GRQ24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 114
•6 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GRQ24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 114
File number: MLG 2940 of 2024 Judgment of: JUDGE CHAMPION Date of judgment: 6 February 2025 Catchwords: MIGRATION – Protection Visa – Where the Tribunal did not fail to consider relevant material – Where there was no evidence that the Tribunal made its decision in bad faith – Where there was no error in the Tribunal taking into account the delay in the application for protection and drawing an inference unfavourable to the Applicant’s credibility because of the delay – Where the Tribunal was not required to put the Applicant on notice about doubts it had about inconsistencies in the Applicant’s evidence – Where the Tribunal had no duty to make further inquiries – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 5AAA, 423A, 424A Cases cited: AVQ15 v the Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
MZXHY v Minister for Immigration and Citizenship [2007] FCA 622
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 947; [2002] FCAFC 361
Subramaniam v Minister for Immigration and Multicultural Affairs [1998] FCA 305
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of last submissions: 29 January 2025 Date of hearing: 29 January 2025 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Ms Baras-Miller of the Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2940 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GRQ24
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
6 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $5,000.
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 CHAMPION:
INTRODUCTION
The Applicant is a Vietnamese national aged 20. On 25 November 2022 he arrived in Australia at the age of 18. On 14 February 2024 he applied for a protection visa. The First Respondent applied for the matter to be dealt with on an expedited basis because the Applicant is in immigration detention.
There were four written grounds of judicial review in the application made on 29 August 2024. The Applicant was self-represented before me. Although to some extent he orally disavowed the four written grounds by his oral submission that his brother-in-law had retained an unnamed person to prepare the written initiating court application and he had had no input into its content, I propose nonetheless to address each of the grounds in the written application. Even though the court made orders for submissions, the Applicant’s initiating application dated 29 August 2024 was the only written material he put before the court. In his oral submissions, the Applicant also raised several issues outside the scope of his initiating application. There was no application to amend his grounds. I have, however, considered these issues under a heading “Other Matters”.
None of the written grounds has been made out. None of the “Other Matters” gives rise to jurisdictional error. My reasons follow.
SHOULD THE APPLICANT BE PERMITTED TO ADDUCE EVIDENCE NOT BEFORE THE TRIBUNAL?
The Applicant sought to rely on an affidavit he made on 29 August 2024. The First Respondent opposed the Applicant adducing the content of the affidavit into evidence because it traversed facts and exhibited documents not before the Tribunal. I did not admit the affidavit into evidence before me. It was not relevant because it dealt with matters not before the Tribunal. As Nicholson J said in MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] said: “It is not open for an [applicant] to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal”.
GROUND 1: DID THE TRIBUNAL MAKE A JURISDICTIONAL ERROR IN ITS REJECTION OF THE APPLICANT’S CLAIM THAT HE WAS INVOLVED IN A PROTEST AGAINST THE SEIZURE OF PARISH LANDS?
Ground 1 of the Applicant’s written grounds challenges the Tribunal’s reasons at [32] that it did not accept that the Applicant was personally involved in a protest against the seizure of parish land by the authorities. The Tribunal acknowledged that “conflicts between authorities and religious communities have occurred regularly in Vietnam”. The Tribunal did not accept that the Applicant had personally participated in these protests.
The Tribunal’s impugned finding is as follows ([32]):
In regard to the applicant’s claimed involvement in protests against the seizure of parish land by the authorities, I acknowledge that such conflicts between authorities and religious communities have occurred regularly in Vietnam. However the applicant raised this for the first time at hearing and his account of the incident lacked detail. I do not accept that he was involved in this protest.
Two aspects to Ground 1
Ground 1, as written, is an allegation that the Tribunal “ignored relevant information”. Because of the breadth of the particulars (identified below) the First Respondent also answered Ground 1 on the basis that it might be characterised as impugning the Tribunal’s finding on the basis that the finding was unreasonable in the legal sense.
The Applicant particularised Ground 1 as follows (1.1–1.6). He said that another person had prepared his visa application and he did not know what this person had written (1.2). Inferentially, that was the reason that the visa application did not include a claim as to his personal participation in protests about the seizure of parish lands. The Applicant said that he spoke no English, had only finished year 9 at school and had started work as a fisherman at age 16 which limited his capacity to advocate in his own cause (1.3). The Applicant had a debt of 340 million Vietnamese Dong which meant he was not in a position to afford proper migration or legal services (1.4). He also said that the Tribunal placed “excessive weight” on the fact that there had been a delay in his application for a protection visa (1.6).
Did the Tribunal ignore relevant information?
I first consider whether the Tribunal ignored relevant information.
As the High Court plurality said in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24] a decision-maker must read, identify, understand and evaluate” each of the Applicant’s arguments and their component integers. The decision-maker must “bring their mind to bear upon the facts stated in them and the arguments or opinions put forward.” It is a matter for the decision-maker as to what “weight or persuasive quality” is thought appropriate as to the arguments put forward.
The Applicant submitted that he had explained the reason he only raised his personal participation in a protest against the seizure of parish lands protest for the first time at the hearing because another person prepared his protection visa application and “he ha[d] no idea what that person wrote on the form”.
The Tribunal had to “bring its mind to bear” on the reasonableness of that explanation.
By way of statutory context as to a claim which had not been raised before the delegate and was raised for the first time before the Tribunal, the Tribunal (correctly) adverted to s.423A(2) of the Migration Act 1958 (Cth) which set out that if an Applicant presents new evidence ([29]):
the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
The Tribunal expre ssly adverted to the fact that the Applicant had said his application was prepared and lodged by another person. It “brought its mind to bear” on that argument as the High Court plurality explained it had to do in Plaintiff M1. The Tribunal said at [29]:
I do not accept the applicant’s claim that he did not know what was written in the visa application as it was his responsibility to ensure that his claims were truthful.
Did the Tribunal fail to consider a separate integer to the claim that the Applicant’s limited education was his explanation for not raising this issue before the delegate?
The particulars to Ground 1 also referred to a claim that the Tribunal failed to consider that the Applicant had only finished year 9 at school and had started work as a fisherman at age 16. The point was that his limited education was the explanation he had not earlier raised his personal participation in protests about the seizure of parish lands.
Whether the Tribunal engaged with the claim to the requisite degree must be assessed by reference to the level of detail of the Applicant’s claims. The required level of engagement will “vary …according to the length, clarity and degree of relevance of the representations (Plaintiff M1, [25]).
The Applicant said that he gave oral evidence to the Tribunal about only having finished school to year 9 level. There was no transcript of the Tribunal hearing before me or any other evidence that the Applicant’s limited education affected his capacity frame his claim. The Tribunal did not have to consider a claim which was not the subject of a substantial clearly articulated argument or which did not clearly emerge from the materials (AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89, [18]).
In any event, the Tribunal expressly referred to the fact that the Applicant said that he became a fisherman at age 16. The Applicant has not proved that the Tribunal failed to consider the claim that limited education was the reason he had not earlier raised his personal participation in protests about the seizure of parish lands.
Was the Tribunal’s finding unreasonable in the legal sense?
The Tribunal also had to deal with the Applicant’s claim that he had personally participated in protests about the seizure of parish lands in a way which had an “evident and intelligible justification” (Minister for Immigration and Border Protection v Stretton(2016) 237 FCR 1; [2016] FCAFC 11, [10]). There would be an error if the tribunal dealt with a claim in a way which was “plainly unjust, arbitrary, capricious, or lacking common sense” (Stretton, [11]).
In assessing whether the Tribunal dealt with the claim reasonably, it set out a reasonable approach. It noted “the importance of adopting a reasonable approach when making findings of credibility”. It noted that it was not required “to accept uncritically any or all of the allegations made by an applicant”. In my assessment, the Tribunal did not embark on “a quest to disbelieve” (see, i.e., AVQ15 v the Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [24]).
The Tribunal did not accept the Applicant had provided a reasonable explanation as to raising his participation in protests against the seizure of parish lands for the first time before the Tribunal for two reasons.
First, the Tribunal noted that the statute provided that it was the responsibility of the visa applicant to specify all particulars of his or her claim for protection under s. 5AAA of the Act.
Second, the Applicant had applied for the protection visa after he was placed in immigration detention in January 2024. Noting that the Applicant was in detention when he applied for protection the Tribunal said:
… therefore I reasonably expect that he was aware of the consequences of not adhering to Australian law and the importance of complying with immigration requirements.
The Tribunal’s rejection of the Applicant’s explanation as to why he had raised the issue of his personal participation in protests against the seizure of parish land for the first time in the Tribunal hearing was not “plainly unjust, arbitrary, capricious, or lacking common sense” (Stretton, [11], above).
No merits review
To the extent that Ground 1 is characterised as impugning the Tribunal’s decision on the basis that the Tribunal ought to have reached a different conclusion it is not open to me to engage in merits review of the Tribunal decision. As the plurality in Plaintiff M1 said, it is a matter for the decision-maker as to what “weight or persuasive quality” is thought appropriate as to the arguments put forward
Ground 1 has not been made out.
GROUND 2: WAS THE TRIBUNAL’S DECISION MADE IN BAD FAITH?
Ground 2 is that the Tribunal’s finding that the Applicant had not participated in protests about the seizure of parish land (that is, its finding at [32]) was made in “bad faith” and “likely tainted with prejudice”.
An allegation that a public power has been exercised in “bad faith” is very serious. The Minister referred me to SBBS v Minister For Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 947; [2002] FCAFC 361 at [43]–[44]. The Full Court there said at [43]:
an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial [citations omitted].
In SBBS the Full Court said that the circumstances in which the court will find “an administrative decision-maker had not acted in good faith are rare and extreme” (SBBS, [44)] and that “mere error or irrationality does not of itself demonstrate lack of good faith” (SBBS, [45)]. In SBBS, the Full Court noted that there was no evidence which gave rise “to an inference that the [Tribunal] member acted dishonestly or arbitrarily or capriciously” (SBBS, [59]).
The basis for the Applicant’s allegation that the Tribunal’s finding at [32] was made in “bad faith” is not clear. Suffice to say, a “serious matter involving personal fault on the part of the decision-maker” has not been “clearly alleged and proved” (SBBS, above) . There is nothing in the Tribunal’s finding at [32] to give rise to an inference that the Tribunal member acted dishonestly, arbitrarily or capriciously.
Ground 2 has not been made out.
GROUND 3: DID THE TRIBUNAL INFLEXIBLY APPLY A POLICY ABOUT DELAY IN MAKING AN APPLICATION FOR A PROTECTION VISA?
The Applicant arrived in Australia in November 2022 and made his protection visa application in February 2024. The Tribunal asked the Applicant why he waited for 16 months to apply for protection. He said that he “had no knowledge of protection visas” ([8]).
Ground 3 is that the Tribunal made a jurisdictional error of “applying policies inflexibly” as to a delay in claiming refugee status and as to claims which were not raised before the primary decision-maker. The Applicant submits that the Tribunal “fettered” itself in a way it ought not to have done as to these issues.
The principle
The Tribunal said that in considering the issue of the Applicant’s delay in applying for protection, it had regard to Carr J’s observations in Subramaniam v Minister for Immigration and Multicultural Affairs [1998] FCA 305. In that decision, Carr J had accepted:
that the period of time which elapses between an applicant’s arrival in Australia and the time when he or she claims refugee status is a legitimate matter to take into account when assessing the genuineness or at least the depth of an applicant's fear of persecution. I would go further and find that such a delay is a legitimate matter which the Tribunal is entitled to take into account when deciding whether to believe an applicant.
The Tribunal’s finding that the Applicant’s “delay in seeking protection is inconsistent with the applicant’s claim that he was escaping from harm in Vietnam” ([28]) was consistent with the statement of principle in Subramaniam. The Applicant’s delay in making his protection application was a matter the Tribunal was entitled to take into account. In addition, the Tribunal’s application of principles from earlier cases took account of the particular circumstances before it in the Applicant’s case.
The Applicant has not established the premise of ground 3 that there were policies
The premise of Ground 3 is that there were “policies”. Although earlier cases have said that the Tribunal may take delay in making a protection visa application into account in assessing the genuineness or depth of an applicant’s fear or his or her credibility, the Applicant has not established that there were any policies which the Tribunal applied. He has not established the premise of Ground 3.
The Tribunal did not proceed “inflexibly” but considered the case before it
The Tribunal did not proceed “inflexibly”. The Tribunal expressly referred to the facts before it that the Applicant delayed 16 months and inquired as to the reasons for the delay. The Tribunal found that it did not accept the Applicant’s claim that he did not know about protection visas descended to particular circumstances before it: namely, that the Applicant said he came to Australia seeking “safety” and he was living with a family member and that family member had himself applied for a protection visa before the Applicant made his own protection claim.
I add that the Tribunal’s findings rejecting the Applicant’s claim as to the reasons for delay in applying for protection had an evident and intelligible justification.
Further, as the Minister submitted, the Tribunal’s reasons disclose that the Tribunal proceeded in a way which was procedurally fair. It invited the Applicant to comment upon the reasons for his delay in applying for protection and the fact that he had not earlier raised the claim about his personal participation in protest about the seizure of parish land. It had regard to his responses and expressly said to him that it “had concerns about the ‘truthfulness of his claims’”. The Tribunal dealt with the particular circumstances of the claim before it and did not proceed by inflexibly applying any policy.
Ground 3 cannot be made out.
GROUND 4: DID THE TRIBUNAL MAKE A JURISDICTIONAL ERROR BY NOT REQUESTING FURTHER PROOFS ABOUT HIS PARTICIPATION IN THE PROTEST AS TO THE SEIZURE OF PARISH LAND?
I have tried to consider Ground 4 in two ways: (1) as to whether there was a breach of procedural fairness because the Tribunal did not put adverse information to the Applicant for comment or response; and (2) as to whether there was a breach of any duty to inquire.
The first way in which Ground 4 may be characterised is as an allegation of a failure of procedural fairness. Section 424A of the Act is a codification of the natural justice hearing rule requiring the Tribunal to put certain adverse “information” to a review applicant for comment or response.
This was not a case in which the Tribunal did not give the Applicant an opportunity to respond to adverse information in contravention of s. 424A. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18] the Full Court held that s. 424A and its obligation to put adverse information to an applicant for comment or response refers to the “existence of evidentiary material or documentation”. It does “not [refer] to the existence of doubts, inconsistencies or the absence of evidence” or the Tribunal’s disbelief about the Applicant’s claims. The Tribunal was not as a matter of procedural fairness required to put before the Applicant its doubts, its concerns about gaps in the evidence or its disbelief of the Applicant’s evidence about his personal participation in protests against the seizure of parish land.
The second way in which Ground 4 may be characterised focuses on the Applicant’s claim that the Tribunal “should have requested further proofs” from the Applicant as to his personal involvement in the seizure of parish lands protest. Sometimes, this error is framed as a breach of the so-called duty to inquire.
In Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 the High Court plurality held:
[20]The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.
[25] …The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.
[Emphasis added]
In this case, there were no “further proofs” which would have been ascertained by an “obvious inquiry”. Nor has the Applicant explained what critical fact could have been ascertained by the making of an obvious enquiry.
Ground 4 cannot be made out.
IS THERE ANY ERROR AS TO ANY OTHER MATTER?
I note that in his oral submissions the Applicant raised certain other matters. For completeness, it is convenient that I deal with them.
Did the Tribunal make a jurisdictional error by getting the Applicant’s mother’s name wrong?
The Applicant’s mother’s name is set out in the protection visa application. One of the Applicant’s claims was that his mother had borrowed money from a loan shark. The written loan terms where his mother was said to be the borrower were before the Tribunal. The issue was that there were two different names: the named borrower has a different name from the name set out in the protection visa application. If the borrower under that loan and the person identified as the Applicant’s mother in the protection visa application were one and the same person, there needed to be some explanation of the difference in the names. The Tribunal expressly referred to the inconsistencies between the name attributed to the Applicant’s mother which appears on the protection visa and the name which appears on the loan contract. That inconsistency provided an evident and intelligible justification for the Tribunal’s refusal to accept the Applicant’s claim that his mother had borrowed money to repay a loan shark. No error arises as to this issue.
Did the Tribunal make a jurisdictional error as to its finding that the Applicant lived with an uncle in Australia?
The Tribunal recorded (at [8]) that, after the Applicant travelled to Australia, he “stayed at his brother-in-law’s home”. At [28] of its reasons, the Tribunal said the following:
I have considered the applicant’s evidence that he did not know about protection visas however I do not accept this claim given his evidence that he came to Australia seeking safety and he was initially living with his uncle who had applied for a protection visa.
It appears that the Tribunal made a factual error at [28] of its reasons by referring to the Applicant’s “uncle” rather than his brother-in-law as the family member the Applicant lived with after coming to Australia. The misidentification of uncle and brother-in-law is not a material error. Relevantly, the Tribunal did not accept that the Applicant would not have known about protection visas in circumstances in which he was living with a family member who had himself applied for a protection visa. It was not material whether that family member was his uncle or his brother-in-law.
Did the Tribunal make a jurisdictional error in its finding as to the Formosa protest?
The Tribunal also asked the Applicant why he did not wish to return to Vietnam. His response was that: “the police are still looking for him because of the problems with Formosa and the parish land problems.” I have dealt with the parish land issue above.
Another integer of the applicant’s claim was that he had been involved in protests about the Formosa toxic oil spill. The Applicant said that ([10]):
he worked as a fisherman and the Formosa toxic spill contaminated the oceans and killed the fish and they could not work and could not eat fish. He protested over one week and was beaten by police.
The Tribunal noted that the Formosa toxic spill had happened in April 2016 when the Applicant was 12 years old. The Tribunal noted an inconsistency in his account because he had previously stated that he started work as a fisherman when he was 16 years old. The Tribunal’s reasons are then as follows at [11]:
I said that this was inconsistent with his claim that he was a fisherman at the time of the spill. He claimed not to understand the inconsistency. He then said that he protested when he was 12 years of age.
It was difficult to reconcile the Applicant’s claim to have participated in protest about the Formosa oil spill which directly affected him in his livelihood as a fisherman and the country information which dated the Formosa oil spill as having occurred when the Applicant was 12 years old, four years before the Applicant became a fisherman. There was an evident and intelligible justification for the Tribunal not accepting the Applicant’s claim to have been engaged in a protest about the Formosa oil spill when he was a fisherman because of the internal inconsistencies in the claim the Applicant put forward.
Did the Tribunal make a jurisdictional error in failing to consider photographs about the Applicant’s personal participation in protests about the seizure of parish land?
The Applicant alleged that the Tribunal made an error in failing to consider photographs about the seizures of the parish land.
In the Court Book, there was a departmental request for more information as to the Applicant’s protection visa application. The Applicant provided further information in answer to the request. In particular, he provided documents as to his claim about family debts to a loan shark. There is no evidence that he provided any photographs to the Tribunal about his personal participation in protests about the seizure of parish land.
The Applicant has not proved that he provided photographs to the Tribunal which it failed to consider. There was no error in the Tribunal not considering material with which it was not provided.
CONCLUSION
I will dismiss the application. I will order that the Applicant pay the First Respondent’s costs fixed in the amount of $5000, an amount less than scale costs, and the amount the First Respondent sought.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 6 February 2025
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