COZ21 v Minister for Immigration and Citizenship [2026] FedCFamC2G 60

1. By Application filed on 4 August 2021, the applicant (Applicant) seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 20 July 2021 (Tribunal's Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) (Application).
2. By the Tribunal's Decision, the Tribunal affirmed the decision of a delegate (Delegate) of the first respondent (Minister) not to grant the Applicant a Temporary Protection (Class XD) (Subclass 785) visa (Visa) on the basis that the Applicant had not satisfied the Delegate that she is person in respect of whom Australia has protection obligations as outlined in s 36(2) of the Migration Act.
3. The hearing of the Application took place at the Melbourne Registry of the Court on 21 January 2026 (Hearing). Both the Applicant and the Minister were represented by counsel. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.

1. The Applicant is a citizen of Vietnam.
2. On 19 May 2013, the Applicant entered Australia.[2]
3. On 2 July 2013, the Department of Home Affairs (then the Department of Immigration and Citizenship) (Department) conducted an irregular maritime arrival interview with the Applicant.[3]
4. On 13 June 2014, the Applicant applied for the Visa, the subject of these proceedings.[4]
5. The Applicant originally applied for a Protection (Class XA) (Subclass 866) visa. By operation of s 45AA of the Migration Act and reg 2.08F of the Migration Regulations 1994 (Cth) (Regulations),[5] the application is taken to be, and to have always been, a valid application for the Visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.

1. On 2 December 2014, the Department invited the Applicant to attend an interview on 16 December 2014.[6]
2. On 5 August 2015, the Department conducted an interview with the Applicant in relation to her Visa protection claims.[7]
3. On 13 January 2016, a Delegate of the Minister refused to grant the application for the Visa on the basis that they were not satisfied that the Applicant met s 36 of the Migration Act and reg 785.221(2) of the Regulations (Delegate's Decision).[8]

1. On 11 February 2016, the Applicant applied to the Tribunal for review.[9]
2. On 15 September 2016, the Tribunal invited the Applicant to attend a hearing on 14 November 2016.[10] The invitation requested that the Applicant provide written submissions setting out all claims made and maintained by the Applicant by 7 November 2016.[11]
3. On 20 October 2016, the Applicant's representative (Representative) requested that the hearing be postponed as the Applicant was pregnant and due mid-December. The Applicant advised that she had moved locations.[12]
4. On 21 October 2016, the Tribunal responded to the Representative's request and arranged for the hearing to be conducted in a different location.[13]
5. On 14 November 2016, the Applicant attended the hearing with the assistance of the Representative and an interpreter.[14]
6. On 1 December 2016, the Tribunal affirmed the Delegate's Decision (2016 Tribunal Decision).[15]

1. On 21 May 2018, by consent, a Judge[16] of this Court (formerly the Federal Circuit Court) quashed the 2016 Tribunal Decision and remitted the application to the Tribunal for redetermination according to law (Remittal Application). [17] The orders noted that the First Respondent had conceded that the Second Respondent contravened paragraph 430(1)(d) of the Migration Act and that this constituted jurisdictional error.

1. On 24 May 2018, the Tribunal confirmed that the Remittal Application had been re-allocated to a Member for review.[18]
2. On 17 July 2020, the Tribunal invited the Applicant to attend a hearing on 4 August 2020.[19]
3. On 4 August 2020, the Applicant attended the hearing before a differently constituted Tribunal.[20]
4. On 20 July 2021, the Tribunal affirmed the Delegate's Decision (2021 Tribunal Decision).[21]

1. The Tribunal's Decision is at pages 405 to 417 of the Court Book.
2. The Tribunal first outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Remittal Application: Tribunal's Decision [7] to [21].
3. The Tribunal had regard to mandatory considerations in accordance with Ministerial Direction 84 (Direction 84)[22] in assessing the Applicant's claims[23] and the evidence before it.[24] The Tribunal had specific regard to the Department of Foreign Affairs and Trade (DFAT) Country Information Report (DFAT Report)[25] in relation to the Applicant's claims of anti-Catholic discrimination in Vietnam.
4. The Tribunal accepted that the Applicant was a practicing member of the Catholic Church.[26]
5. During the hearing, the Applicant claimed that members of the Catholic faith were subject to discrimination, including by being denied educational and employment opportunities. When asked whether the Applicant had experienced specific instances of discrimination on account of her religion, the Applicant responded in the negative.[27] The Tribunal put to the Applicant her earlier claims that Catholics were denied public sector employment.[28] The Applicant acknowledged that she had no direct knowledge of this, as she had never applied for such positions in the sector.[29]
6. The Applicant claimed that officials in Vietnam had extorted bribes from her family when seeking government papers, and that this amounted to anti-Catholic discrimination. The Tribunal noted that the DFAT Report indicated that "corruption generally is widespread and entrenched in Vietnam".[30] The DFAT Report assessed that participation in registered religious organisations "[did] not generally cause serious disadvantage".[31] The DFAT Report further assessed that Catholics attending church, and who were not politically active, faced "low risk of official harassment".[32]
7. The Tribunal placed minimal weight on the Applicant's claims of political activism. The Tribunal found that her involvement in protests did not give rise to an imputed political opinion as a ground for discrimination.[33]
8. The Tribunal found that the Applicant's claims of fearing domestic violence from her father were "difficult to credit" and "extremely vague".[34] The Tribunal did not accept that the Applicant had a genuine fear of harm from her father upon return.[35]
9. In relation to the refugee criterion, the Tribunal was not satisfied that there was a real chance that the Applicant would be persecuted upon return. The Tribunal found that the Applicant's fear of persecution was not well-founded, therefore failing to meet the definition of 'refugee' under the Migration Act.[36]
10. In relation to the complementary protection criterion, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal, the Applicant would face a real risk of significant harm.[37]
11. The Tribunal was not satisfied that the Applicant was a person to whom Australia owed protection obligations as set out in s 36(2)(a) or s 36(2)(aa) of the Migration Act.

1. On 4 August 2021, the Application was filed in this Court, within 35 days of the date of the 2021 Tribunal's Decision pursuant to s 477 of the Migration Act.
2. On 26 August 2024, Orders were made by Registrar Downing of this Court for the matter be listed for final hearing. For the First Respondent to file and serve no later than two weeks from the date of these orders: a Court Book. For the Applicant to file and serve at least 28 days before the hearing: written submissions, any amended application and any additional evidence. For the First Respondent to file and serve at least 14 days before the hearing: written submissions and any additional evidence.
3. On 23 June 2025, Orders were made by Registrar Chapman of this Court for the First Respondent's name be amended to "Minister for Immigration and Citizenship". For the Second Respondent's name be amended to "Administrative Review Tribunal". For the callover listing on 25 June 2025 be vacated. For the matter be listed for final hearing. The Court noted that the Applicant had obtained legal representation.
4. This matter was heard on 21 January 2026 for a Hearing before me.
5. The Applicant relied upon the following documents:

(a) the Application filed 4 August 2021;

(b) affidavit of Julian Hayden affirmed on 22 December 2025;[38] and

(c) the Amended Application filed 24 December 2025.

1. On 16 January 2026, a joint bundle of authorities was filed with this Court.
2. Both parties relied on the Court Book.
3. The Amended Application contains the following grounds of review (Grounds of Review):
   1. The Tribunal made one or more jurisdictional errors (Ground 1).

Particulars

1. The Applicant claimed that that she was Catholic, and therefore had to bribe the Vietnamese authorities to obtain critical documents, such as a household registration.

2. The Tribunal was bound to comply with Ministerial Direction 84, cl 3 of which made a 'DFAT' Report on Vietnam dated 13 December 2019 a mandatory consideration.

3. Clauses 5.46 and 5.47 of the Report spoke of "facilities turning away non-life-threatening cases where the person is not properly registered" (i.e. where the person lacked a household registration) - that is, the Report spoke of denial of health care to such persons.

4. Such denial was relevant both to ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth).

5. The Tribunal failed to consider whether the claimed refusal to pay bribes, with the resulting lack of household registration and denial of health care, satisfied ss 36(2)(a) or (aa):

   1. The reasons do not refer to the consequences of lack of household registration;
   2. The reasons do not even refer to s 91R(2)(b) or (c) of the Act;
   3. The Tribunal's purported assessment of the claims against s 36(2)(a) incorrectly interpreted the exclusion in s 36(2B)(c) as applying to the former provision;
   4. The Tribunal asked itself whether the Applicant had suffered the relevant harm in the past, when it should have asked itself whether there was the relevant risk that she would suffer it in the future;
   5. The Tribunal failed to consider the claims against s 36(2)(aa), (purportedly) expressing findings only on s 36(2)(a), on those claims;
   6. Even if it could be said that the Tribunal assessed those claims against s 36(2)(aa), the assessment miscarried:
      1. If the claim was assessed against s 36(2)(aa), which is not conceded, it was rejected on the basis that corruption was widespread in Vietnam;
      2. The question was not whether corruption itself, but whether the consequences of corruption (i.e., denial of health care), were widespread;
      3. The Tribunal ignored those consequences;
      4. In the alternative, even if the question were the corruption itself, the Tribunal failed to appreciate that cl 2.17 of the Report stated that only 7.35% of the Vietnamese population was Catholic:
         1. It failed to assess whether such a small percentage answered the label of "generally" in s 36(2B)(c);
         2. In the alternative, it was legally unreasonable to find that such a small percentage of the population fit that label.

6. The Tribunal made a jurisdictional error in the form of a denial of procedural fairness and/or a constructive failure to exercise its jurisdiction. (Ground 2).

Particulars

1. The Applicant claimed that, as a Catholic, she would be discriminated against by the authorities in Vietnam, in that she would be denied employment in the public sector.
2. That claim was capable of satisfying s 36(2A)(c), and thus, s 36(2)(aa), of the Act.
3. The Tribunal assessed that claim against s 36(2)(a), but failed to assess it against s 36(2)(aa).
4. If the Tribunal assessed that claim against s 36(2)(aa), the assessment miscarried:
   1. The Tribunal held against the Applicant that she had not had first-hand knowledge of discrimination when she was in Vietnam, more than 8 years earlier, when the exercise was, in reality, future looking;
   2. It held against the Applicant that she had obtained a job in Vietnam in a glove factory:

      1. Again, the exercise was future looking, not by reference to 8-year-old events;

      2. In any event, the Tribunal ignored that she claimed at the hearing that, instead of it being a public job, the job in the glove factory was "just a normal regular job".

(words in bold added otherwise as written)

1. The Applicant filed submissions dated 24 December 2025 and submissions in reply dated 15 January 2026. The Applicant's counsel made oral submissions supplementing the Applicants' written submissions at the Hearing.
2. The Minister filed submissions dated 7 January 2026. The Minister's counsel made oral submissions supplementing his written submissions at the Hearing.
3. I have endeavoured to address the relevant oral and written submissions below under the heading "Consideration".

1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[39]
3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it". The court neither consider the merits of the decision nor remakes it.[40] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[41]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[42] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include "misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness".[43] Different kinds of error may overlap.[44] The categories are not closed.[45]
5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[46] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[47] It has been described as an "undemanding" standard.[48]

1. The Temporary Protection visa (Subclass 785) allows a person who has arrived in Australia without a visa to seek asylum and remain in the country for up to three years pending the outcome of their protection claim, provided they satisfy Australia's protection obligations.
2. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) have been satisfied, and to refuse to grant the visa, if not so satisfied.
3. Section 36(2)(a) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. Pursuant to s 5(1) of the Migration Act, the term "refugee" has the meaning given by s 5H of the Migration Act in terms that require the applicant for the visa to have a "well-founded fear of persecution"[49] as defined by s 5J (the Refugee Criteria).
4. Section 36(2)(aa) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non‑citizen in Australia (other than a non‑citizen mentioned in s 36(2)(a)) in respect of whom the Minister is satisfied 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 Complementary Criteria).
5. Section 36(2A) of the Migration Act provides:

A non-citizen will suffer significant harm if:

1. the non-citizen will be arbitrarily deprived of his or her life; or
2. the death penalty will be carried out on the non-citizen; or
3. the non-citizen will be subjected to torture; or
4. the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
5. the non-citizen will be subjected to degrading treatment or punishment.

1. Section 91R of the Migration Act provided that art 1A(2) of the Refugees Convention did not apply in relation to persecution for one or more of the reasons mentioned in the article, unless the persecution involved "serious harm". The term "serious harm" included among other things, "significant" physical harassment or physical ill-treatment to the person.
2. The criteria that the Applicant was required to satisfy for the grant of a Temporary Protection visa (Subclass 785) are set out in Part 785 to Schedule 2 of the Regulations.

The Tribunal made one or more jurisdictional errors.

1. The Particulars to Ground 1 are:
   1. The Applicant claimed that that she was Catholic, and therefore had to bribe the Vietnamese authorities to obtain critical documents, such as a household registration.
   2. The Tribunal was bound to comply with Ministerial Direction 84, cl 3 of which made a 'DFAT' Report on Vietnam dated 13 December 2019 a mandatory consideration.
   3. Clauses 5.46 and 5.47 of the Report spoke of "facilities turning away non-life-threatening cases where the person is not properly registered" (i.e. where the person lacked a household registration) - that is, the Report spoke of denial of health care to such persons.
   4. Such denial was relevant both to ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth).
   5. The Tribunal failed to consider whether the claimed refusal to pay bribes, with the resulting lack of household registration and denial of health care, satisfied ss 36(2)(a) or (aa):
      1. The reasons do not refer to the consequences of lack of household registration;
      2. The reasons do not even refer to s 91R(2)(b) or (c) of the Act;
      3. The Tribunal's purported assessment of the claims against s 36(2)(a) incorrectly interpreted the exclusion in s 36(2B)(c) as applying to the former provision;
      4. The Tribunal asked itself whether the Applicant had suffered the relevant harm in the past, when it should have asked itself whether there was the relevant risk that she would suffer it in the future;
      5. The Tribunal failed to consider the claims against s 36(2)(aa), (purportedly) expressing findings only on s 36(2)(a), on those claims;
      6. Even if it could be said that the Tribunal assessed those claims against s 36(2)(aa), the assessment miscarried:
         1. If the claim was assessed against s 36(2)(aa), which is not conceded, it was rejected on the basis that corruption was widespread in Vietnam;
         2. The question was not whether corruption itself, but whether the consequences of corruption (i.e., denial of health care), were widespread;
         3. The Tribunal ignored those consequences;
         4. In the alternative, even if the question were the corruption itself, the Tribunal failed to appreciate that cl 2.17 of the Report stated that only 7.35% of the Vietnamese population was Catholic:
            1. It failed to assess whether such a small percentage answered the label of "generally" in s 36(2B)(c);
            2. In the alternative, it was legally unreasonable to find that such a small percentage of the population fit that label.
2. The Applicant claimed that she was Catholic and therefore had to bribe the Vietnamese authorities to obtain critical documents such as a household registration.
3. The nub of Ground 1 is that the Tribunal committed a jurisdictional error by failing to consider whether the claimed refusal to pay bribes, with the resulting lack of household registration and denial of health care, satisfied ss 36(2)(a) or (aa) of the Migration Act.
4. Paragraphs [5.46] and [5.47] of the DFAT Report[50] concern the household registration system. Registration is required to obtain government health care. The DFAT Report records that there have been reports of public facilities turning away non-life-threatening cases where the person is not properly registered.
5. The Tribunal's Decision records the following:[51]

(a) The Tribunal asked the Applicant to identify examples and experiences of Catholic discrimination causing fear of harm if required to return to Vietnam. The Applicant claimed discrimination in educational and public sector job opportunities.

(b) The Tribunal asked the Applicant whether she had any first-hand experience of Catholic discrimination. The Applicant replied that she did not. Her knowledge of discrimination was based upon what other people had said.[52]

(c) "[The Applicant] claimed that a further example of anti-Catholic discrimination in Vietnam included officials extorting bribes from her family when they sought government papers such as birth certificates and household registration booklets. When it was put to her that country information is to the effect that corruption generally is widespread and entrenched in Vietnam, she replied that she felt that it just happened to her family".[53]

In view of [the Applicant's] evidence that she had not experienced discrimination on the basis of her Catholic faith, and the relevant country information, I am not satisfied that she has a well- founded fear of persecution on the ground claimed, or that she would be prohibited from practising her religion.

1. The Minister contends that the Applicant's claim of a denial of access to health services in non-life-threatening cases did not arise on the materials, and accordingly, the Tribunal was not required to consider it. He contends further that paragraphs [5.46] and [5.47] of the DFAT Report were therefore not "relevant" to the Tribunal's consideration within the meaning of Direction 84.[55]
2. The Applicant articulated her claim as follows:[56]

In short, the Applicant claimed, inter alia, that she was Catholic, and therefore had to bribe the Vietnamese authorities to obtain critical documents, such as a household registration.

At the Interview (CB 9, question 32, lines 2-3), the following answer was given:

... Why can't you practice [sic] Catholicism in Vietnam? Because Vietnam is a communist country and they don't mix together...

In the four last lines on the same page, the following answer was given (emphasis added):

... Did anything specific happen to you or your family to make you want to leave. With my family, whenever we want to get any documentation from the government, we have to pay the bribe. I will have to pay money if i [sic] want a ... good job or any school record.

In a statutory declaration dated 4 June 2014 at CB 53-56, she stated (emphasis added):

1. ... I fear persecution because of my religion ...

8. My Family have experienced difficulties in many ways. We had problems getting our household registration book; the local government official gave lots of different reasons why we could not have it until we finally paid a bribe and then we were given this document. I think they made this so difficult because we were Catholic. We saw that the government officials took a different attitude when they dealt with Catholics as opposed to when they dealt with other people who were not Catholic.

9. Each time I applied for an official document, ... I had many problems and the document was denied to me until I paid a bribe.

The delegate's reasons at CB 121 [8] (third and last bullet points) summarised that claim:

- The applicant's family always has to pay bribes to the government to get documents because they are Catholic.

...

- The applicant's family have to pay bribes to the government to get things done.

At CB 125 [2], the delegate continued: "The applicant claims that she will be targeted by the Vietnamese government due to her Religion as a Catholic...".

On 7 November 2016, the Applicant's representative's submissions argued at CB 202 [2]:

We submit that [the Applicant] is owed protection by Australia pursuant to s 36(2)(a) of the Act on the basis that there is a real chance that she will would [sic] face serious harm constituting persecution from Vietnamese authorities, on account of the following Refugee Convention grounds, taken either individually or cumulatively:

...

• Her religion as a Catholic; and/or

...

We submit further that there are substantial grounds for believing that as a necessary and foreseeable consequence of [the Applicant] being removed to Vietnam, there is a real risk that she would suffer significant harm, as defined in s 36(2A) of the Act for the purposes of s 36(2)(aa). We submit there is a real risk [the Applicant] would be subject to cruel or inhuman treatment or punishment; and/or be subjected to subject to degrading treatment or punishment.

We wish to make clear that each of the sources of harm relied on to meet s 36(2)(a) of the Act are also claimed as applicable for [the Applicant's] claim in the alternative to meet s 36(2)(aa). We also note that the country information provided below is equally applicable to the refugee claims and complementary protection claims.

At CB 259 [41], the (first) Tribunal acknowledged the Applicant's claim (original italics):

Family had problems getting household registration book, had to bribe to get it; She had to bribe officials to get documents ...

1. In M1/2021 v Minister for Home Affairs,[57] Kiefel CJ, Keane, Gordon and Steward JJ considered the proper approach to representations made to the decision maker in the context of the discretionary power to cancel a visa held by a "non citizen" for "another reason":

It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.

It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.

None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker's reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(emphasis added) (footnotes omitted)

1. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2),[58] (NABE) the Full Court stated:

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it - Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the 'case' articulated by an applicant if evidence and material which it accepts raise a case not articulated - Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at 293 - 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant - Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing**. It has been suggested that the unarticulated claim must be raised 'squarely' on the material available to the Tribunal before it has a statutory duty to consider it - SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb 'squarely' does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal.** Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

(emphasis added)

1. The Full Court observed that statements made in a number of authorities were "consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it".[59] A finding that an unarticulated claim "clearly arose" or "clearly emerged" from the material is not one which is made lightly. It is insufficient that such a claim "might" emerge from the material.[60]
2. The first question is whether the Applicant's claim that Australia owes protection obligations to her by reason of a denial of access to health services in non-life-threatening cases was the subject of a "substantial and clearly articulated argument". The Applicant's submissions to the Tribunal as summarised above demonstrates that it was not.
3. While it is true that the Applicant claimed that she would be denied certain government papers if she did not pay bribes[61] and more generally that "Catholics are disadvantaged",[62] the Applicant now places critical emphasis on the denial of health services in non-life-threatening cases. This latter proposition was not put to the Tribunal and not expressly addressed by it. Nor did it form part of any of the documents that the Applicant put before the Tribunal.
4. I turn then to the question of whether the claim that the Applicant now seeks to put is one that "clearly arose" or "clearly emerged" from the material that was put to it. That claim combines the case expressly put by the Applicant, that Catholics were required to pay bribes for household registration, with the specific information contained in [5.46] and [5.47] of the DFAT Report;[63] in particular, the reports of public facilities turning away non-life-threatening cases where the person is not properly registered.
5. Direction 84 (issued pursuant to s 499(2A) of the Migration Act) provides that where the DFAT has prepared country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, "the decision maker must take into account that assessment, where relevant, in making their decision" (emphasis and further emphasis added). Consistent with this, the Tribunal said that it took into account the country information "to the extent that they are relevant to the decision under consideration".[64]
6. The question of whether the claim that the Applicant now seeks to put was "raised squarely" or "apparent" on the material before the Tribunal, or clearly arose or emerged, is predicated on relevance of the information contained in the country information assessment. Relevance is only established if the argument is one that the Tribunal was expressly required to consider. Thus there is some circularity in the Applicant's claim that the Tribunal was required to consider information contained in [5.46] and [5.47] of the DFAT Report.
7. Having regard to the matters set out above at [66] of these reasons, I do not consider that the Applicant's claim that Australia owes protection obligations by reason of a denial of access to health services in non-life-threatening cases was the subject of a "substantial and clearly articulated argument", or one which clearly arose or emerged from the material. I do not consider that it embraced the specific argument that has now been identified by the Applicant which is the basis of the claim of jurisdictional error.
8. Further, I do not accept the Applicant's contention that reference to being "targeted" (even if "not limited in any way") due to Catholicism does not compel the conclusion that the claim "clearly" arose. The claim of "targeting" was, according to the Applicant, expressed at a very high level of generality.[65]
9. I consider that the Tribunal dealt with the submissions put by the Applicant in a manner that was consistent with "the nature, form and content of the representations" made to it by her.[66]
10. I am not satisfied that jurisdictional error is made out by reference to Ground 1.

The Tribunal made a jurisdictional error in the form of a denial of procedural fairness and/or a constructive failure to exercise its jurisdiction.

1. The Particulars to Ground 2 are:
   1. The Applicant claimed that, as a Catholic, she would be discriminated against by the authorities in Vietnam, in that she would be denied employment in the public sector.
   2. That claim was capable of satisfying s 36(2A)(c), and thus, s 36(2)(aa), of the Act.
   3. The Tribunal assessed that claim against s 36(2)(a), but failed to assess it against s 36(2)(aa).
   4. If the Tribunal assessed that claim against s 36(2)(aa), the assessment miscarried:
      1. The Tribunal held against the Applicant that she had not had first-hand knowledge of discrimination when she was in Vietnam, more than 8 years earlier, when the exercise was, in reality, future looking;
      2. It held against the Applicant that she had obtained a job in Vietnam in a glove factory:
         1. Again, the exercise was future looking, not by reference to 8-year-old events;
         2. In any event, the Tribunal ignored that she claimed at the hearing that, instead of it being a public job, the job in the glove factory was "just a normal regular job".
2. There is no dispute that the Applicant claimed that "Catholics are not allowed employment in the public sector as [they] are not considered a member of the communist party".[67] It was the subject of a "substantial and clearly articulated argument".
3. The Minister acknowledges that:

(a) the Tribunal is required to give separate consideration to the criterion in each of ss 36(2)(a) and 36(2)(aa);[68] and

(b) the Tribunal does not make explicit reference to s 36(2)(aa) of the Migration Act (ie. the Complementary Protection Criteria) in its conclusion at [43].[69]

1. In SZTQP v Minister for Immigration and Border Protection,[70] (SZTQP) the Full Court held that where a factual foundation common to both the s 36(2)(a) and s 36(2)(aa) claims are made, and the Tribunal does not accept the factual foundation in its consideration of the s 36(2)(a) claim, jurisdictional error is not made out by the Tribunal's failure to specifically refer to s 36(2)(aa).
2. In SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship,[71] Robertson J rejected a claim of jurisdictional error that the Tribunal erred by referring to its findings of fact concerning the Refugee Criteria when considering the Complementary Protection Criteria:

There is in my opinion no jurisdictional error in the Tribunal referring to its previous findings of fact in this case as the claim under the complementary protection provisions as articulated could not survive those findings of fact that there were no relevant loans and therefore no threats of the nature claimed by the appellant and no factual basis for the appellant's other claims.

1. The Applicant's submissions made to the Tribunal did not distinguish between her claims under the Refugee Criteria and the Complementary Protection Criteria. She made no new or separate argument to the Tribunal regarding the Complementary Protection Criteria. For example, in her submission dated 7 November 2016, which was relied upon for the second Tribunal proceeding, the Applicant's solicitor and migration agent submitted:[72]

We wish to make clear that each of the sources of harm relied on to meet s 36(2)(a) of the Act are also claimed as applicable for [the Applicant's] claim in the alternative to meet s 36(2)(aa). We also note that the country information provided below is equally applicable to the refugee claims and

1. The Tribunal's conclusion with respect to the Refugee Criteria was:[73]

In view of [the Applicant's] evidence that she had not experienced discrimination on the basis of her Catholic faith, and the relevant country information, I am not satisfied that she has a well-founded fear of persecution on the ground claimed, or that she would be prohibited from practising her religion.

1. The Tribunal's conclusion with respect to the Complementary Protection Criteria was:[74]

I have considered the [the Applicant's] circumstances both individually and cumulatively, and the country information, as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Vietnam there is a real risk that she will suffer significant harm**. On the basis of all of the evidence and submissions provided on her behalf, discussed at length above and for the same reasons**, I am not satisfied that there are substantial grounds for that belief.

(emphasis added and further emphasis added)

1. The numb of the Applicant's claim is that either the Tribunal assessed that claim against s 36(2)(a) of the Migration Act, but failed to assess it against s 36(2)(aa), or that the assessment under s 36(2)(aa) miscarried. A central complaint appears to be the absence of separate reasoning concerning the Applicant's claim under s 36(2)(aa), and the Tribunal's cross reference to evidence, submissions and reasons given in relation to s 36(2)(a).
2. In circumstances where the Tribunal rejected the factual foundation for the Applicant's claim under s 36(2)(a) of the Migration Act, that as a Catholic, she would be discriminated against by the authorities in Vietnam, in that she would be denied employment in the public sector (at [43]),[75] applying SZTQP, no jurisdictional error is demonstrated by the Tribunal's failure to make specific factual findings in relation to her claim under s 36(2)(aa).[76]
3. The Tribunal's reasons and conclusion at [43][77] dealt with the factual foundation for the claims under both ss 36(2)(a) and (aa) of the Migration Act. The Tribunal proceeded on the basis that "participation in registered religious organisations such as the Catholic Church does not generally cause serious disadvantage to individuals and that many Catholics have achieved high positions in Vietnam" - a statement that appears to have been drawn from the United States Department of State 2019 Report on International Religious Freedom.[78] No distinction is made in either the statement at [40][79] or the report between "normal jobs" and "public jobs".[80]
4. In circumstances where the factual foundation for the claims under ss 36(2)(a) and 36(2)(aa) of the Migration Act were the same, and had been addressed in the reasons leading up to the conclusion at [43][81] I do not consider that the Tribunal erred by failing to separately consider the evidence and reasons in relation to s 36(2)(aa).[82] What is described as an "incantation" is a conclusion (at [86])[83] that the Tribunal was required to, and did, state after setting out its reasons.
5. At the Hearing before me, the Applicant sought to advance a new argument which was that the DFAT Report statement that: "household registration is also essential for obtaining employment with the government or in state-owned enterprises",[84] when combined with the claim that Catholics were required to pay bribes in order to obtain household registration, constituted a distinct claim that also needed to be addressed separately for the purposes of s 36(2)(aa) (and presumably s 36(2)(a) as well). In my opinion, the Tribunal's rejection of the premise of that claim, namely the finding that the Applicant had "not experienced discrimination on the basis of her Catholic faith"[85] - was sufficient to dispose of the more specific claim concerning household registration and employment. The Tribunal's conclusion at [43][86] involved rejection of the contention that Catholics were or might be discriminated against because they had to bribe the Vietnamese authorities to obtain critical documents such as a household registration. The apparent basis of that rejection was because "corruption generally is widespread and entrenched in Vietnam" - providing a more general reason for the claim of bribery in relation to household registration.[87]
6. Further, I do not consider that the Tribunal's Decision when read as a whole indicates that it approached the claims on a historical basis rather than being "future looking".[88] The Applicant's historical experiences in Vietnam eight years earlier were relevant to the questions that arose under ss 36(2)(a) and 36(2)(aa) of the Migration Act, including the Applicant's evidence of working at a glove factory. The DFAT Report relied upon by the Tribunal in its decision provided more up to date information. In its conclusion, the Tribunal addressed the forward looking question with the statement "I am not satisfied that she has a well-founded fear of persecution on the ground claimed" - noting the tense used.[89]
7. I am not satisfied that jurisdictional error is made out by reference to Ground 2.

1. As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error, the Application for review must be dismissed.

1. At the end of each party's submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $8,371.30 being the historical scale amount.[90] I am satisfied that the Minister is entitled to his costs in the proceedings on the basis that costs ought to follow the event.[91] I am further satisfied that it is appropriate to make an order for payment of the amount sought by having regard to the scale and the extent of work undertaken as evidenced by the court file.

I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 21 January 2026, Order 1.

[2] Court Book (CB) 40 and 407 [24].

[16] CB 281-282; Orders made by Judge Egan on 21 May 2018, Orders 1 and 2.

[25] DFAT Report: Vietnam (13 December 2019).

[39] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157/2002).

[40] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [17] (Allsop CJ, Besanko and O'Callaghan JJ).

[41] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) at [2].

[44] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].

[47] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[48] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ at [33].

[49] See s 5H(1)(a) of the Migration Act.

[50] Exhibit A1, p 54 at [5.46] and [5.47].

[56] Applicant's Submissions at [7] to [15].

[57] (2022) 275 CLR 582 at [22]-[27].

[58] [2004] FCAFC 263; (2004) 144 FCR 1 at [57]- [58].

[60] NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1 at [68].

[63] Exhibit A1, p 54 at [5.46] and [5.47].

[65] Applicants reply submissions at [10].

[67] CB 53: Statutory Declaration at [3].

[68] Minister's Submissions at [46]; SZUJT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 612 at [58]- [59].

[70] [2015] FCAFC 121; (2015) 232 FCR 452 at [36].

[71] [2013] FCA 774 at [56].

[76] See Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593.

[80] Cf Applicant's Submissions at [53].

[88] Applicant's Submissions at [53].

[90] See Division 1 of Part 3 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

[91] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.