EEI24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 843

1. The applicants are citizens of Vietnam who applied for protection visas in Australia. A delegate of the Minister refused to grant the applicants protection visas and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate's decision. The applicants seek judicial review of the Tribunal decision in the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
2. The applicants rely on a single ground of application alleging that the Tribunal denied them procedural fairness, or alternatively breached s 425 of the Migration Act. They otherwise ask the Court to exercise compassion to allow them to remain in Australia.
3. For the reasons explained below, the applicants have not established that the Tribunal made a jurisdictional error. The application for judicial review is therefore dismissed.

1. The first and second applicants are husband and wife and the third applicant is their adult daughter.
2. The applicants lodged an application for protection visas on 30 April 2018. The first applicant was the primary visa applicant and the other applicants were included in the application as members of his family unit. The first applicant claimed, in a statement that accompanied his protection visa application, that:

(a) the family came to Australia in March 2008 under the Temporary Work (Skilled) (subclass 457) visa program, based on the first applicant's skills as a welder, with a desire to provide a better future for the children;

(b) they were not rich in Vietnam but were not desperate either, and did not oppose the communist regime but did not wish to live under it;

(c) they worked hard in Australia but suffered unfortunate events and were deceived and cheated many times;

(d) they sold everything they had in Vietnam, including their house, land and household possessions, to live in Australia;

(e) they were pushed away from the people who said they would help them in Australia after the family provided to the people who were meant to be helping them the amount they asked for, totalling approximately $200,000;

(f) they felt cheated and had tried to work their hardest in exchange for nothing, they lost the money, they had no visa and their labour to exchange for money was also robbed, they had to pay their employer to sponsor them and the employer took advantage of their labour and took away their dreams;

(g) they left Vietnam because of the first applicant's technical skills and they wanted to have a better life and provide a better future for their children;

(h) they did not experience any harm in Vietnam;

(i) if they return to Vietnam, they will have nothing left to return to and would not know what to do, where to stay and the third applicant would find it hard to return because of the language barrier;

(j) even though they do not oppose the communist regime, they do not wish to live under a regime with no freedom of speech and no basic human rights, and they would be worried about the payment of unreasonable taxes to the government, an unsecured environment and daily foods in an unhygienic environment; and

(k) they would not be directly harmed or mistreated in Vietnam, but would not have freedom or support from the government, and would be jobless and homeless.

1. A delegate of the Minister refused to grant the applicants protection visas on 5 July 2018.
2. The applicants applied to the Tribunal for merits review of the delegate's decision on 26 July 2018.
3. On 22 March 2024 the Tribunal wrote to the applicants and invited them to attend a hearing before the Tribunal on 30 April 2024. The Tribunal indicated in the hearing invitation that it had considered the material before it but was unable to make a favourable decision on this information alone.
4. On 9 April 2024 the applicants' representative sent an email to the Tribunal attaching responses to the hearing invitation by the first and second applicants indicating that they would not participate in the hearing and consented to the Tribunal making a decision on the papers. On 11 April 2024 the Tribunal wrote to the applicant's representative to confirm that the hearing scheduled for 30 April 2024 had been cancelled and the Tribunal would proceed to make a decision on the papers.
5. On 20 May 2024 the Tribunal affirmed the delegate's decision not to grant the applicants protection visas.

1. The Tribunal accepted that the first applicant does not wish to return to Vietnam as he and his family have better economic and employment opportunities in Australia. However, the first applicant made no claim that this circumstance would result from one or more of the reasons enumerated in s 5J(1)(a) of the Migration Act: race, religion, nationality, political opinion or membership of a particular social group. The Tribunal noted that without a link to one of those characteristics the nexus between the persecution of that individual and the Migration Act is simply not established.
2. The Tribunal was not persuaded, in light of country information, that the applicants would be subjected to significant economic hardship in Vietnam that threatens their capacity to subsist. There was no country information from which the Tribunal could conclude that either the second or third applicants' individual circumstances differed from the first applicant's in a manner of such significance as to alter the Tribunal's conclusion in this regard. The Tribunal therefore found that the applicants do not have a well-founded fear of persecution in Vietnam based upon their claim of economic hardship.
3. The Tribunal accepted the first applicant has concerns about being able to find work if returned to Vietnam and that the applicants may face some difficulty in doing so at least initially. However, the first applicant did not suggest any person or group will seek to harm the applicants for any reason relating to their economic situation and there was no evidence before the Tribunal that they have ever been discriminated against or otherwise prevented from obtaining work in Vietnam. The Tribunal therefore found that any economic harm the applicants may experience if returned to Vietnam would not amount to significant harm. The Tribunal found there were no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicants being removed to Vietnam, there is a real risk they will suffer significant harm.
4. The Tribunal found that the first applicant's claims to have been cheated and robbed in connection with the applicants' visa applications to Australia did not amount to a real risk or real chance of serious or significant harm should the applicants return to Vietnam. The Tribunal also rejected the cumulative effect the applicants' experience and circumstances may have upon the applicants' financial prospects should the first applicant return to Vietnam.
5. The Tribunal acknowledged the applicants' wish to live in a western country rather than under a communist government, but noted their evidence that they did not oppose the communist regime and had not faced harm in Vietnam. There was no evidence before the Tribunal from which the Tribunal could conclude that any of the applicants held any anti-government opinions in respect of the government in Vietnam, or that they would be perceived adversely by the Vietnamese government.
6. The Tribunal acknowledged that the applicants would be 'returnees' to Vietnam, having resided abroad for over 16 years. However, country information indicated that, absent any involvement in people smuggling or public opposition to the Government (neither of which circumstances apply to the applicants), returnees to Vietnam did not face any adverse attention by domestic agencies there.
7. The Tribunal acknowledged the applicants may experience some challenges accessing social services initially. Whilst the Tribunal appreciated the applicants' situation and acknowledged their preference to remain in Australia, it was not satisfied that any challenges they may face in Vietnam amounted to serious harm for the reasons of their race, religion, nationality, membership of a particular social group or political opinion.
8. The Tribunal concluded that the applicants did not meet the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa) of the Migration Act.

1. The applicants filed their application for judicial review on 24 June 2024. The application was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
2. The application for judicial review contained the following ground (reproduced without alteration):

The Tribunal denied the Applicants procedural fairness and / or breached s425 of the of the Migration Act.

Particulars

a) The Tribunal failed to consider the overall claim of the applicant and hardships applicants are exposed to upon return to vietnam. Tribunal made an error.

1. Pursuant to an Order made by a Registrar of this Court on 30 August 2024, the applicants were required to file and serve, at least 14 days before the hearing, written submissions, any amended application and any additional evidence upon which they seek to rely. The applicants did not file any documents in accordance with the Order. The Minister filed written submissions ahead of the hearing, as required by the Order.
2. The evidence before the Court comprises:

(a) the court book filed on behalf of the Minister on 12 September 2024;

(b) an affidavit of the first applicant filed on 24 June 2024; and

(c) an affidavit of Tareena Martin filed on behalf of the Minister on 20 May 2025.

The role of the Court in judicial review proceedings

1. The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicants' complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
2. The Court can only grant relief to the applicants if they establish that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
   1. Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. ...
   2. Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. ... Jurisdictional error on the part of a statutory decision-maker in making a decision can 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.
3. Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].

The applicants' oral submissions at the hearing

1. Each of the three applicants appeared at the hearing and made oral submissions.
2. The second applicant made her submissions first. She submitted that the family has been in Australia for over 17 years. Since they have been here, they have experienced a lot of hardship and lost over $200,000 from being deceived. They do not know what to do if they are returned to Vietnam, as they sold all their property and real estate. Everything is here is Australia, their daughter is in Australia and if she comes back to Vietnam she does not know what to do. The second applicant asked for compassion so that the family may be allowed to remain in Australia.
3. The first applicant then submitted that after 17 years in Australia, the family does not have anything back in Vietnam. They are humbly begging that the Court reconsider and allow them to stay and work in Australia. From their first years in Australia until now they have paid taxes. They are good citizens and do not have anything in Vietnam. Since their visa got cancelled, the family is not allowed to do any job. They are totally unemployed and it is very hard, even in Australia. If they are deported back to Vietnam, they will be even more desperate. They want to work.
4. The third applicant submitted that she was eight years old when she came to Australia and is now 25 years old. She has lived here for most of her life. It has been very hard since their visa was cancelled. She could not go to school - while she graduated from year 12, she has not been able to attend university or college or work to support her parents. If she is deported, it will be hard to live in Vietnam as she is not fluent in Vietnamese and could not find a job.
5. When the Court again invited the applicants to address whether the Tribunal made a jurisdictional error, the second applicant submitted that they are just ordinary people and do not know much about the law. They cannot say that the Tribunal made a jurisdictional error. It is not their fault that their visa was cancelled because of their employer. All they want is to make an appeal and receive some compassion so that they can stay and work in Australia. The first applicant submitted that their biggest wish is that Australia will let them stay and work here for the rest of their lives. Australia treats people well and with compassion and is the best country in the world to stay in. They would like the Court's compassion to allow them to stay.
6. After hearing the Minister's oral submissions, in reply, the second applicant submitted that they are not afraid of persecution from the Vietnamese government, but their concern is that their whole lives and their children's lives are in Australia. They do not know what to do and they want compassion to allow them to stay. The third applicant submitted that the reason the family came here in the first place is for her future and her brother's future. They have been here for 17 years and they are used to the environment and the economy here. It would be misery to go back to Vietnam. They sold their properties and bet everything to come here. They faced a lot of hardship to come here and would face another hardship if they had to go back to Vietnam.
7. The difficulty with the applicants' oral submissions is that they do not assert any jurisdictional error in the Tribunal decision. While the Court has sympathy for the applicants and understands their wish to remain in Australia, the Court has no power to allow them to remain in Australia on any type of visa. As explained above, and as explained to the applicants at the hearing, the Court can only review the Tribunal decision to see whether the Tribunal made a jurisdictional error and has no power to consider for itself whether they meet the criteria for a protection visa or to grant them a visa.
8. In circumstances where the applicants' oral submissions do not assert any jurisdictional error in the Tribunal decision, either directly or indirectly, they are not capable of establishing jurisdictional error in the Tribunal decision.

1. In their sole ground of application, the applicants assert that the Tribunal denied them procedural fairness and breached s 425 of the Migration Act. In the particulars, they assert that the Tribunal failed to consider their overall claim and the hardships they would be exposed to on return to Vietnam.
2. The Tribunal's procedural fairness obligations were set out in Division 4 of Part 7 of the Migration Act. This included s 425, which provided:

425 Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) subsection 424C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

1. The Tribunal in this case sent the applicants an invitation under s 425 of the Migration Act on 22 March 2024 to attend a hearing on 30 April 2024. A further invitation was sent on 2 April 2024. The hearing invitation complied with the formal requirements of s 425A.
2. In responding to the hearing invitation, the applicants consented to the Tribunal determining the matter without a hearing. This consent was conveyed in a completed 'Response to hearing invitation' form dated 9 April 2024, in which the first applicant, in response to the question, 'Will you take part in the hearing scheduled for 30 April 2024?', ticked the box next to the response, 'No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear'. The form was given to the Tribunal by way of an email sent from the applicants' agent on 9 April 2024, in which the applicants' agent indicated that the first and second applicants 'wish to inform the AAT that they will not participate in the hearing and consent the AAT to make a decision on paper'.
3. I accept the Minister's submission that, once the applicants consented to the Tribunal making a decision without a hearing, the Tribunal had the power to make a decision without holding a hearing and, indeed, was obliged to proceed without holding a hearing as, by operation of s 425(3), the applicants lost the entitlement to appear at a hearing.
4. As Rares J said in SZIMG v Minister for Immigration and Citizenship (2008) 167 FCR 362; [2008] FCA 368 at [21] (emphasis added):

Again, it is difficult to see any purpose in the legislative scheme to require the tribunal to go through the empty form of holding a hearing when it had been informed by the applicant for review that he or she consented to the tribunal deciding the review without him or her appearing before it, even after the invitation to attend the review had been issued. Such a consent, if given after the applicant for review has been informed that the tribunal did not consider that it should decide the review in the applicant's favour on the material before it and thus wished to invite him or her to a hearing so as to persuade it to the contrary, would be an informed consent to a decision being made against the interests of the applicant. Such a consent engages the operation of s 425(3) so that after it has been given the applicant is no longer entitled to appear before the tribunal. As Spender, French and Cowdroy JJ considered, once the applicant for review consents to the tribunal deciding the review without him or her appearing before it, the tribunal can proceed under ss 425(2)(b) and (3) to determine the application for review on the basis of the consent: SZFML 154 FCR at 587 [64]. Their Honours distinguished that mode of the tribunal proceeding from its acting on the basis of the power to decide the review under s 426A(1) following the non-appearance of an applicant. The applicant for review by rejecting an invitation to appear under s 425(1), can waive his or her right to a hearing. That has the effect of an applicant for review consenting to the tribunal deciding the matter without him or her appearing before it.

1. The Tribunal in this matter did not contravene s 425 of the Migration Act.
2. I also accept the Minister's submission that the Tribunal did not otherwise deny the applicants procedural fairness. As submitted by the Minister, the Tribunal relied on the information provided by the applicants to the Department and country information in reaching its decision. The Tribunal was not required to invite the applicants to comment on this information pursuant to s 424A of the Migration Act, as country information falls within the exception in s 424A(3)(a) and information that the applicants provided to the Department falls within the exception in s 424A(3)(ba). There is no suggestion that the Tribunal may have breached any other provision in Division 4 of Part 7 of the Migration Act.
3. Although the applicants assert by the particulars that the Tribunal did not have regard to their overall claim and the hardship they will face on their return to Vietnam, it is clear from a review of the material in the court book and the Tribunal's reasons that the Tribunal carefully considered and intellectually engaged with the applicants' claims. The only document before the Tribunal that set out the applicants' claims for protection was the first applicant's statement that was provided with the protection visa application. The Tribunal reproduced the statement in full in its reasons and carefully considered the matters raised in that statement, referring to country information where appropriate. I accept the Minister's submission that the findings made by the Tribunal were open to the Tribunal and supported by a logical and probative basis.

1. Given my findings above that the applicants have not established that the Tribunal made a jurisdictional error in this matter, the application to this Court for judicial review must be dismissed. While the Court understands that the applicants wish to continue living in Australia, there is no relief that the Court can grant them in this matter. The applicants may wish to seek independent legal advice or advice from a registered migration agent to find out if there are any other options open to them.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant's matter was before it for review.