Federal Court of Australia

DIR22 v Minister for Immigration and Multicultural Affairs [2026] FCA 961

ORDERS

THE COURT ORDERS THAT:

1.    The Appeal filed on 6 June 2025 be dismissed.

2.    The Appellant pay the First Respondent’s costs of the appeal, to be fixed on a lump sum basis by a Registrar, unless agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

WHEATLEY J:

1    On 6 June 2025, the Appellant filed a notice of appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) (Federal Circuit Court), in DIR22 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 664 (PJ). At that time, the Appellant was represented by the Oxford Law Group. The Oxford Law Group has ceased acting for the Appellant.

2    The Appellant appeared at the hearing today and sought to advance her arguments on the appeal. She did so with the assistance of an interpreter, but without having filed any written outline of submissions.

3    The grounds of appeal are (errors in original):

Grounds of appeal

1.    The primary judge was erred to find that the applicant did not mention in either her visa application or in her application for review made to the Tribunal that she had any fear of harm arising from any intention to participate in anti-government protest if she was returns to Vietnam.

2.    The applicant has indicated that she opposed the Vietnamese government and often directly conflicted with the local authorities because of her political view, and the Department has accepted that “the applicant was not considered high profile by the Vietnamese authorities prior to her departure from Vietnam but accept she may have been considered a low-level political protester”.

3.    In the application, in response to the question ‘do you think you will be harmed or mistreated if you return to that country/those countries?”, the applicant said “as discussed above clause 76/77, possible banned/arrested as strongly opposing the current Vietnamese government, many occasion joined ‘on the streets’ protested”.

4.    The applicant has indicated that she would be arrested upon her return to Vietnam because of her participation in street protest. The Tribunal should have articulated whether that the applicant’s claims relating to future activities upon her return to Vietnam or past participation in street protests. Therefore, the question was about future intention and consequences, it is logically followed that the applicant was likely to continue to demonstrate if she returned to Vietnam.

4    The Minister submits, and I accept, that these grounds can be dealt with on the basis of two arguments:

    First, the Court below erred at PJ [14] in finding that she had not made a claim in her protection visa application or in the application for review before the Tribunal to a fear of harm arising from participation in future protests (Grounds 1-3) (First Issue); and

    Second, the Court below erred in failing to find that the Tribunal denied the Appellant procedural fairness by not confirming with her whether her claims related to future activities upon her return to Vietnam (Ground 4) (Second Issue).

BACKGROUND

5    The Appellant is a citizen of Vietnam. She arrived in Australia on a student visa (TU-573 Higher Education Sector) on 14 July 2016. That student visa was cancelled on 28 September 2017.

6    The Appellant applied for a protection visa on 28 August 2018. In the Appellant’s protection visa application she provided details of her claims in relation to seeking protection in Australia so she did not have to return to Vietnam. This was in response to the various questions posed in the protection visa application form.

7    A delegate considered the Appellant’s claims and refused the protection visa on 4 March 2019.

8    On 11 March 2019, the Appellant applied to the (then) Administrative Appeals Tribunal for review of the delegate’s decision. The hearing before the Tribunal took place on 1 September 2022.

9    The Tribunal gave its decision on 12 September 2022. The Tribunal affirmed the delegate’s decision and rejected the Appellant’s protection visa claims. Relevantly, the Tribunal found:

[24]     However, the Tribunal does note that the applicant only participated in three demonstrations which promoted an anti-Vietnamese government message and that such demonstrations were of a relatively small scale at Inala in Brisbane. For the reasons discussed below, the Tribunal finds that the applicant’s evidence before the Tribunal was generally inconsistent with her purported claims and that overall, the applicant does not have a known anti-Vietnamese government profile and as such a well-founded fear of persecution.

…

[26]    The applicant confirmed that she had not been arrested or mistreated by the Vietnamese authorities due to her involvement as a student in her church youth group. Further, she confirmed that she did not whilst a student in Vietnam support or involve herself in any anti-Communist government activities.

…

[28]    Given the limited nature of the applicant’s involvement in these demonstrations the Tribunal does not accept that she would have attained an anti-Vietnamese government profile and would be so known by the Vietnamese authorities.

…

[29]    …the Tribunal finds that the applicant was not a person of interest to the Vietnamese authorities with a purported anti-government profile resulting from either her activities with the Church youth group as a student, or, as a result of her father’s land disputes with the Vietnamese government.

…

[33]    Equally given the inconsistent evidence given by the applicant at the hearing when compared with her claims in the Visa application and the available country information, the Tribunal rejects the applicant’s evidence as to her fears of arrest and any other form of persecution.

[34]    For the reasons above the Tribunal does not accept that the applicant has an actual or imputed anti-Vietnamese government profile and will be arrested and detained if she returned to Vietnam.

10    On 10 October 2022, the Appellant filed an application for review of the Tribunal’s decision in the Federal Circuit Court. The primary judge dismissed that application for review on 9 May 2025.

11    The Appellant was earlier represented by lawyers, including Counsel, before the primary judge. Further, the Notice of Appeal in this Court was drafted by the Appellant’s then legal representatives. The Appellant has appeared today, and advanced submissions, in support of the grounds of appeal.

12    The Minister quite properly observed that the Notice of Appeal sought, if successful, for the matter to be remitted to the Federal Circuit Court, whereas it should be remitted to the Tribunal.

13    The Appellant made submissions to the Court today, on the hearing of this appeal. For the most part, these submissions advanced factual matters, regarding the Appellant’s protection visa claims. In this regard, two central themes were advanced by the Appellant. The first was regarding the Appellant’s claims of participation, attendance and involvement in the practice of her religion at her Church and the claim that the freedom to undertake such matters was minimised or not allowed. The second was regarding the circumstances surrounding a land dispute, involving her father’s land and the conflict she claimed her father had with the Government, regarding this land. It was advanced in Court today, amongst other matters, that the land was stolen. There is no reference to that allegation, of the land being “stolen” before the Tribunal.

14    However, it is not for this Court to descend into what has often been described as the “murky waters of impermissible merits review” of the Appellant’s protection visa claims. It is the role of this Court on appeal to consider the judgment of the Federal Circuit Court and determine whether it fell into error when it held that the Tribunal did not commit a jurisdictional error, when considering the Appellant’s case.

15    The Appellant also argued that she was not afforded a proper opportunity to explain because the Tribunal did not ask her sufficient questions about her claims, including whether she would be attending future protests in Vietnam, against the Government, if she returned to Vietnam. This is relevant to the Second Issue raised on the Notice of Appeal, and is addressed as follows.

First ISSUE – Grounds of Appeal 1-3

16    Ground 1 argues that the primary judge erred in finding that the Appellant did not mention in either her protection visa application or in her application for review that she feared harm from any intention to participate in future anti-government protests if she was returned to Vietnam.

17    Grounds 2 and 3 seek to particularise where the Appellant submits that her fear or intention was mentioned, or potentially where it is apparent on the face of the material before the Tribunal.

18    With reference to the Tribunal’s decision at [14]-[19] and then the Tribunal’s reasons at [23]-[29], the primary judge relevantly stated at [13] and [14] as follows:

13    It was submitted that by reason of the contents of [14] and [19] of the reasons of the Tribunal, the Tribunal had before it “established facts”, namely the applicant’s assertion that she had been involved in protests against the Vietnamese government, and that therefore, the Tribunal erred jurisdictionally by failing to address such issue, particularly what was submitted to be the likelihood of the applicant continuing to protest against the government if she was returned to Vietnam. Paragraphs [14] and [19] of the Tribunal’s reasons were as follows: …

…

14    The submissions made on behalf of the applicant must be viewed in context. The applicant did not mention in either her visa application or in her application for review made to the Tribunal that she had any fear of harm arising out of any intention to participate in anti-government protests if she was returned to Vietnam. In that respect, the relevant findings of the Tribunal at [23] – [29] inclusive of its reasons were as follows: …

…

19    The primary judge correctly (with respect) observed (PJ at [15]), with express reference to AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56] (Flick, Griffiths and Moshinsky JJ), that whether a claim has been made in sufficiently clear terms, such that it should be considered by the Tribunal depends on the degree of clarity in which the claim has been made and advanced for consideration. 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 primary judge described this, in a short-hand way, of being dependent on the facts of each case.

20    The primary judge with reference to the transcript of the hearing before the Tribunal observed that the Appellant confirmed she had not participated in demonstrations in Vietnam (PJ at [16]). Further, the primary judge observed that the Appellant only referred to her participation in demonstrations in Australia against the Vietnamese Government, rather than any intention to participate in any similar demonstrations in Vietnam, should she be returned to Vietnam.

21    In the Appellant’s protection visa application, from questions 76-83, the Appellant set out her claims in English. These claims were regarding why she left Vietnam, what she thought would happen if she returned, any harm experienced, whether she had sought assistance, whether she had tried to move, whether she thought she would be mistreated, what protection she thought would be given to her by the authorities and whether she could relocate.

22    The Appellant claimed to have participated in demonstrations in Australia as follows:

(a)    11 June 2018, against the proposed Bill of Special Economic Zone and Cybersecurity Act;

(b)    27 August 2018, to seek “freedom right” in Vietnam;

(c)    31 August 2018, seeking rights and human rights for the people of Vietnam;

(d)    24 September 2018, against the Vietnamese Government and Chinese Government and also to support the people of Hong Kong; and

(e)    another demonstration in 2019.

23    The Appellant stated in the Tribunal hearing that she feared arrest by the local police if she was returned to Vietnam because of her activities in Australia, being her involvement in demonstrations in Brisbane.

24    The Appellant gave evidence to the Tribunal that she had not participated in any demonstrations in Vietnam. This is why she was not banned from leaving Vietnam when she did, because she had not directly demonstrated or participated in demonstrations against the Vietnamese Government in Vietnam, at that time.

25    The Appellant clarified to the Tribunal that she had been given some assistance in completing the protection visa application form, and that her claims were not described in the form exactly as she had stated. English is not the Appellant’s first language and as such the claims as articulated in her protection visa application form need to be appropriately viewed. In the particular circumstances of this case, including because the claims were not described exactly as she had stated, the claims should be viewed without a critical eye to matters of syntax, grammar and tense. This caution also applies somewhat to the Appellant’s evidence given at the Tribunal, although that was given with the benefit of an interpreter.

26    At the Tribunal hearing the Appellant clarified and provided further details regarding her family’s land dispute. The Tribunal sought clarification from the Appellant regarding the claims concerning the land dispute, her religious beliefs and involvement with the church. The earlier land dispute with authorities in Vietnam which had involved her family, was no longer of concern to the Appellant. The Appellant agreed, that matter had ceased.

27    The Appellant also clarified at the Tribunal hearing that she was not afraid of participating in church or religious activities.

28    There was no express mention or reference by the Appellant of any intention to participate in anti-government protests or demonstrations in Vietnam, if she was returned to Vietnam. There was also no claim in her protection visa application or before the Tribunal, that the Appellant had previously participated in protests or demonstrations in Vietnam. In the Appellant’s reply submissions at the hearing in this Court, she accepted that she had never mentioned that she would or was intending to be involved in demonstrations in Vietnam. The claim was that she would be arrested before any such activities, which was based on her participation in demonstrations in Australia.

29    The Appellant’s claims were based on a fear of being arrested because of the past participation in anti-government protests or demonstrations in Brisbane, Australia, the last of which was said to have been in 2019. The Appellant had never participated in anti-government protests or demonstrations in Vietnam, prior to leaving.

30    Although the Minister made submissions regarding the precise language in the Appellant’s protection visa form which might have suggested a continuing of activities, it must be remembered that the Appellant did not actually draft the claims herself. She had assistance, and the Appellant stated the claims were not expressed exactly as she had said.

31    As such, I am not persuaded that a close syntactical analysis or reliance on the precise manner of expression is of assistance in this case. It is preferrable to approach the substance of the Appellant’s claims. The substance of the claims made by the Appellant was that there was no future aspect to the Appellant’s intention to participate in any kind of anti-government protests or demonstrations, in Vietnam.

32    The error alleged by the Appellant in the Notice of Appeal, as advanced in Grounds 1-3 must be dismissed.

33    In the circumstances of this case, although not expressly advanced in this way, I will also consider whether this alleged claim was advanced because it was apparent on the face of the material relied on by the Appellant before the Tribunal.

34    The primary judge would fall into error if the Tribunal did not properly consider a claim that was a “substantial, clearly articulated argument relying upon established facts”: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ). The Tribunal is required to deal with the case raised by the material or evidence before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1; [2004] FCAFC 263 at [58] (Black CJ, French and Selway JJ). The unarticulated claim must be raised “squarely” on the material available to the Tribunal, before it has a duty to consider it: NABE at [58]. To express this another way, the obligation to consider an unarticulated claim is confined to claims that are apparent on the face of the material before the Tribunal: DWN027 v Republic of Nauru [2018] HCA 20; (2018) 92 ALJR 548 at [17] (Kiefel CJ, Gageler and Nettle JJ) Each case must be considered according to its own circumstances: NABE at [63]. However, this must be approached with caution as there is a real danger of an appellant seeking to put his or her case before the Court in a way that it was not put below and criticising the reasoning of the decision maker for overlooking or failing to consider a claim: DWN027 at [21].

35    On judicial review, the decision under review must be considered on the basis of the claims which were actually put before the decision maker and not upon some entirely different basis: DWN027 at [21]. This need for caution arises so that the Court maintains its sole focus on judicial review and is not cast into the murky waters of impermissible merits review: ATX19 at [56].

36    The claims of participation in demonstrations in Australia against the Government in Vietnam spanned from June to September 2018 and an unspecified date in 2019. There were no other claims of participating in demonstrations of that kind, or any other kind, in Australia from 2019 until the hearing before the Tribunal in September 2022. That is a period of over 3 years. There were no claims or material supporting a claim that the Appellant was continuing to participate in anti-government demonstrations in Australia, or that she had any intention of participating in such demonstrations in Australia. The most recent evidence was of some 3 years earlier in 2019. The Appellant’s claim as articulated to the Tribunal was based on a fear of arrest because she had participated in those earlier anti-government demonstrations in Australia.

37    Further, the Appellant had never participated in any anti-government protests or demonstrations of any other kind in Vietnam. Any suggestion now that the Appellant had an intention to participate (for the first time) in anti-government demonstrations in Vietnam, if she was returned to Vietnam, is an entirely different basis to that advanced by the Appellant in her protection visa application or to the Tribunal. Any future claim of participation in anti-government demonstrations was not raised “squarely” on the material before the Tribunal and was not in any way apparent on the face of the material before the Tribunal. It is simply a new and different basis. There is an obvious and clear difference between engaging in past demonstration activities and an intention to engage in future demonstration activities.

38    To that can be added the clear distinction of participating in demonstrations in Australia and a new claim of participating or intending to participate in future demonstrations in Vietnam. This is particularly so as the Appellant had not previously participated in demonstrations in Vietnam.

39    Neither the Tribunal nor the primary judge fell into error by failing to consider this claim. This claim did not arise on the material before the Tribunal. On this appeal, considering the judicial review by the primary judge, the decision under review must be considered on the basis of the claims which were actually put before the decision maker and not upon some entirely different basis. Any claim that the Appellant now advances did not squarely arise on the material before the Tribunal.

40    Any error alleged by the Appellant as advanced in Grounds 1-3 of the Notice of Appeal must be dismissed.

SECOND ISSUE – Ground of appeal 4

41    The Appellant contends that the Tribunal should have “articulated” whether the Appellant’s claims related to future activities upon her return to Vietnam or past participation in street protests. Therefore, so the Appellant argues, the question was about future intention and consequences which logically follow, and whether the Appellant was likely to “continue” to demonstrate if she returned to Vietnam.

42    This Second Issue appears to raise two arguments. First, by the Tribunal not having “articulated” whether her claims related to future activities upon her return to Vietnam or to her past participation in protests, meant that the Tribunal failed to consider this basis of the Appellant’s claims. This is a slight variation on the First Issue and based on the meaning of articulated.

43    Second, is that the Appellant argues she was denied procedural fairness by the Tribunal not asking the Appellant questions regarding her claims. The Tribunal should have raised, so the argument is advanced by the Appellant, whether her claims were relating to future activities upon her return to Vietnam or her past participation in street protests.

44    This ground was advanced somewhat differently before the primary judge. Before the primary judge, it was based on an argument of a denial of procedural fairness, that the Tribunal committed jurisdictional error by failing to ensure a procedurally fair hearing as a result of not alerting the Appellant to a relevant issue, being whether she would continue her protest activity which was relevant to her claim for protection.

45    On this appeal, both possible arguments from this Second Issue will be considered.

46    First, in so far as this ground seeks to argue that the Tribunal should have “articulated” whether the Appellant’s claims were relating to future activities upon her return to Vietnam or past participation in street protests, much of this has been dealt with under the First Issue above.

47    On the basis of how the ground is expressed, it may seek to advance an argument slightly differently to how it is advanced under the First Issue. The difference is the Tribunal, so it is argued, should have considered whether the Appellant would continue to protest generally or would continue to engage in demonstrations in the future, upon being returned to Vietnam. That was not, as is considered under the First Issue, the basis of the Appellant’s claims. The Appellant gave no evidence and did not make any claims of a future intention to participate in any anti-government protests in Vietnam. The Appellant did give evidence that she had never participated in any demonstrations in Vietnam. Therefore, it could not be the case that the Appellant was continuing to participate in demonstrations in Vietnam.

48    Further in relation to the demonstrations in Australia, the Appellant was not continuing to participate in anti-government protests in Australia. The last demonstration she had participated in was in 2019. There was no claim by the Appellant that between 2019 and 2022, being the time of the Tribunal hearing, that she had participated in any demonstrations of any kind.

49    Neither of these arguments mean that the Tribunal fell into jurisdictional error by failing to articulate whether the Appellant’s claims were relating to future activities upon her return to Vietnam or past participation in street protests.

50    Second, on the basis of a denial of procedural fairness, and as was quite properly accepted by the Appellant, the Tribunal is under no obligation to make the Appellant’s case stronger, but it does need to be fair. Quite right, what is required by procedural fairness is a fair hearing not a fair outcome: SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [25] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).

51    There is no obligation on the Tribunal to put to the Appellant the nature of any “case” on which the Tribunal proposed to rely on in contradiction to the Appellant’s claims: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437; [2003] HCA 60 at [57] (Gummow and Heydon JJ). The Tribunal proceedings are inquisitorial, and it is for the Appellant to advance whatever evidence or arguments she wishes to advance to support her contentions that she has a well-founded fear of persecution: Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [187] (Gummow and Hayne JJ). The Tribunal is also not required to construct a case for the Appellant, it is for the Appellant to put before the Tribunal the relevant material and to satisfy the Tribunal of the statutory requirements: DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 289 FCR 346; [2021] FCAFC 229 at [80] (Bromwich, Anastassiou and Anderson JJ).

52    The Appellant had the opportunity to present her claims and support them by any necessary material. She completed the initial protection visa application form, which did not advert to any future intention to participate in demonstrations in Vietnam. The Appellant had the benefit of the delegate’s decision, which refused her protection visa application. The benefit being referred to is that the delegate’s decision articulated the issues. The Appellant sought review of the delegate’s decision. On seeking that review in the Tribunal (that is a full merits-based review) while knowing the issues articulated in the delegate’s decision, the Appellant had the opportunity to present her claims and support them by any necessary material. The Appellant attended and gave evidence at the Tribunal hearing, and again, had the opportunity to present her claims and support them by any necessary material in the context of a full merits review by the Tribunal.

53    The argument advanced by the Appellant was that she was denied procedural fairness by the Tribunal not asking particular questions regarding her claims. In accordance with the authorities outlined above and the progress of the Appellant’s case, this cannot be accepted.

54    No error as advanced by this Second Issue has been identified by the Appellant. Ground 4 of the notice of appeal must be dismissed.

conclusion

55    The Appeal must be dismissed with costs.

Associate:    

Dated:    21 July 2026