Federal Court of Australia

AZL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1490

ORDERS

THE COURT ORDERS THAT:

1.    The name and citation of the decision of the Administrative Appeals Tribunal appealed from be redacted from the first page of the published version of this judgment.

2.    The application is dismissed.

3.    The applicant must pay the first respondent's costs of the application, to be assessed if not agreed.

4.    On or before 4.00 pm on Friday, 30 October 2020, the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent's costs.

5.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent's costs is referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant is a citizen of Vietnam. He arrived in Australia in 1990, at the age of 19. Since that time he has been convicted of a large number of criminal offences, some of which resulted in terms of imprisonment. On 31 August 2016 the first respondent (Minister) cancelled the applicant's visa under s 501(3A) of the Migration Act 1958 (Cth) because he did not pass the character test. After that, the applicant made representations to the Minister as to why the cancellation of the visa should be revoked. A delegate of the Minister decided under s 501CA(4) of the Act that the cancellation should not be revoked. The applicant applied for review of that decision to the Administrative Appeals Tribunal, which affirmed the delegate's decision.

2    The applicant lodged a 'Notice of Appeal From a Tribunal' with this court in relation to the decision. He had been legally represented before the Tribunal, but he was not represented at the time he lodged the notice of appeal. By reason of s 43C of the Administrative Appeals Tribunal Act 1975 (Cth), the court has no jurisdiction to hear an appeal from a decision of the Tribunal affirming a decision under s 501CA(4) of the Migration Act. It has limited original jurisdiction under s 476A(1)(b) of the Migration Act, in the exercise of which it may issue a writ of certiorari setting aside decisions of the Tribunal if they are affected by jurisdictional error: Sami v Minister for Immigration and Citizenship [2013] FCA 106 at [7]-[10]. The applicant subsequently obtained legal representation and has been represented by counsel in this application. Orders treating the 'appeal' as an application for judicial review and giving leave to amend to substitute two grounds of review have been made.

3    There was material before the Tribunal suggesting that the applicant feared harm if he were returned to Vietnam. One of the grounds of review raises the issue of whether the Tribunal failed to consider matters relating to that claimed fear as reasons for revoking the cancellation of the visa, irrespective of whether they engaged Australia's non-refoulement obligations. The other raises the issue of whether the Tribunal erred by incorrectly assuming that the existence or otherwise of non-refoulement obligations would be considered if the applicant applied for a protection visa, since the criteria for a protection visa are not entirely reflective of Australia's international treaty obligations as to non-refoulement.

4    The grounds raise these issues in a context where counsel for the applicant made significant concessions about the relevant claims before the Tribunal. For the following reasons, and in large part because of those concessions, the application will be dismissed. In order to see why, it is necessary to examine the material before the Tribunal which was capable of giving rise to a claim that the applicant had a well-founded fear of persecution or other harm on return to Vietnam, the reasons of the Tribunal in relation to those matters, and the concessions which counsel for the applicant made before the Tribunal.

The material concerning non-refoulement that was before the Tribunal

5    The applicant was born in Vietnam in 1970. He lived there with certain members of his family until sometime between 1983 and 1985, at which time he moved to Cambodia with his mother to search for other members of his family who had apparently gone missing. They left Cambodia in 1987 and travelled to a refugee camp in Thailand. In 1990, the applicant and his mother were granted a 'Refugee Camp Clearance Visa BF-K4B' and arrived in Australia that year. The applicant was eventually granted a 'Class BF Transitional (Permanent)' visa, which is the visa that was cancelled because the applicant did not pass the character test, being the subject of the present application for judicial review.

6    In the reasons of the delegate for refusing to revoke the cancellation of the applicant's visa, the delegate said that the applicant made claims that may give rise to international non-refoulement obligations. The delegate recorded the applicant's expression of fear for his life in Vietnam because he left that country as a refugee, and that the applicant had said that he had opposed the Communist rulers of that country, and he was 'afraid to even think of their reaction' if he was to be returned to that country. This was an accurate statement of the claims made in the personal circumstances form which the applicant had provided in response to the cancellation of his visa, and that form contained no further detail on the claims.

7    The delegate decided that it was unnecessary to determine whether non-refoulement obligations were owed because the applicant was able to apply for a protection visa and non-refoulement obligations would be considered then. But the delegate also considered the claims of harm 'outside the concept of non-refoulement and the international obligations framework' and accepted that regardless of whether the applicant's claims engaged non-refoulement obligations, he would 'face hardship arising partly from his fears of political persecution were he to return to Vietnam'. The delegate did not refer to this consideration at the end of the reasons when weighing up the various relevant considerations as to whether the cancellation of the visa should be revoked, except (possibly) by way of a general reference to 'impediments he will face on removal to Vietnam'.

8    There was also a statement to the Tribunal provided by the applicant's mother, in which she said that her husband, the applicant's father, and the applicant's eldest brother were killed some time in 1975. The applicant had also sent a letter to the Department of Immigration and Border Protection which referred to his father and two brothers having gone missing during the Vietnam War. These claims were also mentioned in an earlier decision of the Tribunal from 2000 revoking a deportation order which had been made in relation to the applicant.

9    However according to his mother's statement, his father and eldest brother were killed by the Pol Pot regime in Cambodia. As to the applicant's other brother, his mother says that the rest of the family lost contact with him after he married and lived in Cambodia, and so have not known his whereabouts since 1975.

10    The applicant also submitted that there was some doubt about whether he was in fact a national of Vietnam or of Cambodia. This submission too relied on a comment in the reasons for the earlier decision of the Tribunal in 2000, in which it said that there was 'considerable doubt' about that question. The doubt may have arisen out of the fact that the applicant was born in Cambodia. However in the decision which is currently under review, the Tribunal found that both the applicant's parents were citizens of Vietnam and that he was a citizen of Vietnam. That was based on a copy of his birth certificate which was issued by that country and states his nationality as Vietnamese. It is not clear why the earlier Tribunal thought that there was considerable doubt about the matter. The applicant does not seek to impugn the finding that he is a citizen of Vietnam made by the later Tribunal.

11    The applicant also relied in this court on an assessment of non-refoulement obligations in relation to him which the Department of Immigration and Multicultural Affairs undertook in October of 2005. This referred to the possibility that the applicant's national identity would be perceived as ambiguous by Vietnamese authorities due to his residency in Cambodia and his long absence. However it then went on to say that if that were to happen, 'it appears that the Vietnamese government is generally positively disposed towards former residents and refugees of Vietnamese ethnicity, obtaining or regaining citizenship status under certain conditions'.

12    The non-refoulement assessment of 2005 referred to Vietnam's 'continuing poor human rights record', and quoted from a Human Rights Watch report which referred to severe repression of fundamental rights, particularly freedom of worship and freedom of opinion. The submission on behalf of the applicant said that this report noted that torture was used to stifle dissident voices (in fact, the report says that arbitrary detention was used for that purpose). The Human Rights Watch report also said that protesters had been subjected to imprisonment and torture. But it is not clear the extent to which the Department's assessment accepted the Human Rights Watch report; immediately after the quote, the assessor said 'However it does not appear that Vietnamese citizens are subjected to the widespread use of torture'.

13    In any event, there is no claim by the applicant that he is, or would be, a dissident or a protestor on return to Vietnam. The assessor concluded that 'there were no salient features of [the applicant's] claims, nor the information describing his spouse and family background, to indicate that he or his family are likely to be identified for particular adverse attention from authorities, provided that his actions remain lawful following his potential return'. That proviso appears to refer to the discussion immediately preceding that comment about illicit drug use by the applicant, rather than activities such as peaceful protest or stating political or religious views which would generally not be unlawful under regimes that are not repressive. The outcome of the assessment was that the applicant was not likely to be identified for adverse treatment that would violate his rights under the International Covenant on Civil and Political Rights [1980] ATS 23 if he were removed to Vietnam, nor had he made claims to that effect. The assessor considered that he would be likely to be able to enter Vietnam and resume Vietnamese citizenship 'as he is in principle a Vietnamese citizen'. According to the assessor:

[The applicant] has not claimed to have been tortured or ill-treated in Vietnam, nor claimed any particular association nor likely to be perceived as having such connections, with minority and dissident groups currently receiving the scrutiny of Vietnamese authorities. It appears that on these grounds, Australia may not be in breach of the non-refoulement obligations if [the applicant] is returned to Vietnam.

14    The Statement of Facts, Issues and Contentions (SFIC) filed on behalf of the applicant in the Tribunal in the proceeding now under review said that he 'may be owed non-refoulement obligations'. The SFIC said that he claimed to fear harm on the basis of his Christian faith and political opinion, although it did not cite any statement by the applicant himself to that effect. The SFIC referred to para 14.1 of Ministerial Direction No 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Cth), which says that where the non-citizen can make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed for the purposes of determining whether to revoke the cancellation of the non-citizen's previous visa. Paragraph 47 of the SFIC said that this had been thrown into doubt by the decision of this court in Omar v Minister for Home Affairs [2019] FCA 279 (Omar First Instance). At the time of the SFIC, and the time of the Tribunal's decision, an appeal from Omar First Instance had been heard but the Full Court had reserved its decision. The SFIC then said:

48.    The upshot of the decision in Omar is that where a non-citizen claims to engage Australia's non-refoulement obligations, it is impermissible to hive off the consideration of those claims to a later decision-making process: [45]-[46].

49.    Like in Omar, if [the applicant] is unsuccessful in his present application he can apply for a protection visa, but he will be in detention throughout that process.

50.    This factor weighs in favour of revocation.

The SFIC also made claims under the heading of 'Extent of impediments if removed', but they concerned the applicant's health problems, age and job prospects, lack of familial, social and economic support and difficulties adjusting culturally. They did not raise any possibility of harm or persecution in a way that might raise, or be similar to, claims that engage non-refoulement obligations.

15    The applicant also relied on a Department of Foreign Affairs and Trade (DFAT) country information report on Vietnam dated 21 June 2017. This was said to indicate that there remain issues in the country with persecution in respect of both religion and political opinion. However the DFAT report makes it clear that while people who openly criticise the government are at high risk of attracting adverse interest from the authorities, the treatment they receive depends on their level of involvement. There was nothing before the Tribunal to suggest that the applicant, who left Vietnam in 1985 (or possibly 1983) at the approximate age of 14 (or possibly 12), had any intention of engaging in political activity in opposition to the government or its policies.

16    The applicant's SFIC claimed that that he was a Christian and that he feared persecution in Vietnam for that reason. The DFAT report said that both Roman Catholicism and Protestantism hold full government recognition and registration. In the case of Catholics, there are periodic incidents of harassment and intimidation of unregistered Catholic churches in remote areas, with more serious incidents of violence which appear to be related to other protesting or anti-government activities. In the case of Protestants, similarly, some face a moderate level of harassment in remote areas due to the authorities' reluctance to register certain churches. There was no indication in the materials that the applicant would be exposed to harassment of unregistered churches in remote areas and no suggestion that he would engage in anti-government activities.

17    There was, however, a letter to the Tribunal from a pastor of a church in Australia. The Tribunal made confidentiality orders to protect the identity of the pastor and his church, so I will refer to the author of the letter as the Pastor. The Pastor expressed the opinion that if the applicant were to be sent back to Vietnam, he would face persecution for being a Christian. The reasons the Pastor gave concern the inability of unregistered churches to meet openly and opposition they face from the government if they evangelise. He says that 'new believers are targeted for harsh persecution', albeit this is only in rural or tribal areas, and the life of Christians in the main cities was said to be easier. There was no material before the Tribunal suggesting that if the applicant were to return to Vietnam he would live in a rural or tribal area.

18    The applicant gave evidence at the Tribunal hearing. In examination in chief he claimed to fear for his life because 'the Vietnamese communists went to war in Cambodia and they killed a lot of people in Cambodia'. His counsel pointed out that that was a long time ago, and asked him 'If you returned tomorrow why would the communists be after you?' The applicant's response was recorded in the transcript as 'Because (indistinct) the communists and I left the country'. He then confirmed that this was the only reason he feared harm if he were to return to Vietnam.

19    Due to the gap in transcription, it is not clear what the reason was. But in cross-examination, the applicant confirmed that he had said that the only reason he feared returning to Vietnam was that it is a Communist-ruled country. He agreed that he was afraid that the communists will know that he was opposed to them. When it was put to him that he had been very young when he left Vietnam, and that the communists would not really know about him, he accepted this but said that he had left the country illegally. He also said he was concerned about how he would be treated in Vietnam given his criminal record in Australia. When it was put to him that country information indicates that Vietnam does not mistreat people who left the country illegally, other than subjecting them to a fine, his response indicated concern about how he was going to get a job in Vietnam.

The concessions made at the Tribunal hearing

20    That evidence was given on the first day. At the beginning of that day, there had been some discussion between counsel and the Tribunal about Omar First Instance. During that discussion, the Deputy President had told counsel about the decision of AXT19 v Minister for Home Affairs [2019] FCA 1423, in which Logan J had declined to follow Omar First Instance on the basis that it was inconsistent with Le v Minister for Immigration and Border Protection [2015] FCA 1473; (2015) 237 FCR 516 and so plainly wrong. At the end of that day, the following exchange occurred between counsel for the applicant and the Deputy President of the Tribunal:

MR GLENISTER: Deputy President, I have actually had the opportunity to read AXT19 since you alerted me to it, and I must confess that I find that reasoning to be a lot more consistent - - -

DEPUTY PRESIDENT: With Lee.

MR GLENISTER: - - - than the reasoning in Omar. Deputy President, the applicant's non-refoulement claims have not been particularly consistent between - to be fair, he has been quite consistent on what he fears. We thought that there would be a fear of persecution on the basis of religion, and he didn't - - -

DEPUTY PRESIDENT: Yes, that hasn't emerged at all.

MR GLENISTER: It hasn't emerged at all.

DEPUTY PRESIDENT: No.

MR GLENISTER: Having said that, and I think the principle that arises out of Omar is certainly - I don't think that would bind the tribunal, given the decision in AXT19. I think the tribunal can form its own view about what is correct in this case due to the conflicting authorities. But I think some weight, perhaps even significant weight should be given to that factor when - whether or not any non-refoulement obligations actually exist. It appears to be quite clear that there will be a protection visa application.

And given [the applicant's] status as having his visa cancelled for character reasons, he will be in detention for that period. And that is going to be a significant period if he chooses to pursue a protection visa application, if he is indeed unsuccessful before the tribunal in this application. And I think that's as far as I will be pushing the Omar submission.

21    The following day the applicant called the Pastor to give evidence. During the examination-in-chief, counsel for the applicant asked the Pastor whether he thought it was dangerous for Christians in Vietnam. Counsel for the Minister interjected to say that he was concerned that the applicant had not made any claims in that regard 'and I'm concerned that this is a way of getting this in'. The Tribunal Deputy President responded to that by saying that he had that concern as well, and then said that he had two concerns. The first was the weight that could be put on the Pastor's evidence in light of the DFAT country information. The second concern was revealed further in the ensuing exchange with counsel for the applicant:

DEPUTY PRESIDENT: … Secondly, I think as we discussed last night, despite leaded questions, the applicant did not say that he has any fear of persecution as a Christian.

MR GLENISTER: Deputy President, that's certainly true and my - my final submissions will acknowledge that.

DEPUTY PRESIDENT: Yes.

MR GLENISTER: My submission with the regard to the non-refoulement obligations is that while [the applicant] hasn't put forward a substantial and clearly articulated claim, that is supported by country information, there are certainly claims that have been raised on the evidence that will need to go through a more formal protection visa process. Now, and one of those claims will be a claim based on faith.

DEPUTY PRESIDENT: But he hasn't made that claim; that's the problem, isn't it? He has got no reasonable fear of persecution, given that he was asked repeatedly and he didn't say that he did.

MR GLENISTER: My submission will be that [the applicant] has indicated that he will apply for a protection visa if he is unsuccessful here today.

DEPUTY PRESIDENT: Yes.

MR GLENISTER: My submission will be that it's likely that he will add this as a claim to any protection visa application - - -

DEPUTY PRESIDENT: It's not a particularly good starting points [sic] though, is it? He was asked repeatedly.

MR GLENISTER: No, it's not, and - but in fairness to [the applicant], many protection visa applicants have their claims crafted by their advocates when it comes to going through the protection visa process, and there's a long line of authority, starting with NABE, or maybe even before, which states that any substantial claim that arises on the material must be considered. Now, [the applicant] may not have been aware of, or may not have turned his mind to any fear of persecution that he might have, with respect to his religion.

I mean, that's not surprising, given when he left Vietnam, it was due to the communists, and the fighting between Cambodia and Vietnam. It's not actually within his personal experience that he would be persecuted for his religion, that more arises from the material which has been attached to [the applicant's] letter, and also - and is corroborated to some extent in the DFAT report, that there is some persecution of Christians in Vietnam.

But at the end of the day, this all arises on the material, and I am content not to ask the witness any further about this question.

22    Then, after the Deputy President made it clear that he did not want to limit the questions, counsel returned to the subject with the Pastor and elicited general evidence to the effect that in Vietnam people could be persecuted and detained for practising Christianity.

23    Later, in oral closing submissions, counsel for the applicant said the following:

I'll begin with the non-refoulement obligations, the consideration at 14.1 of the direction. Now, I withdraw the submissions advanced in my statement of facts, issues and contentions about Omar insofar as they requested that the tribunal make a finding about whether or not [the applicant] was owed non-refoulement obligations, the case of AXT19 I think is a far more persuasive authority and is likely correct.

Obviously we can't predicate what the full court will say in the appeal of Omar, but my view is that the Full Court would probably have to completely rewrite the law and that's not something that the tribunal can contemplate.

24    Shortly after that, counsel for the applicant said:

So, having had a further opportunity to consider Omar in light of AXT19, I think my submission as regards to the international non-refoulement obligations owed to [the applicant] are that there is for this tribunal not a clearly articulated claim supported by cogent and persuasive country information. Having said that, what there is, is [the applicant's] evidence that he will make an application for a protection visa if he is unsuccessful before the tribunal. And there are perhaps three plausible grounds on which such a visa application can be made. The first ground is [the applicant's] fear of the communists, which he explained in his evidence. The second ground would be on [the applicant's] religious beliefs. And the third ground would perhaps be on the basis that he was born in Cambodia and never necessarily part of the Vietnamese community as a whole, and may face some sort of discrimination on that basis.

Now there is certainly some support in the country information before the tribunal on the religion ground, that was attached to the letter of [the Pastor], and [the Pastor] himself gave some evidence about his personal experiences in Vietnam and the persecution that was suffered by his wife. The consideration for the Tribunal to take into account, on my submission, is the fact that [the applicant] will be facing detention for the next - a significant period - potentially between one year and three or four years, before his protection claims and his application for a protection visa are finally determined. Given that [the applicant] would be a character concern to the Department, it would be inconceivable that he would receive a visa in that time and certainly the status quo would be that he would be in detention through that entire process.

That is not an insignificant consideration. To deprive someone of their liberty is of course a very serious matter. And there is some support for that contention and Omar is a relevant consideration and my submission is regardless of what is said in Omar that it's something that should be taken into account, in any event. But ultimately, I agree with the observations of Justice Logan in AXT19 that the tribunal is not required to determine whether or not [the applicant] is owed non-refoulement obligations.

The Tribunal's reasons on non-refoulement and impediments, and the concessions made

25    The reasons of the Tribunal quoted the part of the applicant's SFIC that concerned non-refoulement obligations and the corresponding part of the Minister's SFIC. They then considered AXT19 and set out an excerpt from Le. The Tribunal set out the passage from counsel's closing submissions that is quoted in the paragraph immediately above. It then said:

105.    On the basis of the above, the Tribunal does not consider that it is bound to consider the applicant's non-refoulement claims which, as the applicant's counsel, rightly in the Tribunal's view, described as 'not a clearly articulated' or 'supported by cogent and persuasive country information'.

106.    Further, the Tribunal does not accept the applicant's counsel's proposition put in closing that the Tribunal should take into account the possibility of the applicant remaining in detention for an extended period while his protection visa claim is assessed. On the issue of the likely time to resolve the applicant's protection visa application, assuming that he does make such an application, on the information available to the Tribunal the time currently being taken to process and assess protection visas for non-citizens in detention is around three to four months. While the time to finally resolve any appeal or appeals which may be made if the applicant is unsuccessful in his protection visa application may be considerably longer, that is a matter of speculation and would, if that path is taken, be a matter of choice by the applicant.

107.    Even if the Tribunal were to accept the applicant's proposition that it should have consideration to time that the applicant may spend in detention if he were to make an application for a protection visa, and, even if the Tribunal were to treat that time in detention as potentially extending to years, that consideration would not alter the Tribunal's determination that the cancellation of the applicant's visa should not be revoked. Even if that consideration was added to those that are in favour of revocation of the cancellation of the visa, the considerations that weigh against revocation of the cancellation outweigh those in favour of revocation of the cancellation.

The grounds of review and the issues in this court

26    There were two grounds of review. The first is that the Tribunal's decision was vitiated by jurisdictional error:

[b]y failing (at [105]) to consider the matters (including factual matters) raised by the applicant in his representations made under s 501CA(3) as being a reason for revoking the visa cancellation decision and irrespective of whether these matters engaged any of Australia's non-refoulement obligations[.]

This appears to be an alleged error of the kind that was identified in the Full Court decision on appeal from Omar First Instance: Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 (Omar Full Court).

27    The second ground, which is put in the alternative to the first, alleges jurisdictional error on the part of the Tribunal:

by misunderstanding the law in performing its task by incorrectly assuming that the existence or otherwise of non-refoulement obligations would be considered in the event that the applicant made an application for a protection visa, given that the criteria for a protection visa under s 36(2) substantially differ from, and do not reflect, Australia's non-refoulement obligations[.]

This appears to be an alleged error of the kind identified in Ibrahim v Minister for Home Affairs [2019] FCAFC 89; (2019) 270 FCR 12 at [112]-[113].

28    At the hearing in this court, counsel for the applicant also advanced arguments based on a different alleged error, namely that the Tribunal erred in accepting any concession that Omar First Instance was wrongly decided, so that the ability of the applicant to make a valid application for a protection visa did not mean that the Tribunal was not required to consider non-refoulement obligations. The Minister did not oppose the applicant having leave to advance that argument (subject to the concessions) and leave to advance it was given at the hearing.

29    It is necessary to determine the proper construction of the concessions that counsel for the applicant made before the Tribunal and to consider the effect of those concessions on whether the Tribunal was required to consider any claim that non-refoulement obligations were engaged. The Minister conceded in this court that if the court were to find that, despite the concessions, there was a clearly articulated claim to protection or of harm that would ensue on the applicant's return to Vietnam, then the Tribunal would have failed to consider that claim and that this would be an error, at least, of the kind identified in ground 1. The Minister also, however, argued that if any such error was made, it was not material.

30    The applicant's present counsel sought to overcome the concessions in four ways.

31    First, it was submitted on behalf of the applicant that, read fairly as a whole, the concessions before the Tribunal were concessions of law on the basis that Omar First Instance was wrong so that the Tribunal was not required to consider non-refoulement obligations if (as here) it was open to the applicant to make a valid application for a protection visa. Those concessions did not authorise the Tribunal to act on a misunderstanding of the law. This was the only way in which the applicant sought leave, in effect, to withdraw concessions; on the basis that they were concessions of law.

32    Second, counsel submitted that to the extent that there was a factual concession, it was confined to a concession that the applicant's claim to fear harm was not supported by cogent country information. Relying on Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 557, the applicant submitted that even where there is no such country information, the Tribunal is still required to consider significant and clearly expressed representations. Counsel in this court relied on the submissions his colleague had made to the Tribunal about the applicant's intention to apply for a protection visa as articulating three bases on which the applicant said he engaged Australia's non-refoulement obligations with particular reliance on the claim said to arise out of the applicant's religious belief.

33    Third, counsel for the applicant submitted that regardless of the proper construction of the concessions, there was a significant claim before the Tribunal that engaged non-refoulement obligations, and no concession made absolved the Tribunal of the need to consider it. That was put on the basis that it was a clearly articulated claim or, if it was not expressly articulated, it arose squarely on the material.

34    Fourth, counsel submitted that even if there was no requirement for the Tribunal to consider non-refoulement, the matters raised were representations which were still capable of being considered as 'another reason' why the visa cancellation should be revoked.

Principles

35    The principles on which the applicant relies in relation to ground 1 are well established. It is implicit in the statutory regime that there is an obligation on a person making a decision under s 501CA(4) of the Migration Act to 'consider' representations made in support of a revocation request. The discharge of that obligation requires the decision maker to engage in an active intellectual process with reference to those representations: Omar Full Court at [36(d)]. Where there is a 'substantial or significant and clearly articulated claim raised by the representations actually made and the acceptance of which could, in the present statutory context, constitute "another reason" for revoking the visa cancellation', failure to consider it will be a failure to carry out the statutory task, potentially giving rise to jurisdictional error: Omar Full Court at [41] and see also [45].

36    Even if the claim has not been expressly articulated, there may still be an obligation to consider it if it arises squarely on the materials before the decision-maker: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58].

37    In Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [28] Rangiah J (Reeves J agreeing) observed that it has been held that whether a tribunal commits a jurisdictional error by failing to consider particular documents or other material depends upon the circumstances of the case and the nature of the material; including the cogency of the material and its place in the assessment of the applicant’s claims. His Honour quoted with evident approval Robertson J's observation in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] that 'The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error'. While, as Rangiah J observed, these principles had been developed in the context of applications for protection visas, his Honour was willing to apply them in the context of s 501CA(4): see Viane at [29]-[30].

38    As for the effect of concessions before the Tribunal, Lindgren and Bennett JJ (Logan J agreeing) summarised the principles in Repatriation Commission v Warren [2008] FCAFC 64; (2008) 167 FCR 511 at [78]:

The following principles, which we take to be established, must be understood against the background that the tribunal under consideration, like the tribunal here, is required to 'review' a primary decision, is given all the powers and discretions that were conferred on the original decision-maker, is not bound by the rules of evidence, is required to proceed with little formality and technicality, and is, of course, bound to apply the provisions of the relevant statute, even if there is no challenge by the parties:

•    The general rule that a litigant is bound by, and accordingly is entitled to act on, admissions and concessions does not automatically apply, although cases concerned with the exercise of judicial power may be of assistance (Kuswardana [v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186] at 194 per Bowen CJ).

•    A party to the proceeding is not necessarily precluded from arguing on 'appeal' matters that were conceded before the tribunal. Whether the party is so precluded depends on the nature of the matter conceded, its conduct of its case, whether the concession represented an agreement by the parties as to the facts to be decided and other relevant circumstances (Kuswardana at 195 per Bowen CJ and at 199 per Fox J).

•    Where a concession is made, there must be some difficulty in finding an 'error of law' when the contrary of the concession is raised for the first time in this court (Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 at 1267 per Gummow J).

•    A tribunal does not err in law in failing to regard as material a fact which counsel failed in submissions to contend was material (Federal Commissioner of Taxation v Perkins (1993) 26 ATR 8 at 10 per Davies J).

•    There is a difference between factual matters not canvassed before the tribunal and a new issue relating to the validity of a regulation (Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361 at 367 per Beazley J).

•    Even though the parties may be 'able, in practical terms, to narrow the issues by concession … even a concession does not permit the [t]ribunal to avoid its duty as an administrative decision-maker to make the correct or preferable decision … on all relevant aspects of the matter before it' (Peacock v Repatriation Commission (2007) 161 FCR 256 at [23]).

•    A concession 'does, however, permit the decision-maker to reach the correct or preferable decision by reference to the concession as well as to its findings on disputed questions' (Peacock at [23]; and see Comcare v Fiedler (2001) 115 FCR 328 at 337-338).

•    The Court will more readily permit a matter to be raised for the first time in this Court on an appeal from a tribunal where:

(a)    the matter is a pure question of law, such as a question as to the validity of a regulation (Kuswardana at 195; Tefonu at 367) or a question as to whether the tribunal had applied the correct standard of proof on the true construction and application of legislation (Ferriday [v Repatriation Commission (1996) 69 FCR 521] at 527-528 per Lee J);

(b)    the matter goes to a misapprehension that was shared by the parties before the tribunal and therefore by the tribunal itself (Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue (1994) 50 FCR 405 at 418-419 per Wilcox J) such as a shared misapprehension as to the applicable law (cf Thomas [v Repatriation Commission (1994) 50 FCR 112] at 120 per Beazley J); or

(c)    the matter goes to a condition precedent to the availability of a power, the exercise of which will have a serious impact on the individual (Kuswardana).

39    While this summary was given in the context of an appeal from a decision of the Tribunal on a question of law brought under s 44 of the Administrative Appeals Tribunal Act, it also applies in the present context of judicial review: Toia v Minister for Immigration and Citizenship [2009] FCAFC 79; (2009) 177 FCR 125 at [53]. In Toia the Full Court noted at [55] that in Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 Bowen CJ said that the issue is one of the interests of justice, particularly where the consequences of not correcting the tribunal would be exceptionally serious to the appellant.

40    In Comcare v Fiedler [2001] FCA 1810; (2001) 115 FCR 328 at [39] the Full Court said:

The Tribunal is not, as a general rule, required to ignore the fact that one or both parties have made admissions or concessions, express or implied, that particular issues which the original decision-maker may have had to consider need not be the subject of inquiry and determination by the Tribunal. The Tribunal will, however, fall into error of law by failing to inquire of its own motion into, and make a finding on, an issue the subject of an admission or concession by a party that is material to its decision if there is reason to doubt that the admission or concession is factually justified. But in the absence of there being some reason to question the admission or concession, the Tribunal will generally be entitled not to inquire into the issue for itself, but to act on that admission or concession in making its decision.

41    Something needs to be said about Omar First Instance, AXT19 and Ibrahim as well. While the first of these cases has proved controversial, with respect, it will not be necessary for me to express a view in these reasons on whether it is correct or not. But I do need to describe in broad terms the basis of the decision in the case. Mortimer J held that the evaluation of the significance of possible non-refoulement obligations as a factor in the discretionary process of deciding whether there was 'another reason' under s 501CA(4)(b)(ii) of the Migration Act to revoke the cancellation of a visa is an exercise of a different nature to the determination of whether an applicant for a protection visa meets the protection criteria in s 36(2). Misunderstanding that, and so deferring consideration of protection obligations to a subsequent visa application, led the Assistant Minister in Omar First Instance to fail to consider representations about non-refoulement: see in particular Omar First Instance at [45]-[46], those being the passages relied on in the applicant's SFIC in the Tribunal in this case. One matter her Honour found to be particularly significant in that context was the prospect that a person without a valid visa who cannot be refouled to his country of origin faces a prospect of indefinite detention: see [66]. It is clear from her Honour's decision that it was premised on a representation about non-refoulement having been made and the applicant setting out 'a serious and substantive basis in fact and in law for that representation': see [46], [82].

42    In AXT19, Logan J held that Omar First Instance was clearly wrong. His Honour did so on the basis of a Full Court authority in which it had been held that non-refoulement is not a mandatory relevant consideration in relation to a decision under s 501(2) to cancel a visa where it remained open to the non-citizen to make a protection visa application, at which point compliance with Australia’s non-refoulement obligations (and the prospect of the non-citizen's indefinite detention) would have to be considered: Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56 at [41], quoted in AXT19 at [24]. Logan J also relied on subsequent Full Court authority applying that approach to a decision under s 501C(4) not to revoke the cancellation of a visa: Sowa v Minister for Home Affairs [2019] FCAFC 111; (2019) 369 ALR 389 at [49], quoted in AXT19 at [25].

43    As for Ibrahim, the second ground of review here appears to rely on it. The relevant basis of the decision in that case was that, in view of a number of matters (set out at [106]-[112]), the Full Court found that the Assistant Minister conflated Australia’s non-refoulement obligations under the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967 with the protection obligations to which the Migration Act refers. That was a misunderstanding because there are differences between the two, for example in relation to what is known as the 'internal relocation principle' (see [112]-[113]).

The effect of the concessions

44    It is necessary to construe the concessions objectively, with regard to counsel for the applicant's oral presentation of the case as a whole, in the context of the evidence, submissions and other material before the Tribunal.

45    As far as that context goes, the following points emerge (with cross-references to the paragraphs above):

(1)    The only representation which the applicant made in his initial form seeking revocation which touched on the topic of non-refoulement was a very general statement that he feared returning to Vietnam because he had left as a refugee and had opposed the country's communist rulers ([6]). But the applicant had left Vietnam sometime between 1983 and 1985 when he was 15 or younger, and there was nothing to suggest he would attract the adverse attention of the authorities if he returned over three decades later.

(2)    The statement from the applicant's mother referred, not to any threat of persecution in Vietnam at or after the time of the cancellation of the visa, but to the deaths of the applicant's father and brother in Cambodia during the Pol Pot regime and a lack of contact with another brother who was also last known to be in Cambodia ([8]-[9]).

(3)    There was no real doubt that the applicant is a citizen of Vietnam, or entitled to become one, and the Tribunal's finding to that effect has not been challenged ([10]).

(4)    In 2005 the Department assessed that Australia did not owe non-refoulement obligations to the applicant ([13]).

(5)    There was country information (the DFAT report) indicating that the authorities in Vietnam did engage in repressive activities, but only in relation to people who were politically active or, in the case of religion, members of unregistered churches in remote areas. There was no suggestion that the applicant would come within any of these categories ([15]).

(6)    The letter from the Pastor was to a similar effect as the DFAT report and, similarly, although the letter asserted that the applicant would face persecution for being a Christian if he returned to Vietnam, there was no indication in the evidence that he would seek to practise his religion in a remote area ([17]).

(7)    The SFIC filed on behalf of the applicant in the Tribunal cited Omar First Instance in support of the proposition that it is impermissible to 'hive off' the consideration of claims to engage non-refoulement to a later protection visa process, and that if the applicant was unsuccessful in his revocation request and then applies for a protection visa, he will be in detention throughout that process ([14]).

(8)    In both examination and cross-examination at the Tribunal hearing, the applicant's claim to fear harm at the hands of the Communist government in Vietnam evaporated, and the only real concern that he ended up expressing with any certainty was about whether he would get a job if he returned to that country. At no time did he indicate any fear of persecution because of his religious beliefs ([18]-[19]).

46    Turning to what counsel for the applicant (and the Deputy President) said in that context (also with cross-references to the paragraphs above):

(1)    At the end of the first day, counsel said that the applicant's non-refoulement claims had not been consistent, in particular because a fear of persecution on the basis of religion had not emerged at all. He said, however, that whether or not any non-refoulement obligations exist, significant weight could be given to the likelihood that the applicant would be in indefinite detention if the cancellation of his former visa stands and he makes an application for a protection visa ([20]).

(2)    The next day, during examination in chief of the Pastor, counsel accepted as 'certainly true' that despite leading questions, the applicant did not say that he has any fear of persecution as a Christian. Counsel said that his final submissions would acknowledge that. He then submitted that 'while [the applicant] hasn't put forward a substantial and clearly articulated claim, that is supported by country information', there were claims that he could put in a protection visa application which would include a claim based on his religion. Counsel explained the absence of such a claim before the Tribunal on the basis that the applicant may not have turned his mind to whether he would experience persecution because of his religion on return to Vietnam. While counsel for the applicant then did elicit evidence from the Pastor to the effect that persecution of Christians can occur in Vietnam, it was evidence of a general kind. The difficulty remained that the applicant had been silent on the subject and so there was no basis to connect the Pastor's general evidence, or the country information in the DFAT report, to the applicant ([21]-[22]).

(3)    In closing submissions, counsel for the applicant withdrew the submissions in his client's SFIC 'about Omar [First Instance] insofar as they requested that the tribunal make a finding about whether or not [the applicant] was owed non-refoulement obligations'. That was because he thought AXT19 was probably correct. Up to that point, that may have only been a concession about the law. But counsel went on to say that his submissions as regards 'international non-refoulement obligations owed to [the applicant] are that there is not a clearly articulated claim supported by cogent and persuasive country information for this tribunal'. While that was prefaced by saying it was after considering Omar First Instance 'in light of AXT19', it was broader than a concession about the law. In the context of counsel's ready acceptance that the applicant had not made a claim to fear religious persecution, and counsel's earlier concession that the applicant had not put forward a substantial and clearly articulated claim, supported by country information, this was a wholesale withdrawal of any claim before the Tribunal that Australia's non-refoulement obligations were engaged. There is no basis to limit it to a concession that there was no support from the country information. In the Tribunal counsel highly experienced in migration matters said, twice, that there was no substantial and clearly articulated claim, after having conceded that there was no claim to fear religious persecution ([23]-[24]).

(4)    This construction of the concessions is confirmed, not undermined, by counsel's subsequent submission that there was nevertheless a basis for the applicant to apply for a protection visa. That is for three reasons. First, the premise of that submission was that the applicant could do in the protection visa application what he had not done before the tribunal: claim on a cogent basis to fear harm on return to Vietnam. Second, the relevance of the submission for the purposes of the Tribunal was expressly confined to consideration of the impact of his likely prolonged detention while the visa application was being processed. The Tribunal did address that in its reasons, and no complaint is made about the way in which it did so ([25]). Third, counsel's emphasis in the submission was that the country information about persecution of Christians was there; what was lacking in the Tribunal was any claim by the applicant suggesting that it applied to him.

(5)    The broad concession which I have described was properly made. The only country information of any cogency and possible relevance that was before the Tribunal concerned persecution for reasons of religion. I include the Pastor's evidence in that. But there was no claim before the Tribunal that the applicant feared persecution for reasons of religion, or would otherwise go to places, or engage in activities, that would expose him to risk of persecution. The claim to fear persecution from the Communist government because of opposition to the regime and the alleged uncertainty about Vietnamese citizenship lacked any cogent basis. Any claim to fear harm as a returning asylum seeker was only faintly put, if at all. None of this provided any substantial reason to think that the applicant would suffer harm on return to Vietnam.

Whether the Tribunal erred as the applicant submits it did

47    In all those circumstances, there can be no error in the Tribunal's determination that it was not bound to consider the applicant's non-refoulement claims. In substance, by the end of the hearing there were no such claims before the Tribunal. And there was no reason to doubt that the concessions made were factually justified: Comcare v Fiedler at [39].

48    The points made in the preceding section deal with the first two submissions that counsel made, which were about the scope of the concessions: I do not consider that they were confined to a concession about the law and I do not consider that they were confined to a concession about the absence of cogent country information. In relation to the latter, it was not the country information that was lacking, but rather any cogent claim by the applicant raising fears or circumstances that might engage that information.

49    They also answer the third submission counsel made, that regardless of the proper construction of the concessions, there was a significant claim about non-refoulement before the Tribunal which it was obliged to consider. The answer is that there was no significant claim. Even if the concession is disregarded (which it should not be), for the reasons I have given there was no claim that arose squarely on the materials. While the Pastor's evidence might have alerted the Tribunal to a concern about religious persecution, the applicant failed to raise that concern in his evidence.

50    Counsel's fourth submission was that even if non-refoulement obligations were not engaged, the matters that were raised should have been considered as 'another reason' why the revocation of the visa should be revoked. But however it is put, there was no clearly articulated claim, or issue arising squarely on the materials, of such substance and cogency that the Tribunal erred in not considering it. The Tribunal did, in fact, consider the Pastor's evidence in connection with impediments the applicant might face on return to Vietnam, and concluded that any restrictions on religious practices in that country were not an impediment. The only error in that consideration which has been alleged is that addressing it in terms of impediments may have led the Tribunal to put less weight on it than considering it in terms of persecution. But for reasons I have given, the obligation to consider it on the latter basis did not arise.

Disposition of the grounds of review

51    The first ground of review must be dismissed. After the concessions, the matters now relied on as representations about reasons for revoking the visa cancellation decision were in fact not the subject of representations about non-refoulement obligations before the Tribunal. To the extent that there were relevant representations about reasons to revoke the cancellation aside from non-refoulement - about the prospect of indefinite detention during a protection visa application and about impediments the applicant may face on return to Vietnam - they were considered.

52    The second ground, relying on differences between non-refoulement obligations and the statutory protection visa criteria, must also be dismissed. There is no suggestion in the Tribunal's reasons that it conflated the two. Rather, it decided not to consider non-refoulement obligations at all, because they were not the subject of a clearly articulated claim. To the extent that the Tribunal thought that non-refoulement obligations need not be addressed because they could be the subject of a subsequent protection visa claim, it did so on the basis of the concession by counsel that in AXT19, Logan J was probably correct in holding that Omar First Instance was clearly wrong. As I have said, AXT19 is based on Full Court authority about the relevance of a non-citizen's eligibility to apply for a protection visa and neither it nor Omar First Instance engage with the differences that were the subject of Ibrahim and which are the subject of ground 2. So to the extent that the Tribunal relied on AXT19, I do not consider that displays any misunderstanding of the statute of the kind identified in Ibrahim.

53    If I am wrong about that, I do not consider that there could realistically have been a different outcome in the Tribunal had it not held that misunderstanding. Since there was no claim requiring consideration of the non-refoulement obligations before the Tribunal, any error in the Tribunal's conception of the content of those obligations as compared with the statutory provisions about protection visas could have made no difference to the outcome. There was no jurisdictional error because the alleged misunderstanding was not material: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29]-[31]; and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]-[46].

54    The third ground, which was not put in the originating application but which was the subject of leave given at the hearing, was to the effect that Omar First Instance is correct and the Tribunal erred in accepting a concession to the contrary. But even assuming that Omar First Instance is correct, as I have said, an error of the kind identified in that case can only occur if representations about non-refoulement with a serious and substantive basis in fact in law have been made. Here, they were not. That conclusion makes it unnecessary to grant leave to the applicant to depart from any concession about Omar First Instance that was made before the Tribunal. Whether that concession was correct or not, it cannot assist the applicant here.

Conclusion

55    The application must be dismissed, with costs.

Associate:

Dated:    15 October 2020