AZL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2024] FedCFamC2G 1239

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AZL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1239

File number(s):

SYG 1597 of 2023

Judgment of:

JUDGE ZIPSER

Date of judgment:

21 November 2024

Catchwords:

 MIGRATION – judicial review of decision of Administrative Appeals Tribunal – protection (subclass 866) visa - whether Tribunal’s decision contained unwarranted assumptions or illogical reasoning – jurisdictional error not established - application dismissed.  

Legislation:

Migration Act 1958 (Cth) s 65

Cases cited:

BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573

Machmud v Minister for Immigration and Multicultural Affairs [2001] FCA 1041

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Division:

Division 2 General Federal Law

Number of paragraphs:

54

Date of hearing:

29 October 2024

Place:

Parramatta

Counsel for the Applicants:

Oliver Jones

Solicitor for the Applicants:

Concisus Legal Pty Ltd

Solicitor for the Respondents:

Simon Knuckey

ORDERS

SYG 1597 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AZL19

First Applicant

AZM19

Second Applicant

AZO19

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULITCULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE ZIPSER
DATE OF ORDER:	21 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.

2.The application is dismissed.

3.The first and second applicants pay the first respondent’s costs in the amount of $8,371.30.

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 ZIPSER

INTRODUCTION

1. On 9 October 2023, the applicants lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) made on 6 September 2023. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicants protection (subclass 866) visas under s 65 of the Act.

2. For the reasons that follow, the application is dismissed.

   FACTUAL BACKGROUND

3. On 18 May 2015, the applicants lodged an application for protection (subclass 866) visas.

4. On 6 June 2016, a delegate of the first respondent refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia owed protection obligations.

5. On 1 July 2016, the applicants lodged an application for review of the delegate’s decision with the Tribunal.

6. On 24 January 2019, the Tribunal invited the applicants to attend a hearing to give evidence and present arguments on 8 February 2019.

7. On 8 February 2019, the applicants attended the hearing. On 11 February 2019, the Tribunal made a decision affirming the delegate’s decision. Following an application by the applicants to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision, on 6 November 2019, the Court quashed the Tribunal’s decision and remitted the matter to the Tribunal for redetermination.

8. On 5 April 2023, the Tribunal invited the applicants to attend a hearing to give evidence and present arguments on 19 July 2023. At the applicants’ request, the hearing date was postponed to 9 August 2023.

9. On 9 August 2023, the first applicant (Applicant) and his representative appeared before the Tribunal at a hearing, with the assistance of a Mandarin interpreter.

10. On 20 August 2023, the applicants’ representative provided a post-hearing submission to the Tribunal.

11. On 6 September 2023, the Tribunal affirmed the decision under review.

    PROCEEDINGS IN THIS COURT

    Application

12. On 9 October 2023, the applicants filed in this Court an application for judicial review of the Tribunal’s decision dated 6 September 2023. The grounds are as follows (verbatim):

    1.The Second Respondent (Tribunal) made a jurisdictional error in relation to the religious practice of the First Applicant.

    Particulars

    (a)The Tribunal may make a jurisdictional error of irrationality by illogical findings or reasoning material to its ultimate conclusion: BHD18 v Minister for Immigration [2020] FCAFC 151 at [29], BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865, [43];

    (b)The Tribunal may make a jurisdictional error of irrationality by relying on unwarranted assumptions: BZI17 v Minister for Immigration [2022] FedCFamC2G 717 at [28]-[34], [48];

    (c)The Tribunal found at paragraph 154 of its decision that, while it accepted that persecution of underground churches does occur in China, it had found that the First Applicant and his family were not underground church members;

    (d)The Tribunal found at paragraphs 121-123 of its decision that the Applicant was not honest in stating that he was not baptised and did not take communion before coming to Australia as there were no priests. The basis for the Tribunal’s conclusion was that, although not ideal, it was permissible for lay persons in Catholicism to officiate at baptisms and provide communion;

    (e)This comprised an unwarranted assumption, or illogical reasoning, on the part of the Tribunal, as the absence of a priest was still a possible reason for the Applicant not to have been baptised or taken communion before coming to Australia;

    (f)The Tribunal found at paragraphs 124 and 140 of its decision that, as there was a church in the First Applicant’s village which was demolished, there were priests in the Applicant’s village, suggesting that if he were an underground church member, he would have been baptised and taken communion before coming to Australia;

    (g)This reflected an unwarranted assumption, or illogical reasoning, on the part of the Tribunal, as the presence of a church of some kind, which was not apparent on the material before the Tribunal, did not persuasively suggest the presence of a priest who would have led to the First Applicant being baptised and taking communion;

    (h)The Tribunal found at paragraph 126 of its decision that, if the First Applicant’s family had been underground church members and thus risked detention and damage to their reputation, they would also have had the First Applicant baptised and allowed him to take communion and further found at paragraph 138 of its decision that if his family were underground church members he would already have been baptised and taken communion before coming to Australia;

    (i)This incorporated an unwarranted assumption or illogical reasoning as the First Applicant’s family may have wished him to be baptised by or receive communion from a priest, as the First Applicant explained. Their commitment to the underground church would not necessarily have meant they wished the First Applicant to be baptised or take communion in any circumstances, as the Tribunal assumed or reasoned;

    (j)The Tribunal found at paragraph 130 of its decision that it was not convinced the First Applicant’s mother had been detained no earlier than 2014 and, in particular, was not persuaded by the First Applicant’s explanation that she had previously been careful;

    (k)This entailed an unwarranted assumption or illogical reasoning that the First Applicant’s mother, if she had been an underground church member, would have been detained before 2014, regardless of how careful or fortunate she had been in avoiding detention before that time;

    (l)The Tribunal found at paragraph 131 of its decision that the Applicant’s departures from China on a number of occasions before 2014 and the career of his brother would not have been possible as the First Applicant’s family would have come to the attention of the authorities for being underground church members;

    (m)This represented an unwarranted assumption or illogical reasoning as the First Applicant’s family could have avoided detection until the First Applicant’s last departure from China and the authorities would not necessarily have targeted the First Applicant’s brother, including because according to the First Applicant his brother had not been a part of the underground church;

    (n)The Tribunal effectively found at paragraph 137 of its decision that the First Applicant would have married his wife otherwise than at a civil ceremony due to his Catholic religion, which involved an unwarranted assumption or illogical reasoning as to the conduct of the First Applicant and his wife in their circumstances;

    (o)The Tribunal was obliged to give proper consideration to, in the sense of active intellectual engagement with, the Applicant’s case: KXXH v Minister for Immigration [2022] FCAFC 111 at [45]-[54]; LJTZ v Minister for Immigration [2022] FCA 1209 at [123]-[126];

    (p)The Tribunal found at paragraph 150 of its decision that there was no evidence before the Tribunal that the First Applicant would challenge the state authorities in China, apart from the First Applicant’s claim that he had converted a family member. It had been necessary for the Tribunal to determine the veracity of this claim and its significance for the First Applicant’s relationship with the state as a Catholic.

    Applicants’ submissions

13. On 1 August 2024, the applicants filed a written submission (AS). At the hearing on 29 October 2024, Oliver Jones of counsel appeared for the applicants and made oral submissions.

14. At the commencement of the hearing, Mr Jones tendered a transcript of the hearing in the Tribunal on 9 August 2023. Mr Jones did not, during the hearing, rely on any part of the transcript in support of the applicants’ contentions.

15. Particulars (d) to (g): The Tribunal recorded in paragraph 121 of its decision that the Applicant claimed that he was not baptised or took communion before coming to Australia “as there were no priests” in China. The Tribunal stated in paragraph 122 that it “does not accept this is an honest response”. The applicants contend in particulars (d) and (e) that the reasoning in support of this adverse credibility finding contained “an unwarranted assumption that, as baptism without a priest was permissible, it would have occurred and any suggestion to the contrary was dishonest”: AS [26]. The Applicant stated in his protection visa claims that “the Catholic Church in our village was also sealed up and closed down”. The Tribunal stated in paragraph 124 of its decision that the Applicant’s evidence concerning the closure of a Catholic Church in his village “would indicate that at the time he was in China there were priests in the village”. The Tribunal relied on this matter in support of its finding in paragraph 122 that the Applicant’s answer recorded in paragraph 121 that there were no priests in China was not “an honest response”. The applicants contend in particulars (f) and (g), first, that the Tribunal’s conclusion that there were priests in the Applicant’s village “contradicts its earlier reasoning that the … Applicant must have been lying”: AS [27]. Second, the applicants contend that the Tribunal’s reasoning involved an assumption that “as there was a church in the village … there would have been priests in the village”: AS [27]. The applicants complain that the basis for this assumption was not explained or apparent: AS [27]. Mr Jones, in oral submissions, described the complaint in particulars (d) to (g) as the critical point in the applicants’ case to the Court.

16. Particulars (h) and (i): The Applicant gave evidence to the effect that his parents in China were devout Catholics who were willing to be detained and risk their family’s reputation and safety. The Tribunal, in paragraph 126 of its decision, stated that it did not accept that such parents “would not have had their child baptised or allowed them to take communion”. The applicants contend that this reasoning process “entails an unwarranted assumption or illogicality” on the basis that “the fact that the First Applicant’s family had undertaken a certain level of risk in their faith did not mean they would have taken the further step of having the First Applicant baptised”: AS [28].

17. Particulars (j) to (m): The Tribunal, in paragraph 132 of its decision, did not accept that the Applicant’s mother and uncle were detained by authorities for reasons of religion as claimed by the Applicant. The applicants, in particulars (j) and (k), contend that the Tribunal’s reasoning process in support of this finding “entailed an unwarranted assumption or illogical reasoning that the First Applicant’s mother, if she had been an underground church member, would have been detained before 2014, regardless of how careful or fortunate she had been in avoiding detention before that time”. The applicants, in particulars (l) and (m), complain about the reasoning process of the Tribunal in paragraph 131 of its decision. Mr Jones, in oral submissions, said this latter complaint was not free-standing, but related to particulars (j) and (k).

18. Particular (n): The Tribunal, in paragraph 137 of its decision, considered there was a tension between the Applicant’s claim that he was a committed Catholic and the fact that the Applicant and his wife married in a civil ceremony rather than in a Catholic church. The applicants contended that the Tribunal’s reasoning “entails an unwarranted assumption that the First Applicant and his wife would necessarily wish to marry in a Catholic Church and would articulate a reason for not doing so and instead have a civil ceremony”: AS [30].

19. Particular (p): The Tribunal found in paragraph 150 of its decision that “there is no evidence before the Tribunal, other than the applicant’s claim he has converted a family member, which indicates that the applicant or [his wife] are preaching or would engage in activities which would challenge the state authorities in China”. The applicants contend that “it was necessary for the Tribunal to rule upon the truth of this claim, even if it was not supported by independent evidence”: AS [31]. Mr Jones, in oral submissions, explained that the Tribunal, in paragraph 150, disbelieved the Applicant because there was no corroborative evidence, and this was contrary to a principle explained in Machmud v Minister for Immigration and Multicultural Affairs [2001] FCA 1041 (Machmud) at [16].

    First respondent’s submissions

20. On 15 August 2024, the first respondent filed a written submission. At the hearing on 29 October 2024, Simon Knuckey from Mills Oakley appeared for the first respondent and principally relied on the written submission. The first respondent’s written submission is referred to further below.

    CONSIDERATION

    General principles concerning unwarranted assumptions and illogical reasoning

21. In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [135] Crennan and Bell JJ stated:

    …A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

22. In BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 (BOH17) Perram J considered the circumstances in which an assumption by a decision maker which a court in a judicial review application considered unwarranted, might involve jurisdictional error. His Honour stated at [7]-[8]:

    [7]  On the current state of the authorities, it seems to me that the better view is that there is no freestanding ground of unwarranted assumptions. However, the making of unwarranted assumptions as part of a credit finding may be reviewed on rationality grounds (DAO16) or because the decision maker has failed duly to consider the question raised by the material (WAGO and BZD17). For myself, the former test is easier to apply in practice in the sense that it appears less conclusory. There are various extant formulations of this ground…

    [8]  Thus, a party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the assumption is not one which a reasonable decision maker could make. Another way of asking this question is to ask whether the decision has an evident and intelligible basis: Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [10] per Kiefel CJ, [82] per Nettle and Gordon JJ, citing Minister for Immigration & Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. In this case, therefore, this means that the question for decision is whether the Tribunal’s impugned credit findings were ones which could reasonably be arrived at or whether they lacked an evident and intelligible justification.

    Particulars (d) to (g)

23. The Tribunal stated in paragraphs 121 to 124 of its decision:

    121.The applicant claims that he was not baptised or took communion before coming to Australia as there were no priests.

    122.The Tribunal does not accept this as an honest response. Lay persons in Catholicism can officiate at baptisms and provide communion which has been consecrated by a priest. Many remote communities around the world can participate in services due to this.

    123.The applicant provided further submissions to the Tribunal. In those submissions and links to articles it states that baptism in circumstances where there is no priest are permissible it may not be ideal, but it is permissible.

    124.In earlier submissions to the Department the applicant spoke about recently hearing, when in Australia, of the church in his village being demolished. This would indicate that at the time he was in China there were priests in the village.

24. The applicants contend in particulars (d) and (e) that the reasoning process in paragraphs 121 to 123 contained “an unwarranted assumption that, as baptism without a priest was permissible, it would have occurred and any suggestion to the contrary was dishonest”: AS [26].

25. It is appropriate to consider the Tribunal’s reasoning process in paragraphs 121 to 123.

26. The Tribunal, in paragraph 121, stated that “the applicant claims that he was not baptised or took communion before coming to Australia as there were no priests”. It appears that the Tribunal based this finding on the following evidence from the Applicant before it:

    (a)First, the delegate, in a decision dated 6 June 2016, recorded part of the Applicant’s claims concerning baptism in China as follows (CB 168):

    The applicant claimed that when he was young he had contact with Catholicism but as there were no Catholic churches in China which were approved by the Roman Catholic Church he attended an underground family church. He claimed that as he was not able to be baptised in China he was baptised in Australia in 2015 … He claimed he did not get baptised in China as family churches do not have priests and were not authorised by the Roman Catholic Church to conduct baptisms.

    (b)Second, the Tribunal recorded in paragraph 88 of its decision part of the Applicant’s evidence to the Tribunal concerning taking communion in China. The Tribunal stated:

    The Tribunal asked if he took communion in China. He responded with words to the effect that he did not. The Tribunal asked why he did not take communion. He responded that the underground church was not complete and there were no priests.

1. The Tribunal, in the first sentence of paragraph 122, made a finding that the Applicant’s evidence summarised by the Tribunal in paragraph 121 was not “an honest response”. The Tribunal, in the balance of paragraph 122 and in paragraph 123, gave two reasons in support of its conclusion that the Applicant’s evidence was not “an honest response” as follows:

   (a)First, the Tribunal stated in paragraph 122 that “lay persons in Catholicism can officiate at baptisms and provide communion”. Mr Jones accepted this proposition.

   (b)Second, the Tribunal noted in paragraph 123 that the Applicant provided to the Tribunal, in a post-hearing submission on 20 August 2023, “submissions and links to articles [which] state that baptism in circumstances where there is no priest are permissible”.

2. If the Applicant’s evidence summarised by the Tribunal in paragraph 121 was to the effect that he was unable to be baptised or take communion in China because there were no priests in family churches in China, it follows, in light of the evidence referred to by the Tribunal in paragraphs 122 and 123, that the Applicant’s evidence summarised by the Tribunal in paragraph 121 was not correct. The reason is that the Applicant said he was unable to be baptised or take communion in China because there were no priests, when in fact he was able to be baptised or take communion because “lay persons in Catholicism can officiate at baptisms and provide communion”.

3. At the hearing on 29 October 2024, Mr Jones contended that the Applicant’s evidence before the Tribunal was not that he was unable to be baptised or take communion in China because there were no priests, but that he preferred not to be baptised or take communion in China because there were no priests. However, first, the Tribunal had before it the delegate’s decision which recorded that the Applicant told the delegate that “he was not able to be baptised in China” because “family churches do not have priests”. In light of this evidence before the Tribunal, the Court does not accept Mr Jones’ contention that the Applicant’s evidence before the Tribunal was that he preferred not to be baptised or take communion in China because there were no priests. Second, even if there was ambiguity concerning this part of the Applicant’s evidence before the Tribunal, so long as it was reasonably open to the Tribunal to interpret the Applicant’s evidence as being that he was unable to be baptised or take communion in China because there were no priests, there was no legal error by the Tribunal in understanding the Applicant’s evidence in this way. Mr Jones did not contend that it was not open to the Tribunal to interpret the Applicant’s evidence as being that he was unable to be baptised or take communion in China because there were no priests. The Court considers that it was open to the Tribunal to interpret the Applicant’s evidence as being that he was unable to be baptised or take communion in China because there were no priests.

4. The Tribunal, in paragraph 122, did not merely find that the Applicant’s evidence summarised by the Tribunal in paragraph 121 was not correct. The Tribunal, in paragraph 122, considered that the evidence was not “an honest response”. Similarly, the Tribunal, in paragraph 140, stated that the Applicant’s “response that he was not baptised or had taken communion because there were no priests in China is not accepted as truthful by the Tribunal”. The Applicant claimed to be a practising Catholic in China and Australia. He provided evidence to the delegate and initially to the Tribunal at a hearing on 9 August 2023 to the effect that he was unable to be baptised or take communion in China because there were no priests, when in fact country information sourced by the Tribunal, and provided by the applicants’ representative to the Tribunal less than two weeks after the hearing, indicated that “lay persons in Catholicism can officiate at baptisms and provide communion”. It appears from the Tribunal’s findings in paragraph 122 (that it “does not accept this as an honest response”) and in paragraph 140 (that the Applicant’s response was “not accepted as truthful by the Tribunal”) that the Tribunal considered that the Applicant knew his evidence or responses were not correct at the time he gave them. Mr Jones did not contend that there was any error in this step of the Tribunal’s reasoning process. The Court considers the Tribunal’s adverse credibility findings in paragraphs 122 and 140 were ones “which could reasonably be arrived at” and “they had an evident and intelligible basis”: BOH17 at [8].

5. For the above reasons, the Court is not persuaded that the Tribunal’s reasons contain an unwarranted assumption or illogical reasoning as stated in particulars (d) and (e).

6. The applicants, in particulars (f) and (g), take issue with the reasoning process in paragraph 124 of the Tribunal’s decision.

7. First, the applicants contend that the Tribunal’s conclusion that there were priests in the Applicant’s village “contradicts its earlier reasoning that the … Applicant must have been lying because he could have been baptised by a lay person”: AS [27]. The Court does not see any contradiction in the Tribunal’s reasoning process in paragraphs 121 to 124. For reasons explained above, the Tribunal considered that some responses of the Applicant to questions asked by the delegate and Tribunal were not “an honest response”. That the Tribunal reasoned in paragraph 124 that there were priests in the Applicant’s village at the time he was in China does not contradict the reasoning process in paragraphs 121 to 123.

8. Second, the applicants contend in particular (g) that the Tribunal’s reasoning involved “an unwarranted assumption or illogical reasoning on the part of the Tribunal, as the presence of a church of some kind … did not persuasively suggest the presence of a priest”. The applicants add in their written submission that the Tribunal’s reasons contain an assumption that, “as there was a church in the village … there would have been priests in the village” and “the basis for this assumption or reasoning is not explained nor is it otherwise apparent”: AS [27]. The first respondent contends in a written submission that “it was not an unwarranted assumption that a church that was sealed up and closed down by authorities would have had priests working in or in the context of a church”.

9. The Court accepts that the Tribunal, in paragraph 124 of its decision, assumed or reasoned that one or more priests would have worked in a Catholic church in China in the period the Applicant was in China, in contrast to a Catholic church operating or functioning without any priests. However, the Court does not accept that this assumption was unwarranted, or that this reasoning process was not open to the Tribunal. In the Court’s view, it was open to the Tribunal to reason that, since there was a church in the Applicant’s village in China, there were priests in the village associated with the church. This is not a case where “there is no logical connection between the evidence [church in Applicant’s village] and the inferences or conclusion drawn”, being that one or more priests worked in the church: SZMDS at [135].

10. In response to the applicants’ complaint that “the basis for this assumption or reasoning is not explained nor is it otherwise apparent”, first, it is not necessary for the Tribunal to expressly state in its reasons that a priest is likely to work in a Catholic church in China. Second, the Court is not persuaded that the basis for the Tribunal’s assumption was not apparent.

11. For the above reasons, the Court is not persuaded that the Tribunal’s reasons contain an unwarranted assumption or illogical reasoning as stated in particulars (f) and (g).

    Particulars (h) and (i)

12. The Tribunal stated in paragraph 126 of its decision:

    126.The Tribunal does not accept that if the applicant came from an underground Catholic family in China which was so devout, they were willing to be detained and risk their family’s reputation and safety that they would not have had their child baptised or allowed them to take communion.

13. The applicants contend in particular (i) that “this incorporated an unwarranted assumption or illogical reasoning as the First Applicant’s family may have wished him to be baptised by or receive communion from a priest”, in contrast to a baptism officiated by a lay person. The applicants add in their written submission that this reasoning process “entails an unwarranted assumption or illogicality” on the basis that “the fact that the First Applicant’s family had undertaken a certain level of risk in their faith did not mean they would have taken the further step of having the First Applicant baptised” and “in particular, it did not mean that they would not have refrained from having the First Applicant baptised due to the absence of priests”: AS [28].

14. The first respondent, in their written submission, identify two difficulties with the applicants’ contentions. First, the first respondent says that “the Tribunal did not accept the explanation that there were no priests” in the Applicant’s village in China. There is force in this point, since the Tribunal found in paragraph 124 of its decision that the Applicant’s evidence before the Tribunal “would indicate that at the time he was in China there were priests in his village”. Second, the first respondent says that “the Tribunal’s path of reasoning [had] an evident and intelligible justification”. The Court agrees. At the hearing on 29 October 2024, Mr Jones did not cavil with the Tribunal’s summary in paragraph 126 of the Applicant’s claims that he “came from an underground Catholic family in China which was so devout, they were willing to be detained and risk their family’s reputation and safety”. It was open to the Tribunal to consider that there was a tension or inconsistency between these claims and the Applicant’s evidence that he was not baptised or allowed to take communion in China and, in light of this tension or inconsistency, not accept the Applicant’s claims.

15. For the above reasons, the Court is not persuaded that the Tribunal’s reasons contain an unwarranted assumption or illogical reasoning as stated in particulars (h) and (i).

    Particulars (j) to (m)

16. The Tribunal stated in paragraphs 130 to 132 of its decision:

    130.He claims that his mother was detained in 2014. He did not know when his uncle was detained. He claims that his mother is on a blacklist as she was denied a Visitor visa to Australia. When asked to explain why they suddenly came to the notice of authorities in the period he lodged his application for protection he could offer no convincing explanation except to say they had previously been careful.

    131.The Tribunal does not accept that the applicant would have been able to leave China on his own passport four times with no problem and his brother attend a University in China and works in a prestigious position as a doctor in a hospital if the authorities had any concerns about his family’s behaviour and loyalty to the Communist government. If the applicant’s family were such devout underground Catholics the Tribunal would have expected, they would have come to the attention of the local authorities. The applicant gave evidence to the previously constituted Tribunal that his brother was a member of the Communist Party. The Tribunal does not accept that as a member of the communist party he would have been able to promote his career if he had the difficulty of his parents’ conducting activities which were seen as hostile to the authorities.

    132.The Tribunal does not accept that the applicant’s mother and uncle were detained by authorities for reasons of religion including preaching the gospel.

17. The Tribunal, in paragraph 132 of its decision, did not accept that the Applicant’s mother and uncle were detained by authorities for reasons of religion as claimed by the Applicant. The applicants, in particular (k), contend that the Tribunal’s reasoning process in support of this finding “entailed an unwarranted assumption or illogical reasoning that the First Applicant’s mother, if she had been an underground church member, would have been detained before 2014, regardless of how careful or fortunate she had been in avoiding detention before that time”. The applicants, in their written submission, complain that the Tribunal’s “reasoning is difficult to follow” because the Tribunal “does not reveal why [the Applicant’s evidence] is unconvincing”: AS [29]. The first respondent says in its written submission that “the Tribunal made no assumption” in paragraph 130 of its decision and the Tribunal was permitted to believe or disbelieve the Applicant’s explanation in response to the Tribunal’s question recorded in paragraph 130 of the Tribunal’s decision.

18. The Court agrees with the first respondent’s analysis. The Applicant claimed that his mother had been a devout underground Catholic since at least the time the Applicant was a child, and his mother was detained for the first time in 2014.  As recorded in paragraph 130 of the Tribunal’s decision, the Tribunal “asked [the applicant] to explain why [his mother] suddenly came to the notice of authorities” in 2014. Whatever answer the Applicant gave, the Tribunal found that the Applicant “could offer no convincing explanation except to say they had previously been careful”. The Tribunal’s disbelief of, or dissatisfaction with, the Applicant’s explanation did not involve an assumption, let alone an unwarranted assumption. There is a logical connection between the evidence before the Tribunal concerning this issue and the Tribunal’s rejection of the Applicant’s claim that his mother and uncle were detained.

19. The applicants, in particulars (l) and (m), complain about the reasoning process of the Tribunal in paragraph 131 of its decision. The complaint is that paragraph 131 contains “an unwarranted assumption or illogical reasoning as the First Applicant’s family could have avoided detection until the First Applicant’s last departure from China and the authorities would not necessarily have targeted the First Applicant’s brother”. The meaning of this contention is not entirely clear. Mr Jones did not contend that it was not open to the Tribunal to reason that, if the Applicants family were devout Catholics, the Tribunal would have expected that they would have come to the attention of the local authorities. The Court is not persuaded there is any illogicality or irrationality in this reasoning process.

20. For the above reasons, the Court is not persuaded that the Tribunal’s reasons contain an unwarranted assumption or illogical reasoning as stated in particulars (k) to (m).

    Particular (n)

21. The Tribunal stated in paragraph 137 of its decision:

    137.The applicant stated that he and his wife had only undergone a civil ceremony when they married. The Tribunal discussed that the Catholic religion considers marriage a sacrament. He did not respond to that in any meaningful way which would satisfy the Tribunal as to why he had not participated in the sacrament of marriage.

22. The Tribunal considered there was a tension between the Applicant’s claim that he was a committed Catholic and the fact that the Applicant and his wife married in a civil ceremony rather than in a Catholic church. The applicants contended that the Tribunal’s reasoning “entails an unwarranted assumption that the First Applicant and his wife would necessarily wish to marry in a Catholic Church and would articulate a reason for not doing so and instead have a civil ceremony”: AS [30]. The first respondent contends in its written submission that “the Tribunal did not assume anything” in paragraph 137 and “it had a valid concern about the applicant – a supposed devout Catholic – having decided not to be married in a religious ceremony, it questioned him about the concern, and it was not satisfied the applicant meaningfully responded to its concern”. The Court agrees with the first respondent’s position on this point. Mr Jones did not take the Court to a transcript of the discussion between the Tribunal and Applicant referred to in paragraph 137 or challenge the Tribunal’s finding that the Applicant’s response was not meaningful. Nor did Mr Jones contend that it was not open to the Tribunal to have the concern recorded by the Tribunal in paragraph 137 of its decision.

23. The Court is not persuaded that the Tribunal’s finding in paragraph 137 involves an unwarranted assumption or illogical reasoning as stated in particular (n).

    Particular (p)

24. The Tribunal stated in paragraphs 96 and 150 of its decision:

    96.The Tribunal asked if she had been detained since then and he responded that she had not been. The Tribunal then discussed with the applicant whether he had proselytized in Australia. He responded that he had introduced one person to the church and that was his wife’s cousin.

    …

    150.There is no evidence before the Tribunal, other than the applicant’s claim he has converted a family member, which indicates that the applicant or the second named applicant are preaching or would engage in activities which would challenge the state authorities in China.

25. The applicants contend in particular (p) that “it had been necessary for the tribunal to determine the veracity of this claim and its significance …”. The applicants add in their written submission that “it was necessary for the Tribunal to rule upon the truth of this claim, even if it was not supported by independent evidence” and “it was also necessary to consider whether attempted conversion of the First Applicant’s relatives or other persons with whom he mixed would place him at risk: AS [31]. Mr Jones, in oral submissions, explained that the Tribunal, in paragraph 150, disbelieved the Applicant’s claim that he converted a family member because the Applicant did not provide corroborative evidence of the claim, and this was contrary to a principle explained in Machmud.

26. For the following reasons, the Court is not persuaded that the Tribunal’s finding in paragraph 150 involves a jurisdictional error:

    (a)To the extent that the applicants rely on Machmud, in Machmud at [16] Hill J stated that “there … is no necessity as a matter of law that an applicant to the Tribunal corroborate … a statement made”. If the Tribunal in the present case had disbelieved the Applicant’s claim that he converted a family member merely because he did not provide corroborative evidence of the claim, this might be a jurisdictional error. But the Tribunal neither disbelieved the Applicant’s claim concerning converting a family member nor required there to be corroborative evidence of the claim.

    (b)The applicants contend that the Tribunal was required “to determine the veracity of [the] claim” that the Applicant converted a family member. As stated above, the Tribunal did not reject the Applicant’s claim that he converted a family member. A point made by the Tribunal in paragraph 150 of its decision was that, even accepting the Applicant’s claim that he converted a family member, “there is no evidence before the Tribunal …. which indicates that [the Applicant is] preaching or would engage in activities which would challenge the state authorities in China”. Mr Jones did not challenge this conclusion reached by the Tribunal. It was not necessary for the Tribunal to make any further findings about the veracity or truthfulness of the Applicant’s claim that he converted a family member.

    COSTS

27. At the conclusion of the hearing, the Court invited submissions from the parties on costs. Both parties agreed that costs should follow the event and were content with an order for costs in the scale amount of $8,371.30. Subject to the matter in the next paragraph, the applicants should pay the first respondent’s costs in the sum of $8,371.30.

28. The first and second applicants are adults. The third applicant is a child of the first and second applicants born in 2015. There was no discussion at the hearing as to whether a costs order should also be made against the third applicant. Since the third applicant is a child born in 2015, it is not appropriate that a costs order be made against the child. The Court will only make a costs order against the first and second applicants.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Associate:

Dated:       21 November 2024