Federal Court of Australia

ELN20 v Minister for Immigration, Citizenship, Migrant Services And Multicultural Affairs [2022] FCA 931

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court of Australia made on 19 March 2021 be set aside and in lieu thereof it be ordered that:

(a)    a writ of certiorari issue quashing the decision of the second respondent made on 9 September 2020 in case number 2007690;

(b)    a writ of mandamus issue directing the second respondent to rehear and determine the applicant’s application for review according to law; and

(c)    the first respondent pay the applicant’s costs of the application to the court.

3.    The first respondent pay the appellant’s costs of the appeal.

4.    The parties may by 4.00pm 26 August 2022 submit by email to the chambers of the Hon Justice Wheelahan agreed amounts in which the costs referred to in 2(a) and 3 should be fixed by the court. In the event that either or both amounts are not agreed, then the costs that are not agreed are to be taxed.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant appeals orders of the Federal Circuit Court of Australia, by which the primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal: ELN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 474. The Tribunal’s decision dated 9 September 2020 affirmed a decision of a delegate of the Minister to refuse the appellant’s application for a protection visa because the Tribunal was not satisfied that the appellant met the refugee criteria under s 36(2)(a) of the Migration Act 1958 (Cth), or the complementary protection criteria under s 36(2)(aa).

2    As these reasons will further explain, the Tribunal’s decision largely followed from its finding that, contrary to the appellant’s claims, the appellant was a citizen of Vietnam, and was not stateless as he had claimed. The principal question before the primary judge, and before this court on appeal, was whether the Tribunal fell into jurisdictional error in making its finding in relation to the appellant’s citizenship.

3    For the reasons that follow, I have determined to allow the appeal.

Background

4    The appellant was born in South Vietnam in 1973, at a time when North Vietnam and South Vietnam were distinct countries. In 1976, North Vietnam and South Vietnam were unified to form the Socialist Republic of Vietnam, which in present times is commonly referred to as Vietnam. As the distinction between South Vietnam and the Socialist Republic of Vietnam is significant in this appeal, I will generally refer to each by its full name.

5    The appellant first arrived in Australia on a Special Humanitarian Program (Vietnamese) K4012 visa in January 1986, following his departure from Vietnam by boat in 1983. In October 1998, he was granted a Class BB subclass 155 (Resident Return) visa. Between then and 2001, the appellant departed and re-entered Australia on that visa several times to visit his parents in the Socialist Republic of Vietnam.

6    In 2004, the appellant was convicted of criminal offences and sentenced to a term of imprisonment. Following his conviction, the Minister cancelled his visa on character grounds pursuant to s 501 of the Migration Act. The appellant is challenging the cancellation of his visa in a separate proceeding, which is currently stayed pending determination of this appeal. Some documents filed in that proceeding were relied on during the course of the appellant’s protection visa application. Where necessary I will refer to that proceeding as the visa cancellation proceeding.

7    On 20 December 2019, the appellant made a valid application for a Protection (subclass 866) visa. In his application, the appellant recorded his citizenship at birth as “South Vietnam (Republic of Vietnam) (Not the Socialist Republic of Vietnam)”. He recorded that he “left Vietnam as a stateless person in 1983” and that his current citizenship was “stateless”. In a statutory declaration attached to his application, the appellant claimed that he and his family opposed the Communist government of the Socialist Republic of Vietnam, which was known to the authorities, and that he has continued to express anti-communist views since arriving in Australia. He claimed that he had no birth certificate, nor had he ever held a passport issued by the Socialist Republic of Vietnam. He claimed that if he were forcibly returned to the Socialist Republic of Vietnam he would be discriminated against as a stateless person and as an anti-communist traitor. That discrimination might manifest in imprisonment, torture, and starvation for being an anti-communist, difficulties getting a job, limited or no access to medical or hospital services, inability to get a driver’s licence or educational qualifications, and inability to buy property. In a further statutory declaration, the appellant gave further details about the persecution that he would face, due to his anti-communist views, if he returned to the Socialist Republic of Vietnam.

8    On 30 April 2020, the delegate decided that the appellant was not a person in respect of whom Australia had protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Migration Act. On the question of the appellant’s citizenship, the delegate considered the “Nationality Law of Vietnam” adopted on 15 July 1988, and a document titled “Report on Citizenship Law: Vietnam”, prepared by Ms Lyma Nguyen of the European University Institute’s Robert Schuman Centre for Advanced Studies and dated 13 September 2017. Relevantly, the delegate found that the appellant was a citizen of the Socialist Republic of Vietnam by birth, that there was no evidence before the delegate which indicated that the appellant would have lost his citizenship following the reunification of the north and south states, and that it was open to the appellant to apply for restoration of his Socialist Republic of Vietnam citizenship.

The Tribunal’s decision

9    The appellant applied to the Tribunal for a review of the delegate’s decision. The Tribunal conducted a hearing on 30 July 2020 and 10 August 2020, at which the appellant gave evidence and was represented by counsel. The appellant maintained his claim of statelessness. This claim was developed in the appellant’s written submissions prepared by counsel and, upon the appellant’s request, in post-hearing written submissions. On the basis that the appellant was legally stateless or stateless for all practical purposes, the appellant claimed that he would be detained, possibly indefinitely, if he returned to the Socialist Republic of Vietnam.

10    The post-hearing written submissions to the Tribunal identified in summary three claims made by the appellant: first, that as a result of being stateless he would face significant harm if he were to return to the Socialist Republic of Vietnam and therefore he satisfied the criteria for complementary protection; second, that as a member of a social group of persons who were historically politically opposed to the Socialist Republic of Vietnam, he would resume his political opposition if he returned and therefore would face persecution; and third, that as a stateless person returning to the Socialist Republic of Vietnam, if he returned, he would be perceived as a person who left illegally for political reasons and as a failed asylum seeker.

11    At the outset of its statement of reasons, the Tribunal identified eight issues concerning the appellant which it considered in determining whether he satisfied the refugee criterion or the complementary protection grounds –

•    he is opposed to the Vietnamese communist government

•    he has taken part in anti-Vietnamese government political activity in Australia

•    his brother ([name redacted]) is an anti-Vietnamese communist government activist and member of Viet Tan (Vietnam Reform Party)

•    he comes from an anti-communist family from Southern Vietnam

•    he departed Vietnam illegally and was granted refugee status in Australia

•    he will be returning to Vietnam as a failed asylum seeker

•    he has criminal convictions in Australia

•    he is stateless

12    The Tribunal stated that the above issues were overlapping, and that the Tribunal had assessed the appellant’s claims separately and cumulatively.

13    After summarising the appellant’s claims and supporting material, the Tribunal first addressed the appellant’s country of nationality, finding that he was a national of the Socialist Republic of Vietnam and consequently not stateless. This is the only issue which was agitated in the appeal. There were several dimensions to the Tribunal’s reasoning, which reflected the Tribunal’s interpretation and application of various provisions of domestic law of the Socialist Republic of Vietnam. The Tribunal had before it what appeared to be English translations of such foreign domestic law, and on appeal the parties accepted that the translations used by the Tribunal reflected the Vietnamese law. The Tribunal’s process of reasoning is central in this appeal, so I will set out the relevant paragraphs of the Tribunal’s reasons (omitting footnotes), including [3], where the Tribunal defined the Socialist Republic of Vietnam as “Vietnam” –

3.    The applicant was born [redacted] 1973. He departed from the Socialist Republic of Vietnam (Vietnam) illegally by boat with others in 1983 and joined his brother ([redacted]) at a refugee camp in The Philippines. He was 10 years old at the time.

…

53.     The first step is for the Tribunal to determine whether the applicant is a national of a particular country solely by reference to the law of the relevant country.

54.     As detailed in the delegate’s decision, after the fall of Saigon in 1975, the South became part of the newly united Socialist Republic of Vietnam (1976) and a new constitution was enacted in 1980. The Tribunal notes that Article 49 of the Constitution states ‘A citizen of the Socialist Republic of Vietnam is a person with Vietnamese nationality’.

55.     Vietnamese citizenship was prescribed for the first time in the country’s constitution, creating a new Nationality Law that was adopted on 15 July 1988 (1988 Nationality Law), which was replaced by the Nationality Law of 1998 and subsequently by the current 2008 Nationality Law. The current Law on Vietnamese Nationality No. 24/2008/QH-12 (2008 Nationality Law) was passed by the National Assembly of the Socialist Republic of Vietnam on 13 November 2008 and came into effect on 1 July 2009.

56.     In assessing the Vietnam’s [sic] nationality laws, the Tribunal has also had regard to a 2017 report published by the Robert Schuman Centre for Advanced Studies titled ‘Report on Citizenship Law — Vietnam’. The author of the report is Ms Lyam Nguyen (Ms Nguyen).

57.     Article 2 of Vietnam’s 2008 Nationality Law emphasises the equality of ‘all ethnic groups living on Vietnamese territory’ insofar as concerns of entitlement to Vietnamese citizenship, by providing that ‘the Socialist Republic of Vietnam is a unified State of all ethnic groups living in the Vietnamese territory’ in which each individual is entitled to have citizenship.

58.     As a starting point the Tribunal finds that Article 2 is significant in that it refers to Vietnam as a unified state and draws no distinction between ethnic Vietnamese people born in South or North Vietnam as submitted by the applicant’s representative.

59.     Chapter II of the 2008 Nationality Law sets out information on the acquisition of Vietnamese citizenship. Relevantly, Article 14 states that a person is determined to have Vietnamese citizenship on the grounds of birth, naturalisation, and/or where their citizenship is restored or in accordance with an international treaty to which Vietnam is a signatory. In particular Article 15 states that a child born inside or outside the Vietnamese territory whose parents are Vietnamese citizens has Vietnamese citizenship.

60.     Although the applicant declared that he does not know the citizenship status of his parents, he declared that both his biological parents were born in South Vietnam in 1930. His mother continued to reside in Vietnam until her death in 1994 and his father continues to reside in Vietnam. The Tribunal further notes that it has never been suggested that his parents are stateless.

61.     The Tribunal notes that although the applicant claims he has no contact with his siblings in Vietnam and was unable to confirm if they held Vietnamese passports he did declare in his protection visa application that four of his siblings are citizens of Vietnam, one of whom resides in Australia.

62.     The Tribunal finds that his father and four siblings continue to reside in Vietnam and would be required under Vietnamese law to have a household registration (hộ khẩu). In relation to Vietnamese law regarding household registration it is reported that ‘The 1964 law established the basic parameters of the system: every citizen was to be registered as a resident in one and only household at the place of permanent residence, and movements could take place only with the permission of authorities’. (discussed further below).

63.     The Tribunal also notes that the applicant declared in his protection visa application that he attended primary school in Vietnam (Socialist Republic of Vietnam) in the period 1980 to 1983 which strongly suggests that he would have had to have been registered on his partner’s [sic] household registration at the time.

64.     The Tribunal further finds that according to the applicant’s evidence his father was taken into a re-education camp after the fall of Saigon and was subsequently released. Reports confirm that people released from the camps were given Vietnamese citizenship. Specifically, it has been reported ‘The most significant policy announcement on the re-education camps was broadcast by Saigon Domestic Service on June 9, 1976. This is the May 25 PRGRSV statement No. 02/CS-76, signed by President Huynh Tan Phat. According to this broadcast, 95% of those attending reform courses had their cases examined and their citizen’s rights restored in order that they could vote in the April elections’.

65.     The Tribunal finds that there is strong evidence to support the finding that the applicant’s parents are citizens of Vietnam and therefore the applicant is a citizen of Vietnam by virtue of Article 15 of the 2008 Nationality Law.

14    In summary, the key findings made by the Tribunal in this part of its reasons were that –

(a)    article 2 of the 2008 Nationality Law was significant (see [58]);

(b)    the appellant’s father and four of his siblings presently resided in the Socialist Republic of Vietnam and would have been required to have a household registration pursuant to the “Vietnamese law regarding household registration” (see [62]); and

(c)    there was strong evidence, being the appellant’s parents’ continued residence in the Socialist Republic of Vietnam and the appellant’s father’s release from a re-education camp, to support a finding that the appellant’s parents were citizens of the Socialist Republic of Vietnam, and accordingly, by operation of Article 15 of the 2008 Nationality Law the appellant was also a Vietnamese citizen (see [65]).

15    In the paragraphs that followed, the Tribunal considered by reference to other provisions of the 2008 Nationality Law whether the appellant’s citizenship could be recognised, finding that there was no evidence that the appellant had renounced or been deprived of his Vietnamese citizenship, and ultimately concluding that the appellant remained a Vietnamese national and was not stateless.

16    On the basis of the finding that the appellant was not stateless but rather was a Vietnamese national, the Tribunal went on to consider the appellant’s access to services if he returned to the Socialist Republic of Vietnam, his political activity in Australia, his anti-communist family profile in Vietnam, his return visits to Vietnam, the appellant’s brother’s anti-Vietnamese government political activity, and likely consequences of criminal convictions, failed asylum seeking and illegal departure from Vietnam.

17    The Tribunal concluded by finding that, having considered the appellant’s claims singularly and cumulatively, the appellant did not have a well-founded fear of persecution if he returned to Vietnam at the time or in the reasonably foreseeable future. Consequently, Australia’s protection obligations under s 36(2)(a) of the Migration Act were not engaged. Flowing also from the Tribunal’s finding that the appellant was a national of the Socialist Republic of Vietnam and was not stateless, the Tribunal went on to conclude that he was not entitled to complementary protection under s 36(2)(aa).

The application to the Federal Circuit Court

18    The appellant relied on 10 grounds of review in the Federal Circuit Court, which the primary judge described as “extremely vague” (at [32]). The primary judge identified the true ground of the application as being that the Tribunal acted unlawfully in that it made an unreasonable finding that the appellant was not stateless and was a citizen of Vietnam. The primary judge identified that finding as a factual finding, rather than a legal one, and that what the applicant sought was a review of a jurisdictional fact on the basis of illogicality, irrationality and unreasonableness.

19    His Honour relevantly found that the Tribunal’s findings as to citizenship were not illogical, irrational or unreasonable, and as such dismissed the application.

The appellant’s grounds of appeal to this Court

20    By his notice of appeal, the appellant raised four grounds of appeal –

1.    The learned trial judge erred by failing to find the AAT did not property apply and interpret the Nationality Law of 2008 of the Socialist Republic of Vietnam.

2.    The learned trial judge erred by failing to find that the AAT’s findings on statelessness were erroneous.

3.    The learned trial judge erred by failing to find that the decision of the AAT was unreasonable in the sense of having ‘reasoned illogically or irrationally’.

4.    The learned trial judge erred in failing to find that the AAT did not conduct a proper review in accordance with Division 3 and 4 of Part 7 of the Migration Act.

21    In submissions, the appellant identified the essence of the appeal as being the question of the appellant’s statelessness, and consequently whether there is a real chance that the appellant would be harmed if deported to the Socialist Republic of Vietnam, the harm being a consequence of not having an enforceable right to live as a citizen there. Counsel identified that the appellant’s argument came down to a simple compass, being that the Tribunal erred in its construction and application of Article 15 of the 2008 Nationality Law, and that all consequential findings and conclusions were dependent on that error. The primary complaint concerned the findings in [65] of the Tribunal’s reasons: see [13] and [14(c)] above. The appeal accordingly was confined to that issue.

22    The appellant sought orders that the order of the primary judge be set aside, and in lieu thereof orders be made to quash the Tribunal’s decision, for the issue of a writ of mandamus directed to the Tribunal, and that the Minister pay the appellant’s costs of the proceeding in the Federal Circuit Court in a fixed sum together with any reserved costs. The appellant also sought costs of the appeal.

23    The Tribunal filed a submitting notice and has not actively participated in the appeal.

The Minister’s notice of contention

24    By notice of contention, the Minister relied upon one ground which raised the question of materiality –

The learned primary judge dismissed the Appellant’s Application for review on the basis that none of the grounds of review had any merit, however, the judgment of the Federal Circuit Court is also supportable on grounds other than those relied on by the learned primary judge, being that even if there were errors of the nature alleged, those errors were not jurisdictional errors because the errors were immaterial.

The parties’ submissions

25    The appellant’s central submission concerned the text and application of Article 15 of the 2008 Nationality Law which provides –

Article 15. The citizenship of children whose parents are Vietnamese citizens

A child born inside or outside the Vietnamese territory whose parents, at the time of his/her birth, are both Vietnamese citizens has Vietnamese citizenship.

26    The appellant’s submission was that, at the time of the appellant’s birth in 1973, his parents were not “citizens of Vietnam”, as the Tribunal had found, because the Socialist Republic of Vietnam did not exist. Counsel submitted that there was no material before the Tribunal which supported a finding that the appellant’s parents were citizens of the Socialist Republic of Vietnam at the time of the appellant’s birth. It was submitted that, in consequence, Article 15 had no work to do and in particular that Article 15 could not be relied upon to found a factual finding that the appellant was a Vietnamese citizen as the Tribunal had done in [65] of its written reasons. In the Tribunal making that finding on that basis, counsel submitted that the finding was unreasonable, in the sense that it was illogical, and for which there was no intelligible basis, giving rise to a jurisdictional error. Counsel made a number of submissions about the correct the test for legal unreasonableness which should be applied in this case, to which I will return. This issue was in dispute between the parties and the subject of oral and written submissions from both parties.

27    In response, counsel for the Minister submitted that the appellant’s citizenship status was a question of fact for the Tribunal. Counsel submitted that the appellant was putting a positive claim to the Tribunal that, if he were returned to the Socialist Republic of Vietnam, he would not have the rights of a Vietnamese citizen because he was stateless. Counsel submitted that the Tribunal needed to be affirmatively satisfied of that claim in order to accept it, and that such satisfaction had to be arrived at on the material before it. Put another way, it was submitted that it would be a surprising result if a child born in South Vietnam was excluded from citizenship of the Socialist Republic of Vietnam when it was created, such that some clear evidence would be required to affirmatively displace a common sense assumption to the contrary.

28    Counsel submitted that whilst the Tribunal’s reasoning in [65] in reliance on Article 15 did have difficulties, the reasoning was open on the text of the provision. Counsel tentatively proposed that the Article, which referred to a Vietnamese citizen as someone whose parents were Vietnamese citizens, could be understood as doing the work of conferring continuing citizenship status, and that would invite a construction of the phrase “Vietnamese citizen” that would be inclusive of people who were citizens of previous state entities. Counsel accepted that, as a piece of legal reasoning, that construction had difficulties. Nonetheless, counsel submitted that the reasoning was not unreasonable or seriously irrational. Counsel submitted that even if the Tribunal’s reasoning disclosed a misreading of a provision of foreign law, that would be a factual error and insufficient to establish jurisdictional error. In written submissions, counsel identified 11 matters which were available on the material before the Tribunal, and which, when considered together, provided ample basis for the Tribunal to conclude that the appellant was a Vietnamese citizen by birth or other otherwise. Counsel acknowledged that the Tribunal did not expressly refer to at least two of those matters in its reasoning.

Preliminary issue – application of the “real chance” and “real risk” tests

29    During the hearing, in reply submissions, counsel for the appellant submitted that the question the Tribunal was required to answer was whether there was a real chance or real risk that the appellant was stateless, drawing on the language of ss 5J and 36(2)(aa) of the Migration Act. Counsel submitted that the real chance or real risk tests affected the “degree of proof” of the claims advanced by the appellant before the Tribunal. At the conclusion of the hearing of the appeal, I directed counsel for each party to file short written submissions on the question of what role the real risk and real chance tests have in relation to the Tribunal’s satisfaction of the appellant’s claim of statelessness. The submissions filed on behalf of the Minister disputed the interpretation advanced on the appellant’s behalf.

30    The “real chance” and “real risk” tests are shorthand for the state of satisfaction that a decision-maker must reach in determining whether a person satisfies the criteria for a protection visa prescribed by the Migration Act. In summary terms, a person will be entitled to a protection visa if the decision-maker is satisfied that Australia owes that person protection obligations because that person is a refugee: s 36(2)(a). In determining that a person is a refugee, the decision-maker must be satisfied, inter alia, that there is a real chance that the person would be persecuted for reasons of their race, religion, nationality, membership of a particular social group, or political opinion: ss 5H(1) and 5J(1). A person will also be entitled to a protection visa if the decision-maker is satisfied, inter alia, that there is a real risk that the person will suffer significant harm if removed from Australia to a receiving country: s 36(2)(aa). The expressions real chance and real risk do not carry any significant difference in the standard of satisfaction to be reached: Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (Chan) at 389 (Mason CJ).

31    I do not accept the submissions that were made by counsel for the appellant on this issue. The statutory words which give rise to the real risk and real chance tests are limited to the decision-maker’s ultimate satisfaction that in the future a person will likely be persecuted or suffer significant harm if removed from Australia. When the legislation requires satisfaction of the real risk or the real chance of future occurrences, it is dictating the minimum degree of probability of the future occurrence of which the decision-maker must be satisfied: Chan at 389 (Mason CJ) and 429 (McHugh J). The assessment of the occurrence of future events is necessarily an estimation of the likelihood of the future events happening, because it is generally not possible to determine the future with certainty. Findings about past events and present circumstances are integral in the process of determining the probability of future events, in that they form the basis on which to make rational assessments about the future: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 574-575 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).

32    The making of factual findings is contemplated by ss 430(1)(c) and (d) of the Migration Act, which require the Tribunal to set out its findings on material questions of fact and refer to the evidence or other material on which the findings were based. Subject to the express and implied limitations of the Tribunal’s statutory decision-making power, how it makes those findings is a matter for the Tribunal having regard to the circumstances of each case. There is no basis in the text of ss 5H(1), 5J(1) or 36(2)(aa), nor their context, nor any implication therefrom or purpose thereof, to superimpose the real risk and real chance tests onto the Tribunal’s primary fact finding tasks.

Consideration

33    As I will explain, I have concluded that the Tribunal erred in its reliance on Article 15 of the 2008 Nationality Law as a key element of its reasoning, in that it omitted to have any regard to the words “at the time of his/her birth” either expressly or implicitly through the course of its reasoning. The error, being of the content and application of foreign law, was an error of fact: Tahiri v Minister for Immigration and Citizenship [2012] HCA 61; 87 ALJR 225 at [21] (French CJ, Bell and Gageler JJ). However, that feature does not render the decision immune from judicial review on the ground of jurisdictional error. The questions central to the determination of the appeal then become as follows. First, whether the Tribunal’s application of Article 15 caused it to conclude that the appellant was a citizen of the Socialist Republic of Vietnam and not stateless. Second, in light of the express words of Article 15, whether that finding could be impugned as illogical, irrational or unreasonable in the legal sense required to establish jurisdictional error. Third, whether the Tribunal thereby fell into jurisdictional error by making such a finding, including by determining whether the Tribunal’s error was material to its ultimate decision not to grant the appellant a protection visa.

1 - Analysis of the Tribunal’s reasons

34    As recounted at [13] above, at [59] of its reasons, the Tribunal said of the 2008 Nationality Law: “In particular Article 15 states that a child born inside or outside the Vietnamese territory whose parents are Vietnamese citizens has Vietnamese citizenship” (emphasis in original). In the paragraphs which followed, the Tribunal considered circumstances which arose after the appellant’s birth, in particular circumstances at the time of the Tribunal’s decision, which indicated that at those times the appellant’s parents were likely citizens. This included that his father and four siblings “reside” in the Socialist Republic of Vietnam and are therefore likely to be required to hold a household registration, that the appellant attended primary school in the Socialist Republic of Vietnam and would have likely been registered on his parents’ household registration, and that upon his father’s release from a re-education camp at some time after the appellant’s birth it is likely he was “given” Vietnamese citizenship. Consistent with its reference to Article 15 in [59] of its reasons, the Tribunal used present-tense language in its conclusion at [65] that the appellant’s parents “are” citizens of the Socialist Republic of Vietnam, and therefore by virtue of Article 15, so is the appellant.

35    The Tribunal gave no other explanation for its finding that the appellant was a Vietnamese citizen apart from its application of Article 15. The findings it made about the appellant’s parents’ and siblings’ citizenship were for the purpose of informing its application of Article 15. The subsequent findings that it made about the appellant’s entitlement to register with an overseas Vietnamese representative mission to verify his nationality and be issued a Vietnamese passport were made on the basis that Article 15 conferred citizenship on the appellant. And the further findings that the appellant demonstrated a willingness to engage with the Vietnamese Embassy in Australia and was therefore able formally to commence a process to be issued a Vietnamese passport were also based on Article 15 conferring Vietnamese citizenship upon the appellant. Having regard to the Tribunal’s obligation to set out its findings on material questions of fact and to refer to the evidence or other material on which the findings were based, the Tribunal’s application of Article 15 was a necessary step to its conclusion that the appellant was a citizen of Vietnam and not stateless.

2 - The process of reasoning

36    The parties made competing submissions on whether the finding of statelessness was open to be impugned for illogicality, irrationality, or unreasonableness to establish a jurisdictional error. In issue was whether the requisite threshold could be met by establishing only that the decision was one at which no reasonable decision-maker could arrive on the same material, recalling the formulation of jurisdictional error by means of illogicality and irrationality stated by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS) at [135]. In SZMDS, the court considered whether the Tribunal’s fact finding was to be impugned on the basis that it was illogical or irrational. The real contest between the parties in the present case lay in the question whether jurisdictional error can arise in the process of reasoning undertaken by the Tribunal along the way to its conclusion of non-satisfaction for the purposes of ss 36(2)(a) and 36(2)(aa) of the Migration Act.

37    Counsel for the appellant submitted that the formulation articulated by Crennan and Bell JJ in SZMDS, which is a formulation akin to Wednesbury unreasonableness, had been “overtaken” by what was stated by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) at [68], [72] and [76], namely that “[t]he legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision − which is to say one that is so unreasonable that no reasonable person could have arrived at it”, and that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. Counsel for the appellant referred to passages in Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309 (Gill), CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199, and Hillis v Minister for Home Affairs [2021] FCA 892 in support of the submission that the law had “moved on” from the Wednesbury standard, and that findings on questions of fact made without basis could give rise to a jurisdictional error.

38    Counsel for the Minister maintained that for the appellant to succeed, it would have to be demonstrated that no reasonable decision-maker in the position of the Tribunal could have applied Article 15 in the way it was applied, and also that no reasonable decision-maker could have reached the conclusion on statelessness or the ultimate view to which the Tribunal came. Counsel submitted that the reasoning of Crennan and Bell JJ in SZMDS directs attention to whether the ultimate state of satisfaction was one which no reasonable or rational decision-maker could reach. On this basis, as I have mentioned, the Minister’s submissions pointed to 11 matters which were alleged to be available on the material and which the Minister alleged could have formed the basis for the same outcome.

39    To the extent that the submissions made on behalf of the appellant argued that the law as articulated by Crennan and Bell JJ in SZMDS has been overtaken, I do not accept those submissions. The High Court has often stated that the required threshold of legal unreasonableness, of which irrationality and illogicality are species, is usually high: see, SZMDS at [130]; Li at [72]; Minister for Home Affairs v DUA16 [2020] HCA 46; 95 ALJR 54 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 (SZVFW) at [11] (Kiefel CJ). There are different ways of expressing the high threshold: SZVFW at [52]-[53] (Gageler J). One way which has been and continues to be used is to enquire whether a reasonable decision-maker could reach the same decision on the same material: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 36 (Brennan J); SZMDS at [135]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [19] (Kiefel CJ, Bell, Gageler and Keane JJ). Put differently, the question could be asked whether it was open for the decision-maker to reason in the way it did. This formulation was, for example, relied upon in Gill at [72] (Griffiths and Moshinsky JJ, Logan J agreeing), to which counsel for the appellant referred the court during the hearing. In Gill, at [61] their Honours referred to SZMDS at [133], where Crennan and Bell JJ explained that the correct approach is to ask whether it was open to the decision-maker to engage in the process of reasoning in which it did engage. This approach was followed in Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; 96 ALJR 464 (Plaintiff S183) at [42]-[43] (Gordon J). In that case, a question arose whether a delegate of the Minister had made a finding on the plaintiff’s credibility that was affected by illogicality, irrationality, or unreasonableness. After identifying the approach of Crennan and Bell JJ in SZMDS at [133] as correct, her Honour proceeded to address the question whether a reasonable decision-maker could have reasoned in the way the delegate had: at [49]. Accordingly, any difference between asking whether a path of reasoning was open, and adopting the language of Wednesbury unreasonableness, may be linguistic only.

40    Contrary to the Minister’s submission, the inquiry is not confined to the outcome of a decision-making process, which in present circumstances is the satisfaction or non-satisfaction for the purposes of s 36(2)(a), s 36(2)(aa), and ultimately s 65. Nor is it limited to the finding on statelessness divorced from the process by which that finding was made. Rather, the actual process of reasoning engaged in, or put differently, the decision-making course in fact adopted, is susceptible to jurisdictional error on the basis of illogicality, irrationality, or unreasonableness: see, Plaintiff S183 at [42]-[43] (Gordon J); DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; 95 ALJR 375 at [21] (Kiefel CJ, Gageler, Gordon and Steward JJ).

41    By extension, I do not accept the Minister’s submission that this court, on appeal, should rely on some other array of matters to reach for itself the same decision on the appellant’s citizenship. This was the effect of the Minister’s submissions which pointed to 11 matters which could have formed the basis for the same decision on the appellant’s citizenship, such that the decision made was not unreasonable. In particular, I do not accept that the court should consider for itself matters which, as the Tribunal’s reasons disclose, the Tribunal did not mention or even expressly gave no weight to. For example, one of the matters the Minister submitted provided a basis to conclude the appellant was a Vietnamese citizen was an expert opinion given in the visa cancellation proceeding that the appellant acquired Vietnamese citizenship by operation of law as a result of being born in the country. Of that opinion, the Tribunal said the analysis was of “historic interest” but that it “did not place any reliance on it in its analysis”. To assess the reasonableness of the Tribunal’s process of reasoning by reference to some other reasoning process which was available on the material, but not taken by the Tribunal, would be to engage in impermissible speculation about a different path of reasoning, and thereby to engage in merits review.

3 – Jurisdictional error

42    The question whether the Tribunal’s process of reasoning reached the high threshold of legal unreasonableness has only one correct answer. Nonetheless, it is a question of degree on which reasonable minds might differ. After giving the matter much consideration, I am persuaded that, subject to materiality, error of this type has been shown, and therefore I have come to a different conclusion from that of the primary judge. Recalling the substance of the Tribunal’s reasons as referred to in [34] above, it was not open for the Tribunal to reason in the way it did to conclude solely by reference to Article 15 and matters which occurred years after the appellant’s birth, that the appellant was a citizen of the Socialist Republic of Vietnam and therefore not stateless, without directing attention to and considering the words “at the time of his/her birth” in Article 15, and their effect on the analysis in which the Tribunal engaged. Rational, logical decision-making required that the effect of these words be addressed. The error was central to the Tribunal’s subsequent assessment of the issues, which was premised on the appellant’s valid citizenship. The Tribunal reasoned that the appellant would be able to access housing, employment, and medical services because he is a Vietnamese citizen. I wish to be clear that I do not find that the Tribunal was bound to hold that the appellant was stateless, whether by reference to Article 15 itself, or in combination with other circumstantial facts. The error that I have identified is a specific error and goes only to the Tribunal’s process of reasoning and its failure to address the words “at the time of his/her birth” in Article 15.

43    The Tribunal separately found the appellant had not been involved in organising anti-Vietnamese government protests in Australia, nor was he a member of an anti-Vietnamese government activist organisation, and it was not satisfied Vietnamese authorities would have knowledge of the appellant’s limited protest activities in Australia. The Tribunal considered whether, as a Vietnamese citizen who committed offences in another country, the appellant would be penalised under domestic Vietnamese law if he returned. The Tribunal rejected all of the appellant’s claims because of, or taking account of, his Vietnamese citizenship, and so concluded that the appellant was not a person in respect of whom Australia had protection obligations.

44    I am satisfied that the Tribunal accordingly fell into error in making an illogical, irrational or unreasonable finding about the appellant’s citizenship. Whether this error is jurisdictional depends on whether the error was material to the Tribunal’s decision.

45    Counsel for the appellant submitted that an error of unreasonableness was bound to be material following MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 (MZAPC) at [33] (Kiefel CJ, Gageler, Keane and Gleeson JJ). However, this submission overlooks that the majority of the court in MZAPC at [33] was referring to conditions on the decision-making function that were necessarily material to its lawful discharge –

… There are conditions routinely implied into conferrals of statutory decision-making authority by common law principles of interpretation which, of their nature, incorporate an element of materiality, non-compliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met. The standard condition that a decision-maker be free from actual or apprehended bias is one example. The standard condition that the ultimate decision that is made lie within the bounds of reasonableness is another.

(Emphasis added, footnotes omitted).

46    The error shown in the present case is not of this nature, and materiality must be shown.

47    As I mentioned, the issue of materiality was raised in the Minister’s notice of contention (see [24] above). Counsel for the Minister accepted that the issue of the appellant’s statelessness was material but denied that any error in the construction of Article 15, if made, was material. Counsel submitted that, absent any such error, the Tribunal would have come to the same conclusion on the question of statelessness. In support of its notice of contention, the Minister referred to the same 11 matters which were earlier alleged to have been available from the material before the Tribunal to reach the same conclusion on the appellant’s citizenship. In written reply submissions, counsel for the appellant challenged the correctness of the 11 matters raised by the Minister and submitted that none of those matters, nor anything else in the material before the Tribunal, could found another pathway for the appellant to have an enforceable right to citizenship of the Socialist Republic of Vietnam. Counsel submitted that if there was no basis for a finding that the appellant was a citizen, he would be stateless.

48    The burden is on the appellant to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition: MZAPC at [39], [60]. See also Minister for Immigration v SZMTA [2019] HCA 3; 264 CLR 421 (SZMTA) at [45]-[46] (Bell, Gageler and Keane JJ). However, the court must not intrude into the fact-finding function of the Tribunal: SZMTA at [48].

49    As I have explained at [34]-[35] above, the Tribunal’s finding of the appellant’s citizenship was founded on the operation of Article 15. That finding led to the Tribunal’s rejection of the appellant’s claim of statelessness. I am satisfied that if the Tribunal had not reasoned in an illogical, irrational or unreasonable way by omitting to address the full text of Article 15, there was a realistic possibility that a different decision could have been made. That is because it was at least open on the material that was before the Tribunal for a reasonable decision-maker to determine the appellant’s claim of statelessness in a way that was favourable to the appellant. Notwithstanding the detailed submissions made as to other paths which the Tribunal could have taken, it is not necessary to go further than to identify the realistic possibility of an alternative outcome in order to establish materiality. Assessment of the 11 matters which the Minister claims could lead to a conclusion of citizenship would require this court to consider for itself evidence placed before the Tribunal, determine the weight to give the various evidentiary integers and to draw its own evaluative conclusion about whether some other pathway would have been taken by the Tribunal to reach the same conclusion. That exercise would, in this instance, amount to an encroachment on administrative decision-making.

Conclusions

50    The appeal will be allowed with costs. The primary judge’s order will be set aside. In lieu thereof I will order that the Tribunal’s decision be quashed and that a writ of mandamus issue to the Tribunal requiring it to determine the appellant’s application according to law. The appellant should also have the costs of the proceeding in the Federal Circuit Court.

Associate:

Dated:    12 August 2022