LPDT v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 660
•12 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
LPDT v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 660
File number(s): MLG 2328 of 2024 Judgment of: JUDGE GIVEN Date of judgment: 12 May 2025 Catchwords: MIGRATION – Whether Tribunal failed to consider essential integer of applicant’s claims – whether Tribunal failed to consider or properly consider evidence – whether reasoning for not accepting applicant’s identity was illogical or irrational Legislation: Migration Act 1958 (Cth) s 65, 91X Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83
Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 289 FCR 21
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane (2021) 395 ALR 403
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SZDGC v Minister for Immigration and Citizenship (2008) 105 ALD 25
XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535
Division: General Federal Law Number of paragraphs: 98 Date of last submission/s: 28 February 2025 Date of hearing: 16 December 2024 Place: Sydney Counsel for the Applicant: Ms K McInnes Solicitor for the Applicant: Asylum Seeker Resource Centre Counsel for the Respondents: Mr J Barrington Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2328 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LPDT
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
12 MAY 2025
THE COURT ORDERS THAT:
1.The application filed on 11 July 2024, as amended, is 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 GIVEN:
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 6 June 2024, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant a Protection visa (visa) to the applicant under s 65 of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The following background and summary of the Tribunal’s decision are each primarily derived from the written submissions filed for the applicant, together with the material available in the Court Book. Unless otherwise indicated, they do not appear to be in dispute.
The applicant claims to be a citizen of Vietnam (CB 17). He first arrived in Australia on 7 June 2006 as the holder of a prospective marriage visa and was subsequently granted a Partner visa (CB 236). The applicant’s Partner visa was cancelled on 5 June 2019 on character grounds (CB 237).
The applicant then applied for the visa on 11 January 2023 (CB 10 to 44). His claims were briefly stated in that visa application (CB 32 to 34) and were then expanded upon in a separate statutory declaration dated 17 February 2023 (CB 108 to 115) (February Statutory Declaration), a statutory declaration of 4 August 2023 (CB 209 to 215), a statement dated 2 May 2024 (CB 494 to 496) and by various written submissions (CB 482 to 486).
The applicant’s claims for protection are, essentially, that he fears he will be arrested, tortured and ultimately face the death penalty in Vietnam because he is the subject of an arrest warrant for drug offences in Vietnam (CB 32 to 34 and 108 at [3]). Central to the applicant’s claim in that respect, is that his “actual birth name” is the name which appears on the aforementioned arrest warrant (CB 108 at [6][1]). For the purposes of these reasons for judgment it is necessary to have a way to refer to the applicant’s claimed birth name. The Tribunal’s reasons were simply able to include that name because those reasons are not published. It is not practical to utilise the s 91X pseudonym given by the Court for this purpose because, as the summary below will reveal, in issue in the review before the Tribunal was whether LPDT is in fact the person named in the arrest warrant. Nor, having regard to the intended purpose of s 91X of the Act, would it be advisable to simply use the initials of the name as a pseudonym, lest it somehow cause that name to be identifiable. Accordingly, the Court has chosen a different three letter pseudonym to represent the applicant’s claimed birth name (XYZ). As is the case with s 91X pseudonyms being utilised by the Court in general, no disrespect is intended to the applicant by its use.
[1] A translation of a record of the arrest warrant is at CB 42.
The applicant claimed to have used different names during his time in Australia in order to avoid being identified by Vietnamese authorities as XYZ (CB 108 at [8]) and acknowledged that, by doing so, he had broken the law and engaged in behaviour which:
has fallen far below what I believe to be the minimum standard expected of an average Australian or visa holder.[2]
[2] CB 109 at [13]
The applicant claimed to have been able to avoid harm when engaging with Vietnamese authorities, and while returning to Vietnam in the past, by using forged identity documents and by crossing the border from Vietnam to Cambodia at a place where he could bribe border guards (CB 112 at [48] to [49] and 495 at [6] to [8]).
The applicant claimed that, if he were now returned to Vietnam, he would be easily identified by Vietnamese officials using his fingerprints and would be arrested at the airport (CB 112 to 113 at [51] to [57] and [61], 494 at [7] and 495 at [14]).
On 23 October 2023, the delegate refused to grant the visa to the applicant (CB 233 to 248).
On 24 October 2023, the applicant applied to the Tribunal for review of the delegate’s decision (CB 249 to 254). The applicant provided the Tribunal with additional evidence that he contended corroborated his true identity (CB 301 to 323, 424 and 449 to 450).
On 10 April 2024, the applicant attended a hearing before the Tribunal (CB 451). The applicant was provided with an opportunity to provide post-hearing submissions and further evidence, which he did on 2 May 2024 (CB 480 to 515) which included:
(a)a letter dated 28 May 2021 from a Vietnamese lawyer which is described in the covering email as being “Legal opinion on death penalty relating to drug chargers under the Vietnam Criminal Code”[3] (legal opinion letter) (CB 487 to 493); and
(b)a DFAT Country Information Report about Vietnam dated January 2022 (DFAT report).
[3] CB 485 for example at footnotes 19 and 20
On 6 June 2024, the Tribunal affirmed the delegate’s decision (CB 573 to 594).
The Tribunal’s decision
The Tribunal referred to:
(a)the applicant’s claim in respect of his actual birth name allegedly being XYZ (CB 577 at [25]);
(b)the information before the delegate which went to the applicant’s identity and aliases he had used (CB 576 to 580 at [18] to [45]);
(c)the applicant’s evidence given at the Tribunal hearing;
(d)the February Statutory Declaration (CB 108, 580 to 584 at [47] to [96]);
(e)the evidence of the applicant’s daughter (CB 584 at [97] to [98]);
(f)the written submissions of the applicant’s representative; and
(g)a fingerprint examination report (CB 584 to 585 at [99]).
In relation to the applicant’s identity, the Tribunal “noted carefully the documented inconsistencies involving the applicant’s identity”, which meant that the Tribunal did “not accept the applicant’s names as he claims to have” (CB 585 at [102]).
In respect of the applicant’s identity the Tribunal said as follows at [103] (CB 585) (original emphasis):
As noted, the Tribunal does not know, and has not concluded in its own mind who the applicant really is, but having said this, the Tribunal has sufficient evidence before it to consider the applicant’s claims on the country information, which is available concerning the applicant’s country of origin, Vietnam (which is the only certainty before the Tribunal without any doubts attached). Indeed, this fact was made clear from the ability displayed by the applicant in the Tribunal’s presence when communicating via a Vietnamese interpreter.
The Tribunal found the applicant’s version of events to not be credible and the applicant to not be a witness of truth (CB 585 at [106]) for the following reasons:
(a)the Tribunal did not accept that the applicant would have returned to Vietnam between 2000 and 2005, or engage with Vietnamese authorities, if he truly feared being identified, convicted and executed (CB 586 at [111] and 547 at [112] and [114]);
(b)it also did not accept that the applicant was able to elude the authorities when he was in Vietnam by being careful as to how he went about his business in Vietnam (CB 586 at [111]); and
(c)found that the applicant’s travel to Vietnam in 2000, 2003 and 2004 to visit his (since-deceased) parents, and travel to Vietnam in 2005 to get married was “totally in conflict” with his claim to have had minimal contact with his family in Vietnam so as not to place them in any compromising position with the Vietnamese authorities and to minimise police harassing them on his account (CB 587 at [113]).
The Tribunal was satisfied that the applicant had previously been able to return to Vietnam because he was not a person of interest to the authorities (CB 587 at [114]). Accordingly, the Tribunal did not accept the applicant’s claimed identity, did not place any weight on the arrest warrant, and otherwise found that applicant’s claims regarding the arrest warrant to not be credible (CB 587 at [115]).
The Tribunal considered the applicant’s claim that an article published about his criminal convictions, which made known all of his aliases, would increase his risk of being identified as a person of interest upon his return to Vietnam. The Tribunal accepted that the article could lead to the identification of the applicant as a person convicted in Australia as a drug trafficker and could imply that he is a failed asylum seeker who departed Vietnam illegally (CB 588 at [121]). However, based on country information, the Tribunal was not satisfied the applicant would face a real chance of serious harm as a returned asylum seeker or as an individual who may have departed Vietnam illegally (CB 588 to 589 at [122] to [125]).
The Tribunal was satisfied that the applicant would not face trial in Vietnam for any of the crimes which he had previously committed (and of which he had already been convicted) while in Australia (CB 590 at [127]).
Having considered all the evidence and information before it on an individual and cumulative basis the Tribunal was not satisfied that, if the applicant was to be returned to Vietnam in the reasonably foreseeable future, there was a real chance that he would experience serious harm (CB 590 at [128] to [129]). For the same reasons, the Tribunal concluded that there were no substantial grounds for believing, that as a necessary and foreseeable consequence of being removed to Vietnam, there was a real risk that the applicant would suffer significant harm (CB 591 at [140]).
APPLICATION TO THIS COURT
These proceedings were commenced by an application to show cause filed for the applicant on 11 July 2024. The applicant is in immigration detention.
The proceedings were initially placed in the Court’s central migration docket to await allocation to a Judge, and on 19 August 2024, a Registrar of the Court made orders that the matter be listed for final hearing on a date to be advised, and for a timetable in preparation for that hearing (August Orders). Included in the August Orders was a grant of leave to the applicant to file and serve any amended application and an outline of submissions 28 days before hearing, and for Minister to file and serve an outline of submissions 14 days before the hearing.
On 26 September 2024, the parties were informed by email from the Court that the matter had been listed for final hearing before a Judge of the Court (first primary Judge) at 10:15am on 7 November 2024. The Court was subsequently advised by the relevant immigration detention centre that the applicant was required to appear before the Tribunal (presumably in unrelated proceedings) from 6 November 2024 to 8 November 2024 inclusive. It appears that, in order to accommodate the applicant’s attendance at the Tribunal, the final hearing was adjourned by the first primary Judge to 2 December 2024 for hearing.
On 10 October 2024, the applicant’s solicitors wrote to the Court (with the consent of the first respondent) to request an adjournment of the final hearing on the basis that the applicant’s Counsel would be unavailable on 2 December 2024 and that, because the applicant was being represented on a pro bono basis, he did not have the resources to arrange for alternative legal representation. The applicant’s request was accommodated by the first primary Judge, and the proceedings were accordingly adjourned to 10:15am on 16 December 2024.
On 18 November 2024, an Amended Application was filed for the applicant in accordance with the grant of leave contained in the August Orders.
Written submissions were filed for the parties on 18 November 2024 and 12 December 2024 respectively, in accordance with the August Orders.
On 19 November 2024, the proceedings were re-docketed to another Judge of the Court (second primary Judge). The parties were informed of the reallocation, and advised that the hearing date of 16 December 2024 would remain in situ. Ultimately, due to the unavailability of the second primary Judge at 10:15am on 16 December 2024, the proceedings were re-docketed to me on 12 December 2024. Given that the applicant remains in detention, the parties were informed that the hearing date would remain in place and would now take place via Microsoft Teams (MS Teams) as the legal representatives of the parties are based in Melbourne, and the Court would be presiding from Sydney.
Accordingly, on 16 December 2024, the proceedings came before me for final hearing via MS Teams The parties were each represented by their respective Counsel. The Court Book, which had not been formally filed (but rather “uploaded” to the Court’s electronic file as a “document handed up”) was tendered by the first respondent and received by the Court as Exhibit “1R” without objection in circumstances where it had, in any event, been served on the applicant. In order to regularise the Court’s electronic file, I made orders at hearing requiring the first respondent to file the Court Book by 4:00pm that day. This has since occurred. Oral submissions were made by the parties’ respective Counsel at hearing.
In the course of preparing these reasons for judgment, the Court identified a potential issue arising from ground 1 which the parties had not addressed at hearing. After consultation with the parties to obtain suitable dates for a directions hearing, on 21 January 2025, the parties appeared before the Court once again by MS Teams. A timetable was made for the parties to provide supplementary written submissions in respect of the additional aspect of ground 1, which they subsequently did. The Court has been greatly assisted by all the submissions made for the parties.
Grounds of review
By the Amended Application, the applicant abandons grounds 3 to 7 of the originating application filed on 11 July 2024, and raises 4 new grounds. It is convenient to re-number them as grounds 1 to 4. Accordingly, the grounds contained in the Amended Application are as follows (particulars omitted):
1. The Second Respondent (the Tribunal) failed to consider an essential integer of the Applicant’s claim and, in doing so, did not discharge its statutory function of review.
2. In the alternative to ground 1, the Tribunal failed to consider critical evidence in support of the applicant’s claim.
3. The Tribunal failed to consider, or properly consider, evidence provided by the Applicant corroborating his claimed identity.
4. The Tribunal’s reasoning for not accepting that the Applicant is the person he claimed to be was illogical or irrational.
Ground 1
Ground 1 alleges the Tribunal erred by failing to consider an essential integer of the applicant’s claim, being that he had previously been able to avoid detection by Vietnamese authorities because, on past visits, he had entered by crossing the land border from Cambodia into Vietnam.
The integer said to be centrally relevant to the applicant’s claims (and the Tribunal’s reasoning in determining that he was not a person to whom Australia owed protection obligations) was its rejection of the applicant’s claim to be XYZ. The applicant says that as central part of the Tribunal’s reason for rejecting that claim, despite having first declined to reach a firm conclusion as to the applicant’s true identity (see [15] above), was that the applicant had previously returned to Vietnam, despite a claimed fear of discovery and apprehension by Vietnamese authorities generally.[4]
[4] Applicant’s written submissions filed 18 November 2024 at [18]
The applicant says the Tribunal entirely failed to deal with that aspect of his claim in its reasons and that the failure was material having regard to the subsequent finding at [110] (CB 586) that:
It would seem from the applicant’s concerns that return to Vietnam under any circumstances and for any reason was not option for a person in the applicant’s position. Indeed, it is more than reasonable to accept that a person describing the situation as the applicant did in his statement and in his evidence to the Tribunal at the hearing, as it existed with a ‘death’ warrant ‘over his head’ he would not contemplate any return to Vietnam. However, what is extraordinary in this instance as far as it concerns the applicant, is that he did return to Vietnam – the place he feared returning to – not once but on a number of occasions.
The applicant says that this finding by the Tribunal fails to recognise and consider an important distinction between the past visits to Vietnam at a time when the alleged arrest warrant was already extant,[5] and the manner in which the applicant would be returned from Australia consequent on his having exhausted his migration pathways here. The distinction is, in essence, that because of a porous land border between Cambodia and Vietnam, past visits had taken place in circumstances where the applicant was able to enter Vietnam undetected by using the land border, following which he conducted himself cautiously once there. This is said to be as distinct from being forcibly returned, by air, from Australia which would result in his being identified on re-entry by the Vietnamese authorities, presumably flagging the connection between the applicant and the alleged arrest warrant.
[5] Having apparently been issued on 22 December 1998 (CB 42)
The first respondent says that ground 1 is based on a misunderstanding of the Tribunal’s aforementioned reasoning, submitting that the Tribunal did not characterise the applicant’s claims as involving a claim to fear return to Vietnam irrespective of how he entered the country. Rather, the Tribunal’s reasoning focused on the fact of the applicant being in Vietnam at all (not how he entered).
The additional issue referred to at [29] above, and to which the parties’ respective supplementary written submissions were directed, was the applicant’s claim that potential advances in technology in Vietnam would result in him being identified him at the airport on return. The applicant says that ground 1 was expressed (by particular (a)) to allege a failure to consider his claim to fear harm in Vietnam which centred upon his true identity being discovered on return which would result in him being taken into custody where he could face the death penalty. By his supplementary submissions, the applicant elaborates to say that the claim had a number of component integers including an essential component that the change of circumstances at borders since he had previously returned to Vietnam was such that he would not be able to evade detection at the airport upon being returned. The applicant says this integer was identified by him in at least two places in his statement of 2 May 2024, as follows:
(a)at [8] (CB 494) the applicant claimed that “border staff … would be able to match my fingerprints to my identity documents”; and
(b)at [15] (CB 496) when the applicant stated it had been a long time since he returned to Vietnam across a land border, and claimed that “[u]pdated technology and databases may make it easier for them to discover my true identity”.
The applicant says that these claims built upon his earlier explanation that there had been recent advances in internet technology which would make it easy for Vietnamese officials to identify him when he returned to Vietnam (CB 200 at [58]), and that the technology was “cutting-edge technology” (CB 200 at [62]). The applicant says further that claims of advances in identification technology were supported by country information, highlighted in the applicant’s submissions to the Tribunal, that there had been updated identity databases launched in Vietnam in recent years (CB 485 at [14]).[6]
[6] Extracting Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam (January 2022) 27 at [5.29]
By his supplementary written submissions the first respondent did not dispute that the additional matters formed part of the applicant’s claims, for the reasons identified in the applicant’s supplementary submissions. However, the first respondent said, consistent with his initial position on ground 1, that the Tribunal’s reasoning did not depend upon whether the applicant, being XYZ, would be able to pass through the various security systems at an airport in Vietnam undetected. That position is that the Tribunal’s reasoning should be distilled as turning upon two issues, namely:
(a)that it did not accept the applicant was XYZ; but
(b)in any event, went on to consider and then reject the applicant’s claims, on the premise that he was indeed XYZ.
The first respondent reiterated his primary submission that the Tribunal’s reasons were not directed to whether it was possible for the applicant to pass through the airport (as allegedly had previously via land border crossings), despite being the subject of a warrant. Rather, the first respondent says the reasons of the Tribunal focused on what was effectively an anterior issue – namely, whether the claims relating to the arrest warrant itself were even credible. The first respondent contended that the claims were not credible, for two reasons:
(a)the Tribunal was not satisfied that the applicant was XYZ; and
(b)even on the premise that he was in fact XYZ, his claims regarding his involvement in drug offences while in Vietnam prior to 1997 and the issue of the warrant for his arrest were not credible.[7]
[7] CB 587 at [115]
The first respondent says that the finding at [38(b)] above was made because the Tribunal did not accept that a person who was the subject of an outstanding death warrant would return to Vietnam (as the applicant had done on multiple occasions) under any circumstances and for any reason (CB 586 to 587 at [110] to [114]).
So understood, the first respondent says the Tribunal found the applicant’s claims regarding his arrest warrant not to be credible given his history of returns to Vietnam and his alleged dealings with authorities on those occasions. In those circumstances, the first respondent say the Tribunal was not required to expressly consider whether the applicant could evade more modern systems and databases in an airport. The first respondent says the point simply did not arise because the Tribunal found the applicant had no reason to fear detection at the airport at all.
The first respondent says it was unnecessary for the Tribunal to make findings on particular claims (or integers) because those claims rested on a factual premise which had already been rejected, citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (Applicant WAEE) at [47] where the Full Federal Court (French, Sackville and Hely JJ) said:
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.
Consideration
As Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as his Honour then was) makes clear at [42] (emphasis added):
… The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration … It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act … make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.
It is necessary to examine the applicant’s claims and the manner in which they were advanced before the Tribunal, noting of course that:
…the tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.
Whatever the scope of the tribunal’s obligations it is not required to consider criteria for an application never made.[8]
[8] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61] to [62]
The applicant says the integer in question was expressly advanced by him as follows. In the February Statutory Declaration, he made the following statements:
(a)in 2005 he travelled to Cambodia and while there, he obtained a Vietnamese passport from the Vietnamese embassy by using forged identity documents in a particular name[9] (being a name different to XYZ):[10]
[9] February Statutory Declaration at [48] CB 112
[10] CB 42
(b)despite being aware of the dangers, the applicant then crossed the land border from Cambodia into Vietnam in order to marry his wife by:
(i)using the passport in a false name;
(ii)bribing a border official;
(iii)there being only one person at the border (presumably meaning one border official);
(iv)having not been asked to provide fingerprints as part of the crossing, merely showing his passport; and
(v)on the Vietnamese side of the border “there was a person hanging around …who would assist you to cross the border if you paid him”;[11]
(c)while in Vietnam for the purposes of marrying his wife, the applicant stayed in her province and in the home of her family for the duration of the two week visit and left immediately after the wedding;[12]
(d)that if he is forced to return to Vietnam he will “be arrested and face the real risk of being sentenced to death. I will be arrested at the airport and put into prison.”;[13]
(e)that if “I am returned to Vietnam, I can easily be identified by the Vietnamese authorities. In accordance with Vietnamese criminal law, anyone in Vietnam who becomes aware of the identity of the person subjected to an arrest warrant must report them to the competent authorities. However, if anyone fails to report against that person under an arrest warrant, then they will bear criminal responsibility under Vietnamese law.”;[14]
(f)the applicant’s fingerprints have been on record in Vietnam as part of the process of having been issued with his “National ID” (presumably at an earlier age and in his true name) and, as such, “if I am forced to return”, the fingerprints will identity him;
(g)the applicant is confident that changes in technology will also contribute the ease of Vietnamese authorities identifying him.[15]
[11] February Statutory Declaration at [49] CB 112
[12] February Statutory Declaration at [50] CB 112
[13] February Statutory Declaration at [51] CB 112
[14] February Statutory Declaration at [52] CB 112
[15] February Statutory Declaration at [58] and [61] CB 113
Of importance is that the applicant’s claim to fear harm in Vietnam is that it is inextricably linked to his claim to be XYZ. So much is clear from the applicant’s statement at the Tribunal hearing that he feared returning “to Vietnam under any circumstances because he feared that his ‘true’ identity would be discovered by the Vietnamese authorities and that he would be detained and ran the ‘risk of being sentenced to death’ following a conviction for drug trafficking”.[16] By its finding at [103] the Tribunal declined to draw a conclusion as to the applicant’s actual identity but, for reasons which it went on to detail, did not accept that he was XYZ (by stating that it accepted the applicant’s identity as it appeared on the Protection application (which was also XYZ)).
[16] CB 586 at [109]
I find that it was open to the Tribunal to conclude that, while it could not say who the applicant was, it could conclusively say who he was not. It was also open to the Tribunal to reject the explanation that the reason the applicant had managed to elude Vietnamese authorities based on the evidence before it (together with a modicum of common sense).[17]
[17] Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 289 FCR 21 at [39] per Allsop CJ and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane (2021) 395 ALR 403 at [17] to [21] per Keane, Gordon, Edelman, Steward and Gleeson JJ.
Particular (b) to the ground identifies this claim as having been raised in the applicant’s statement dated 2 May 2024 at [6] to [16], in post-hearing submissions at [12] to [17] and in a statutory declaration of 4 August 2023. It can be accepted that, in seeking to explain his previous returns to Vietnam, the applicant made statements about the mitigating circumstances in which he claimed to have previously managed to evade detection, but said that he may not be successful in doing so in the future. However, I accept the first respondent’s position that these aspects of the applicant’s submissions (which the first respondent does not deny were advanced by the applicant in his submissions to the Tribunal)[18] were all contentions contingent upon the applicant first being accepted as being who he claims to be and said person being the subject of a death warrant in Vietnam. The Tribunal’s findings in this regard were as follows:
114. The Tribunal on the evidence before it and after having weighed and considered the applicant's responses to the Tribunal's questioning is satisfied that the applicant undertook without any hesitation, concern or hinderance international travel between 1997 and 2009 and return travel to Vietnam between 2000 and 2005 because the applicant was not a person of interest to the Vietnamese authorities at these times as he claimed. Moreover, the Tribunal on the evidence as it considered emanating from the applicant's responses to the Tribunal's questioning, is satisfied that the applicant's decision to return to Vietnam and to repeatedly engage with the Vietnamese authorities is a substantial indicator that he (personally) did not believe or had any doubts that his presence (openly) in Vietnam would cause him to come in sight of the Vietnamese authorities as a person of interest (as he claimed).
115. Therefore, for the reasons provided by the Tribunal above, the Tribunal does not accept the applicant's identity as it appeared on the Protection application now being considered by the Tribunal and as a consequence of this, the Tribunal does not attach any weight to the alleged arrest warrant and associated court documents. The Tribunal also finds that the applicant's claims regarding his involvement in drug offences while in Vietnam prior to 1997 and the issue of the warrant for his arrest are not credible.
[18] First respondent’s supplementary written submissions
Overall, I accept the first respondent’s submissions at [38] above in respect of the way in which the Tribunal’s reasoning is to be understood.
As such, the question of how the applicant would be returned to Vietnam (namely by air), and that the systems and identification technology (which can be accepted as inevitably having) advanced since the applicant last entered Vietnam are not its operative findings.
I accept that the Tribunal rejected the applicant’s claim to fear harm in Vietnam entirely based on its findings that the applicant’s previous entries and stays in Vietnam had gone undetected, not because of any particular methodologies or stealth on his part nor because technology allowed it, but because he was not XYZ as claimed. The findings were not relevantly contingent upon his method of entry to Vietnam (including by reference to more recent technology). Accordingly, even accepting that the applicant would be returned by air, and that technological advances could more readily identify a person than in times past, based on the Tribunal’s reasoning the applicant would not face requisite harm because he is, as a matter of fact found by the Tribunal, not XYZ as claimed.
That the Tribunal did not (earlier in its decision) positively identify which of the applicant’s identities was his true one, is not at odds with that finding. Nor does it cast doubt over the certainty of the Tribunal’s findings that the circumstances of the applicant’s previous visits demonstrated that he was not the person subject to a death warrant. Given its apparent confidence in those conclusions, the Tribunal was also not then bound to consider whether its findings might be wrong: see Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 576.
I am satisfied that a beneficial[19] reading of the Tribunal’s reasons for decision demonstrates that the integers identified by the applicant above were contingent on the applicant being accepted as the person in question who was subject of the death warrant and that being so, that he had previously avoided detection based on certain sets of actions and circumstances. However, once the fundamental premise of that claim was rejected, it was not necessary for the Tribunal to consider whether a change in those actions and circumstances would now lead to the applicant facing harm as claimed: see Applicant WAEE (supra) at [46] to [47].
[19] XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535 per Perry, Banks‐Smith and Anderson JJ at [27]
Ground 2
In the alternative to ground 1, the applicant also contends that the Tribunal failed to consider the evidence referred to at [11] above being the legal opinion letter and particular parts of the DFAT report (namely paragraphs [5.27], [5.28] and [5.42] thereof). The applicant says that these pieces of evidence were directly supportive of his claims that, while previously he had successfully avoided detection in Vietnamese, the different circumstances (return by air and technological advances) would now result in his being identified and detained by Vietnamese authorities. The applicant says that the absence of references to this evidence in the decision (which he describes as otherwise being comprehensive) suggests that this “crucial” evidence was not considered.
However, I accept the submissions of the first respondent that, as with ground 1, there is no error.
To the extent that this has not already been clearly addressed above in respect of ground 1, I am satisfied that any failure to expressly refer to that evidence is not, as the applicant contends indicative that the evidence (or the claim to which it went) was overlooked. Having rejected the foundation of the claim, namely that the applicant was not XYZ and therefore not the subject of the arrest warrant.
As the first respondent correctly observes, the Tribunal did not, for example, find that the applicant would be able to pass through the airport undetected or obtain his safe passage by bribery. The Tribunal found that the claims relating to the arrest warrant were wholly not credible based on its findings of previous safe passage.
Otherwise, as has already been addressed, it is well-established that the Tribunal is not required to refer to every piece of evidence and every contention made by an applicant in its written reasons: see Applicant WAEE (supra) and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [69] where their Honours said that:
Understanding s 430 as obliging the tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the tribunal. It ensures that a person who is dissatisfied with the result at which the tribunal has arrived can identify with certainty what reasons the tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the tribunal to be material.
Accordingly, I am satisfied that the errors raised in ground 1[20] or in the alternative, ground 2, are not established.
[20] including as engrossed by the additional matters in the applicant’s supplementary written submissions
Ground 3
By this ground the applicant contends the Tribunal’s rejection of his claim to fear harm because he was XYZ and therefore the person named in the arrest warrant was based on “documented inconsistencies involving the applicant’s identity” (CB 585 at [102]) and findings that the applicant was not a witness of truth (CB 585 at [106] and 587 at [115]). The applicant says that, in reaching those findings, the Tribunal entirely failed to consider and reconcile independent corroborative information which was before it which indicated that the applicant is the person born as XYZ. That evidence is said to be:
(a)a report by a fingerprint examiner which confirmed a match between the applicant’s fingerprint and the Vietnamese identity document of XYZ (CB 497 to 515);
(b)translated statements from the following six members of the applicant’s family:
(i)daughter (CB 203, 312 and 449);
(ii)son (CB 221 and 304);
(iii)brother 1 (CB 302);
(iv)sister (CB 303);
(v)brother 2 (CB 319); and
(vi)ex-wife (CB 424).
(c)Vietnamese birth certificates of each of the applicant’s children, naming their father as XYZ (CB 206, 218, 306 and 314);
(d)a family record book, including XYZ (CB 308); and
(e)a translated Vietnamese missing person certificate regarding XYZ (CB 117);
(collectively, the identity evidence).
The applicant says that the identity evidence was “cogent and central” to his case and that, accordingly, the Tribunal was obliged to consider it. The applicant says that, by contrast, no assessment was made by the Tribunal of the identity evidence, either individually or cumulatively, nor did the Tribunal identify how the identity evidence bore on its credibility findings.
The first respondent acknowledges that, in finding that the Tribunal was unable to conclusively determine the applicant’s true identity and date of birth, its “substantive reasoning on the identity issue was brief”.[21] The first respondent says that, nevertheless, the Tribunal did identify the identity evidence and records having had regard to it, even if it did so indirectly including in some instances by referencing the applicant’s written submissions (which in turn addressed that evidence).
[21] First respondent’s written submissions filed 2 December 2024 at [18]
The first respondent’s central submission relies on the manner in which the first respondent says the Tribunal’s decision should be read as set out at [38] above.
The first respondent says that even if there was a failure to refer to the identity evidence, any such error could not be found to be jurisdictional because it was not material because of the manner in which the Tribunal addressed the issue identified in [38(b)] above.
Consideration
For the reasons already developed in ground 1, it will be apparent that the Court accepts the construction of the Tribunal’s reasons contended for by the first respondent in the way set out at [38] and [39] above.
Neither party disputes that there exists a body of cases in which the applicant’s credibility can have been so weakened that the Tribunal may treat what is proffered as corroborative evidence as having no weight “because the well has been poisoned beyond redemption”: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (Applicant S20) at [49] per McHugh and Gummow JJ. However, in essence, what the applicant contends is that this case is not such a circumstance and says that the Tribunal’s brief acknowledgement of the identity evidence was insufficient to discharge its duty.
Citing Applicant S20, in SZDGC v Minister for Immigration and Citizenship (2008) 105 ALD 25 (SZDGC) at [23] Finkelstein J observed that while the aforementioned proposition is true:
…the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness’ credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence.
His Honour went on in SZDGC to observe the following at [24]:
24. For example in WAIJv Minister for Immigration and Multicultural and Indigenous Affairs(2004) 80 ALD 568 ; [2004] FCAFC 74 the appellant complained that the tribunal failed to have regard to certain documents because the tribunal was not convinced that the documents could overcome the difficulties that it had with the appellant’s evidence. Lee and Moore JJ said (at [27]):
27. Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied … it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]–[85] per McHugh, Gummow and Hayne JJ.
In Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 (SZNSP), the majority (North and Lander JJ), said the following at [36] to [39]:
36. When a decision maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision maker could determine to reject it out of hand. In this case, as we have said, the document which is said to be the corroborative evidence is a document written in the Chinese language which has been interpreted, no doubt faithfully, into the English language and purports to be a statement of Lu. The applicant, whom the RRT believed was not a credible witness, proffered it as Lu’s statement, but there was no other evidence other than the applicant’s say so that it was. There is nothing irrational about the RRT in those circumstances rejecting the document by giving it no weight. In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it. Consequently, the alternative argument relied upon by the appellants, outlined at [22] above, cannot be sustained.
37. Several further observations should be made concerning the type of situation addressed in Applicant S20/2002. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.
38. The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 made in SZDGC at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.
39. On the other hand, it should be remembered that McHugh and Gummow JJ questioned whether the separate consideration of corroborative evidence was a preferable practice. The RRT should normally assess all the evidence together. Otherwise, it might be thought that the corroborative evidence is treated as a lesser category of evidence and that the RRT has not paid sufficient regard to it.
At [50] of SZNSP, her Honour Katzmann J (otherwise concurring with the majority) added:
Fourth, having reached such a conclusion, as French J said in WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCA 1580 at [20]–[21] , there is nothing illogical about deciding that evidence proffered as corroboration of an account found to be false deserves little or no weight. Here, where the credit of the first respondent was very much in issue, there was certainly nothing illogical or irrational in rejecting the document she submitted to bolster it in the absence of any proof that the document was genuine or its contents unaffected or uninfluenced by her.
This case is more akin to the circumstances of SZNSP than it is to Applicant S20 (see SZNSP (supra) at [38] to [39])) because of the Tribunal’s express acknowledgement of the evidence in question and its statements that it had carefully considered all the applicant’s evidence which, necessarily, included the identity material in question. The Tribunal did not refuse to consider the identity material because of its credibility findings: see SZNSP (supra) at [38])).
Applying the cautious approach identified in SZDGC, I am satisfied that the present case is one of the rare species in which it was permissible for the Tribunal, in weighing all the evidence to conclude that the applicant’s credibility was so damaged that the corroborative evidence did not weigh heavily, or even at all. While it would have been preferable for the Tribunal to expressly say so, I am satisfied that a fair reading of its reasons for decision make plain that it:
(a)considered the identity evidence (as defined at [60] above). It said as much (CB 584 to 585 at [97] to [99] (inclusive));
(b)then for the reasons given (in particular CB 585 to 588 at [106] to [115]) found the applicant’s version of events in relation to his identity not to be credible; and
(c)also found the applicant not to be a witness of truth (CB at [106]).
This case is unusual because the credibility findings (and separate finding of untruth) were not only the subjective opinion of the Tribunal. Rather, by the very subject matter of his evidence, the applicant conceded that he had for many years, and in a variety of ways, been untruthful and deceptive by reference to his extensive use of aliases.[22] It was open to the Tribunal to not accept the applicant’s evidence. That the applicant was now professing candour against a lengthy history of admitted dishonesty (in the proverbial “boy who cried wolf” sense) means it remained open to the Tribunal to not accept his currently claimed identity. As such it was open to the Tribunal, not to undertake a detailed exposition or analysis of the identity evidence in those circumstances. While again it might have been preferable that it do so, in the unusual circumstances of this case, the conclusive credibility findings being as they were, it remained open to the Tribunal to not consider the identity evidence any further than it did.
[22] See for example [6] above
In that regard I am also not satisfied that, applying a counterfactual in the present case, any more detailed analysis of the identity material could realistically have resulted in a different conclusion. While it is not for this Court to undertake its own forensic analysis of the identity evidence, suffice it to say none of the individual items which collectively form the identity evidence, appears independently probative in relation to whether the applicant is in fact XYZ. The family accounts (witness statements, family record book and even the birth certificates) each turn upon a degree of self-reporting or potentially “influence” by the applicant: see SZNSP (supra) at [50] per Katzmann J)).
The most independent (and potentially persuasive) evidence might have been the fingerprint report. However, again in the circumstances of this case, against a background of significant deception and dishonesty in relation to the applicant’s identity and the documentation of it, the fingerprint report sought to compare the applicant’s fingerprints with fingerprints on an identity card, photographs of which are contained in the Court Book. The provenance or authenticity of the identity card is (obviously) not the subject of the fingerprint report, but nor is it the subject of any other independent evidence submitted to the Tribunal. As such, it is arguable the fingerprint report was of limited use.
As noted above, I am of the view that this case is one of the rare occasions in which the evidence proffered as corroboration of an applicant’s account (which found to be false) is able to be accorded little or no weight. Like SZNSP (supra), the credit of the applicant was very much in issue, and there was no illogicality, irrationality or any other error on the part of the Tribunal in not further analysing the identity evidence proffered given its comprehensive conclusions about the applicant’s credibility and untruthfulness.
In all the above circumstances, I am not satisfied that the error contended for by the applicant is made out and, even if the Tribunal could be taken to have ignored the identity material, which I do not accept, I am further not satisfied that such an error would be material.
Ground 3 is not made out.
Ground 4
By ground 4, the applicant alleges the Tribunal’s reasoning (in particular its adverse credibility findings and non-acceptance that the applicant was XYZ) was illogical or irrational.
The applicant makes submissions identifying three strands of the error, namely that:
(a)having referred to there being “documented inconsistencies” about the applicant’s identity without any proper analysis which lacks a logical path of reasoning to its conclusion at [102];
(b)a lack of logical connection in the Tribunal’s reasoning at [111]; and
(c)that the credibility findings as a whole demonstrate the Tribunal being on a “quest to disbelieve.”
The first respondent responds to the three strands as follows:
(a)while acknowledging that the Tribunal did not methodically document “the litany of inconsistencies” about the applicant’s identity over time, that is not an error in and of itself, and the applicant’s own representative accepted that those issues bore on the applicant’s credibility while before the Tribunal;
(b)there is no illogicality in the [111] findings; and
(c)there was no quest to disbelieve on the part of the Tribunal. Rather, the Tribunal concluded on the basis of the applicant’s own return visits to Vietnam, that the applicant did not have a subjective fear of harm in Vietnam and, as such, this reinforced its credibility conclusions.
Consideration
The first strand to the alleged error is that the Tribunal’s reasons refer to documented inconsistencies about the applicant’s identity, without detailing with or analysing them. It might be that in many cases, if the Tribunal were to sweepingly categorise evidence of the applicant as being replete with inconsistencies, or where there was no discernible way in which those inconsistencies had been documented, a statement such as that in [106] of the Tribunal’s reasons might be a basis for concern or even error. However, for the reasons already outlined at [73] above, the instant case is unusual.
I accept the submissions of the first respondent that in the present case the inconsistencies about the applicant’s identity were manifold and documented.
Reading the Tribunal’s reasons fully and in context, the Tribunal was not saying that the applicant had given differing accounts of a particular event which it found to be inconsistent. The Tribunal was referring specifically to “inconsistencies involving the applicant’s identity”.[23] It is tolerably clear that the Tribunal was referring to the applicant’s extensive use of aliases over a significant period of time. Inter alia, those instances were documented by the applicant who himself advanced (both to the delegate and the Tribunal) details of those aliases. The first respondent is correct to observe that in the circumstances of the present case the documented inconsistencies were significant and bore on the credibility of the applicant and his claims. The first respondent submits the following (footnotes in original):
How could it be otherwise? As the Tribunal noted, the applicant admitted to coming to Australia on a fraudulent passport,[24] admitted having changed his identity numerous times in Australia to avoid any risk of being identified,[25] and admitted to having “created identifies” and that this “behaviour had fallen far below (as he believed) was the minimum standard expected of an average … visa holder”.[26] He had been sentenced in criminal courts in Australia under different names and had refused to disclose his real identity to the sentencing judge when asked.[27] This was not an illogical decision simply because the Tribunal failed to record that these obviously significant matters were obviously significant.
[23] CB 585 at [106]
[24] CB 582 at [80]
[25] CB 578 at [27]
[26] CB 581 at [56]
[27] CB 579 to 580 at [40]
I accept that submission.
To the extent it is submitted for the applicant that decision-makers should assess the significance of inconsistencies and the weight to be given to them, so much can be accepted. However, that is a caution applied where the expression “inconsistency” is ordinarily employed to describe differing versions of events and claims, potentially to conclude that the variances undermine the truth of the claimed events. All the Tribunal was saying in the instant case is that the applicant has, by his own admission, been untruthful to a significant extent and duration about his identity and has done so (in some instances) in relation to criminal activity. It was open to the Tribunal to find that such conduct did not reflect well on the applicant’s credibility and, as the first respondent also says, so much was acknowledged for the applicant when, in a written submission to the Tribunal, his solicitor said (original emphasis, anonymisation added):
We concede that the Applicant has presented a false identity to the Australian authorities for the vast majority of his time residing in the country. The Applicant does not shy away from this fact and we accept this impacts his credibility and that it previously impacted upon the reception of his evidence by the departmental delegate. However, the Applicant has provided a wealth of material to substantiate and corroborate that his true identity is Mr [XYZ]. He has provided a consistent, credible account of his claims for protection and why he obfuscated his true identity for so many years. The Applicant’s claims are, when viewed as a whole, consistent with country information and the client’s claims are internally logical and consistent.
…
Accepting the Applicant’s previous conduct may impact on his credibility, the key issue to be determined by the Tribunal is whether the Applicant is [XYZ] named in the arrest warrant for drug trafficking.
It is understandable that the applicant sought to confront the issue of his past aliases head-on in an attempt to persuade the Tribunal that he was now being truthful. However, noting the observation at [73] above, it was open to the Tribunal to not find him credible for precisely the reasons he acknowledged. As such, the fact that the Tribunal found in the manner which the applicant sought to pre-empt does not bespeak error. To seek to challenge it in the manner contended for by strand one of this ground is, in reality, an attempt at impermissible merits review.
By the second strand, the applicant alleges that the reasoning in [111] of the Tribunal’s decision is illogical. That paragraph warrants setting out in full (emphasis in original):
111. In his evidence, the applicant stated that he returned to Vietnam in 2005 for a ‘family wedding’ and returned again 2007 and 2009 to Cambodia for ‘business reasons’. The applicant told the Tribunal in his evidence, that in 2005, he had obtained a Vietnamese Passport at the Vietnamese Embassy in Cambodia and that he did so by using ‘forged documentation.’ The applicant committed this deception on the Vietnamese authorities even though there was a warrant out since 1997 as he claimed. It concerns the Tribunal when faced with this evidence before it- and it raises doubts about the applicant’s credibility as witness that knowing he (as he claimed) had a ‘death warrant’ over his own head, and also genuinely fearing his discovery and apprehension by the authorities (that is why he fled in the first place to Cambodia), he would return to Vietnam under such circumstances. The Tribunal does not accept that the applicant was able to allude his so-described persecutors, the Vietnamese authorities, when he was in Vietnam, because he was careful as to how he went about his business while in Vietnam proper. Yet, the applicant in his evidence both written and oral stated that the Vietnamese authorities had gone looking for him at his parents’ home and to his former family home (asking about his whereabouts from his former wife).
The applicant says that there is no logical connection between the applicant’s claim to have discretely returned to Vietnam in 2005 for a family wedding, and in 2007 and 2009 for business reasons, and the reasoning used by the Tribunal to reject the claim to have eluded authorities by reason of the covertness of his visits. As can be seen from [111] set out above, the applicant claimed to have avoided the authorities by being “careful as to how he went about his business while in Vietnam proper.” The Tribunal’s reasoning again, read fairly and in context, says no more than that it had credibility concerns that a person who claimed to be the subject of an arrest warrant in respect of whom authorities were actively searching (even if in different locations that the applicant’s specific visits), would make return visits for the reasons claimed and simply manage to avoid detection by being discrete. I am satisfied that the findings at [111] were open to the Tribunal on the material before it and that there was no illogicality in that paragraph, much less an “unexplained leap”[28] between the findings.
[28] Applicant’s written submissions filed 18 November 2024 at [40]
The final strand of ground 3 turns upon what is said to be a “quest to disbelieve” the applicant on the part of the Tribunal. I reject that characterisation of the manner in which the Tribunal reasoned and am not satisfied that there is an error of the kind identified in AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83 (AVQ15) per Kenny, Griffiths and Mortimer JJ (as her Honour then was), upon which the applicant relies in respect of said error.
In AVQ15, the Court observed the following at [24]:
In their text, The Law of Refugee Status (2nd edition, 2014) at p 139, James Hathaway and Michelle Foster describe the assessment of credibility as often being based on one or more of four matters: plausibility, relevant knowledge of an asylum seeker, demeanour and consistency of testimony. The learned authors discuss in detail (at pp 139–149) the comparative jurisprudence on these four features of credibility assessments, including references to many decisions of this Court dating back 20 years. The necessity for care, fairness and a reasonable approach, in order to avoid what the learned authors describe at one point as “a quest to disbelieve” (at p 138), or to avoid irrationality or legal unreasonableness in an approach to credibility assessment, is evident from the comparative authorities there discussed, including as we have noted, many authorities from this Court. The learned authors conclude (at pp 148–149):
As can be seen, the tools available to assess the credibility of an applicant’s testimony are each highly flawed. Reliance on plausibility is prone to inferences based on assumptions of rationality often at odds with conditions in the country of origin. The use of knowledge tests is problematic given difficulties to identify both true core knowledge and knowledge that is appropriate to a person in the applicant’s particular circumstances. Demeanor assessment is of necessity benchmarked against some assumption of universal normalcy (which does not actually exist), and can prove especially ill-suited to assessing the claims of women, children, and victims of trauma. And a focus on the consistency of testimony is based on a false psychological assumption about the nature of truth-telling over time, and can be heavily skewed by an applicant’s understandable reluctance to be forthcoming at early stages of the determination process and where evidence is provided (as is normally the case) through an interpreter. Real caution is thus appropriate before any adverse inference regarding credibility is drawn on one of these bases.
As has already been established at [73] and [86] above, this is not a case where the Tribunal’s credibility findings necessarily had at their core the four common features referred to by the learned authors cited by the Court in AVQ15 (supra). The reasoning in this case is relatively unique because the circumstances are too.
The applicant contends that ultimately the Tribunal engaged in circular reasoning at [112] of its decision which, in addition to the findings relied on in respect of the first and second strands, demonstrates a quest to disbelieve. In particular the applicant points to the following sentence in [112] (emphasised in bold) as demonstrating this error in reasoning:
…the Tribunal does not accept having considered the applicant’s evidence that the applicant would have had a repeated engagement with Vietnamese authorities, while in Vietnam and at the Vietnamese embassies in Australia and Cambodia, if he truthfully feared as he claimed being identified, convicted and executed by the Vietnamese authorities for the drug related offences as stipulated on a warrant for his arrest (that was still current since 1997). These assertions of genuine fear made by the applicant leads the Tribunal to conclude (after considering the evidence as presented both written and oral) that the applicant did not fear any harm by the Vietnamese authorities when he returned as he claimed to Vietnam, and that his claims concerning his involvement in drug offences and the issue of a [sic] arrest warrant are not credible.
At [114] the Tribunal went on to say:
114. The Tribunal on the evidence before it and after having weighed and considered the applicant’s responses to the Tribunal’s questioning is satisfied that the applicant undertook without any hesitation, concern or hinderance international travel between 1997 and 2009 and return travel to Vietnam between 2000 and 2005 because the applicant was not a person of interest to the Vietnamese authorities at these times as he claimed. Moreover, the Tribunal on the evidence as it considered emanating from the applicant’s responses to the Tribunal’s questioning, is satisfied that the applicant’s decision to return to Vietnam and to repeatedly engage with the Vietnamese authorities is a substantial indicator that he (personally) did not believe or had any doubts that his presence (openly) in Vietnam would cause him to come in sight of the Vietnamese authorities as a person of interest (as he claimed).
There is no doubt that [112] of the Tribunal’s reasons is, as the first respondent acknowledges, “inelegantly expressed”. Read alone, it certainly raises concerns. However, when read in the context of the sentence which precedes it (which has been included (without emphasis) in the extract above), and together with [114] of the Tribunal’s decision, I am satisfied that there is no error as alleged.
I am satisfied that read in its more fulsome context, the Tribunal was saying that the applicant did not subjectively fear harm in Vietnam, evidenced by his willingness not only to return but also to engage with various Vietnamese authorities in order to do so, such that the claimed fear he was professing, was not genuine. I accept the first respondent’s submissions that it was both open and logical for the Tribunal to conclude that the absence of a subjective fear of harm reflected on the credibility of his claims.
Accordingly, the third strand of ground 4 is not made out and the error alleged in respect of each strand, and cumulatively, has not been established.
CONCLUSION
The applicant has not established error as alleged. Absent jurisdictional error, the decision is a privative clause decision and must be dismissed. I will so order. While the parties addressed the question of costs at the conclusion of the hearing, given the additional submissions filed thereafter, it is necessary to hear from them again at the time judgment is delivered.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 12 May 2025
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