BXR24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1454

1. The applicant is a citizen of Vietnam who lodged a Protection Visa application on 18 June 2018. Such application was made in circumstances where the applicant's entry visa had expired some three years earlier, such that the applicant's presence in Australia immediately before the making of the visa application was unauthorised.
2. On 19 October 2018, a delegate of the Minister refused the visa application. The delegate found that the provisions s. 5J(1)(a) of the Migration Act 1958 (Cth) (the Act) had not been engaged, and that there was no evidence to indicate that the applicant would be targeted on her return to Vietnam. The delegate also found that the applicant was not a refugee under the provisions s. 5H(1) of the Act.
3. On 26 October 2018, the applicant sought review of the decision of the delegate by the then Administrative Appeals Tribunal (the Tribunal).
4. The applicant and her witnesses appeared before the Tribunal to present arguments and make submissions on 13 March 2024. During the hearing, the applicant made a number of statements which were consistent with her intention to travel to Australia being for economic reasons rather than by reason of her having any well-founded fear of persecution should she remain in Vietnam. The Tribunal handed down its written reasons affirming the decision of the delegate on 14 March 2024. It recorded those matters relating to the applicant's reasons for being in Australia in its reasons as follows:

10.6. The applicant had heard about friends and family members who had come to Australia. Her mother was encouraging her to get away. She did it to please her mother because she wasn't earning enough money in Vietnam to support the family. The applicant went to a travel agent who applied for the visa on her behalf; the process went very smoothly. She doesn't know what visa she got to come to Australia, but it was for three months.

...

10.9. The applicant got farm work about a month after arriving in Australia. She stayed on after the expiration of her visa. She knew that it was unlawful to be here without a visa, and she knew that if she was caught, she would be sent back to Vietnam. However, she took the risk, and kept working because she had her children in Vietnam to support.

10.10. The applicant's marriage ended when she was in Australia. The Tribunal referred to the translated divorce document dated 29 September 2016. The applicant believes it would have been very difficult for her to get a divorce had she been in Vietnam as her husband would likely not have agreed. Her mother pleaded with her husband to sign the papers so the applicant could stay in Australia and earn money to send home to support the children.

...

10.12. The Tribunal referred to the protection visa application and read out the applicant's written claims. The applicant said the claim relating to her objection to the Communist government was not her claim, and that she was not relying on that claim. As to the claim relating to her former husband, the applicant said she relies on the evidence she has given in the hearing, and not the written claim that "after divorce, my former husband often threaten to kill me".

10.13. The applicant's husband lives in Nha Trang,120 kilometres from where her parents and children live. He may call the children every couple of years, but there's no other contact. He has had no contact with her parents other than early on when he needed money. The applicant has had no contact with him since his call soon after she arrived in Australia asking her to send money. The husband has a girlfriend. The applicant's daughter told her that the husband hadn't remarried because he was waiting for the applicant to return.

...

10.16. The Tribunal referred to the witnesses the applicant had nominated in her hearing response and asked her what they would be giving evidence about. The applicant said they would talk about her employment with them. The Tribunal explained to the applicant that the review application and hearing were about whether she meets the requirements of a protection visa, and that a protection visa is a very specific type of visa to protect people who face a real chance of targeted persecution in their home country, not to protect from economic hardship or to allow a person to work and earn money in Australia. The Tribunal therefore pointed out that evidence in relation to her employment was not relevant to the visa requirements. The applicant elected not to call the witnesses.

10.17. The applicant asked the Tribunal whether she needed to apply for a different type of visa. The Tribunal said that it was unable to give her advice, and that she should seek advice from a migration agent or a lawyer. The Tribunal indicated to the applicant that, based on the information she had provided, it has significant concerns about whether she satisfies the requirements for the grant of a protection visa.

1. At the time of the hearing before the Court, the applicant relied upon an Originating Application for Review filed on 17 April 2024, the Ground of which was as follows:
   1. THAT APPEAL TO THE ADMINISTRATIVE APPEALS TRIBUNAL'S DECISIONS OF REFUSAL, AND THAT RETURNING TO VIETNAM, HIGHLY RISKY OF DAILY PERSONAL LIFE, POSSIBLE ERROR JUDGMENT, SECTION 65(1), CRITERIA S. 36(2).
2. The Ground of Review is unparticularised and meaningless. At the time of the hearing, the applicant was in default of an order of the Court, namely an order of Registrar Downing made on 18 November 2024 which required the applicant to file written submissions at least 28 days prior to the date of the hearing. It is contrary to public policy for the Court to act as an advocate on behalf of the applicant in circumstances where such applicant is in default of a Court order.
3. The lack of particularisation of the Ground of Review is also a basis for the dismissal of the application. [1]
4. Further, as to what the Tribunal recorded as being the applicant's claims at the time of the hearing before it, at [11] - [15] inclusive of its reasons, the Tribunal dealt at length with country information recording the prevalence of domestic violence in Vietnam, as well as the police response to allegations of such violence.
5. The Tribunal noted that s. 5AAA(2) of the Act required the applicant to provide particulars of any protection claim and adduce such evidence before the Tribunal in support of such claim.
6. At [20] - [26] of its reasons, the Tribunal made findings concerning the applicant's relationship with her former husband as follows:
   1. The Tribunal notes the applicant's evidence that the written claim in the protection visa application relating to an objection to the Communist government in Vietnam is not her claim and she is not relying on that claim.
   2. The Tribunal is satisfied the applicant is not relying on any claim relating to an objection to the Communist government in Vietnam, and on that basis, the claim does not require the Tribunal's consideration.
   3. The Tribunal considers that the applicant experienced episodes of physical, sexual, emotional, and economic abuse perpetrated by her former husband over the period they lived together in Vietnam from 2006 to sometime in early 2015 following the assault by the former husband on the tourist strip.
   4. The Tribunal notes the applicant's evidence that she relies on the evidence she has given in the hearing about her relationship with her former husband, and not the written claim in the protection visa application that "after divorce, my former husband often threaten to kill me".
   5. The Tribunal notes the applicant's evidence that the last contact she had with her former husband was a couple of months after arriving in Australia in 2015 when he called her and asked her to send money to help support the older child and she declined to do so.
   6. The Tribunal notes the applicant's evidence that the applicant's former husband may call the children every couple of years, but he otherwise has no contact with them.
   7. The Tribunal notes the applicant's evidence that her former husband lives in Nha Trang, 120 kilometres from where her parents and children live, and that he has a girlfriend, but hasn't remarried.
7. As to the Tribunal's consideration of the real reason why the applicant came to Australia, the Court notes [30] - [36] of the reasons of the Tribunal as follows:
   1. The Tribunal notes the applicant's evidence that she remained unlawful without a visa in Australia for three years before applying for a protection visa in June 2018 while knowing that, if she were apprehended by the Australian immigration authorities, she would be deported to Vietnam.
   2. The Tribunal accepts that, on her arrival in Australia, the applicant was in an unfamiliar country with no English language skills. The Tribunal considers however that if the applicant genuinely feared her former husband, it is reasonable to expect that she would not have risked deportation to Vietnam for three years, and instead would have taken steps to ensure that she could remain in Australia legally so as to avoid deportation to Vietnam. The Tribunal further considers that the applicant's reason for risking deportation, being that she needed to work to support her children in Vietnam, is persuasive evidence of her motivation for being in Australia.
   3. The Tribunal considers it is likely that, if the applicant returns to Vietnam, she would live with her parents and children. The Tribunal further considers that the applicant, who has a university degree in accounting, has demonstrated over a long period, both in Vietnam and Australia, her capacity for employment and is well-qualified and experienced to find employment in Vietnam.
   4. The Tribunal considers there is no credible evidence before it to substantiate a finding that, if the applicant returns to Vietnam, she risks exposure to targeted serious harm or significant harm by her former husband in the foreseeable future such as to engage Australia's protection obligations under the refugee or complementary protection criteria of the Act.
   5. The Tribunal notes the applicant's evidence that the financial burden was the main catalyst for the breakdown of the marriage, and that she decided to leave Vietnam and come to Australia to please her mother because she wasn't earning enough money in Vietnam.
   6. The Tribunal considers that the applicant's primary motivation for coming to and wishing to remain in Australia is to work and earn sufficient money to enable her to provide financial support to her parents and children in Vietnam.
   7. The Tribunal is satisfied the applicant's evidence does not give rise to any further claims for protection requiring its consideration.
8. Based upon the evidence before the Tribunal, the Court finds that it was open for the Tribunal to find that the applicant was not owed protection obligations under the provisions of s. 36(2)(a) of the Act, or complimentary protection obligations under the provisions of s. 36(2)(aa) of the Act.
9. The applicant has failed to establish jurisdictional error on the part of the Tribunal.
10. The ground of review is without merit and is dismissed.
11. The Court will hear the parties as to costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

[1] DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240 at [37] per Flick J;

Hamod v New South Wales [2011] NSWCA 375 at [309] - [316] per Beazley JA;

SZRKG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1389 at [22] per Farrel J;

WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmore J;

BUP24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 785 at [9] - [19].