Federal Court Judgment on Protection Visa Appeal

Original Word Document (96.9 KB) Federal Court of Australia

LPDT v Minister for Immigration and Citizenship [2026] FCA 332

| Appeal from: | LPDT v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 660 |
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| File number(s): | VID 742 of 2025 |
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| Judgment of: | HILL J |
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| Date of judgment: | 24 March 2026 |
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| Catchwords: | MIGRATION – appeal from a judgment of the Federal Circuit and Family Court of Australia (Div 2) dismissing an application to review a decision of former Administrative Appeals Tribunal – protection visa application, claiming Appellant would be executed on return to Vietnam for previous conviction of drug offences – central issue is identity of Appellant – whether Tribunal failed to consider a claim or supporting evidence about how Appellant evaded detection on previous visits to Vietnam – whether Tribunal failed to consider evidence provided in support of identity claims – whether Tribunal’s reliance on inconsistencies between the Appellant’s claimed identities was illogical or irrational – Tribunal did not explain reasons for rejecting supporting evidence – appeal allowed |
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| Legislation: | Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), Sch 16, item 25(2)

Migration Act 1958 (Cth) s 91X |
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| Cases cited: | Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593

ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83

BFD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 887

BHM15 v Minister for Immigration and Border Protection [2018] FCA 917

BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29

BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21

GRPN v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 406

Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; (2023) 298 FCR 431

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431

Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165

VRRQ v Minister for Immigration and Multicultural Affairs [2025] FCA 983

XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349 |
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| Division: | General Division |
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| Registry: | Victoria |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 46 |
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| Date of hearing: | 17 March 2026 |
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| Counsel for the Appellant: | Mr D Star KC and Ms K McInnes |
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| Solicitor for the Appellant: | Russell Kennedy Lawyers |
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| Counsel for the Respondents: | Mr J A Barrington |
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| Solicitor for the Respondents: | Clayton Utz |
ORDERS

| | | VID 742 of 2025 |
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| BETWEEN: | LPDT

Appellant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent | |

| order made by: | HILL J |
| DATE OF ORDER: | 24 March 2026 |
THE COURT ORDERS THAT:

1. The name of the Second Respondent is amended to “Administrative Review Tribunal”.

2. The orders of the Federal Circuit and Family Court of Australia (Div 2) made on 12 May 2025 are set aside and in their place the following orders are made:

(a) The decision of the Administrative Appeals Tribunal dated 6 June 2024 is quashed.

(b) The matter is remitted to the Administrative Review Tribunal for determination according to law.

(c) The First Respondent pay the Applicant’s costs of proceeding MLG 2328 of 2024 to be assessed if not agreed.

1. The First Respondent pay the Appellant’s costs of the appeal, to be assessed by a Registrar of the Court if not agreed.

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

REASONS FOR JUDGMENT

HILL J:

introduction

1 This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Div 2) (FCFCOA): LPDT v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 660 (J). The primary judge dismissed an application for review of a decision of the former Administrative Appeals Tribunal, which affirmed a decision not to grant the Appellant a protection visa.

2 The central issue before the Tribunal was whether the Appellant was the person he claimed to be. The Appellant makes three broad arguments in this appeal:

The Tribunal failed to consider an essential integer of the Appellant’s claims and/or evidence supporting that claim; namely that he was able to previously avoid detection by Vietnamese authorities because he crossed the land border into Vietnam, whereas now he would be detected at the airport if he were removed from Australia (appeal grounds 1 and 1A).

The Tribunal failed to consider various material provided by the Appellant that, if accepted, corroborated his claimed identity (appeal ground 2).

The Tribunal’s reasons for not accepting that the Appellant is the person he claimed to be was illogical or irrational, particularly, the Tribunal’s reliance on “documented inconsistencies” in the Appellant’s identity (appeal ground 3).

3 For the following reasons, I accept appeal ground 2, but reject the other grounds. The appeal is therefore allowed, with costs.

background

4 Arrival in Australia (Jun 2006): The Appellant claims to be a citizen of Vietnam. He first arrived in Australia in June 2006 as the holder of a prospective marriage visa and was subsequently granted a partner visa. That partner visa was cancelled in June 2019 on character grounds (J [3]).

5 Application for protection visa (Jan 2023): On 11 January 2023, the Appellant applied for a protection visa (J [4]). In summary, the Appellant’s protection claims are that he fears that he will be arrested, tortured and ultimately face the death penalty because he is the subject of an arrest warrant for drug offences in Vietnam. Central to the Appellant’s claims is that his actual birth name is the name that appears on this arrest warrant (J [5]). (The primary judge used “XYZ” to refer to this birth name, by reason of the prohibition on the publication of the Appellant’s name under s 91X of the Migration Act 1958 (Cth).)

The Appellant claimed to have used different names during his time in Australia in order to avoid being identified by Vietnamese authorities as XYZ (J [6]).

The Appellant claimed that he was able to avoid harm when engaging with Vietnamese authorities, and when returning to Vietnam in the past, by using forged identity documents and by crossing the border from Vietnam to Cambodia at a place where he could bribe border guards (J [7]).

The Appellant claimed that, if he were now returned to Vietnam, he would be easily identified by Vietnamese officials using his fingerprints, and would be arrested at the airport (J [8]).

6 Delegate refuses application for protection visa (Oct 2023): On 23 October 2023, a delegate of the Minister refused to grant the Appellant a protection visa (J [9]).

7 Application to Tribunal (Oct 2023): On 24 October 2023, the Appellant applied to the Tribunal for review of the delegate’s decision (J [10]). The material relied on by the Appellant included the following:

A letter dated 28 May 2021 from a Vietnamese criminal lawyer (the Vietnamese L egal O pinion), setting out information about arrest warrants in Vietnam, and drug offences and penalties.

A report dated 20 April 2024 by a fingerprint examiner (Mr Stuart) (the F ingerprint R eport), which compared a photograph of fingerprints in an identity document in the name of XYZ, and a scanned copy of the Appellant’s fingerprints.

Translated statements made by members of the Appellant’s family, including his daughter, stating that they had always known their father as XYZ.

Vietnamese birth certificates for the Appellant’s children, naming their father as XYZ.

A family record book, naming XYZ; and

A translated Vietnamese missing person certificate for XYZ.

8 A post-hearing submission from the Appellant’s representative quoted from the Department of Foreign Affairs and Trade’s “ DFAT Country Information Report Vietnam (Report, January 2022)” (2022 DFAT Report) at [5.27]-[5.28] and [5.42], to establish that it was easier to bribe officials at small border crossings into Vietnam.

9 Tribunal affirms refusal decision (Jun 2024): On 6 June 2024, the Tribunal affirmed the decision not to grant the Appellant a protection visa (J [12]).

10 Summary of evidence: The Tribunal analysed the history of the Appellant’s claimed identities in the protection visa application, in previous court proceedings in Australia, and in a previous visa cancellation decision (Tribunal reasons (AAT) [15]-[46]). The Tribunal stated that the issue of the Appellant’s true identity had not been settled in any of these processes (AAT [46]).

11 The Tribunal summarised the Appellant’s evidence at the Tribunal hearing (AAT [47]-[96]), the evidence given by his daughter at that hearing (AAT [97]-[98]). The Tribunal stated that it had also considered the three written submissions from the Appellant’s representative, and the Fingerprint Report (AAT [99]).

12 Assessment of claims (identity): The Tribunal began its assessment of the Appellant’s claims with the following reasons about the Appellant’s identity. Given the importance of these reasons to the grounds of review, this reasoning is set out in full (original emphasis):

1.     The Tribunal has considered the applicant’s evidence carefully and also weighed his comments made in response to the Tribunal’s questions concerning his identity issues and protection claims. The Tribunal has also considered and appreciated the explanations provided by the applicant’s Legal Counsel … .

2.     The Tribunal also listened and considered the explanations provided by the applicant’s witness, his daughter.

3.     The Tribunal noted carefully the documented inconsistencies involving the applicant’s identity and that means that the Tribunal does not accept the applicant’s names as he claims to have. The Tribunal also is unable to make a conclusive finding as to the applicant’s actual and true identity and date of birth.

4.     As noted, the Tribunal does not know, and has not concluded in its own mind who the applicant really is, but having said this, the Tribunal has sufficient evidence before it to consider the applicant’s claims on the country information, which is available concerning the applicant’s country of origin, Vietnam (which is the only certainty before the Tribunal without any doubts attached). …

13 The Tribunal made a general statement that, for the reasons that followed, it did not find the Appellant’s version of events as credible or Appellant a witness of truth (AAT [106]).

14 Claims relating to arrest warrant in Vietnam: The Tribunal then considered the Appellant’s claim that he feared return to Vietnam under any circumstances, because he feared that his “true” identity would be discovered by the Vietnamese authorities, and that he would be detained and at risk of being sentenced to death because of his conviction for drug trafficking (AAT [109]).

15 The Tribunal stated that it would be more than reasonable to accept that a person who had a death warrant “over his head” would not contemplate any return to Vietnam. However, the Appellant stated that he had returned to Vietnam in 2005 for a “family wedding”, and again in 2007 and 2009 to Cambodia for “business reasons”. The Appellant stated that he had obtained a Vietnamese passport from the Vietnamese embassy in Cambodia by using forged documentation. The Tribunal stated that this evidence raised doubts about the Appellant’s credibility. The Tribunal did not accept that the Appellant was able to elude the Vietnamese authorities by being careful as to how he went about his business in Vietnam. The Appellant’s evidence was that the Vietnamese authorities had gone looking for him at his parents’ home and the home of his former wife (AAT [110]-[111]).

16 The Tribunal stated that DFAT had advised that the number of executions in Vietnam was on the increase, and many of the recent executions were to do with drug-related offences. The Tribunal noted that public administration corruption was widespread in Vietnam. The Tribunal did not accept that the Appellant would have had a repeated engagement with Vietnamese authorities, while in Vietnam and at the Vietnamese embassies in Australia and Cambodia, if he truthfully feared being identified, convicted and executed by Vietnamese authorities (AAT [112]).

17 In addition, the Department of Home Affairs’ file indicated that the Appellant had travelled to Vietnam in 2000, 2003 and 2004 to visit his now deceased parents. The Tribunal stated that this information was totally in conflict with the Appellant’s claim that he had had minimal contact with his family in Vietnam so as not to place them in any compromising position with the Vietnamese authorities (AAT [113]).

18 For these reasons, the Tribunal did not accept the Appellant’s identity as it appeared on the protection visa application and, consequently, did not attach any weight to the arrest warrant and court documents. The Tribunal also found that the Appellant’s claims regarding his involvement in drug offences while in Vietnam before 1997 and the issue of the warrant for his arrest were not credible (AAT [115]).

19 Primary judge dismisses application (May 2025): On 11 July 2024, the Appellant applied to the FCFCOA for review of the Tribunal’s decision. The Appellant filed an amended originating application on 18 November 2024. The grounds of the amended application were as follows (as renumbered by the primary judge: J [30]):

1. The Second Respondent (the Tribunal) failed to consider an essential integer of the Applicant’s claim and, in doing so, did not discharge its statutory function of review.

2. In the alternative to ground 1, the Tribunal failed to consider critical evidence in support of the applicant’s claim.

3. The Tribunal failed to consider, or properly consider, evidence provided by the Applicant corroborating his claimed identity.

4. The Tribunal’s reasoning for not accepting that the Applicant is the person he claimed to be was illogical or irrational.

20 On 12 May 2025, the primary judge dismissed the amended application for review.

21 Appeal to this Court (Jun 2025): On 6 June 2025, the Appellant filed a notice of appeal. The notice of appeal (as slightly amended in February 2026) contains four grounds:

1.    The Court erred by not holding that the Second Respondent (the Tribunal) failed to consider an essential integer of the appellant’s claim, and, in doing so, did not discharge its statutory function of review.

Particulars

a.     The appellant claimed that he was able to previously avoid detection by Vietnamese authorities because he crossed the land border into Vietnam. He claimed that if he returned to Vietnam now, he would not be able to evade detection at the airport and would be immediately apprehended and taken into custody where he could face the death penalty.

b.     This claim was made in his statement of 2 May 2024 at [6]-[16], in post-hearing submissions at [12]-[17] and in a statutory declaration of 4 August 2023 at [33]-[36].

c.     The Tribunal did not deal with this aspect of the appellant’s claims at all in its reasons.

d.     The error is material: had the Tribunal not committed this error, there was a realistic possibility of a different outcome: … .

1A.     The Court erred by not holding that, in the alternative to ground 1, the Tribunal failed to consider critical evidence in support of the appellant’s claim, namely:

a.     A document titled ‘Expert Opinion of Le Than King – Vietnamese criminal lawyer’ (28 May 2021)

b.     A DFAT Country Information Report – Vietnam (Report January 2022) at [5.27], [5.28] and [5.42].

1.     The Court erred by not holding that the Tribunal failed to consider, or properly consider, evidence provided by the appellant corroborating his identity as claimed, namely:

a.     a report by Mr Russell Stuart FCert.FI (FP) Fip.FL Fip. VET Fingerprint Examiner which confirmed a match between the appellant’s fingerprint and the Vietnamese identity document of [XYZ]:

b.     translated statements from six members of the appellant’s family:

c.     Vietnamese birth certificates of the appellant’s children, naming their father as [XYZ]:

d.     a family record book, naming [XYZ]: and/or

e.     a translated Vietnamese missing person certificate naming [XYZ].

1.     The Court erred by not holding that the Tribunal’s reasoning for not accepting that the appellant is the person he claimed to be was illogical or irrational.

22 These are essentially the same grounds as were argued before the primary judge.

consideration

23 The issue before the primary judge was whether the Tribunal’s decision contained jurisdictional error. The issue on this appeal is whether the primary judge was correct in finding that the Tribunal’s decision did not contain any jurisdictional error. In these circumstances, it is convenient to focus on the reasoning of the Tribunal.

Grounds 1 and 1A:    Whether Tribunal failed to consider claim or critical evidence about how the Appellant evaded Vietnamese authorities

24 Appeal ground 1 contends that the Tribunal failed to consider an essential integer of the Appellant’s claims; namely that he was able to previously avoid detection by Vietnamese authorities because he crossed the land border into Vietnam, whereas now he would be detected at the airport if he were removed from Australia. Appeal ground 1A contends in the alternative that the Tribunal failed to consider critical evidence in support of that claim; namely, the Vietnamese Legal Opinion and the quoted paragraphs in the 2022 DFAT Report.

25 It is convenient to consider these grounds together, because the answer is the same.

26 Obligation to consider claims and critical evidence: It is common ground that the Tribunal was required to consider the Appellant’s claims and the integers of those claims, and that the relevant claim was made (that the Appellant was able to avoid detection on his previous visits because he entered Vietnam from the Cambodian border) (cf appeal ground 1). It is also common ground that the Appellant did provide the Vietnamese Legal Opinion and quote the 2022 DFAT Report in support of this claim, and that neither is referred to in the Tribunal’s reasons (cf appeal ground 1A).

27 Did this claim rest on a factual premise that was rejected? The dispute between the parties is whether the Tribunal’s reasoning made it was unnecessary for the Tribunal to refer to this particular claim and evidence; in particular, whether this claim rested on a factual premise that the Tribunal had rejected: see J [42]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at 47. That dispute in turn depends on the effect of the Tribunal’s findings at AAT [103]: the Appellant contends that the Tribunal expressly did not find who the Appellant is, so it was necessary for the Tribunal to consider the possibility that he was in fact XYZ.

28 On a fair reading of the Tribunal’s decision, it was satisfied that the Appellant was not XYZ (see AAT [115]). The reason for that finding was because (in the Tribunal’s view) a person who was the subject of a death warrant would not go back to Vietnam at all, whatever the means of entry into Vietnam (see AAT [110]-[112]). The Tribunal did not accept the claim that the Appellant was able to elude the Vietnamese authorities “when he was in Vietnam” by being careful (AAT [111]), or that the Appellant would have repeated engagement with the Vietnamese authorities “while in Vietnam and at the Vietnamese embassies in Australia or Cambodia” if he genuinely did fear being identified, convicted and executed for his conviction for drug offences (AAT [112]). The Tribunal also found that the Appellant’s visits to Vietnam in 2000, 2003 and 2004 to see his parents were inconsistent with his claims to fear detection (AAT [113]). I therefore do not accept the Appellant’s argument that AAT [115] does not add anything to AAT [102]-[103]. (As discussed below, I also do not accept the Minister’s argument that AAT [115] makes two different findings.)

29 None of this reasoning is affected by the difference between previously entering at a land border, and now entering Vietnam at the airport. Accordingly, it was not necessary for the Tribunal to refer to the claim about how the Appellant had managed to enter Vietnam (and the supporting evidence): the Tribunal did not accept that the Appellant was the subject of an arrest warrant at all. The conclusion that the Tribunal did not overlook this claim is more easily reached because the Tribunal did identify at one point the Appellant’s claim that it was easy to cross the Cambodian/Vietnamese border because it was a very porous and badly policed border in certain sections and border guards were susceptible to bribery (AAT [87]); see WAEE at [47]. I agree with the primary judge’s reasons for rejecting these arguments.

Ground 2:    Whether Tribunal failed to consider corroborative evidence that supported the Appellant’s claimed identity

30 Appeal ground 2 contends that the Tribunal failed to consider evidence that corroborated his claimed identity; namely:

the Fingerprint Report;

translated statements from six members of the Appellant’s family;

Vietnamese birth certificates of the Appellant’s children, naming their father as [XYZ];

a family record book, naming [XYZ]; and/or

a translated Vietnamese missing person certificate naming [XYZ].

31 Obligation to consider supporting material – general principles: A Tribunal’s failure to consider material provided to it can amount to a jurisdictional error: see, for example, Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]-112; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [44]-[45], [49]-50. The first issue is whether an inference can properly be drawn that the material was overlooked: see, for example, WAEE at 47; Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; (2023) 298 FCR 431 at 55 (the Court). An important factor is the centrality of the matter (said to be overlooked) to the issues to be decided: Jabari at 55; SZRKT at [111]. A decision-maker is not required to refer to every piece of evidence: WAEE at [46], but sometimes a matter is so central to the decision that it can be expected that it will be referred to expressly if it has been considered: MZYTS at [52].

32 Here, these issues arise in the context of credibility findings, where the information (said to be overlooked) was provided to the Tribunal as a reason to believe the Appellant’s claims. That issue was considered in Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485. In that case, the former Refugee Review Tribunal (RRT) found that the review applicant had fabricated her claim of persecution and, “[g]iven the adverse credibility finding”, gave an apparently corroborate witness statement no weight (in circumstances where there was no independent evidence that the statement was genuine). The Full Court upheld the RRT’s decision:

When a decision-maker has conducted a hearing and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision-maker is entitled to reject evidence which would, if accepted, have corroborated the applicant’s account. However, that does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision-maker could determine to reject it out of hand: SZNSP at 36.

“Corroborative evidence” is evidence independent of the person whose evidence is sought to be corroborated: SZNSP at [35]. In SZNSP, there was no other evidence other than the applicant’s say so that the statement was genuine. If the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it: SZNSP at [36].

That said, a decision-maker would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Corroborative evidence must be assessed and weighed in the balance with all the other evidence: SZNSP at [38].

33 In principle, it is possible that a visa applicant’s credibility could be so weakened that the decision-maker may well treat what is proffered as corroborative evidence as of no weight because “the well has been poisoned beyond redemption”: SZNSP at [19], quoting Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at 49. However, in practice, a decision-maker is likely to commit jurisdictional error if it fails to give weight to apparently supporting material from an independent source, without explaining why that material has not been preferred.

In DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175, the Tribunal committed jurisdictional error when it offered no reason for rejecting the evidence of independent witnesses, other than it considered that the visa applicant had fabricated his claims: DAO16 at [39]-41.

In BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292, the Tribunal gave little weight to the detailed evidence of a Mr C, in circumstances where the Tribunal found that the appellant had presented himself as a gay man when that was not true. The Full Court held that it must be inferred that the Tribunal found that Mr C’s evidence was fabricated, but there was no attempt by the Tribunal to analyse Mr C’s evidence and why it was fabricated: BZD17 at [48]-[49]. The appellant was “left to guess” why the Tribunal rejected Mr C’s evidence, which constituted jurisdictional error because the Tribunal had failed to engage with the evidence of a critical witness: BZD17 at [50].

In BFD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 887, the Tribunal did not give any weight to the apparently corroborative evidence of neighbour (a) and daughter (b), “given the fundamental lack of credibility of the applicants’ evidence”. Justice Burley held that this conclusory statement did not provide any cogent basis for rejecting this evidence, and that the Tribunal had therefore committed jurisdictional error: BFD17 at [60]-[61], [63].

34 Tribunal does not set out reasons for rejecting supporting identity evidence: In this case, the Tribunal’s reasoning at AAT [100]-103 does not provide any reasons for rejecting the apparently corroborative identity evidence provided by the Appellant.

The Tribunal summarises the evidence given by the daughter and states that it has considered her explanations (AAT [97]-[98], [101]), and states that it has considered the Fingerprint Report (AAT [99]).

The Tribunal states that it has “considered the [Appellant]’s evidence carefully and also weighed his comments made in response to the Tribunal’s questions concerning his identity issues and protection claims” (AAT [100]).

The Tribunal then states that it “noted carefully the documented inconsistencies involving the [Appellant]’s identity and that means that the Tribunal does not accept the [Appellant]’s names as he claims to have. The Tribunal also is unable to make a conclusive finding as to the [Appellant]’s actual and true identity and date of birth” (AAT [102]).

35 None of this reasoning explains why the Appellant’s supporting material was rejected. A general statement that the Tribunal has carefully considered the material is not sufficient: BHM15 v Minister for Immigration and Border Protection [2018] FCA 917 at 50. To be clear, there could well be good reason not to give weight to these documents: the statements given by close family members are perhaps not sufficiently independent to be truly corroborative in the sense discussed in SZNSP at [35]-[36]. The Fingerprint Report, although independent, is contingent on the authenticity of the document said to contain the fingerprints of XYZ. The difficulty is that the Tribunal’s reasons do not explain any of this. One is “left to guess” why the Appellant’s materials were not preferred: cf BZD17 at [50].

36 Is there an independent basis for the decision? The Minister contends that any error in the Tribunal’s consideration of the Appellant’s identity evidence is not material, because the Tribunal’s reasons at AAT [108]-[115] are based on the premise that the Appellant is XYZ. It is said that the Tribunal’s earlier reasoning on the identity issue did not intrude into this later consideration of the Appellant’s claims.

37 I do not accept the Minister’s argument. It is not possible to separate completely the Tribunal’s consideration of the Appellant’s claims in AAT [108]-[115] from its consideration of the identity evidence. The reasoning in AAT [108]-[115] is inferential reasoning, based particularly on the Tribunal’s assessment of the likelihood that a person who was facing a “death warrant” would visit Vietnam at all, as the Appellant did. That chain of reasoning is open to the Tribunal, but it is by no means conclusive by itself. If the Tribunal were to find that the supporting material put forward to establish that the Appellant was XYZ was genuine, it would then be necessary for the Tribunal to reconcile its views about the inherent unlikelihood of the Appellant’s claims with that finding: see, by analogy, BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865 at 45, where it was irrational for the Tribunal to accept the genuineness of the applicant’s Iraqi identity documents, but without explanation to decide that other documents meant that the applicant was not who he claimed to be.

38 The Minister contends, however, that AAT [115] actually contains two independent findings: first, that the Tribunal finds that the Appellant is not XYZ (for the reasons in AAT [102]-[103]), and second, that the Appellant’s claims are not credible, even if he is XYZ (for the reasons in AAT [108]-[114]). I do not think this interpretation is open. I accept the Appellant’s argument that AAT [102]-[103] go no further than finding that the Tribunal cannot be satisfied who the Appellant is, and would not support a finding that the Appellant is not XYZ. And the reasons given at AAT [108]-[114] cannot fairly be interpreted as meaning that XYZ would not fear harm in Vietnam: the Tribunal accepts in AAT [112] that executions are carried out in Vietnam for drug offences. Rather, the reasons in AAT [108]-[114] explain why, in the Tribunal’s view, the Appellant is not XYZ.

39 For these reasons, I accept appeal ground 2.

Ground 3:    Whether the Tribunal’s reasoning on inconsistencies was illogical and irrational

40 Appeal ground 3 contends that the Tribunal’s reasoning for not accepting that the Appellant is the person he claimed to be was illogical or irrational.

This argument focuses on the statement in AAT [102] that “[t]he Tribunal noted carefully the documented inconsistencies involving the Appellant’s identity and that means that the Tribunal does not accept the [Appellant]’s names as he claims to have”.

The Appellant contends that this reasoning is illogical or irrational, because the Tribunal does not explain what the inconsistencies were, and why these inconsistencies were sufficient to reject the Appellant’s claim to be XYZ (given his explanation that he adopted other identities to avoid detection by the Vietnamese authorities).

41 Illogicality or irrationality – general principles: The ground of illogicality or irrationality imposes a demanding standard, and it is necessary for the Appellant to establish that there is no probative basis for the decision, or at least a critical step in the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [33]-35; XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349 at [64]-65; VRRQ v Minister for Immigration and Multicultural Affairs [2025] FCA 983 at [108]-109.

42 Here, the particular issue is the Tribunal’s use of inconsistencies in the Appellant’s account (that is, his different identities over the years). The Appellant relies on statements that, where an adverse finding is made on the basis of inconsistencies in accounts, it will usually be necessary to properly discharge the fact-finding task for the decision-maker to explain why she or he has found those differences of such a nature as to justify rejection of a person’s account: see ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at 43; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 at 28. (The Minister submitted that ASB17 poses a different, and less onerous, standard on decision-makers than AVQ17, but it is not necessary to decide that point.)

43 AAT [102] does not contain any additional error: It is of course necessary to read the Tribunal’s reasons fairly and as a whole: see BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at 38, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). The statement in AAT [102] about the “documented inconsistencies involving the [Appellant]’s identity” cannot be read in isolation, but must be read together with the Tribunal’s careful examination of the various iterations of the Appellant’s identity in various visa processes and court proceedings in AAT [25]-[46]. Among this discussion is that the Appellant signed the protection visa application form (in which he claimed to be XYZ) using a different name from XYZ (AAT [31]); there were inconclusive findings on whether the Vietnamese national identity card in the name of XYZ had been fraudulently altered (AAT [32]-[33]); and in criminal proceedings in Australia in 2011 the sentencing judge found that it was unknown who the Appellant is (AAT [40]). This detailed discussion supports the finding in AAT [102]-[103] that it was not possible to be sure who the Appellant is.

44 The Appellant complains that the Tribunal did not consider his explanation for the different identities; namely, that he feared detection by the authorities. However, the Tribunal was plainly aware of that explanation, referring to it at AAT [27], [51]-[53] and [78]. And as noted above under appeal grounds 1 and 1A, the Tribunal’s reasons at AAT [108]-[115] reject the Appellant’s claim that he was sought by the Vietnamese authorities. Accordingly, when the reasons are read as a whole, there is no failure to explain sufficiently the significance of the inconsistencies in the Appellant’s claimed identities.

45 To be clear, there is a separate error in AAT [100]-[103], in that the Tribunal does not explain its reasons for not preferring apparently supporting material, as dealt with in appeal ground 2 above. However, the particular arguments in appeal ground 3 (about the Tribunal’s reasoning on inconsistencies) do not establish any additional error.

conclusion

46 For these reasons, I accept appeal ground 2, meaning that the appeal must be allowed. There is no reason to depart from the usual position on costs. Since the Tribunal’s decision in June 2024, the Tribunal has been replaced by the Administrative Review Tribunal. Pursuant to transitional and savings provisions, the Appellant’s review application can be remitted to the Administrative Review Tribunal: see GRPN v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 406 at 3, referring to Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), Sch 16, item 25(2).

| I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hill. |
Associate:

Dated: 24 March 2026

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