Abv18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 445

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ABV18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 445

File number(s):	SYG 43 of 2018
Judgment of:	JUDGE LAING
Date of judgment:	8 June 2022
Catchwords:	MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming decision not to grant a protection visa – whether the Tribunal failed to consider documentary evidence – allegations of actual or apprehended bias, illogicality and irrationality – the Court is unable to undertake merits review of the Tribunal’s decision – application dismissed.
Cases cited:	Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16
Division:	Division 2 General Federal Law
Number of paragraphs:	40
Date of hearing:	19 May 2022
Place:	Sydney
Solicitor for the Applicant	Self-represented litigant
Solicitor for the First Respondent	Mr Wilson, Sparke Helmore

ORDERS

SYG 43 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ABV18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	8 JUNE 2022

THE COURT ORDERS THAT:

1.The application be dismissed.

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

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a protection visa.

   BACKGROUND

2. The applicant in these proceedings is a citizen of China.

3. On 17 February 2015, the applicant applied for a protection visa on the basis of her claimed religious views and practice as a Christian of the Local Church (a.k.a “Shouters”).

4. The Delegate refused the applicant’s visa application on 19 January 2016. The Delegate did not accept that the applicant was a member of the Local Church in China and found that she had attended a church group in Australia solely for the purposes of her protection visa application. The Delegate therefore did not accept that the applicant had faced the problems she claimed to have faced in China, or that she would face a real chance of harm upon her return.

5. The applicant applied to the Tribunal for review of the Delegate’s decision on 5 February 2016. The applicant attended a hearing before the Tribunal on 1 December 2017.

6. On 14 December 2017, the Tribunal affirmed the Delegate’s decision.

   THE TRIBUNAL’S DECISION

7. The Tribunal summarised the background to the matter as well as the applicant’s claims and evidence (at [11]-[17]). It also summarised the effect of the country information that was before it regarding the treatment of Christian groups in China, including the Local Church (at [18]-[27]).

8. The Tribunal identified several credibility concerns with the applicant’s claims:

   (a)The applicant had provided inconsistent evidence regarding whether assistance had been provided by a lawyer following her husband’s claimed detention (at [32]-[33]).

   (b)At the Tribunal hearing, the applicant had claimed that her husband had stood trial in China and been given a specified sentence. However, no mention of these significant details was made by the applicant in her earlier, detailed, written statement or at the Departmental interview (at [34]-[37]).

   (c)The applicant had not adequately explained why she would not have access to documents relating to her husband’s trial (including, for example, documents or evidence from the lawyer she claimed had assisted him) (at [38]-[41]).

   (d)The applicant had not given consistent evidence regarding where she was living immediately after her husband’s claimed detention. Her visa application form indicated that she had resided in her home village, which was initially confirmed by the applicant at hearing. However, when the Tribunal put to her that she would have been readily located at her native address, the applicant changed her evidence and claimed to have moved elsewhere than her home village in order to escape detection. The Tribunal was not convinced by this change in evidence, nor by the applicant’s response to its concern that she had been able to live in her home area without difficulty despite claiming to have been wanted by the authorities (at [42]-[47]). 

   (e)The applicant told the Tribunal that she had not disclosed to a leader of the Local Church in Australia, who had provided a supporting reference to the Tribunal, what had happened to her husband as a result of his Local Church attendance (at [48]-[51]).

   (f)The Tribunal considered that the applicant had failed to provide accounts of her father’s claimed detention in a manner that was realistic, personal and detailed. Her accounts of this were also found to contain some discrepancies (at [52]-[57]).

   (g)The applicant’s account of the authorities in her home area targeting her father, but not taking any significant action in relation to ongoing Local Church meetings (or the leaders of those meetings), was considered to be implausible (at [58]-[61]).

9. Based on the cumulative impact of the above stated credibility concerns, the Tribunal formed the view that the applicant had not been a truthful witness (at [65]). In result, the Tribunal was not satisfied that:

   (a)The applicant’s father was detained due to being a leader of the Local Church, that he had to leave his home area in result or that the police had regularly visited and/or harassed the applicant’s family (at [66]). 

   (b)The applicant’s husband was arrested in the circumstances claimed, or that he was tried, sentenced or detained (at [67]).

   (c)The applicant was wanted by the authorities due to being a leader of the Local Church (at [67]).

   (d)The document that the applicant had submitted regarding her husband’s claimed arrest and detention overcame its credibility concerns, in circumstances where the document could have easily been created on computer software (at [68]).

   (e)The applicant faced a real chance of serious or significant harm based upon being perceived as a leader of the Local Church or the past arrest, conviction or detention of her husband (at [67]).

10. The Tribunal accepted that the applicant had displayed a reasonable level of knowledge of the beliefs of the Local Church (at [71]). It accepted that she had been engaged in the Local Church in Australia since her arrival (at [69]).

11. However, based upon the “cumulative impact” of its credibility concerns, the Tribunal was not willing to accept that the applicant was a member of the Local Church in China or that her involvement with the church in Australia was otherwise than for the purposes of her visa application. The Tribunal was not satisfied that the applicant would be a member of the Local Church on return to China. In the absence of independent evidence, the Tribunal also did not accept that her involvement in Australia would create difficulties for her on return (at [75]-[76]).

12. Relying upon the above findings, the Tribunal found that it was not satisfied that there was a real chance of the applicant facing serious or significant harm relating to her religious involvement in China or Australia. Accordingly, the Tribunal found that the applicant was not a person to whom protection obligations were owed and affirmed the Delegate’s decision ([75]-[80]).

    PROCEEDINGS BEFORE THIS COURT

13. An application for judicial review was filed by the applicant on 8 January 2018 containing the following grounds:

    1. On 5 April 2016, I submitted documentary evidence to the Administrative Appeals Tribunal (Tribunal) in relation to my husband’s having been detained by the Chinese authorities. However, the Tribunal has never ever considered such the most important documentary evidence ! Instead, the Tribunal has made his finding solely based on his subjective assumption.

    2. Regarding my church activities in Australia, I have submitted a number of supporting letters from my church brothers and sisters as well as two videos about my speeches. In these supporting letters, all of church brothers and sisters have clearly stated that I am a devout Christian and genuine member of the Local Church, and that they strongly support my claims for a protection visa. Unfortunately, the Tribunal has never ever considered these important documentary evidences but just simply made his finding solely based on his objective assumption.

    3. It is no doubt that the Tribunal has never ever taken any genuine attempts to assess my application. I firmly believe that the Tribunal had a predetermined judgement regarding my application.

    4. I am a genuine member of the Local Church (a.k.a. “shouters”). I have played an active role in the Church not only in China but in Australia as well. Therefore, I will be subjected to persecution if I return.

14. At the hearing, the applicant appeared in person assisted by a Mandarin interpreter. It was confirmed that she was in possession of the relevant documents and had taken the opportunity to have the Minister’s written submissions interpreted to her prior to the hearing. The applicant made oral submissions in support of her application, which are considered below.

    Ground 1

15. Ground 1 contends that the Tribunal failed to consider the documentary evidence that the applicant submitted in relation to her husband’s detention.

16. It is well settled that the Tribunal is not required to refer to every piece of evidence that is before it in its reasons. An inference may be drawn that the Tribunal failed to consider a matter from a failure to expressly refer to it in its decision. However, that inference is not “too readily to be drawn” where the issue has been identified at some point and the reasons are otherwise comprehensive (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47]).

17. Where a failure to consider corroborative material is demonstrated, whether or not this results in jurisdictional error will depend upon the cogency and substance of the material, and its centrality in relation to an applicant’s claims (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [62]). Even if error can be demonstrated regarding a failure to consider relevant evidence, the error will not be jurisdictional unless it can be shown to have been material in the sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. This requires the applicant to demonstrate there is a “realistic possibility that the decision in fact made could have been different” had the error not occurred.

18. In the present matter, the applicant notably provided two sets of documents with translations in support of her claims regarding her husband’s detention. One of these documents, according to its translation, is titled “Detention Notification”. This was provided prior to the Delegate’s decision. It appears with its translation at pages 71-72 of the Court Book (Detention Notification). The document refers to a decision that a named detective be sent to detain the applicant’s husband. The reason for detention is stated to be “participating in illegal gatherings and disturbing social order/security”.  The date of detention is stated on the document, as is the relevant “Police Sub-station”. The partial outline of what appears to have been a stamp appears on the untranslated version (although this is not entirely clear due to the quality of the copy).

19. Another document, which was provided to the Tribunal, appears with its translation at pages 120-121 of the Court Book. According to the translation, this document is titled “Warrant for Detention” (Detention Warrant). Like the Detention Notification, the Detention Warrant states that a decision had been made to send the (same) named detective to detain the applicant’s husband. The reason for detention is stated to be that he was “involved in the illegal gathering and activities and disturbing the social orders and security”. The date of detention and the “Police Sub-station” referred to in this document are the same as in the Detention Notification. Faded copies of two stamps appear on the untranslated document. The more pronounced stamp appears to be in the same position as the apparent remnants of a stamp on the untranslated version of the Detention Notification.

20. The Tribunal referred to the Detention Notification at [16], [41] and [68] of its decision. At [41], the Tribunal expressed concern that further documents were not available, finding specifically that the failure of the applicant to provide any documents relating to the claimed trial and conviction of her husband undermined the applicant’s claims in this regard. At [68], the Tribunal stated:

    In making these findings, the Tribunal has taken into account the document relating to the arrest/detention of the applicant's husband in October 2014. This document does not overcome the cumulative impact of the various credibility concerns identified. It is a document that could easily have been created on readily available computer software.

21. At the hearing, the Minister’s representative conceded that there was no express, separate reference to the Detention Warrant in the Tribunal’s decision. He submitted, however, that an inference should not be drawn that it was overlooked in circumstances where the Detention Notification and the Detention Warrant were substantially similar documents and the Detention Warrant was fulsomely considered in the Tribunal’s decision. It was further submitted on behalf of the Minister that any error by the Tribunal in overlooking the Detention Warrant could not have been material to the Tribunal’s decision, given the similarities between the two documents.

22. Given the substantial similarities between the documents, I consider that the most likely interpretation of the approach taken by the Tribunal was that it regarded the underlying documents as effectively one and the same. It is possible that this interpretation was correct – the untranslated documents appear the same to an untrained eye, although the copies appear to have been taken at different angles and are of different qualities. It is possible that the minor differences in translation are explicable by the fact that the translations occurred at different times. I am therefore not persuaded that the Tribunal failed to consider the Detention Warrant. I find that the more likely inference is that the Tribunal regarded these documents as slightly different copies and translations of two underlying documents that were substantially the same.

23. Moreover, I accept the Minister’s submission that materiality has not been demonstrated. The documents in question were so similar in nature that the Tribunal’s reasons for rejecting the one would inexorably have informed its rejection of the other. In these circumstances, I am not satisfied that there is a realistic possibility that the Tribunal’s decision could have been different had the Tribunal separately considered the Detention Warrant.

24. It follows that Ground 1 is unable to succeed.  

    Ground 2

25. Ground 2 contends that the Tribunal failed to consider the supporting letters from members of the applicant’s Church as well as two videos “about [her] speeches”. 

26. The Tribunal referred to the supporting letters at [16], [17], [49] and [51] of its decision. At [49]-[51], it observed that the provision of a supporting statement by one of the authors, who was a church leader, prompted the Tribunal to question why the applicant would not have informed him of her family’s difficulties in China. The letters were also part of the evidence found at [69] of the Tribunal’s decision to support its acceptance of the applicant’s involvement with the Local Church in Australia. It is therefore apparent that the Tribunal actively considered this material.

27. Whilst the Tribunal did not refer specifically to any videos, as noted above, it is well settled that a decision maker is not required to refer to every aspect of the evidence before it (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]). I accept the Minister’s submission that an inference should be drawn that the videos were also considered as part of the body of evidence by which the Tribunal accepted at [69] “on the evidence” that the applicant had been engaged with the Local Church in Australia.

28. The Tribunal did not doubt that the applicant had been involved in Australia with activities associated with the Local Church. However, the Tribunal was not satisfied that this involvement would result in the applicant experiencing difficulties in China, in the absence of independent evidence to that effect. Given these findings by the Tribunal, even if the videos had been overlooked, I would not have been satisfied on the evidence that such an error was material to the Tribunal’s decision.

29. Ground 2 is accordingly unable to succeed.

    Ground 3

30. Ground 3 appears to raise an allegation of actual or apprehended bias.  Additionally, the applicant’s written submissions suggest that a number of the matters relied upon regarding this ground are also contended to demonstrate that the Tribunal’s decision was irrational or illogical. 

31. A contention of actual bias is a serious matter which carries a “heavy onus” (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97] per McColl JA). It requires prejudgment in a manner so committed to a conclusion that it is “incapable of alteration”, regardless of arguments or evidence (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J). Apprehended bias is similarly difficult to establish. It requires that a “fair-minded lay observer might reasonably apprehend” that a decision maker “might not bring an impartial mind” to determination of the matter (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [33] per Gleeson CJ and McHugh, Gummow and Hayne JJ).

32. Grounds relying upon irrationality and/or illogicality carry a similarly heavy onus. A decision may be found to be illogical or irrational if only one conclusion is open on the evidence, or if there is no logical connection between the evidence and the inferences or conclusions that are drawn. However, a “high degree of caution” is necessary “before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review” (DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30]). The test is one of “extreme” illogicality “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [148]). Thus, “emphatic disagreement” with the reasoning is insufficient (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [61]).

1. Through her written and oral submissions, I understood the applicant to rely upon the following matters as demonstrating bias, irrationality and/or illogicality:

   (a)The Tribunal’s questioning regarding her husband’s arrest and detention. The questioning employed by the Tribunal in this regard was set out at [32]-[33] of the Tribunal’s decision. The applicant was initially asked if a lawyer had been engaged to assist her husband after he was detained. After responding in the negative, the applicant subsequently indicated that her husband had been given a trial one or two weeks after his detention. When asked if her husband had a lawyer representing him during the trial, the applicant stated that he did. No transcript is in evidence to establish that the questioning in this regard was other than as set out at [32]-[33] of the Tribunal’s reasons. But in any event, I do not accept the applicant’s contention that the Tribunal’s questioning of whether her husband had been assisted by a lawyer “bullied” her into giving a specific answer, even if there was some repetition in the questions asked. The Tribunal was entitled to explore and test the account that was given by the applicant. Its approach to doing so, set out at [32]-[33] of its reasons, appears to have had a probative basis (i.e. exploring and testing the circumstances of her husband’s claimed detention). I therefore do not accept that it demonstrates bias, irrationality or illogicality on the part of the Tribunal.

   (b)The Tribunal’s concern that she had been able to live in her home area without difficulty despite claiming to have been wanted by the authorities. However, the Tribunal was not obliged to accept the applicant’s claim that she was not safe there simply because she was not arrested. There is no transcript evidencing the applicant’s contention in her written submissions that she claimed to have been “always on the move” in her home village (as distinct from elsewhere). Even if this was said to the Tribunal, it was not inconsistent with the Tribunal’s concerns regarding her ability to reside in her home “area”. I am not persuaded that the Tribunal’s reasoning in this regard was irrational or illogical, or indicative of bias. It was open to the Tribunal to consider that the ability of the applicant to remain in her home area, and the inconsistent evidence that she had given in this regard, was logically probative of its credibility concerns. This was in circumstances where, as the Tribunal identified, the balance of the applicant’s claims indicated some ability on the part of the authorities to locate Local Church members. The Tribunal’s discussion of this issue with the applicant at hearing, and the opportunity that this gave the applicant to address the Tribunal’s concerns, indicates a mind that was open to persuasion.

   (c)The Tribunal’s concern that the applicant had not disclosed her issues to the leader of the Local Church.  However, I consider that it was open to the Tribunal to find that the applicant’s case was unassisted by the fact that she had not informed a “key individual” and leader associated with the Church, and whom she had asked to provide evidence in support of her case, important information regarding the basis of her case (i.e. that her family had been persecuted for reasons related to the Church, in China). Whilst a differently constituted Tribunal may have reasoned differently, I am not satisfied that the Tribunal’s reasoning in this regard meets the high thresholds of the tests for irrationality or illogicality.  I further note that this issue was raised with the applicant at hearing and she was given the opportunity to respond (see [50] of the Tribunal’s decision). The Tribunal’s attempts to explore this issue with the applicant at hearing suggests a mind that was open to persuasion.  

   (d)The Tribunal’s non-acceptance that the applicant’s involvement with the Local Church in Australia would result in relevant difficulties for her on return to China. However, it was open to the Tribunal not to be persuaded of this in the absence of independent evidence to that effect. This does not indicate that the Tribunal’s mind was closed to persuasion. Rather, it indicates that the Tribunal had required further evidence from the applicant (such as independent country information) in order for persuasion to be achieved. 

   (e)The Tribunal’s failure to make inquiries by contacting the numbers of those who had provided supporting letters regarding the applicant’s Church activities in Australia. However, there was no general duty upon the Tribunal to make inquiries (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [1] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Moreover, it is understandable why the Tribunal may not have seen the need to make such inquiries in this case, in circumstances where it had accepted the applicant’s claims to have been engaged in the Local Church in Australia (at [69] of the Tribunal’s decision). I am therefore not satisfied that any decision by the Tribunal not to contact these witnesses by telephone is indicative of irrationality, illogicality or bias.

   (f)The Tribunal’s failure to consider and research in greater detail the applicant’s religious beliefs. In support of this, the applicant sought to tender a document that was not before the Tribunal but that she submitted provided further information regarding her beliefs. The document was marked for identification as “MFI-1”. I reserved my decision regarding whether the document should be admitted into evidence, given that objection was taken by the Minister. Ultimately, however, I did not consider it appropriate to accept the late tender of the document as evidence. This was in circumstances where the Minister had no opportunity to consider the document prior to the hearing, where the accessibility of the document to the Tribunal was unclear and, notably, where I have concluded that its acceptance into evidence would not alter the outcome of this matter. Regarding the latter issue, I note that the document is relied upon in support of the applicant’s general contention that the Tribunal should have done more research into her religion. I do not doubt that further information would have been available to the Tribunal in the event that it been sought. However, as noted above, there was no general duty on the Tribunal to make inquiries. The applicant at hearing conceded that the Tribunal had demonstrated a reasonable level of knowledge regarding the Local Church. Its reasons for decision (at [25]) also demonstrate that it had access to some country information in this regard. In these circumstances, I am not persuaded that the absence of further research regarding the Local Church is indicative of irrationality, illogicality or bias.

2. For the above reasons, I do not accept that the matters raised by the applicant are capable of meeting the high thresholds for grounds of irrationality, illogicality or bias.

3. It follows that ground 3 is unable to succeed.

   Ground 4

4. Ground 4, and the balance of the matters raised by the applicant through her oral and written submissions, sought for the Court to undertake merits review in relation to her claims for protection. 

5. As I endeavoured to explain at the hearing of the matter, the Court is unable to make different factual findings to the Tribunal regarding whether the applicant’s claims for protection ought to be accepted.  Merits review is beyond the jurisdiction of this Court (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

6. Ground 4 is therefore unable to succeed.

   CONCLUSION

7. For the above reasons, I am obliged to find that the application must be dismissed.

8. I will hear the parties in relation to costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Laing.

Associate:

Dated:       8 June 2022