FYH24 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1345

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FYH24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1345

File number(s):	MLG 2676 of 2024
Judgment of:	JUDGE RILEY
Date of judgment:	6 December 2024
Catchwords:	MIGRATION – Administrative Appeals Tribunal – protection visa – whether a claim arose on the materials that the Tribunal did not consider – whether the Tribunal failed to afford the applicant procedural fairness.
Division:	Division 2 General Federal Law
Number of paragraphs:	58
Date of hearing:	19 November 2024
Place:	Melbourne
Solicitor advocate for the Applicant:	Nhan Thanh Huynh
Solicitor for the Applicant:	HTN Lawyers
Counsel for the First Respondent:	Christopher Fitzgerald
Counsel for the Second Respondent:	No appearance
Solicitor for the First and Second Respondents:	Clayton Utz

ORDERS

MLG 2676 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FYH24

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	6 DECEMBER 2024

THE COURT ORDERS THAT:

1.The bundle of documents filed by the applicant on 24 October 2024 not be admitted into evidence.

2.Paragraphs 4 to 25 of the affidavit sworn by the applicant on 5 August 2024 be struck out.

3.The application filed on 6 August 2024 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 RILEY:

INTRODUCTION

1. This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

   BACKGROUND

2. In his written submissions filed on 4 November 2024, the Minister provided the following background to this matter:

   7. The applicant was born in Vietnam on 1 May 2001. On 20 December 2022, he arrived in Australia on a visitor (subclass 600) visa. He remained in Australia unlawfully following the expiry of that visa, and was detained in immigration detention.

   8. On 14 February 2024, the applicant applied for a Protection (subclass 866) visa. In support of that application, he claimed that he left Vietnam for the following reasons (at CB 14):

   Since I was still student in Vietnam school, I was very active to learn for future career skills, but also aware that our country running the Communist Regime Laws, as students, we do not have rights to raise any opinion about changing or promote for any Democratic nor Human Rights at all, as it’s against the current system politically. Even having any Democratic or Human rights issues in mind,

   No citizens dare to speak out. Since I work as Family business for livings, also effected by the Local Authorities, unfairly treated of working or promoted working conditions, from time to time causing debts to shark loan people, and could not pay instantly, threaten life, have to hiding far away.

   9. The applicant claimed that he feared harm from “the shark loan people” and that he had to “find ways to escape from them”. At CB 15, he explained why he did not seek help from authorities in Vietnam or move to other places in that country.

   10. On 22 February 2024, the Minister’s delegate requested that the applicant provide further information in relation to his protection visa application. In particular, and under a subheading entitled “Claims lacking detail”, the delegate listed a series of questions which the applicant was invited to respond to concerning his claim. The applicant’s limited response to that invitation is shown at CB 48.

   11. On 28 February 2024, the Minister’s Department notified the applicant of the delegate’s decision to refuse to grant a protection visa. The delegate found, among other things, that the applicant could obtain effective state protection with respect to any risk from loan sharks. The delegate was also not satisfied the applicant would face a real chance of serious harm based on his political opinions.

   12. On 1 March 2024, the applicant applied to the Tribunal for review of the delegate’s decision and, on 8 March 2024, the Tribunal acknowledged receipt of his application. In an information sheet, the Tribunal also notified the applicant of the importance of providing any further material which supported his application, “including a statement setting out why [the applicant] disagree[d] with the department’s decision”.

   13. On 5 April 2024, the Tribunal invited the applicant to attend a hearing on 4 June 2024.

   14. On 8 April 2024, the applicant notified the Tribunal that he withdrew his application. He later recanted from that withdrawal and, on 17 April 2024, was notified by the Tribunal that the withdrawal application was not valid and that it had jurisdiction to conduct the review.

   15. The hearing date was subsequently rescheduled to take place on 22 May 2022 and, due to the applicant’s illness, rescheduled again to take place on 17 June 2024.

   16. On 17 June 2024, the Tribunal conducted a hearing of the applicant’s application. The applicant attended the hearing, assisted by an interpreter.

   17. On 19 June 2024, the Tribunal invited the applicant to provide further information in support of his claim that he and his mother took loans from a bank and from a person named [Mr X] (“private lender”).

   18. On 21 June 2024, the applicant provided material in response to the Tribunal’s request.

   19. On 5 July 2024, the Tribunal notified the applicant of its decision made that same day to affirm the delegate’s decision to not grant him a protection visa. It provided reasons for its decision (“T”).

   (footnotes omitted)

3. The response provided by the applicant to the delegate’s invitation was as follows:

   As I’m incurred heavy debts to high interest creditor, living and fund the trip to Australia by this debts fund (living on the debt’ fund)

   Relocated to other areas in the country: firstly No own fund and debts on debts, also the creditor collection have eyes everywhere, very easy to locate myself, and threaten life if debts no pay back, this is not an safely option.

   The attached is proof of Debts obtained in Vietnam, been translate into English.

   In the Vietnam country under Communist regime, under cover everywhere, we even do not who it is, even next to us, this is to spot who against them.

   The above info. is true and I’m responsible for the above statement.

4. The applicant attached to that statement a form headed:

   APPENDIX TO CONTRACT

   FOR THE MONITORING OF OUTSTANDING BALANCE AND PAYMENT OF DURING THE TERM, TRANSFER OF LONG TERM OUTSTANDING DEBT

   (Attached to Credit Contract number 3804-LAV-202304743 on 18 May 2023)

   Customer name. [Mrs Y]. Customer code. 3804-087850044

   (footnote omitted)

5. Mrs Y is the applicant’s mother.

6. The schedule to that document showed that 500,000,000 had been “released” on 15 May 2023, and 100,000,000 was to be repaid on 18 May 2024, 2025, 2026, 2027 and 2028. There was no mention of interest. The document said that, as of 5 October 2023, 500,000,000 remained outstanding.

7. At the Tribunal hearing, for the first time, the applicant claimed that he left Vietnam to avoid military service. He said he borrowed a large sum of money so he could move to Australia and he cannot repay the loan. He said he borrowed 200,000,000 VND from Agribank and 300,000,000 VND from a lender he named, but I am calling Mr X.

8. The applicant later said that his mother borrowed 200,000,000 VND from the bank and he and his mother together borrowed 300,000,000 VND from Mr X. That is obviously inconsistent with the Appendix to Contract given by the applicant to the delegate.

9. Following the Tribunal hearing, the applicant provided to the Tribunal another document which appeared to be a translation of a loan contract between the applicant and Mr X. It was dated 29 September 2022 and said that Mr X had advanced 300,000,000 VND to the applicant.

   THE TRIBUNAL’S DECISION

10. In his submissions filed on 4 November 2024, the Minister provided the following summary of the Tribunal’s decision:

    20.      In its reasons, the Tribunal (among other things):

    (1) summarised the applicant’s claims as contained in his application and material provided to the Department, and recorded (in detail) his evidence at the hearing before the Tribunal: T [5]-[25];

    (2) confirmed with the applicant that the two reasons why he left Vietnam were “to avoid military service and because he could not repay his debt”: T [15];

    (3) recorded that it put the applicant on notice of concerns about aspects of his evidence, and that it “would discuss these with him and give him the opportunity to respond”: T [20];

    (4) recorded the various concerns it had about the credibility of the applicant’s claims and evidence and his responses to the Tribunal’s questions: at T [21]-[24];

    (5)       summarised the relevant law it was required to apply: T [26]-[31];

    (6) found that the applicant’s delay in seeking protection was inconsistent with and cast doubt over his claimed fears of harm in Vietnam: T [36];

    (7) did not accept the applicant’s claim that he left Vietnam to avoid military service, or that he faced a real chance of serious harm for that reason: T [39]-[40];

    (8) did not accept that the applicant and his mother borrowed money from a bank or the private lender in the manner claimed, and found that there were various inconsistencies in the applicant’s evidence with respect to this issue: T [41]-[44];

    (9) accepted that the applicant was Catholic, that he joined protests about building a church in the Xuan Hoa parish, and that the applicant participated in protests about the Formosa incident: T [47];

    (10) did not accept that authorities in Vietnam were looking for the applicant in relation to those protests, that the applicant had a profile as a political activists (sic), or that he would face serious harm on return to Vietnam because of his involvement in protests several years earlier: T [48]-[49] and [51];

    (11) was not satisfied the applicant was experiencing or suffering from any psychological condition requiring treatment, and did not accept there was a real chance he would face serious harm as a result of his claimed mental health issues: T [52];

    (12) found that the applicant had abandoned his claim to fear harm as a result of being regarded as a “spy” on return to Vietnam: T [53]; and (13) did not accept that there was a real chance the applicant would face serious harm as a result of his inability to obtain accommodation and financial support: T [54].

    21. It summarised its key findings at T [56]-[57]. In light of those findings, the Tribunal was ultimately not satisfied that the applicant was a person in respect of whom Australia owed protection obligations under either ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth): T [59] and [62].

11. The Tribunal considered that the applicant’s delay in seeking a protection visa in Australia cast doubt on the genuineness of his fear of harm in connection with military service and debts. The Tribunal said at paragraph 36 of its reasons for decision that:

    The applicant remained in Australia unlawfully for approximately one year until he was detained and subsequently applied for protection. The Tribunal has had regard to Justice Carr’s findings in Subramanian V MIMA that a delay in claiming refugee status is a legitimate matter which the Tribunal is entitled to take into account when assessing the genuineness or at least the depth of an applicant’s fear of persecution. I find that the delay in seeking protection is inconsistent with the applicant’s claim that he feared harm in Vietnam if he undertook military service, that he feared harm from a lender and feared punishment as a political dissident. I have considered but do not accept the applicant’s explanation that he did not know about protection visas, as his evidence is that he had family and friends living in Australia with whom he stayed when he arrived. I also find it implausible that he did not tell his relatives or friends in Australia about his problems in Vietnam, particularly if his mother had borrowed money to enable him to leave the country. I reasonably expect that his family and friends could have advised him on visa requirements. I find that the delay in seeking protection casts doubt on his claim that he fears harm upon return to Vietnam.

    (footnote omitted)

12. It is noteworthy in connection with the question of delay that the applicant’s solicitor told this court that, before the applicant left Vietnam, he initiated his plan to seek asylum in Australia (Tr.5.27-8). However, the applicant told the Tribunal that the explanation for the delay in lodging his protection visa application was that he did not know about protection visas.  

13. The Tribunal did not accept that the applicant left Vietnam to avoid military service because:

    (a)the applicant delayed in making his protection visa application; and

    (b)he did not mention any issue with military service until the Tribunal hearing.

14. Consequently, the Tribunal did not accept that applicant faced a real chance of serious harm as a result of avoiding military service.

15. The Tribunal did not accept that the “Appendix to Contract” was a genuine document because:

    (a)it did not indicate the source of the funds;

    (b)it was inconsistent with the applicant’s oral evidence that there were two loans;

    (c)it did not specify an interest rate; and

    (d)it said the funds were “released” on 15 May 2023 which was inconsistent with the applicant’s evidence that he borrowed the money a few months before he came to Australia in December 2022.  

16. The Tribunal did not accept that the loan document submitted to the Tribunal post-hearing was a genuine document for reasons including:

    (a)it names the applicant as the borrower when his oral evidence was that his mother was the borrower;

    (b)it specifies repayments of 20,000,000 VND per month, which is presumably interest, but no such payments were made from the time of the advance, being September 2022, until July 2024, being the date of the Tribunal’s decision, and the supposed lender had taken no action to recover the money other than asking the mother to pay and threatening to take her house and land.

17. The Tribunal did not accept that the applicant and his mother borrowed money to finance his travel to Australia.

    MATERIAL RELIED UPON

18. The applicant relied upon:

    (a)the court book filed on 10 October 2024;

    (b)his application filed on 6 August 2024 (“the application”); and

    (c)the affidavit sworn by him on 5 August 2024.

19. The applicant was legally represented but he did not file written submissions, notwithstanding an order requiring him to do so. However, the applicant did make oral submissions through his solicitor at the final hearing before this court.

20. The applicant also sought to rely upon a bundle of documents consisting of 25 pages which appear to be in Vietnamese, and an uncertified translation of a few lines of them. For the reasons discussed below, that bundle of documents, and most of the affidavit sworn by the applicant on 5 August 2024, cannot be admitted into evidence.

21. The Minister relied upon:

    (a)the court book filed on 10 October 2024;

    (b)his written submissions filed on 4 November 2024; and

    (c)his list of authorities filed on 8 November 2024.

    OBJECTIONS TO EVIDENCE

22. The bundle of documents in Vietnamese and the translation of a few lines of it were not before the Tribunal. They are therefore irrelevant to ground 1, which is essentially that the Tribunal failed to consider a claim. They have no bearing on ground 2, which concerned a denial of procedural fairness. Consequently, the bundle of documents is irrelevant and cannot be admitted into evidence.

23. The Minister submitted in respect of that the affidavit sworn by the applicant on 5 August 2024 that:

    (a)paragraph 4 is inadmissible on the ground of being a statement of law;

    (b)paragraphs 5 to 23 are inadmissible on the ground of relevance; and

    (c)paragraph 24 is inadmissible on the ground of hearsay; and

    (d)paragraph 25 is inadmissible on the ground of opinion.

24. The applicant agreed that paragraphs 4 and 5 of the affidavit sworn by the applicant on 5 August 2024 should be struck out.

25. Paragraphs 6 to 12 are an account of why the applicant made his claims as he did. They do not address how the Tribunal might have made a jurisdictional error. They are therefore irrelevant and must be struck out.

26. Paragraphs 13 to 19 are an account of the applicant’s experiences in Vietnam. They do not address how the Tribunal might have made a jurisdictional error. They are therefore irrelevant and must be struck out.

27. Paragraphs 20 and 21 are an account of the applicant’s obtaining of a loan. They do not address how the Tribunal might have made a jurisdictional error. They are therefore irrelevant and must be struck out.

28. Paragraphs 22 and 23 are an account of the applicant’s mental state and state of knowledge. They do not address how the Tribunal might have made a jurisdictional error. They are therefore irrelevant and must be struck out.

29. Paragraph 24 is not hearsay. It is as follows:

    Before the Tribunal hearing, I could not reach the person helping to apply for protection visa. Therefore I was not told to just mention about my debts. At the hearing I feel the importance and the need to tell the truths and I was absolutely honest there. I was also assured because it was in a court-like environment.

30. The applicant was saying that he was not told to only mention his debts, which is why he said for the first time at the Tribunal hearing that he left Vietnam to avoid military service.  However, that explanation does not point to any jurisdictional error on the part of the Tribunal. It is not the role of this court to reassess the case on the merits. Therefore, paragraph 24 is irrelevant, and must be struck out for that reason.

31. Paragraph 25 is patently the applicant’s opinion about why the Tribunal made jurisdictional errors. It must be struck out for that reason.

    GROUND 1

32. The first ground of review in the application is (errors in original):

    The Tribunal has incorrectly affirmed the decision of the Department of Home Affairs (“the Department”) refusing to grant the applicant a Class XA - Protection visa (subclass 866) under s 65 of the Act by making jurisdictional error in affirming the Department’s decision by ignoring relevant information of the risks of harm that will happen to the Application if he is returned to Vietnam to go to military service in his personal and political circumstances.

    Particulars

    1.1 At [37] the Tribunal acknowledged that the Applicant claimed that he left Vietnam to avoid military service. At [16] the Tribunal noted that the Applicant mentioned about the serious land disputes and violence occurred regarding building a local church between his family and community with the Vietnamese government. At [17] the Tribunal noted that the Applicant gave evidence about the Formosa disaster and his family and community participated in the protests against the Vietnamese government. At [46]-[47] the Tribunal acknowledged that there were tensions arisen due to the Formosa and church land disputes.

    1.2 The Tribunal did not reject that the Applicant was a Catholics or that the Applicant did not live in the problematic region or that the Applicant did not participate in these protests.

    1.3 The Applicant belongs to a class of vulnerable persons, being a Catholics in his Catholic community in his hometown that is targeted by the Vietnamese government due to their protests and disputes to speak out for their lawful and legitimate interests and human rights.

    1.4 The Tribunal therefore did not take into account these relevant materials which were available to it to deduce that the Applicant would be in great danger should he goes to military service when asking the question whether the Applicant would face danger of serious harm when returned to Vietnam.

    1.5 Despite the lack of such arguments above put forward by the Applicant during the hearing, he has stated clearly that his friends while doing military service were beaten and he did not want this to happen to him. The Tribunal has therefore erred in not considering the discrimination against Catholics living in the Applicant’s community by the local government of the Applicant’s hometown and wrongfully reached a conclusion that the Applicant would not face serious harm if he has to do military service or if he is found avoiding military service in Vietnam.

1. This ground is essentially that the Tribunal did not consider that the applicant, as a Catholic and/or as a person who had participated in protests, might face some discriminatory harm if he had to do military service in Vietnam or if he was found to have avoided military service.   

2. The applicant acknowledged in paragraph 1.5 of the particulars to this ground that he did not raise this point at the Tribunal hearing. Nor did he expressly raise the point anywhere else. Consequently, the Tribunal would only have been obliged to consider the point if it arose clearly from the materials and the established facts.

3. The applicant did not take the court to anywhere in the materials before the Tribunal or in its findings that a claim clearly arose that the applicant, as a Catholic and/or as a person who had participated in protests, might face discriminatory harm in Vietnam in connection with military service. However, the Tribunal, in footnotes, referred to various items of country information.  They were not included in the court book or otherwise provided to the court.  However, most of them are accessible online.

4. The first was the Department of Foreign Affairs and Trade (“DFAT”) Country Information Report Vietnam dated 11 January 2022. That noted at paragraph 3.13 that 6% of the population of Vietnam is Catholic. It noted at paragraph 3.30 that:

   In-country sources told DFAT Catholics generally do not experience societal discrimination. Such discrimination cannot be ruled out, but DFAT understands from in-country sources that there is not a pattern of such discrimination.

5. However, the DFAT report also noted at paragraph 3.31 that:

   DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. … Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence. See Political Opinion (actual or imputed).

6. The Tribunal noted that the applicant did not claim, until the Tribunal hearing, to have taken part in any protests. Nevertheless, the Tribunal accepted that the applicant is a Catholic and accepted that he took part as an adolescent in protests against the government’s refusal to allow his community to build a church. The Tribunal found that country information showed that protests about church land and buildings were common in Vietnam. However, the applicant’s evidence was that the authorities did not take action against him about his involvement in the protests at the time and did not contact him subsequently.

7. Similarly, the Tribunal accepted that the applicant as an adolescent took part in protests following the Formosa incident, which was a chemical spill that damaged fisheries and coastal tourism. However, the Tribunal noted the applicant’s evidence that he was not questioned, assaulted or detained in relation to these protests. The Tribunal also noted that there had been a settlement following the chemical spill and there were no longer large scale protests about it.

8. The Tribunal noted that the applicant initially claimed at the hearing that he was questioned by the authorities when he left Vietnam about why he participated in protests, but later said that he was not questioned. The applicant left Vietnam on a passport in his own name and with his own date of birth.  The Tribunal considered that the applicant would not have been able to get a passport in his own name and leave the country if he was regarded as a political dissident.

9. The DFAT report had a section on compulsory military service. It said at paragraph 3.110 that:

   Vietnam enforces compulsory military service. Men aged between 18 and 25 must complete two years of military service while women can volunteer. Some people attempt to avoid this service, including by paying bribes. If avoidance is detected and prosecuted, they may face a fine or prison term, especially for repeat offenders. Desertion is a criminal offence that can carry penalties including community service or up to 12 years’ prison, the latter only applying to serious offences such as desertion in war time or leaking Government secrets. DFAT is unable to comment on the prevalence of desertion or avoidance or the consequences, outside of criminal sanctions mentioned above, of these activities.

10. There is nothing in that passage indicating that Catholics and/or people who have participated in protests face harm in relation to military service in a discriminatory way. Rather, the information indicates that military service and the consequences of avoiding it are the result of laws of general application, so do not fall within the concept of persecution.

11. The Tribunal also referred in footnotes to a number of media reports as follows:

    ·Inquiry into the status of the human right to freedom of relation or belief. Submission from the Vietnamese Community in Australia, July 2017;

    ·‘Vietnamese rally outside Taiwanese steel plant that spread toxic waste’, Reuters, 2 October 2016, CX6A26A6E10045;

    ·‘Vietnam’s Dead Fish May Spawn a Stronger Culture of Dissent’, Chau Hoang, Centre for Strategic & International Studies, 30 September 2016, p.2, CIS38A80122116;

    ·‘Formosa Spill Still Roils Public Opinion in Vietnam’, Radio Free Asia, 7 December 2016, CX6A26AE14775

    ·‘Vietnam Cracks Down on Dissenters’, Radio Free Asia, 10 November 2016, CX6A26A6E14902;

    ·‘Sentences upheld for five members of anti-State organisation’, Viet Nam News, 19 March 2019, 20191101101537

    ·‘More activists sentenced in Vietnam’, Voice of America (VOA), 11 February 2018, CXBB8A1DA21834;

    ·‘Catholic activist arrested in Vietnam, police beat up protesters’, UCA News (UCAN), 23 May 2017, CXC9040668804;

    ·‘Vietnamese environmental activists handed prison terms in Nghe An’, Radio Free Asia, 6 February 2018, CXBB8A1DA21459;

    ·‘Vietnamese Catholics Demonstrate to Mark Anniversary of Formosa Chemical Spill’, Radio Free Asia (RFA), 6 April 2017, CXC9040666018; and

    ·‘Jailed Vietnamese Activist Goes on Hunger Strike Over Beatings by Police’, Radio Free Asia (RFA), 28 February 2019, 20190305131350.

12. Those media reports were not included in the court book and were not provided to the court by the applicant. However, I have looked at all of them except the second one which could not be found. The media reports did not contain anything that suggested in any way that Catholics and/or people who had been involved in protests faced discriminatory harm in connection with military service in Vietnam. While the headings of the reports refer to police beatings and jail for activists, there was no suggestion that the beatings and jail have anything to do with military service. Hence, the media reports did not give rise to a clear claim that a Catholic and/or a person who has participated in protests faces discriminatory harm in Vietnam in connection with military service.

13. Ultimately, the Tribunal concluded that the applicant did not have a profile as a political activist or that he faced harm for his involvement in protests several years earlier.

14. The applicant told the Tribunal that his friends were beaten while doing military service. However, he did not say that was because they were Catholics and/or because they had participated in protests.

15. On the evidence before this court, there was nothing in the materials before the Tribunal and on the established facts to the effect that Catholics and/or people who have participated in protests in Vietnam might suffer discriminatory treatment in connection with military service. Consequently, the point did not arise clearly on the materials before the Tribunal and it was not a jurisdictional error for the Tribunal to not consider it.

16. This ground is not made out.

    GROUND 2

17. The second ground of review in the application is:

    The Tribunal has incorrectly affirmed the decision of the Department by making jurisdictional error of not affording procedural fairness to the Applicant by allowing him to provide full explanation as to why he did not know his mother’s loan amount and why he did not state his protection claim of avoiding military service in the beginning. The Tribunal also did not ask what his consequences would be for avoiding military service if he is returned to Vietnam but concluded no serious harm will occur despite he has stated at [14], [38] that his mother was concerned that he might be persecuted for avoiding military service.

    Particulars

    2.1The Tribunal at [24] noted that the Applicant responded that he did not understand why there was an inconsistency between his oral evidence of his mother’s loan amount and the evidence submitted to the Department. The Tribunal failed to ask the Applicant why he did not know the amount of loan that his mother took out in her own name. However the Tribunal concluded this loan in his mother’s name was ingenuine. It is now in evidence according to the Applicant’s affidavit addressed to this Honourable Court dated 5 August 2024 that the Applicant did not know exactly or remember how much money his mother took out on the loan in her name. The Applicant stopped going to school in Year 9, he is shy and timid and it was the first time he attended a hearing, thus he was nervous and unassertive. The Applicant has not received the procedural fairness that should have been afforded to him.

    2.2 The Tribunal at [37]-[39] assessed whether it would accept the Application protection claim of avoiding military service. However at no point in time during the hearing was the Applicant asked why he did not provide this claim previously to the Department. The Tribunal should give creditability to the Applicant in this regard as the Applicant inadvertently told the Tribunal at the very beginning of the hearing that his mother borrowed money for him to come to Australia to avoid doing military service. It should be of general knowledge to a refugee Tribunal and the Tribunal in this particular case having read the materials mentioned in [46]-[47] that the Vietnamese government and authorities take a harsh approach when it comes to controlling its people and citizens. The Tribunal should have been able to understand that there might have been some reason(s) for the Applicant not to mention about his reason of avoiding military service earlier. The Tribunal should also be put on alert and afford opportunity to the Applicant to explain why he did not state this reason for seeking asylum earlier because likely the Applicant was assisted in making the application and communication with the Department due to the Applicant’s lack of English and knowledge. Nonetheless, despite all of those matters, the Tribunal did not enquire of the Applicant why he did not present his other grounds for protection once but assumed that he is ingenuine and reached the conclusion without a proper assessment. The Applicant has not received the procedural fairness that should have been afforded to him.

    2.3 The Tribunal at [38]-[39] considered the question whether the Applicant would face serious harm for avoiding military service when he is returned to Vietnam. However the Tribunal reached a conclusion that he would not face such harm mainly because he did not claim so or he did not talked about the harm. At no point in time did the Tribunal asked the Applicant what the harm or the consequence for him would be for avoiding the military service during the hearing. The Tribunal reached a conclusion without asking for the answer, despite the Applicant has stated that his mother borrowed money for him to travel to Australia because she was concerned that he would be killed by the government for avoiding military service, at [14]. This oral evidence is given in an inadvertent manner by the Applicant and should be given considerable weight by the Tribunal. Avoiding military service might only be awarded fines and prison terms to other Vietnamese people elsewhere in the country. However, due to the Applicant’s personal and political situations, that he is hated by the local authority and government in his hometown for being Catholic, dissident and in disputes with them, he would face real risks to his life if he is put in prison or military service camp. In brief, the Applicant has not received the procedural fairness that should have been afforded to him.

18. This ground alleges that the Tribunal did not afford the applicant procedural fairness by:

    (a)not allowing him to provide a full explanation of:

    (i)why he did not know his mother’s loan amount; and

    (ii)why he did not say in his original protection visa application that he wanted to avoid military service; and

    (b)not asking him what the consequences would be for him avoiding military service.

19. A major flaw with this ground is that the applicant has not provided a transcript of the proceedings before the Tribunal so that the court can ascertain exactly what the Tribunal did not allow and did not ask.

20. Another major flaw with this ground is that it is for the applicant to make out his own case. It is not for the Tribunal to ask questions to give an opportunity to the applicant to bolster his case.

21. A major flaw with point (a)(i) is that the issue was not that the applicant did not know his mother’s loan amount. It was that he had provided inconsistent documents and accounts of his and his mother’s borrowings.

22. As to particular 2.1, the parts of the applicant’s affidavit that he alluded to have been struck out. In any event, Particular 2.1 is an attempt at impermissible merits review.

23. As to particulars 2.2 and 2.3, these are again attempts at impermissible merits review.

24. Regarding procedural fairness generally, the delegate invited the applicant in writing to elaborate on his claims and he did so.  The Tribunal’s hearing invitation asked the applicant to provide any additional documents seven days before the hearing. Following the Tribunal hearing, the Tribunal allowed the applicant to provide further documents. The Tribunal’s decision record does not suggest anything untoward occurred during the Tribunal hearing, or in the Tribunal’s decision-making process.

25. I am unable to detect any denial of procedural fairness. This ground is not made out.

    CONCLUSION

26. As neither of the applicant’s grounds has been made out, the application must be dismissed. I will hear the parties on the question of costs.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.

Associate:

Dated:       6 December 2024