the Vietnamese territory. In 2008, the Applicant was not living in the Vietnamese territory; he was in prison in Australia.
The Applicant submits that the AAT did not make any finding as to whether the 2008 Nationality Law applied to the Applicant who was born prior to the formation of the Socialist Republic of Vietnam.
The Applicant’s main point was that Article 15 confers citizenship upon someone who is parents are both Vietnamese citizens. The parents of the Applicant could not possibly have been citizens of the Socialist Republic of Vietnam when the Applicant was born. The Applicant submits that, therefore, Article 15 could not be the source of the Applicant being a citizen of the Socialist Republic of Vietnam.
The Applicant submits that the Tribunal’s reliance upon the Applicant attending school and therefore having to be registered on a household registration at the time, is not applicable because the AAT referred to the Applicant’s “partner’s household registration”. The Applicant submits that this is a clear cut-and-paste from another decision.
The Applicant submits that the Tribunal’s reliance upon a policy announcement broadcast on 9 June 1976 (about the restoration of citizen’s rights so that voting could occur in April elections) is substituting a policy for law.
The Applicant submits that the reference by the AAT to a 2014 law, that would allow the Applicant to access Vietnamese citizenship documents, cannot be relied upon because it was not reproduced in the Court Book.
The Applicant makes similar claims (regarding other country information) that if the country information relied upon by the AAT is not reproduced in the Court Book, then it was information that the AAT did not put to the Applicant. As it was not put to the Applicant and it was used to affirm the decision, the AAT has not complied with s.424A of the Migration Act 1958 (Cth). As this material was not put to the Applicant, it cannot therefore be used.
The Applicant submits that when one looks at all of those points together, it illustrates the illogical, irrational and unreasonable thought process of the AAT and constitutes a jurisdictional error.
The Applicant finished his submissions with a theatrical flourish by saying:-
It would be a bold statement by the Minister to adopt the position that all persons of Vietnamese origin (including naturalised Australian citizens and even Australian-born Australian citizens) who escaped or whose parents escaped, the Socialist Republic of Vietnam up to the 1980s and are now living in Australia, are in fact citizens of the Socialist Republic of Vietnam! That would come as a surprise to most of them (to say the least).
Were those findings tainted by illogicality, irrationality or unreasonableness?
There is no need to specifically engage with many of the submissions made, but I will consider the over-arching themes of the submissions as a whole. I will first turn to the submission that the AAT did not comply with s 424A because it did not put material to the Applicant. Such a submission cannot be sustained. The Applicant points to the following matters that were not put to the Applicant:-
·The 1988 Nationality Law;
·The 1964 law as to the need for persons in a household to be registered;
·Any article or paper that refers to the broadcast in June 1976
·The 2014 law that allowed Vietnamese national is overseas to still register
Whilst it may be that these items of information were used in the assessment of the Applicant’s claim that he was stateless (and therefore were indirectly information that the Tribunal considered would be part of the reason for affirming the decision that is under review) it came within the exception.
Section 424A (3) says that “this section does not apply to information…that is not specifically about the Applicant or another person and is just about a class of persons of which the Applicant or other person is a member”. Clearly, each of those items of information were not specifically about the Applicant but were about a class of persons of which the Applicant is a member. Therefore there was no prohibition on the AAT relying upon such material. Nor was it mandated that such material be put to the Applicant for comment.
The true problem with the Applicant’s submissions is that the Applicant has looked upon the excerpts of Vietnamese law and attempted to treat them as if he would treat a law of the Commonwealth or other country whose legal system was based on common law. That simply cannot be done and this is why a Court cannot accept the evidence of foreign law without expert evidence.
The Applicant accepted that the determination as to what a foreign law is (and its content) is a question of fact (see Tahiri v Minister for Immigration and Citizenship [2012] HCA 61). It is a matter for the AAT to construe the law that it has before it. The Applicant urges the Court to adopt a stance that the 2008 Nationality Law could not have any retrospective aspect because none is mentioned.
But that is a matter of fact-finding and it cannot be said that the “facts” that the Applicant urges upon me are the only facts that could have been found. The “findings”, that the Applicant contends had to be made, may very well be the way in which a common law jurisdiction would interpret any such law, but it would be dangerous to apply Anglo-centric thinking to foreign law, which is why such is not done without the benefit of expert evidence.
It was obvious that the AAT was trying to make sense of what had occurred in Vietnam regarding citizenship after the Socialist Republic of Vietnam came into existence. If the “only rational finding” urged upon me by the Applicant were accepted, it means that every person born in the Vietnam territory before 1976, would be stateless and would have to earn citizenship by some other method than birthright.
To come to the view that the AAT did (that the parents of the Applicant were Vietnamese citizens, and therefore the Applicant was a Vietnamese citizen) was open to the AAT and was illustrating a form of thinking consistent with that in SZMDS (Supra).
Much of the country information relied upon by the AAT supported the factual conclusion reached by the AAT as to citizenship. The Constitution of Vietnam had a preamble that spoke of the Vietnamese being “one people”. Article 49 of the Constitution and Articles 2 and 4 of the 2008 Nationality Law all speak of the unity of the Vietnamese people. There is no mention of persons born before 1954 or born before 1976 being different to any other person who would be a Vietnamese citizen. Consistent with all of that information is the concept that Article 15 did not mean that parents must be Vietnamese citizens at the time of the birth of their child for their child to be a Vietnamese citizen; they merely had to be Vietnamese citizens at the time that the AAT was considering the citizenship status of the Applicant.
The flourish that concluded the submissions of the Applicant attempted to paint a picture of absurdity if the AAT factual finding was accepted. However, recent history shows that many members of the Australian Parliament (both in the House of Representatives and the Senate) were caught by surprise by the machinations of foreign law and they fell afoul of s.44 of the Australian Constitution. To my mind, there is no absurdity caused by this finding of fact by the AAT.
The only question to really determine, upon this review, was whether the finding of fact, in paragraph 65 and paragraph 73 of the reasons of the Tribunal, was illogical, irrational or unreasonable. In my view, the finding of fact could not be described that way. To use the words of Crennan and Bell JJ in SZMDS (supra), “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”.
ORDER
I dismiss the application with costs fixed in the sum of $7,467.00.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 19 March 2021
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