ANS23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 2104

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

1. The principal applicant (the applicant), ANS23, is a citizen of Vietnam who arrived in Australia in 1995 as the holder of a Student (Class TU) (Subclass 560) visa. This ceased in 1999. He then remained unlawfully onshore in Australia until 2013 when he was granted the first of several bridging visas and, in 2017, he applied for a Protection (Class XA) (Subclass 866) visa (protection visa). The second applicant is his de facto partner, who applied for a visa as a member of the family unit.
2. There are two children of the relationship who are themselves now Australian citizens and therefore do not form part of this application. There is a single ground of review in the application for judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) in January 2023 affirming the decision of the Ministerial delegate not to grant the applicants' protection visas. It is that there was a failure to "respond to a substantial, clearly articulated argument relying upon established facts": the language in Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 77 ALJR 1088 (Dranichnikov) at [24] per Gummow and Callinan JJ.
3. The claim, as put, which was said not to be considered by the Tribunal, was the claim that the applicant "would not speak out against the Vietnamese government and the Communist Party of Vietnam out of a fear of harm from the Vietnamese authorities should he do so." For the reasons which follow, no jurisdictional error is established and the application must be dismissed with costs.

1. Before the Ministerial delegate, the principal case put by ANS23 was that, prior to his departure from Vietnam to Australia to study under the then Vietnamese government's scholarship, he had been required to sign an undertaking that he would return to Vietnam, or else face a significant fine or punishment. His concern was, even after nearly 30 years have passed, if he now did return, he would be accused of "treason" for failing to serve Vietnam and would be at risk of being convicted of such charge. That was the principal focus of his claims before the Minister's delegate. In addition, however, the following was said:

c. Relating reasons that make me fearful and reluctant to return to that country:

As I have mention at the top, as time goes by, I have become very aware of the frequent violations of human rights in that country, which show no sign of improvements in the near future. Basic rights, including freedom of speech, opinion, press, association, religion...etc, are restricted. A simple research would yield tens if not hundreds cases involving those violations. But I am not going too much in details with these issues because:

• - I do not intend to just use that information as an excuse for not return to that country.
• - I am too fearful to voice or criticize the Government and its policies, because I know the consequences for others who did so.

• However, some of those issues are so much relevant to my case, for examples:
  • - Human rights: There are many instances; an individual has been jailed without trial for number of years. I believe I will fall into similar situations if I am detained upon my arrival.
  • - Brutal police tactics: In order to gather information, very high numbers of police officers in my country are not hesitant at all to use brutal tactics when interrogating an individual.
  • - Corruption: The country is notorious for bribes and corruption ...
  • - Education: I strongly disagree with the politically motivated education system in the country, which aims to drive the next generations toward socialist ideology. Given children mostly learn and follow what they have been taught; I am very concerned with the idea of enrolling my children in public schools in Vietnam for that reason.

1. The delegate declined to grant the protection visas. The decision of the delegate noted the concern of the applicant, like others, that:

He is too fearful to voice or criticize the Government and its politics because he knows the consequences for others who did.

1. The delegate then referred to country information and noted that those who protest against or openly criticise the Vietnamese government are likely to attract adverse attention from authorities, but concluded that, on the evidence before her, she was not satisfied the applicant has a high anti-government political profile. The protection visa was refused, as it was to the de facto member of the household.
2. The matter was appealed to the Tribunal. Written submissions were filed by the solicitor acting for the applicant. Here, the submission by ANS23 was refined as follows, after referring to country information:

When one has regard to the above country information, it is self-evident that the Vietnamese authorities do not only target high profile activists. In its determination to preserve its one-party rule, the Communist Party of Vietnam takes action against people who oppose it and its ideology.

The applicant's claim that he is afraid to speak out against the regime is one that is supported by the country information. If the Tribunal finds that he is a person who genuinely does not accept the one-party rule of the Communist Party of Vietnam, then he should be found to be a person to whom Australia owes protection obligations, given the restriction of his ability to express his political opinion.

1. The Tribunal conducted a hearing and the applicant gave evidence. The decision of the Tribunal recited that evidence to include the following:
   • He has never been involved in politics, political movements or like social movements that might bring his identity to the attention of the Vietnamese government. He has deliberately chosen to lead a relatively private and anonymous life in Australia so not to bring his name or identity to the attention of the Vietnamese community or the Vietnamese government.

• ...
  • He has never engaged in any criticism of the Vietnamese government or Communist party of Vietnam and never will.

1. The Minister submits that this recital of the evidence given by the applicant is to be considered as part of the broader context of the claim to the delegate which focused upon the applicant's fear of being accused of "treason". Then, the Tribunal concluded its decision as follows:
   1. At the conclusion of the review hearing the Migration Agent for the applicant advised the Tribunal that he pressed the written submissions. He advised the applicant had never participated in speaking out because he was fearful of the possible consequences if he did so. His lack of engagement in Australia was due to fear of being reported to the Vietnamese authorities.
   2. ... It appears to the Tribunal his transgression is minimal. The applicants have lived in Australia for almost 3 decades, raised a family, wish to continue to reside in a free country, are fearful of returning to a one party state and fearful of being punished for breach of an almost 30 year old commitment to return to the home country. In that time for a length period of time neither applicant sought to regularise their situation in their hoist [host] nation.
   3. There is no suggestion either of the applicant[s] has ever been involved in any anti Vietnamese Government activity or anti Communist party activity in Vietnam or Australia. The applicant has not done anything to bring himself to the attention of the Vietnamese government.
   4. The Tribunal is not sure there is any debt owing to the Vietnamese government arising out of costs associated with his education stay in Australia as it appears to have been funded by the Australian government.
   5. The applicant's only misdemeanour it appears is that he did not comply with a signed agreement to return to his home country.
   6. There is insufficient material before the Tribunal to warrant a finding that the applicant is a person of interest to the Vietnamese government. He holds a valid passport twice renewed in Australia by agents of the Vietnamese government. He has not had any engagement with the Vietnamese government during his period of stay in Australia. The applicant has fear. It is fear of the unknown. It is fear driven by speculation derived from his experiences as a boy and young man almost 30 years ago seen through the prism of a free country many years after he left Vietnam.
   7. The applicant's written submissions made reference to relevant CI. The applicant expressed his lack of support for a one party state. He has not expressed that view in Vietnam or Australia at any time of his life. The applicant is not a person of high political profile. The applicant is a person of zero political profile. There is no evidence (excluding the evidence of the applicant) before the Tribunal that he might be detained, arrested or harmed in any way.
   8. The various CI reports cited by the applicant list a range of extant human rights abuses in Vietnam. The applicant is not an activist. With the arguable exception of not returning to his home country the Tribunal is not aware the applicant has violated any laws of Vietnam. He is not a government critic. He does not engage in any dissent against the Vietnamese government.
   9. The applicant is not at risk of being detained for anti-Communist party or anti Vietnamese government views because on his own evidence he has not ever expressed such views in either Australia or Vietnam.
   10. The Tribunal has paid particular attention to the CI reports set out in the applicant's written submissions. Changes to the law in Vietnam, the abolition of the household registration system, the issue of citizens identification cards, the ability to relocate within Vietnam and the massive investment in the Vietnamese economy suggest that a lot of the old ways and old restrictions have little place in a modern economy.
   11. The Tribunal finds that the applicant does not have a well-founded fear of persecution and his claims do not have a credible basis.
   12. The Tribunal finds there is only a remote or far-fetched chance that he will be harmed for any of the reasons he has claimed. The Tribunal does not accept that he would be significantly harmed on the basis of things he has claimed. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk the applicant will suffer significant harm.
2. The Tribunal then concluded that it was not satisfied the applicant was a person in respect of whom Australia had protection obligations. It considered the alternative complementary protection criteria and was not satisfied that there were protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (Act) and, necessarily, the second applicant, as a member of the family unit, could not succeed if the first applicant did not succeed.

1. The applicant's contentions have been noted above, namely, that there was a substantial, clearly articulated argument relying upon established facts which was not responded to or considered by the Tribunal.
2. The solicitor for the applicant accepts that the Tribunal's reasons are to be read fairly, and not considered minutely and finely with an eye keenly attuned to the perception of error, to use the language in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at [30]-[31], but nevertheless contends that the Tribunal never considered the applicant's argument that he would not speak out against the Vietnamese government or the Communist Party out of fear of harm from the Vietnamese authorities should he do so.
3. The applicant says that the approach of the Tribunal exhibited an error which was similar to the error discussed by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (Appellant S395/2002) at [43], per McHugh and Kirby JJ thus:

The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many - perhaps the majority of - cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

At [87]-[88] of the same decision, Gummow and Hayne JJ said (citations omitted):

[87] The primary judge and the Full Court understood the Tribunal as finding that ''[i]t is only if a homosexual couple force Bangladeshi society to confront their homosexual identity that they will encounter problems''. That may be accepted. Both the primary judge and the Full Court held further, however, that the finding about how the appellants were likely to live on their return to Bangladesh supported the Tribunal's finding that the appellants' fears of persecution were not well founded. That is, the primary judge and the Full Court both read the Tribunal's reasons as finding that the appellants were likely to live in a way that would not cause Bangladeshi society to confront their homosexual identity.

[88] This reveals the error made by the Tribunal. The Tribunal did not ask why the appellants would live ''discreetly''. It did not ask whether the appellants would live ''discreetly'' because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention. That the Tribunal was diverted in that way is revealed by considering the three statements in its reasons that are referred to earlier: first, that it is not possible to ''live openly as a homosexual in Bangladesh''; secondly, that ''[t]o attempt to [live openly] would mean to face problems''; and, thirdly, that ''Bangladeshi men can have homosexual affairs or relationships, provided they are discreet''. Nowhere did the Tribunal relate the first and second of these statements to the position of the appellants. It did not consider whether the adverse consequences to which it referred sufficed to make the appellants' fears well founded. All that was said was that they would live discreetly.

1. The applicant also relies on the statement of what Appellant S395/2002 stood for contained in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 (SZSCA) at [17] per French CJ, Hayne, Kiefel and Keane JJ, namely that (citations omitted):

The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the inquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct inquiry was directed - whether the fear of persecution was well founded - had not been addressed.

1. This is the type of error which the applicant contends the Tribunal below made in relation to his case, and that the error was material and, accordingly, that there was a failure by the Tribunal, being a jurisdictional error to review the decision as required by the Act.
2. The Minister's response is to take issue with the characterisation of the claim put by the applicant before the delegate, in particular, before the Tribunal. The Minister submits that the principal concern expressed by the applicant was that, because he did not return in accordance with his original undertaking to the Vietnamese government, he could be accused of, charged with, or jailed for treason for failing to serve the country or wasting government resources. It also characterised the Tribunal's reasoning somewhat differently to the applicant, namely that:

(a) "[T]here was no suggestion that either applicant had ever been involved in any anti Vietnamese Government activity or anti Communist party activity whilst in Australia or Vietnam".

(b) "[T]he applicant had done nothing to bring himself to the attention of the Vietnamese government".

(c) Given it was unclear if any debt was owed to the Vietnamese government, the only arguable misdemeanour by the applicant was "his purported failure to comply with the signed agreement to return to Vietnam".

(d) There was insufficient material to find the applicant was a person of interest, noting that his Vietnamese passport had twice been renewed, but that otherwise there had been no engagement by the applicant with the Vietnamese government for the past 30 years.

(e) While the applicant's submissions had contended he did not support a one-party state, he "had not expressed that view in Vietnam or Australia at any time in his life." Not only was he not a person of a high political profile, he had zero political profile, and leaving aside his own evidence, there was therefore no evidence he was at risk of being "detained, arrested or harmed".

(f) Referring to the country information provided, "the applicant was not an activist and, with the arguable exception of not returning to his home country, the Tribunal was not aware he had violated any laws of Vietnam."

(g) "[H]e was not at risk of being detained for anti-Communist party or anti-Vietnamese government views", because, on his own evidence, he had never expressed such views in Australia or Vietnam.

(h) A lot of the "old ways and old restrictions" in Vietnam have little place in modern Vietnam. Therefore, there was "only a remote or far-fetched chance the applicant would be harmed for any of the reasons claimed".

1. The Minister contends that the situation in Appellant S395/2002 is clearly distinguishable because, in that case, there was no doubt that the applicants would have needed to modify their behaviour, in that case, as members of a homosexual couple, whereas in this case there was no need for the applicant to modify his behaviour out of fear. To this end, the Minister relied upon the decision of Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 (NABD of 2002), referring to [9]-[11] per Gleeson CJ:

[9] The country information on the subject of the treatment of Christians in Iran distinguished between "converts to Christianity who go about their devotions quietly and maintain a low profile [who] are generally not disturbed" and persons involved in the "aggressive outreach through proselytising by adherents of some more fundamental faiths". The distinction thus drawn is far from clear-cut, but it is not meaningless. It was open to the Tribunal, as a matter of factual judgment, to accept the distinction offered by the information, and to regard it as useful in considering the position of the appellant. The Tribunal noted that the Uniting Church was not one of the "fundamental faiths" that require proselytising by their adherents, and it did not regard the conduct of the appellant since he had converted to Christianity as involving "aggressive outreach". It made the following findings:

"The Tribunal finds that the applicant is able to practise his faith in Iran as he has done outside that country and without facing a real chance of persecution. It is not satisfied that there are any essential aspects of his faith he would be constrained in practising in Iran due to any well-founded fear of persecution.

In weighing all the evidence, including the applicant's practice of his faith to date and the tenets of that faith, the Tribunal finds that any decision to avoid proselytising in Iran or of actively seeking attention on matters of religion is not inconsistent with his beliefs and practices. It finds that the present applicant is not constrained in the practice of his avowed faith, nor would he be in Iran, due to a perception that to behave more openly or aggressively would leave him at risk of persecution."

[10] Once the Tribunal accepted, as it was entitled to do on the basis of the country information, that not all Christians in Iran suffer persecution, or a real chance of persecution, then it was required to consider the individual circumstances of the appellant in the light of the available information. It could hardly be contended that, whether they realise it or not, all Christians in Iran are being persecuted by reason of the fact that, if they were ever to turn to "aggressive outreach through proselytising" (even though they may have no intention of doing so), they would suffer retribution. That would be to debase the currency of the language which the Tribunal was bound to apply. Nor could it be contended that any Iranian who becomes a Christian of any denomination suffers a real chance of persecution if he or she ever returns to Iran. That would be tantamount to saying that the country information was completely misleading, and was based on a misunderstanding of what amounts to persecution. No such case was argued.

[11] The Tribunal gave proper consideration to the particular circumstances of the appellant. In considering what might happen if he were to return to Iran, it applied a distinction which was neither meaningless nor irrelevant. Its process of factual reasoning was open on the evidence. No jurisdictional error has been shown.

Further, at [166]-[168], Hayne and Heydon JJ explained:

[166] In the present case, the Tribunal made findings about the way in which the appellant had hitherto practised his faith and about what he would choose to do in Iran. It accepted that he had discussed Christianity with other detainees but it did not accept that his activities since leaving Iran "constitute[d] active attempts to convert others through proselytism as distinct from quiet sharing of his faith". It concluded that he would not "choose to generally broadcast his practice of Christianity or conspicuously proselytize in Iran". It found that "any decision to avoid proselytizing in Iran or of actively seeking attention on matters of religion is not inconsistent with his beliefs and practices". And, as noted earlier, it found that he was not constrained in the practice of his faith "nor would he be in Iran, due to a perception that to behave more openly or aggressively would leave him at risk of persecution".

[167] The Tribunal related its conclusions to the information it had about conditions in Iran. That information drew a distinction which, whatever its difficulties and imperfections, the Tribunal had to consider. It concluded that the appellant's conduct in Australia, if continued in Iran, was properly described as not being proselytizing or actively seeking attention. That is, the Tribunal concluded that the appellant's conduct would fall wholly within one of the descriptions of conduct given in the information it had about treatment of Christians in Iran.

[168] At no point in its chain of reasoning did the Tribunal divert from inquiring about whether the fears which the appellant had were well founded. It did not ask (as the Tribunal had asked in Appellant S395/2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran. Based on the material the Tribunal had, including the material concerning what the appellant had done while in detention, it concluded that were he to practise his faith in the way he chose to do so, there was not a real risk of his being persecuted.

1. The Minister, in summary, contended that the Tribunal identified persons at risk by category and found that that did not include the applicant.
2. Secondly, it found that he was at no risk of being persecuted because he did not have the relevant characteristic which would attract persecution, namely, having protested against the government or the Communist Party. Therefore, not only was any fear not well-founded, but the relevant fear did not exist in the first place.

1. The Minister's submissions must be accepted. Here, the relevant fear, as found by the Tribunal, was "fear of the unknown ... driven by speculation derived from his experiences as a boy and young man almost 30 years ago seen through the prism of a free country many years after he left Vietnam." That finding was well open to the Tribunal for the reasons it gave, especially at [23]-[32]. Those reasons carefully consider each of the arguments the applicant put forward, but do not accept them, either sufficiently or at all. Thus:

(a) He was not a person of interest to the current Vietnamese government - having had no contact with it or its agents at any time, nor had he done anything to bring himself to the attention of that government while in Australia - he had never been an activist, a critic or a dissenter.

(b) The Vietnamese authorities had renewed his passport twice.

(c) Essentially, the fears of being charged with treason by reason of a doubtful debt owed by him on the basis of a written undertaking to return 30 years ago were not accepted, but those claims were squarely considered, in a process of active intellectual engagement by the Tribunal. Disagreement, even emphatic disagreement, with the Tribunal's conclusions does not amount to jurisdictional error.

1. The "Dranichnikov argument" is therefore not made out. Nor is the submission based on Appellant S395/2002, as summarised in SZSCA. The facts here stand in contrast to Appellant S395/2002 where the risks of persecution in Bangladesh towards homosexual couples were real, but the Tribunal did not relate those adverse consequences to the undoubted position of the applicants so as properly to consider whether their fears were well founded (see Gummow and Hayne JJ at [88]) nor, as McHugh and Kirby JJ there put it at [43], was there was a determination of "the issue of real chance without determining whether the modified conduct was influenced by the threat of harm".
2. Here, as in NABD of 2002 at [168] per Hayne and Heydon JJ, the Tribunal "did not ask (as the Tribunal had asked in Appellant S395/2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned ...". The Tribunal's findings that he was not at risk of detention (at [31]), and that "a lot of the old ways and old restrictions have little place" (at [32]), leading to finding that the applicant:

(a) did not have a well founded fear of persecution (at [33]);

(b) had claims without a credible basis (at [33]); and

(c) had "only a remote or far-fetched chance that he will be harmed for any of the reasons he has claimed" (at [34])

all involved squarely confronting and considering the applicant's claims and did not involve an Appellant S395/2002 error.

1. The application to this Court must therefore be dismissed. Costs will follow the event. The sum submitted by the Minister of $6,500 is an appropriate amount.
2. The Court orders that:
   1. The application be dismissed.
   2. The applicants pay the first respondent's costs fixed in the sum of $6,500.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.