EUS21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 352
•14 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EUS21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 352
File number(s): SYG 2360 of 2021 Judgment of: JUDGE MCCABE Date of judgment: 14 March 2025 Catchwords: MIGRATION – judicial review of Administrative Appeals Tribunal’s (the Tribunal) decision – protection visa – whether the Tribunal’s findings are legally unreasonable – jurisdictional error established. Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 476 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 24 February 2025 Place: Sydney Counsel for the applicant: Mr O Jones Solicitor for the applicant: Firmstone & Associates Counsel for the first respondent: Mr J Petry Solicitor for the first respondent: Australian Government Solicitor Second respondent: Submitting appearance, save as to costs ORDERS
SYG 2360 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EUS21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS THAT:
1.A writ of certiorari be issued directed to the second respondent quashing its decision dated 9 December 2021.
2.A writ of mandamus be issued directed to the Administrative Review Tribunal (the successor body to the second respondent) requiring it to determine the applicants’ application for review according to law.
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 MCCABE:
Mr EUS21 does not want to return to his home in Vietnam because he fears he will be mistreated there on account of his sexuality. While he accepts he can avoid mistreatment at the hands of conservative elements by moving to a more liberal place in the same country, like Ho Chi Minh City, he is particularly worried about the prospect of being required to undertake some form of military service. He believes he would be vulnerable to mistreatment even if he was required to undertake military service as a reservist on a part-time basis because he is gay.
A delegate (the delegate) of the first respondent (the minister) refused Mr EUS21’s application for a Protection (Class XA) (Subclass 866) visa (the visa), and the Administrative Appeals Tribunal (the Tribunal) affirmed that decision. Mr EUS21 has sought judicial review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act). He says the Tribunal’s decision is affected by material jurisdictional error.
The applicant argues the Tribunal made a mess of its fact-finding. It either missed (or failed to engage with) important evidence from which it could have drawn inferences about the risk of harm the applicant faced in the course of any military service, or it took account of the evidence and then reached an illogical conclusion.
I am satisfied the applicant has succeeded in establishing the decision was affected by material jurisdictional error. I explain my reasons below.
BACKGROUND
The applicant is a citizen of Vietnam. He entered Australia on a student visa in 2011 to undertake studies. He lodged his application for a protection visa on 29 February 2016. A copy of the application documents are reproduced in exhibit one (the court book) at pp 10ff. A number of support documents are also reproduced, including screen shots of chats evidencing Mr EUS21’s homosexuality and media reports about aspects of life for gay people in Vietnam.
In a statement attached to the application (court book at pp 53ff), the applicant says:
·he is a homosexual man;
·while he has known of his sexual orientation since his teens, he was forced to remain a “closet gay” while living in Vietnam because of family and societal disapproval;
·he had his first homosexual relationship when he moved to Australia. He now has gay friends and he participates in the gay community;
·he is particularly worried about hostile attitudes towards gay people in the Vietnamese military, asserting:
23.It is a well-established fact that homosexual recruits are severely mistreated in the Vietnam military, including being subjected to public humiliation as well as mental and physical mistreatment. I also fear being detained and mistreated whilst in detention.
24.The Vietnamese authorities continue to be predominantly remain hostile towards gays in the military. [sic]
·the authorities are not supportive of gay people and he would be forced to live in the closet if he returned; and
·he would have difficulty earning a living because workplaces are hostile to gay people.
The delegate’s decision is dated 7 December 2016. It is reproduced in the court book at pp 140ff. The delegate considered the claims for a protection visa against the criteria in ss 36(2)(a) and 36(2)(aa) of the Act. The delegate was not satisfied there was a real chance of persecution in Vietnam, so the applicant could not qualify as a refugee. The delegate also concluded the applicant was not entitled to complementary protection because there was not a real risk in the circumstances that he would experience the significant harm that he feared.
The applicant filed a timely application for review in the Tribunal. The matter was finally heard on 2 December 2021. Notice of the decision was given to the applicant on 10 December 2021.
THE TRIBUNAL’S REASONS FOR DECISION
The Tribunal’s statement of reasons is reproduced at pp 310ff of the court book. The reasons begin with a conventional discussion of the criteria applicable to protection visas in s 36(2) of the Act and the related provisions. The Tribunal then traverses the evidence, including submissions with accompanying material that described the experience of LGBTQ+ people in Vietnam. The Tribunal thereafter reproduces an extended quote from the Country Information Report published by the Department of Foreign Affairs and Trade (the DFAT report) (found at [20] of the Tribunal’s reasons). The extract referred to the results of a 2015 study by an LGBTI rights organisation which found (at p 316 of the court book):
… one in three LGBTI individuals had experienced discrimination within families, schools, workplaces or health providers in the previous year, but only two per cent of respondents had reported their cases to police or local authorities.
The extract also included the following analysis (at p 316 of the court book):
DFAT assesses that LGBTI individuals in Vietnam face a low risk of official discrimination, and a moderate risk of societal discrimination on a day-to-day basis. DFAT further assesses that LGBTI individuals in Vietnam face a moderate risk of violence due to their sexual orientation or gender identity. As most societal discrimination and violence against LGBTI individuals is within the domestic context, DFAT assesses that LGBTI individuals can typically relocate within Vietnam, subject to their individual financial circumstances, household registration requirements … and the availability of LGBTI support services and networks.
The Tribunal then found (at [22] of its reasons):
The Tribunal accepts the applicant is a homosexual (not a transexual) and he wishes to continue to live his life as a homosexual in Australia. Based on this finding and the country information set out above, the Tribunal will accept the applicant has a real chance of suffering serious (or significant) harm if he returned to his small rural home village in Vietnam, for reason of his homosexuality.
While the Tribunal accepted there was a real risk of harm in those circumstances, the Tribunal explained it was satisfied the applicant could safely relocate to another area within Vietnam: at [24] and [29] of its reasons.
The Tribunal returned to the question of risk of harm and discrimination later in its reasons. At [44], it explained:
Despite increased tolerance by the government, discrimination against LGBTI+ people remains widespread in Vietnamese society. Societal discrimination and stigma against LGBTI+ people remains widespread and is worst towards transgender people. Discrimination is most pervasive in schools, health care and the work place, although it also occurs within some families. The belief that same-sex attraction is a diagnosable, treatable, and curable mental health condition is common. However, actual violence against LGBTI+ people is much less common than other forms of discrimination, such as verbal insults and online abuse. LGBTI+ people often choose not to report incidents of discrimination or violence to police because they perceive it as commonplace, and they do not believe it will be adequately resolved or they fear embarrassment.
This extract included footnotes that cited a report published by the United Nations Development Program titled ‘“Is it because I am LGBT?” Discrimination based on sexual orientation and gender identity in Viet Nam’ (‘Is it because I am LGBT?’).[1] A copy of that report was annexed to the affidavit of Sam Issa, solicitor for the applicant, dated 21 January 2025. The observations in the Tribunal’s reasons at [44] are drawn from p 18 of the report. Interestingly, the Tribunal does not quote a statistic also appearing on p 18. The report says: “Approximately 4.5% of LGBT people have experienced violence in the last 12 months.”
[1] The title of the report appears to include a typographical error. The copy of the report provided is titled ‘“Is it because I am LGBT?” Discrimination based on sexual orientation and gender identiy in Viet Nam’.
The Tribunal concluded the applicant may be required to undertake compulsory military service for a few days each month as part of the reserve. The Tribunal was satisfied the applicant would not be required to undertake a period of full-time military service given his age: at [36]. The Tribunal noted (at [32]-[33]) the delegate had concluded the Vietnamese state was relatively progressive on LGBT rights compared to many other Asian countries. The delegate had inferred the military could reasonably be expected to have adopted that more progressive approach: at [33].
The applicant told the Tribunal that any military service carried the risk of mistreatment, and he denied there was any evidence to support the delegate’s inference. The Tribunal noted (at [33]):
… The applicant said the Vietnamese military did not tolerate recruits who identify as homosexual and homosexual recruits are forced to conceal their true sexual orientation for fear of being targeted by other recruits or senior officers - and they may be seriously mistreated …
In its reasons, the Tribunal said (at [38]) “…there were many independent news/information sources which comment about Vietnam (including in the documents/articles referred to in this decision)” which offered a more benign view of attitudes towards homosexuals in Vietnam, whereas there was little evidence to justify the applicant’s perception. The Tribunal explained (at [39]):
… if the applicant’s claimed fears about conscription were correct, the Tribunal is satisfied they would have been readily identified in the searches conducted by and on behalf of the Tribunal. That they were not, has satisfied the Tribunal that even if the now 29 year old applicant was to serve in the reserve (for a few days per month - as the Tribunal is now satisfied would be the extent of his obligation), this would not give rise to a real chance that he would suffer serious or significant harm in Vietnam – irrespective of whether his homosexuality was known.
The Tribunal concluded it was satisfied the applicant was not owed protection obligations.
THE APPLICATION FOR JUDICIAL REVIEW
The applicant made several concessions at the outset of the hearing. His counsel, Mr Jones, said the applicant does not dispute the Tribunal’s finding that it would be possible to reduce the risk of harm by relocating within Vietnam. There was also no serious challenge offered to the finding that the applicant was unlikely to be required to undertake full-time military service and that he would instead be required at most to undertake part service with the reserves. Mr Jones also said the applicant did not make any procedural fairness complaint about the fact the Tribunal did not provide a copy of the ‘Is it because I am LGBT?’ report to the applicant for comment at the hearing.
That said, the amended application for review in these proceedings has identified a single ground of review alleging jurisdictional error in the Tribunal’s decision. The meat of the applicant’s complaint is found in subparagraphs (j) and (k) which contend:
(j)The Tribunal failed to apply the real chance test, was legally unreasonable, or did not engage in proper consideration so far as the same country information on the same page as that cited by the Tribunal stated that “LGBT people face violence mainly from the acquaintances at school, families or workplaces, rather than from outsiders” and “[a]pproximately 4.5% of LGBT people have experienced violence in the last 12 months”.
(k)The Tribunal was legally unreasonable, did not engage in proper consideration, overlooked evidence or failed to apply the real chance test by not considering or not fully considering the military, including the reserves, as or as akin to a workplace where the Applicant faced risk of harm and confining its reasoning or consideration to the absence of evidence specifically mentioning the military.
The ‘real chance test’ is a reference to a test derived from the criteria in s 36(2)(a) of the Act. That criterion requires the applicant to establish he is a refugee. Section 5H of the Act says a refugee is a person who has a ‘well-founded fear of persecution’. That expression is in turn defined in s 5J of the Act to include a situation where an applicant faces a ‘real chance’ of persecution for a defined reason, including on account of membership of a particular social group. The applicant referred to authorities in his submissions for the proposition that one might face a real chance of an event occurring if there was “a substantial, as distinct from a remote chance, of persecution occurring” even if “there is less than a 50 per cent chance of persecution occurring”: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 per Mason CJ; see also Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [242] per Lander and Gordon JJ.
Mr Jones argued the Tribunal ran into trouble when it found the applicant did not face a real chance of persecution (or a real risk of significant harm, the test derived from s 36(2)(aa) of the Act) in circumstances where:
·there was important evidence before the Tribunal in the form of the survey evidence discussed in the ‘Is it because I am LGBT?’ report. That report suggested 4.5% of LGBT persons in Vietnam were the victims of assault in a given year. While the Tribunal referred to the report and paraphrased other findings, it did not cite the assault statistics which appeared on the same page; and
·the Tribunal concluded after conducting its own research that there was no evidence to support the applicant’s fears of military service. The Tribunal justified its finding on this point by explaining that if such evidence were available it would have been “readily identified” in the course of searches carried out by or on behalf of the Tribunal: at [39].
I should say at once I am troubled by the Tribunal’s remarks at [39] suggesting it conducted its own research on the internet – especially if the Tribunal did not share the results of those searches with the applicant for comment at the hearing. Moreover, the assumption that no evidence is available because it was not “readily identified” leaves one to wonder about the thoroughness of the searches and the standard of proof which the Tribunal adopted.
While the Tribunal’s remarks are troubling, I am ultimately satisfied they are a red herring. At worst, they are an example of infelicitous language rather than an indication of a substantive problem. The Tribunal should not be free-lancing in its research but the applicant is ultimately responsible for specifying the particulars of the claim and providing sufficient evidence in support: s 5AAA of the Act. If there was a gap in the evidence available, it was up to the applicant to fill it. The fact the Tribunal was unable to fill the gap through its own endeavours is of no consequence. It is not for the Tribunal to fill gaps in the applicant’s case.
In written submissions, the applicant said the Tribunal did not adequately engage with the evidence that 4.5% of LGBT adults had been assaulted within the last 12 months when it found (at [39]) the applicant would not face a real chance of significant harm if he served in the military. Alternatively, Mr Jones said the Tribunal’s conclusion was the product of illogicality or was reached without an evident or intelligible justification.
It is incumbent on the Tribunal to actively engage with the substance of relevant arguments and material: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45] per Griffiths, White and Bromwich JJ and the cases cited therein. Ideally, the Tribunal’s engagement will be obvious because relevant evidence or submissions are expressly addressed. But the cases also make clear the reasons of an executive decision-maker must not be read with an eye attuned to error, and they must in any event be read as a whole. It follows that a failure to expressly refer to relevant and potentially decisive arguments or evidence in the same terms as they were presented is not inevitably fatal if it is apparent the Tribunal has nonetheless had regard to the substance of what was put forward. That was made clear by the Full Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593. As French, Sackville and Hely JJ explained (at [47]):
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
It is tolerably clear from the Tribunal’s reasons that it correctly identified the issue it was required to address – namely whether the applicant was able to satisfy the criteria in s 36(2) of the Act. The Tribunal’s reasons at [4]-[8] appear to correctly state the law and direct attention to what the applicant has characterised as the ‘real chance’ test for refugees and the ‘real risk of significant harm’. With that test obviously in mind, the Tribunal considered the risk to LGBT people in Vietnam, including those undertaking military service.
The applicant pointed out the evidence before the Tribunal (e.g., the observation contained in [3.81] of the DFAT Report which is reproduced at [20] of the Tribunal’s reasons and adopted at [44]) suggested discrimination was an issue in (amongst other places) workplaces. The applicant says there is no reason to doubt the military would be a workplace.
In making its assessment about the treatment of LGBT persons in Vietnam, the Tribunal did have regard to the evidence contained in the ‘Is it because I am LGBT?’ report. While the Tribunal did not cite the statistic regarding the rate of assaults on p 18 of the report, it footnoted that page and paraphrased other passages from the same page at [44]. It is unlikely the Tribunal missed the statistic or failed to appreciate its import. The Tribunal did accept the applicant was at risk if he were to return home to the small rural village from whence he came (at [22]); it is not as though the Tribunal ignored the evidence about the prevalence of assault.
The applicant’s complaint in this case is ultimately about the weight the Tribunal accorded to the evidence about the prevalence of assault. As a general rule, it is for the Tribunal to determine the weight it assigns to particular evidence. The only exception (at least for present purposes) is where the Tribunal’s finding is unreasonable, either because it is illogical or because it is not properly based on the evidence.
Mr Jones argued the Tribunal’s finding at [39] (namely that there was no evidence suggesting there would be a real chance of serious or significant harm in the course of any military service) did not make sense if one had regard to the Tribunal’s other findings and the evidence it cited at [20]. That material clearly referred to a risk of discrimination in the workplace. The Tribunal’s findings at [33] and [39] that there was no evidence to support a claim that there might be discrimination in a military workplace is difficult to square with the evidence it had already cited of discrimination in workplaces. Mr Jones said the Tribunal’s reasons on their face suggest it regarded the military as being separate from other workplaces. It was as if the Tribunal assumed the military would be untouched by the concerns identified in other workplaces that the Tribunal had acknowledged elsewhere in its reasons.
The Tribunal noted (at [32]) the delegate’s reasoning to the effect that:
·the evidence suggested the Vietnamese government was relatively progressive in its treatment of LGBT individuals (at least compared to many other countries in the region);
·the military was an arm of the government; and
·therefore, there was no reason to suppose the military was not making progress on LGBT rights.
The Tribunal did not expressly adopt that analysis in its reasons, but it appeared to embrace it by implication when it remarked at [33] and [39] that it was unaware of evidence pointing to homosexuals experiencing difficulties in the military. That brings us back to the applicant’s central complaint: he says there was evidence before the Tribunal that was discussed in its reasons which referred to discrimination in workplaces. That evidence was apparently quoted with approval, and it formed the basis of other findings the Tribunal made. But the Tribunal did not clearly explain why it would treat a military workplace differently. The nearest it came to offering a rationale for its approach was by citing at [32] the delegate’s inference that the military had taken on the (relatively) progressive approach of the Vietnamese government in other spheres of activity.
The inference drawn by the delegate lacks any evident justification. The Tribunal does not otherwise explain why military workplaces would be treated differently. It appears to have assumed there was an absence of evidence regarding discrimination and other harms when it had already cited such evidence elsewhere in its reasons.
I am satisfied the Tribunal’s findings about the risk of harm in a military workplace are legally unreasonable in those circumstances. Those findings call into question the integrity of the Tribunal’s conclusions about the applicant being a refugee under s 36(2)(a) of the Act or being entitled to complementary protection under s 36(2)(aa) of the Act. To the extent there is any doubt, I am satisfied this is a jurisdictional error that is material because it is certainly possible the Tribunal might have reached a different decision had it made a different finding.
CONCLUSION
The decision under review is affected by material jurisdictional error. I am satisfied it is appropriate to exercise the discretion to provide a remedy in the form of a writ of certiorari quashing the decision under review, and a writ of mandamus directed to the Administrative Review Tribunal instructing it to decide the matter according to law.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 14 March 2025
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