Federal Court of Australia

DXI22 v Minister for Immigration and Citizenship [2026] FCA 43

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s name be amended to ‘Minister for Immigration and Citizenship’.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal to be fixed on a lump-sum basis if not agreed.

4.    Failing agreement, the determination of the appropriate amount of the lump-sum costs be referred to the Registrar.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    The appellant is a citizen of Vietnam whose application for a protection visa was refused by a delegate of the Minister (first respondent). This appeal is from a judgment of the Federal Circuit and Family Court of Australia (Division 2) dismissing an application the appellant made for judicial review of a decision of the Administrative Appeals Tribunal (formerly the second respondent) affirming the delegate’s decision. In the appeal the appellant contends, in effect, that the primary judge was in error for failing to find that the Tribunal made one or more of the jurisdictional errors asserted in the proceeding in the Circuit Court.

2    The appellant has mass tissue in his brain that may require an operation in the future. He also has been diagnosed with severe depression and anxiety and suffers from severe stress. He originally entered Australia on a student visa but overstayed and became an unlawful non-citizen. He then applied for a protection visa. He made a number of claims for protection on the ground that he is one or both of a refugee or Australia owes him complementary protection obligations. The claims relevant to this appeal are that he has a well-founded fear of being persecuted (in the form of serious harm) for reasons of membership of particular social groups (persons associated with the former Republic of Vietnam, failed asylum seekers and people with mental illness) and (or) there is a real risk that if he is returned to Vietnam he will suffer significant harm. The Tribunal’s rejection of the appellant’s claims give rise to four principal issues in the appeal.

3    The first issue is whether the Tribunal failed to consider a second medical report of a clinical psychologist (Dr Pattni) and, if so, whether that resulted in a denial of procedural fairness or constructive failure of the Tribunal to exercise jurisdiction. The appellant claimed that as a failed asylum seeker he was liable to be subject to arbitrary detention and interrogation on return to Vietnam. He also claimed he was at greater risk of that detention and interrogation due to his mental illness. The Tribunal rejected these claims. The appellant contends that the Tribunal failed to consider the second report of Dr Pattni in its evaluation of his claims regarding the risk of detention and interrogation.

4    The second issue is whether findings the Tribunal made to the effect that the appellant would be required to pay low-level bribes to access health care and that he would likely have the financial resources to do so involved a serious lapse in logic or rationality so as to render its decision effectively arbitrary. The appellant claimed that as a failed asylum seeker and (or) person with health conditions and mental illness he would be denied access to health care unless he paid bribes to Vietnamese authorities. He claimed denial of access to health care amounted to serious harm or significant harm. The appellant contends that the Tribunal’s reasoning in rejecting these claims was illogical or irrational because it assumed that he would be able to avoid harm by continuing to pay bribes and failed to consider the consequences for the appellant if he were not able to marshal the financial resources to pay bribes. The third issue is whether the Tribunal also failed to consider if the requirement to pay bribes amounted to torture, or cruel or inhuman treatment or punishment or degrading treatment or punishment for the purposes of the meaning of ‘significant harm’ and that was a failure to accord the appellant procedural fairness or a constructive failure to exercise jurisdiction.

5    The fourth issue is whether the Tribunal’s reasons were affected by jurisdictional error because it failed to consider if harm in the form of discrimination and inability to teach in public schools in Vietnam amounted to torture, or cruel or inhuman treatment or punishment or degrading treatment or punishment for the purposes of the meaning of ‘significant harm’ and that was a failure to accord him procedural fairness or a constructive failure to exercise jurisdiction. The appellant claimed that through his family he was associated with the former Republic of Vietnam and would be discriminated against in that he would not be permitted to follow his vocation and teach at public schools in Vietnam. The Tribunal rejected that claim primarily because it was not satisfied that barriers to work opportunities in public schools was ‘serious harm’ or ‘significant harm’.

Background

Protection visa criteria

6    If the Minister is satisfied that the applicant for a protection visa is a non-citizen in respect of whom Australia has protection obligations because the person is a refugee, the Minister must grant the applicant a protection visa (refugee protection criteria): s 65, s 36(2)(a) of the Migration Act 1958 (Cth). Relevantly, a person is a refugee where that person is outside the country of his nationality and owing to a ‘well-founded fear of persecution’, is unable or unwilling to avail himself of the protection of that country. A person has a well-founded fear of persecution if the person fears being persecuted for reasons of membership of a particular social group and there is a real chance that, if the person returned to the receiving country, the person would be persecuted for membership of that social group. Amongst other things, fear of persecution must involve ‘serious harm’ which includes significant physical harassment or ill-treatment of the person, significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood that threatens the person’s capacity to subsist: s 5H, s 5J.

7    Alternatively, if the Minister is satisfied that the applicant for a protection visa is a non-citizen in respect of whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer ‘significant harm’, the Minister must grant the applicant a protection visa (complementary protection criteria): s 65, s 36(2)(aa). Relevantly, a non-citizen will suffer significant harm if that person will be subjected to ‘torture’ or ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’: s 36(2A)(c)-(e). The expression ‘torture’ is defined to mean, subject to certain exclusions, an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for certain purposes. The expression ‘cruel or inhuman treatment or punishment’ is defined to mean, subject to certain exclusions, an act or omission by which pain or suffering, whether physical or mental, is intentionally inflicted on a person that is severe or that, in all the circumstances, could reasonably be regarded as cruel or inhuman in nature. The expression ‘degrading treatment or punishment’ is defined to mean, subject to certain exclusions, an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable: s 5. The common element of these forms of significant harm is an intention to inflict harm on the non-citizen in particular.

The protection claims

8    The appellant entered Australia in September 2008 on a student visa. The student visa expired in June 2014 and, thereafter, the appellant remained in Australia as an unlawful non-citizen. In August 2021 he applied for a protection visa. In October 2021 he was notified that his application had been refused and in November 2021 he applied to the Tribunal for review of that decision. In November 2022 the Tribunal affirmed the refusal decision. That decision of the Tribunal was set aside by a consent order of the Circuit Court in May 2023 and the matter was remitted to the Tribunal for reconsideration.

9    On 23 April 2024 the Tribunal made a decision again affirming the refusal decision. The material before the Tribunal on remitter included the information before the delegate and the Tribunal at the time of its first decision as well as additional information that was provided after the first decision.

10    The appellant claimed that as a failed asylum seeker he would be subjected to persecution if he were returned to Vietnam. He would be detained and interrogated on his arrival and subject to arbitrary detention and ill treatment. As initially framed, the appellant also claimed that his status as a failed asylum seeker would result in Vietnamese authorities preventing or impeding his access to health care and, otherwise, to access that health care he would be forced to pay bribes to the Vietnamese authorities. These claims were primarily concerned with the potential need for an operation on mass tissue in the appellant’s brain. The appellant contended that impeded access to health care amounted to severe harm for the purposes of s 36(2)(a) or significant harm for the purposes of s 36(2)(aa).

11    The appellant’s claim for protection based on mental health was developed and refined over time and with further evidence relating to his mental illness. A claim for protection based on mental illness was ultimately expressed as an independent claim on the ground that people with mental illness are stigmatised in Vietnam and the appellant was a member of that social group. He claimed separately that he would be persecuted as a member of that social group on his arrival in Vietnam and subjected to arbitrary detention and ill treatment as a member of that group. The appellant claimed that these circumstances engaged the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa).

12    In his application for a protection visa the appellant claimed that on his return to Vietnam he would face detention and questioning at the airport because he had been out of the country for several years without lawful excuse. He said that he would be liable to arbitrary detention and ill-treatment which could be indefinite because of a lack of due process. He said that he was at risk of detention, interrogation and torture by the authorities in Vietnam.

13    In a statement dated 21 July 2022, which the appellant submitted to the Tribunal in response to an invitation to provide material before a hearing, he again said he feared returning to Vietnam because he was at risk of persecution due to his prolonged absence from that country. He also said he feared that ‘mass tissues in my brain will grow, which affects my mental capacity to think straight.’ He said he did not think he would survive an operation in Vietnam due to an absence of medical technology in that country and he would not have sufficient money for an operation or to go to another country to have an operation. Under a heading ‘Complementary Protection’ he said:

…

If I were to be deported back to Vietnam, I will be interrogated for my prolonged absences. If I am unable to provide evidence, I will be charged and persecuted for going against the government and be jailed, even though they have no evidence of [my] claim. If I get detained, I will be ill-treated, as the [conditions] in jail and detention are very bad, they will make me pay a [bribe] to the guards for better treatment inside. I will be an easy target for [corruption] because I have been living in Australia for a very long time, they will think that I will [have] lots of money [stashed] somewhere. During the COVID-19 pandemic, everyone is struggling and experiencing financial difficulties. The Government will target me and demand that I bribe them so I can be [released]. Also, I will easily fall [victim to] people smugglers because I cannot deal with the interrogation and persecution of the government officials if I am [forced] to return to Vietnam.

…

14    In written submissions the appellant made to the Tribunal in November 2021 he claimed that even if the Tribunal were not to consider that there was a real chance that he would suffer serious harm at the hands of the Vietnamese authorities for the purposes of s 36(2)(a), there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant’s removal from Australia, that there was a real risk that he will suffer significant harm within the meaning of s 36(2A) and s 5(1).

15    In pre-hearing opening submissions made to the Tribunal on 5 August 2022 the appellant claimed protection arising from:

(a)    Extended absence from Vietnam which would draw attention on his return to Vietnam by the Vietnamese authorities.

(b)    He would be the target of black money lenders who would perceive him to be wealthy because he had spent so much time in Australia.

(c)    He was a significant risk of harm due to his inability to access mental health intervention and assistance in Vietnam.

16    He claimed he had a well-founded fear of persecution in Vietnam arising from, amongst other things, the following:

(a)    Membership of a particular social group of persons who are targeted for bribes by corrupt government officials because of their perceived wealth and social status within the community having spent a long time abroad in Australia where Australia is seen as a wealthy highly developed Western democracy.

(b)    Membership of a particular social group of vulnerable persons who are exposed to corrupt demands by local government and provincial government officials.

(c)    Membership of a particular social group of failed asylum seekers in Vietnam.

(d)    Membership of a particular social group of people without ho khau registration in Vietnam.

17    He also claimed that he faces a real risk of significant harm including arbitrary deprivation of life, torture, cruelty, inhumane and degrading treatment or punishment, in particular, for the following reasons.

(a)    Health care, including mental health care would be available to the appellant, but ‘there may be some doubt as to whether such care would be available to support the [appellant’s] stated needs or that it would be similar to that available to the [appellant] in Australia given the level of health care in Vietnam is described by the Department of Foreign Affairs and Trade as ‘basic’.’

(b)    The forced separation from his Australian partner and their soon to be born child would seriously impact or exacerbate the appellant’s mental health issues.

18    In a post-hearing submission made to the Tribunal on 18 August 2022 the appellant submitted that the Tribunal accepted that the appellant had ‘mental health issues and heard testimony that the [appellant] has had suicidal ideations’ and, as a consequence, these would not be addressed further in the post-hearing submissions. The appellant repeated the same grounds for claiming protection as were in his pre-hearing submission to which reference is made at paragraph 15 of these reasons. He claimed he had a well-founded fear of persecution for the same reasons as those to which reference is made in paragraph 16 of these reasons. Under the heading of complementary protection the appellant included a submission under the subheading of mental health. In this regard, he emphasised the separation from his partner to which reference was made in the pre-hearing submission. However, he also included a submission to the effect that ‘[f]eelings of guilt, shame and weakness inhibit Vietnamese from admitting mental health problems and can delay treatment as sick family members are commonly hidden or confined within the household for as long as they can be tolerated’. Further, that the Vietnamese tend to ‘interpret the overt expression of depression symptoms (negative emotions) as a sign of immaturity or weakness of character, and in general were less accepting of the expression of emotions’. The appellant then submitted:

…

There is a real chance that the [appellant] will be interviewed upon arrival at the Vietnam airport and detention will result in the [appellant] having a significant decline in his mental health. There is a real chance that that, in turn, will result in increased interest from the authorities in Vietnam, leading to more significant detention and more significant questioning.

…

19    The appellant then made a submission based on the decision of Charlesworth J in CPJ17 v Minister for Immigration and Border Protection (No 2) [2018] FCA 1664 at [22], [29] and an observation of Kerr J in BGX16 v Minister for Home Affairs [2019] FCA 1896 at [40] (mistakenly cited as Ranouta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 235). The effect of the submission was that a serious mental health condition can be relevant to a claim for complementary protection because deterioration in mental health on removal from Australia and return to the receiving country could, in certain circumstances, meet the description of ‘significant harm’ for the purpose of s 36(2)(aa). More specifically, taken with the references to the apparent stigma associated with mental illness in Vietnam, the appellant submitted that he was exposed to a higher risk of detention and interrogation upon return to Vietnam because he may exhibit behaviours consistent with mental illness.

Ground 3: Was there a failure to consider the second report of Dr Pattni?

The relevant medical evidence and submissions based on medical evidence

20    In January 2020 the appellant had a consultation with Dr Moe Kyaw Lwin at which he reported he had fallen and hit his head and was experiencing ongoing dizziness and problems with balance. A CT scan indicated a ‘[l]eft posterior cranial fossa moderate sized CSF [cerebrospinal fluid] attenuating collection with mass effect on the brain stem and left cerebellar peduncle’. An MRI indicated a ‘60 x 48 mm left cerebellopontine angle mass that displaces the brainstem and cerebellum, [that] may represent an epidermoid tumour’. At a later consultation in June 2022 the appellant reported symptoms of depression and anxiety, feeling hopeless, lethargic and a loss of interest in things he used to enjoy as well as trouble sleeping and loss of appetite.

21    In July 2022 the appellant consulted Dr Sang, a registered psychologist, who expressed an opinion that the appellant scored very high on the DASS (Depression, Anxiety, Stress Scale) with very severe anxiety and depression and extremely severe stress. Amongst other things, Dr Sang said that the appellant ‘feels frightened at the thought of facing excruciating interrogation by the Vietnamese police, who may put him in jail for having fled from the country. He fears for his life and safety.’ Dr Sang opined that the appellant’s depression, anxiety and stress would be exacerbated if he were forced to leave Australia.

22    In an email from the appellant’s migration agent to the Tribunal sent 12 January 2024 it was said that the appellant would place reliance on an attached report of Dr Pattni (a clinical psychologist) dated 19 July 2023 that was not before the Tribunal in August 2022 at the time of the first decision. In that report, Dr Pattni observed that the appellant ‘presents as a quiet, distressed, shy, reserved, confused, anxious and highly stressed man’. She expressed the opinion that he had an ‘inability to defend himself if he was questioned or put under severe interrogations when he return[ed] back to Vietnam’ and he was at risk of ‘severe mental health breakdown and self harm were he to be deported back to Vietnam’. The appellant’s DASS was severe for depression, extremely severe for anxiety and moderate for stress. The appellant’s PTSD (post-traumatic stress disorder) score was at the cut-off for a PTSD diagnosis.

23    In an email from the appellant’s migration agent to the Tribunal it was said that the appellant relied on his previous submissions to the Tribunal in August 2022, but he would make additional post-hearing submissions with leave of the Tribunal. It was also said that the appellant relied on the expert report of Dr Pattni that was provided to the Tribunal in January 2024.

24    On 10 March 2024 the appellant’s migration agent sent another email to the Tribunal attaching a further report of Dr Pattni. The appellant submitted that he satisfied the criteria to attract Australia’s protection obligations under the Refugee Convention or alternatively complementary protection. In Dr Pattni’s second report she observed that the appellant had been ‘experiencing heightened sense of “paranoia” like presentation and it [was] very difficult for him to manage this heightened anxiety.’ He was ‘hyper vigilant and “jittery” in most of his interactions and his restlessness was consistently observable’. He broke down easily. Further, his DASS continued to indicate severe to extremely severe presentation of anxiety and depression and ‘also indicate severe stress levels’. That was a change from the previous position where his stress level was moderate but similar to the stress level recorded in Dr Sang’s report. Dr Pattni also made the following observation:

… In assessing his fear and concern if he were denied visas and was to be sent back to Vietnam, there are the obvious concerns about his mental ability to first deal with people in authority and the second important factor is his history of not being able to deal with people in authority. [The appellant] is most likely to suffer from excruciating fear of defending himself and explaining his situation. Having explored certain scenarios in the sessions with people in his life like his grandmother, his mother, and his ex-wives, it was noted that he is more likely to withdraw and be silent and take the verbal lashing (despite the fact that he had not provoked or been responsible in most of the situations that triggered the psychological and verbal abuse). He had found himself often misunderstood or not able to understand their frequent reprimands and attacks on him. Since this has been going on for years, often with his own family, he just accepted. This included the physical abuse which he took without any retaliation as he had no option. He is most likely not going to be able to defend himself or explain his story when questioned/interrogated in Vietnam himself (as he struggles to explain most things with confidence or in ways that can support his engagements with the Authority in Vietnam), where he may be sent back. Even just the mention of the situation or any indication that he will have to face the authorities, triggers off extreme anxiety and fear. This fear was assessed to be real and can be best explained from investigation [of] various scenarios when he felt confronted.

25    Dr Pattni opined that the appellant was at ‘high risk of mental health breakdown and his suicidal ideation [was] considered to be of major concern’.

The reformulated protection claims based on mental illness

26    On 14 March 2024 the appellant’s migration agent sent an email to the Tribunal in which it was said that the appellant ‘is adding a new claim or a reformulation of his existing claims pertaining to mental health’ and he ‘relies of course on the reports of Clinical Psychologist Dr Indi [Pattni] which have been provided to the Tribunal’. The new claim was that a person with a disability or mental ill-health may qualify as a member of a particular social group and that the appellant was at risk of persecution by reason of his membership of that social group.

27    On 26 March 2024 the appellant’s migration agent made further submissions to the Tribunal, by email, in which it was said that the appellant relied on his previous submissions and added a further submission under the heading ‘mental health issues’. The appellant submitted that mental health issues ‘figure prominently in this case’ and he relied on ‘Dr Indi Pattni’s two detailed and comprehensive reports’. The effect of that submission was that, as a person with mental illness, the appellant is a member of a particular social group that is stigmatised in Vietnamese society. Denial or unavailability of healthcare in Vietnam for the appellant as a member of that social group may amount to significant harm for the purposes of s 36(2)(aa). The appellant cited: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362, AJI16 v Minister for Immigration and Border Protection [2019] FCA 1769 (Perram J), BGX16 and CPJ17.

28    The appellant’s submission, as a whole, was to the effect that due to the stigma associated with mental health disorders in Vietnam and his condition that it was likely to lead, in effect, to his arbitrary detention and questioning by the authorities in Vietnam. That was claimed to be a form of ‘significant harm’ for the purposes of s 36(2)(aa).

The Tribunal’s reasons concerning protection claims based on mental illness

29    The Tribunal identified and set out or summarised the appellant’s evidence to which reference is made in paragraphs [13], [20] and [21] (T [18], [20], [21]). Under the heading ‘More recent medical evidence’ the Tribunal identified and summarised the first report of Dr Pattni, but made no mention of the second report or any of the observations or opinions expressed in the second report that were different to those in the first report (T [23]-[27]). The Tribunal then identified and set out or summarised the appellant’s claims and submissions to which reference is made in paragraphs [15]-[18] (T [28]-[34]). In this section of the Tribunal’s reasons it made no mention of the reformulated protection claims based on mental illness. After identifying and setting out or summarising certain independent information, the Tribunal turned to consider the appellant’s claims.

30    The Tribunal noted that the DFAT and Department of Home Affairs information indicated that there will generally be questioning from the authorities in the airport lasting one to two hours, but there have been instances of detention for multiple days (T [57]). However, the Tribunal was not satisfied that the appellant would be subjected to adverse interest as a failed asylum seeker (T [58]-[61]). The Tribunal then dealt with the appellant’s submissions relating to his mental health as follows:

62.    The written submission provided following hearing does not directly address this issue, apart from submissions made under the heading ‘mental health issues’. The submission indicates that the [appellant’s] mental health conditions render him particularly vulnerable to detention and interview. It is submitted that there is a real chance the [appellant] will demonstrate either an unnatural detachment or excessive emotion in response to such interest from the authorities. Either might be interpreted as sufficiently unusual to warrant further investigation and questioning.

63.    The Tribunal assesses these claims in light of evidence provided by the [appellant] together with independent information.

64.    The Tribunal is not satisfied that for an ordinary Vietnamese citizen returning to Vietnam there is a real chance of requisite harm from authorities as a result of being away from Vietnam for an excessive period or based on a knowledge or assumption that they are a failed asylum seeker. The Tribunal is not satisfied that either of those factors would impute individuals with an adverse political view against the Vietnamese government leading to a real risk of requisite harm.

65.    In terms of claims that the [appellant’s] mental health conditions would cause him to act in such an unusual or disordered way as to attract additional adverse attention from authorities, in the hearing the [appellant] was confident, reasonably detailed and robust in relation to questions asked, including when issues of concern were put to him. The [appellant] did not present as being vulnerable, weak or disordered over the course of the two Tribunal hearings. This assessment was made in the context of what the Tribunal accepts can be the stressful and potentially intimidating environment of a Tribunal hearing. The Tribunal considers there is reasonable equivalence between the stress of a Tribunal hearing and the stress that would be occasioned to the [appellant] when being questioned by Vietnamese officials on return.

66.    The Tribunal does not accept that the [appellant’s] mental health conditions are such that he would act in a way towards authorities on return to Vietnam such that he would attract adverse interest or attention beyond what would be normally expected.

67.    The Tribunal is not satisfied that on return to Vietnam the [appellant] will face a real chance of serious or significant harm from authorities as a result of being outside of Vietnam for an extended period or suspicion or knowledge that the [appellant] was a failed asylum seeker or any assumption he holds an adverse political view against the Vietnamese government for these reasons. The Tribunal is further not satisfied that the [appellant] when questioned by authorities would behave in a way that would create any additional adverse interest in him such that would result in him facing a real chance of serious or significant harm.

31    Regarding the appellant’s mental health issues, the Tribunal said the following.

118.    In the written submission provided following the hearing, it is acknowledged that the complementary protection criterion is only engaged where the harm is somehow personal to the [appellant]. It is submitted that for the purpose of the refugee criterion the [appellant] falls within the particular social group of individuals living with a disability or mental ill-health.

119.    In relation to the latter, while the [appellant] may fall within this particular social group to meet the refugee criterion, the [appellant] belonging to this group must be the essential and significant reason for the harm. In this case, the harm that the [appellant] might face for inadequacy of mental health services is not harm personal to him but simply a consequence of the resources allocated by the state. That being the case the denial or limitation of mental health services for the [appellant] in Vietnam does not meet the refugee criterion in terms of the provisions in the Act.

120.    The Tribunal noted to the [appellant] in the hearing that the basis on which mental health or other medical issues might meet protection criteria were in a situation where the conditions caused him to be so disordered and vulnerable that he would be identified for harm by individuals who would seek to exploit his disorder and vulnerability.

121.    In response, the [appellant] referred to the likelihood of him being discriminated against and mistreated as a result of his medical conditions.

122.    The written submission provided following the hearing refers to independent evidence indicating a degree of stigma in Vietnam attached to mental health issues.

123.    At the beginning of the hearing the [appellant] referred to memory difficulties and a degree of dizziness and potential cognitive impairment. The Tribunal asked the [appellant] to indicate during the hearing if he was suffering impairment as a result of these issues. The [appellant] did not indicate any impairment during the hearing.

124.    As indicated above, as it was, in the hearing the [appellant] was confident, reasonably detailed and robust in relation to questions asked, including when issues of concern were put to him. The [appellant] did not present as being vulnerable, weak or disordered. In saying this, the Tribunal accepts the [appellant’s] diagnosed mental health conditions.

125.    The Tribunal does not accept that on return to Vietnam, accepting the [appellant’s] diagnosed medical conditions, that he would behave in such a way as to create a real chance of him being targeted by individuals seeking to exploit his vulnerability to cause him serious or significant harm, including acknowledging stigma in Vietnam attached to mental health issues.

126.    As indicated, the Tribunal also does not consider that the [appellant] would suffer requisite harm in terms of increased vulnerability were he to be questioned by authorities on his arrival in Vietnam. The Tribunal is not satisfied that the [appellant] returning to Vietnam would result in an exacerbation of his mental health issues that would lead to a real chance of serious or significant harm for the purpose of protection criteria or otherwise meeting protection criteria.

127.    Further, the Tribunal does not consider that inferior medical treatment available in Vietnam for the treatment of the [appellant’s] mental health issues or brain issues meets protection criteria pursuant to the refugee criterion or falls within any definition of significant harm for the purpose of the complementary protection criterion.

32    The appellant contended before the primary judge that the Tribunal’s decision was affected by jurisdictional error because the Tribunal failed to consider the second report of Dr Pattni. The appellant alleged that was a denial of procedural fairness or constructive failure to exercise jurisdiction.

Primary judge’s reasons concerning the asserted failure to consider the second Pattni report

33    The primary judge concluded the Tribunal made no error, reasoning:

88    The respondent concedes that the report is not specifically mentioned in the Tribunal decision record [RS, 33]. A perusal of that report [CB 503] clearly indicates that it was an update to a previous report which is extensively set out at [23] – [27]. The Court also notes that the Tribunal referred to submissions provided by the [appellant] on mental health issues at [62]. The first respondent submits that the reference to the assessment of the [appellant’s] mental health conditions at [65] make it clear that this assessment must include the second psychological report.

89    Whilst the second report is not specifically referred to in the Tribunal decision record, given the care and attention in considerable detail in which the Tribunal set out the [appellant’s] claims and its consideration of them, the Court is satisfied that the report was not overlooked. Indeed, this is a classic case of the [appellant] seeking to scrutinise the Tribunal’s reasons with “an eye finely attuned to error”.

90    Even if it was overlooked, the Court is not satisfied that the error would be material such that jurisdictional error was made out. The Court is not satisfied that there would be a real chance of a different outcome were the matter to be remitted for the Tribunal to specifically examine the second report, which of itself is merely stated to be an “update” of the first report that is referred to in some detail. Ground four has no merit.

34    The appellant contends that the primary judge erred in law in failing to conclude that the Tribunal made a jurisdictional error in failing to consider the second report of Dr Pattni.

Principles applicable to the requirement to ‘consider’ claims

35    The Tribunal was required to consider all ‘claims’ that the appellant made and the essential components or integers of those claims: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136 at [42] (Allsop CJ, Spender and Merkel JJ agreeing). In that context, a failure to respond to ‘a substantial, clearly articulated argument relying upon established facts’ can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction. That is, a failure to perform the ‘review’ in accordance with the Act and the AAT Act: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 197 ALR 389 at [24]-[32] (Gummow and Callinan JJ), [95] (Hayne J); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [13] (Bell, Gageler and Keane JJ), [105] (Nettle and Gordon JJ). Further, the Tribunal is not limited to its determination of the ‘case’ articulated by the applicant if the evidence and the material which it accepts, or does not reject raises a ‘case’ that is not articulated but clearly emerges on that evidence and material: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [55], [58], [60], [68] (Black CJ, French and Selway JJ).

36    There is a distinction between ‘considering’ an applicant’s claim in the sense of reading, identifying, understanding and evaluating the claim and its essential components or integers and ‘considering’ in the sense of evaluating the claim and its essential components or integers in the course of making a decision. It is for the Tribunal, acting reasonably and rationally and having demonstrably identified and understood the applicant’s claims, to evaluate the evidence and the significance of the claims. In the context of judicial review, the Court does not enquire into the degree or quality of the Tribunal’s evaluation: Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; 298 FCR 431 at [51]-[55] (Katzmann, Jackson and McEvoy JJ); ECE21 v Minister for Home Affairs [2023] FCAFC 52; 297 FCR 422 at [7]-[9] (Mortimer, Colvin and O’Sullivan JJ).

37    In the process of evaluation there is a distinction between a claim (case, submission or argument) that is advanced as a reason for protection and the information (evidence or material) in support of that claim. In certain circumstances, it may be a distinction without a difference in that the claim, in substance, may be advanced by way of the information submitted to the Tribunal or the claim may clearly emerge from the submitted information, or the information may obviously go to one of the elements of s 36(2)(a) or s 36(2)(aa). In that sense, it is not necessary to distinguish between ‘claims’ and ‘information’. The fundamental question is the importance of the ‘information’ to the exercise of the Tribunal’s function and thus the seriousness of any error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111] (Robertson J). Identification, understanding and evaluation of information is affected by the centrality of the information with which it is said that the Tribunal has not engaged: Singh v Minister for Home Affairs [2019] FCAFC 3; 267 FCR 200 at [37(1)] (Reeves, O’Callaghan and Thawley JJ). See, also, KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111; 292 FCR 15 at [52]-[53]; Jabari at [55(4)].

38    The conceptual difference between ‘claims’ and ‘information’ remains important, however, because the statutory task of the Tribunal is to evaluate the ‘case’ or ‘claim’ the applicant advances and, in so doing, it is not necessary that the Tribunal mention every particular item of information that has been considered or evaluated in the performance of the overall task of evaluation of the claim: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46] (French, Sackville and Hely JJ); ETA067 v The Republic of Nauru [2018] HCA 46; 92 ALJR 1003 at [13] (Bell, Keane and Gordon JJ). Moreover, the fact that the Tribunal has not mentioned a particular item of information does not necessarily mean that the information has not been read, and its significance identified, understood and evaluated. At the relevant time, where the Tribunal made a decision on review (other than an oral decision) the Tribunal had an obligation to make a written statement that, amongst other things, set out the decision of the Tribunal on the review; set out the findings on any material question of fact; and referred to the evidence of any material on which the findings of fact were based: s 430(1). That entitles the Court to infer that any matter not mentioned in the Tribunal’s reasons was not considered by the Tribunal to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ). But, the Court need not draw that inference. The information may be so obviously relevant or material that a failure to mention it compels the Court to infer that it was not read, identified, understood or evaluated: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; 150 ALD 34 at [19] (Perram J). Nonetheless, the Court should not too readily draw that inference where the reasons are otherwise comprehensive and the issue has at least been identified at some point: WAEE at [47]; KXXH at [54].

39    It has been said that what is required is the reality of consideration by the decision-maker. The Court on judicial review is required to assess, in a qualitative way, whether the decision-maker has had regard to the information as a matter of substance: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 at [45] (Rares and Robertson JJ). The applicant has the onus of establishing on the balance of probabilities that the decision-maker has failed to evaluate the information. In this respect, the reasons of the Tribunal must be read fairly and not in an unduly critical manner: Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 56 at [73] (Collier, Perry and Anastassiou JJ). See, also, Jabari at [55(2)]-[55(3)].

40    A failure to consider is not to be equated with a failure to consider a matter in or the form of a claim. The question of whether there has been a failure to consider a matter in or the form of a claim is relevant only if it means that the decision-maker failed to consider the claim. Whether a decision-maker has failed to consider the claim is a question to be answered objectively by reference to the whole of the claim and the whole of the material in fact considered by the decision-maker in the context of the decision required to be made. For a failure to consider a matter in or the form of the claim to constitute a failure to consider the claim, the matter or the relevant aspect of their form must be of such objective importance to the decision to be made that it can reasonably be said that there has been a failure to consider the claims themselves: Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; 98 ALJR 594 at [45]-[46] (Jagot and Beech-Jones JJ). A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within the decision-maker’s knowledge relating to the matter. ‘The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.’: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 61 (Brennan J).

Examination of the Tribunal’s reasons

41    No reference was made to the second Pattni report anywhere in the Tribunal’s reasons. Having regard to the manner in which the appellant reformulated his protection claims based on mental illness, both Pattni reports were material and central to that claim. In that context, express reference to the first Pattni report and the absence of reference to the second Pattni report is an indication that the Tribunal overlooked or disregarded an important piece of evidence and failed to accord the appellant procedural fairness or constructively failed to exercise its jurisdiction. However, for the reasons that follow, an objective examination of the Tribunal’s reasons does not compel an inference to be drawn that the Tribunal failed to read, identify, understand and evaluate the appellant’s reformulated protection claim based on his mental illness.

42    First, the Tribunal’s reasons are quite comprehensive. The Tribunal set out and summarised the substance of the first Pattni report (T [23]-[27]). While the second Pattni report has some differences and added emphasis to the diagnosis in the first report, the relevant substance of the reports was to the effect that the appellant was vulnerable and unable to defend himself if questioned or put under severe interrogation. In essence, that was a common theme in both reports and it was identified as part of the evidence before the Tribunal (T [24]). Therefore, to the extent that there was additional information in the second report, the Tribunal may well have considered that to be immaterial for the purposes of s 430.

43    Second, there was no opinion expressed in the Pattni reports to the effect that the appellant was likely to demonstrate either unnatural detachment or excessive emotional response if detained and interviewed or interrogated. Both reports expressed the opinion that the appellant would not be able to defend himself in that situation. The second report emphasised that he would not be able to explain himself and suggested that he would have fear and anxiety in that situation and was vulnerable to decisions made by authorities because of subservient behaviours and subordination and a lack of confidence to confront situations and direct them in ways that are effective for him. In substance, the appellant made a submission to the Tribunal to the effect that his mental health condition presented a risk that he would respond with unnatural detachment or excessive emotion if detained and interrogated. The Tribunal rejected that submission and preferred the view the Tribunal formed about the appellant’s likely behaviour ‘on return’ to Vietnam based on the Tribunal’s observations of him within the relatively stressful environment of a hearing in the Tribunal (T [65]).

44    Third, while no mention is made of the expert medical evidence in that part of the Tribunal’s reasons that deal with the appellant’s submission to the effect that he would be vulnerable to detention and interview in Vietnam, in that part of the Tribunal’s reasons where it specifically addressed the appellant’s submission based on mental health issues, the Tribunal observed that the appellant had not presented as being vulnerable, weak or disordered and the Tribunal accepted the appellant’s ‘diagnosed medical conditions’ including ‘mental health issues’ (T [124]-[125]). Therefore, the Tribunal made an indirect reference to the medical evidence which was in more than one report and was of more than one medical practitioner.

45    Last, the description of the appellant’s submissions regarding his protection claims based on his mental illness in the Tribunal’s reasons (T [62], T [118]-[122]) fairly capture and summarise the appellant’s claims, submissions and case. Accordingly, the inference to be drawn is that the Tribunal read, identified, understood and evaluated the appellant’s relevant claims.

46    Ground 3 of the notice of appeal should be dismissed.

Ground 1(a): Was the Tribunal’s reasoning regarding bribes illogical or irrational?

47    The appellant claimed that if he returned to Vietnam he would be required to bribe Vietnamese authorities to receive treatment for the mass tissue in his brain and mental illness. The appellant claimed that paying a bribe was a form of mental suffering and to pay a bribe to avoid denial of health services amounts to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

48    The Tribunal accepted that there is a culture of low-level bribes in Vietnam that is part of ‘doing business’ in that country. It accepted that the appellant would, as he had done in the past, pay these low-level bribes (T [95]). The Tribunal said that the independent evidence made it clear that ‘Vietnamese as a whole are subjected to requirements to pay low-level bribes’. The Tribunal did not accept that the appellant would have to pay large bribes to obtain medical treatment (T [96]-[98], [100]-[101]). The Tribunal then said:

102.    The Tribunal considers that on return to Vietnam the [appellant] will be able to marshal the resources to pay low-level bribes, as he has done in the past. This conclusion is reached accepting a degree of financial stress by the [appellant] and his wife. While the [appellant’s] wife owns a home in Perth, there is a significant mortgage.

103.    The Tribunal considers resourcefulness by the [appellant] and his wife as well as potential support from extended family in Vietnam. The Tribunal considers that the [appellant] would have the ability to pay low-level bribes necessary for official reasons, such as needing to report to authorities in his home area and the purpose of obtaining a Citizen Identity Card (CIC) and to obtain registration on the national population register. No independent evidence has been found to indicate a high-level bribe is required to obtain the CIC and to obtain registration on the national population register.

104.    The Tribunal accepts that the [appellant] may have to pay low-level bribes for the purpose of facilitating any treatment necessary as a result of his brain-related medical issues. The Tribunal considers that the [appellant] will be able to marshal resources to pay any necessary low-level bribes for this purpose and that having to do so does not meet protection criteria.

105.    The Tribunal does not accept that a requirement to pay low-level bribes including for medical care would be for a refugee criterion reason or constitute a definition of significant harm for the purpose of the complementary protection criterion. This finding is made accepting the diagnosed mental health conditions suffered by the [appellant]. Given the Tribunal’s view of the reasonable outward confidence and robustness of the [appellant] the Tribunal is not satisfied that the [appellant’s] mental health conditions make him more susceptible to bribes or to bribes being requested in higher amounts or that the requirement to pay bribes, a part of ordinary dealings in Vietnam, would significantly exacerbate his mental health conditions.

106.    The Tribunal does not accept on the evidence that the [appellant] has ever been required to pay bribes beyond low-level ‘coffee money’. The [appellant] has claimed, but there is no independent evidence to support, that higher bribes have been required during the COVID-19 period. The Tribunal is not satisfied that independent evidence would lead to the conclusion that there is a real chance that the [appellant] in the future may be subject in Vietnam to bribes of a more significant amount. As indicated, independent evidence before the Tribunal does not support the conclusion that there is greater targeting of Vietnamese who have returned from a developed country.

49    The appellant contends that the Tribunal’s reasoning was logically flawed in that it found that the appellant would be subjected to extortion in Vietnam in order to access medical treatment, but as he could pay the bribes the extortion did not amount to relevant harm. Relying on SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; 238 FCR 404 at [56], [62] (Robertson and Kerr JJ), [17] (Logan J), the appellant contends the reasoning is logically flawed or founded on a fallacy that was that there was no harm where extortion successfully avoids the harm. Consequently, the appellant asserts the Tribunal’s reasoning involved a misinterpretation of the legislation, or was illogical, irrational and (or) legally unreasonable.

50    As to this asserted error of the Tribunal, the primary judge concluded as follows:

54    As to the first component, it was submitted ground one involved a misunderstanding of the error identified by the Full Court in SZTAP. It was not a case in which the Full Court found error (illogicality) by the Tribunal failing to consider, contrary to its own findings, what would happen if a person failed to pay a bribe. Rather, the illogicality identified by Robertson and Kerr JJ was in the Tribunal’s reasoning in that case where the Sri Lankan authorities had shown no interest in the appellant in the past. The underlying premise of SZTAP was that the Tribunal failed to consider why the person was subject to extortion attempts (i.e., was it for a Convention reason?) and failed to appreciate that previous successful extortion payments were why there was no previous harm.

55    The Tribunal did not make this kind of error in the present case. The Tribunal put to the [appellant] that it did not have independent evidence that individuals “returned from developed countries [are] being particularly targeted for bribery” (CB [95]). But it did accept a “culture of low-level bribes in Vietnam” which is part of “doing business”. The Tribunal made a clear finding that the bribes were not related to a Convention reason. It is apparent the Tribunal also considered that any harm relating to the payment of bribes would not rise to the level of significant harm, which was a finding well-open to it, given that the Tribunal found that this was “coffee money” that everyone was required to pay (and that the [appellant] could pay).

51    For the reasons that follow, the primary judge’s conclusions were, with respect, correct.

52    In SZTAP the protection visa applicant claimed that he had a well-founded fear of persecution because government officials extorted bribes from his mother in response to threats that they would abduct the visa applicant. The tribunal reasoned that the fear was not well-founded because it concluded that the relevant government official had no intention of actually abducting the visa applicant. The tribunal reasoned, amongst other things, that the threat had been unsuccessful. Further, the tribunal also found that the visa applicant’s mother had paid the bribes in the past and would continue to do so in the future. A Full Court concluded that the reasoning of the tribunal in that case involved jurisdictional error on the ground that there was a serious lapse in logic and rationality. It was not logical to conclude that there was not an objective basis for fear in the absence of harm in the past when the absence of harm was referrable to successful extortion that prevented that harm from eventuating (at [56], [17]).

53    The appellant contends that the Tribunal’s reasoning in this case involved the same lapse of logic in that it found that the appellant would not suffer harm because he had the financial resources to pay the low-level bribes the Tribunal accepted that he would have to pay to secure health care in Vietnam. It may be accepted that it would be illogical to conclude that a person does not objectively fear harm from a threat to exclude or prevent a person from obtaining health care unless a bribe is paid to secure that health care. It may also be accepted that if the appellant is unable to secure health care in Vietnam he may suffer severe or significant physical and (or) mental harm. But, the Tribunal made no finding to the effect that the appellant was at risk of extortion of that kind because he was a member of a particular social group or political opinion. Likewise, the Tribunal made no finding to the effect that the appellant would be targeted for extortion because of his individual need for medical treatment or mental illness. The Tribunal’s findings were to the effect that all members of Vietnamese society are required to pay low-level bribes as a cost of ‘doing business’. The Tribunal was not satisfied that there was anything personal to the appellant that made him more susceptible to bribes or to bribes in higher amounts. Therefore, the Tribunal rejected the appellant’s claim not because a threat to prevent health care would not amount to harm, but because the threat of such harm was not for a convention reason or a reason that would engage Australia’s complementary protection obligations. Thus, there was no logical flaw of the kind the appellant contends in the Tribunal’s reasons.

Ground 1(b): Was there a failure to consider if bribes constituted significant harm?

54    In the proceeding before the Tribunal, the appellant made a submission, through an email sent on 26 March 2023, to the effect that ‘paying a bribe is humiliating or causes him some other form of mental suffering’ and that ‘paying a bribe and/or being coerced to pay a bribe to avoid a denial of health services amounts to torture, cruel or inhumane treatment or punishment, or degrading treatment or punishment’. The appellant contends that the Tribunal failed to consider that claim or submission and, thereby, denied the appellant procedural fairness and (or) constructively failed to exercise jurisdiction. The appellant contends the primary judge was in error for not finding that the Tribunal had made that error.

55    As to this asserted error of the Tribunal, the primary judge concluded as follows:

56    As to the second component of ground one, the first respondent referred to the [appellant’s] reliance on the claim that “paying a bribe is humiliating or causes him some other form of mental suffering”, which was a form of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. The first respondent argued this ground must be rejected.

57    They stated the Tribunal expressly considered this claim at paragraph [99] and explicitly rejected it at [105]. This ground is expressly put as a failure to consider the claim. The claim self-evidently was considered.

56    Again, for the reasons that follow, the primary judge’s conclusions were, with respect, correct.

57    Insofar as the claim was founded on an assertion of ‘cruel or inhumane treatment or punishment’, or ‘degrading treatment or punishment’, as already mentioned, these expressions are defined in s 5 in terms that require an intention to inflict pain or suffering on a person or an intention to humiliate a person. Likewise, ‘torture’ is defined in s 5 in terms to require an act or omission by which severe pain or suffering (whether physical or mental) is intentionally inflicted on a person for a purpose or reason specified in the definition. Therefore, all the expressions used in s 36(2A)(c)-(e) require an intention to harm or humiliate a particular person; namely, the appellant. Relevantly, intention in the definition of these expressions connotes the existence of an actual, subjective intention on the part of a person to bring about the harm or humiliation: SZTAL at [8], [26]-[27] (Kiefel CJ, Nettle and Gordon JJ), [101]-[103], [113]-[114] (Edelman J). Withdrawal or denial of health care could result in the required harm or humiliation if it is the result of ‘interference or denial based on characteristics particular to the applicant’: AJI16 at [31]-[32] (Perram J); BGX16 at [33]-[40] (Kerr J).

58    An inference does not arise from the obligation of the Tribunal to give a statement of reasons in s 430 and the manner in which it addressed the appellant’s claims, that the complementary protection criteria in s 36(2)(aa) and s 36(2A) were not addressed with respect to the claim relating to bribery in connection with the provision of health care. The appellant’s claim was identified and summarised in a manner that indicated that the Tribunal had understood the appellant’s claim that ‘being made to pay a bribe would cause the [appellant] another form of mental suffering’ and that paying a bribe to avoid a denial of health services would amount to ‘torture, cruel or inhumane treatment or punishment, or degrading treatment or punishment’ (T [99]). The Tribunal dealt directly with the appellant’s contention that denial of health care as a consequence of his personal characteristics of a person with mental illness and rejected the appellant’s claim on the ground that it was not satisfied that the appellant’s ‘mental health conditions make him more susceptible to bribes or bribes being requested in higher amounts’ (T [105]). Having concluded that there were no personal characteristics particular to the appellant that would result in extortion to avoid denial of health care, it was not necessary for the Tribunal to explain in any greater detail the reasons for its rejection of the appellant’s complementary protection claims because the necessary element of intention was absent.

Ground 2: Was there a failure to consider if the inability to teach in public schools constituted significant harm?

59    The appellant claimed that his family had been involved in the Republic of Vietnam and, as a consequence, he was discriminated against and could not teach in public schools in Vietnam. The Tribunal evidently accepted these facts (T [85], [91]). However, the Tribunal was not satisfied that the inability to teach in public schools constitutes ‘serious harm’ for the purposes of s 36(2)(a) or ‘significant harm’ for the purposes of s 36(2)(aa) (T [88]-[91], [93]-[94]).

60    The appellant contends that the Tribunal made a jurisdictional error by failing to consider whether his claim that he was prevented from teaching in the public sector in Vietnam due to discrimination on political grounds constituted mental pain or suffering intentionally inflicted on the appellant (cruel or inhuman treatment or punishment) or an act that causes and is intended to cause extreme humiliation that is unreasonable (degrading treatment or punishment) for the purposes of ss 36(2)(aa), 36(2A)(d), 36(2A)(e). The appellant contends that the claims for cruel or inhumane treatment or punishment and (or) degrading treatment or punishment were clearly articulated or clearly arise from the materials. Therefore, it was a jurisdictional error for the Tribunal to fail to consider these claims. Further, the appellant contends the primary judge was in error for not finding that the Tribunal had made that jurisdictional error.

61    In DWN027 v Republic of Nauru [2018] HCA 20; 355 ALR 238 (at [17], [21]) the High Court (Kiefel CJ, Gageler and Nettle JJ) emphasised that a decision-maker’s obligation to go beyond the case articulated by an applicant is confined to unarticulated claims which are apparent on the face of the material before the decision-maker. The Court noted that ‘the decision of the decision maker must be considered in light of the basis on which the application was put before the decision maker and not upon some entirely different basis that may only occur to the [applicant’s] lawyers at this later stage of the process’. The Court cited, with approval, the following observations of Kirby J in Dranichnikov (footnotes omitted):

78    …The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This Court has rejected that approach to the Tribunal’s duties. The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances. A fortiori this is the function of the Federal Court in determining any application to it for judicial review of a decision of the Tribunal.

62    Further, as the Full Court observed in AXT19 v Minister for Home Affairs [2020] FCAFC 32 (Flick, Griffiths and Moshinsky JJ):

56    Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.

63    The Tribunal’s reasons include the material findings of fact. No claim or submission was made to the effect that the appellant would suffer mental pain and suffering or extreme humiliation if excluded from teaching in the public sector. These were not claims that were unarticulated but clearly emerge on the materials before the Tribunal.

64    The primary judge’s conclusion on this subject was as follows:

59    The Tribunal expressly considered whether a barrier to work in the public sector rose to the level of significant harm for the purposes of complementary criterion. This proposition was put to the [appellant]. It was not responded to.

60    The first respondent submitted the argument, that the Tribunal failed to consider whether the barrier to work was, for example, mental pain or suffering intentionally inflicted, or extreme humiliation which was unreasonable, was not put to the Tribunal on merits review. This was expressly noted by the Tribunal. Citing Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1] per Gleeson CJ, the first respondent submitted the High Court of Australia “has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an [appellant], or an [appellant’s] lawyers, at some later stage in the process”.

65    For the reasons already given, the primary judge’s conclusion was, with respect, correct.

Conclusion

66    For the foregoing reasons the appeal should be dismissed. The appellant should pay the Minister’s costs of the appeal to be fixed on a lump-sum basis in accordance with the Court’s Costs Practice Note (GPN-COSTS).

Associate:

Dated:    4 February 2026