BPZ21 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 849
•10 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BPZ21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 849
File number(s): MLG 1285 of 2021 Judgment of: JUDGE FARY Date of judgment: 10 June 2025 Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for Protection (Class XA) (Subclass 866) visa – Administrative Review Tribunal not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s 36(a) or (aa) and affirmed Delegate’s decision to refuse the application for the Protection (Class XA) (Subclass 866) visa – application for judicial review – no meaningful ground of jurisdictional error asserted – application dismissed. Legislation: 1951 Refugee Convention Art 1C(l)
Australian Constitution s75(v)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 1 of Pt 2 of Sch 2
Migration Act 1958 (Cth) s 5J(6), s 36, s 47(1), s 65(1), s 414, s 415, s 424, s 425, s 474, s 476, s 477, s 499
Migration Regulations 1994 (Cth) cll 866.1 to 866.6
Cases cited: ABV16 v Minister for Immigration and Border Protection [2017] 184
Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR 209
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172
Ismail v Minister for Immigration (2024) 417 ALR 36
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
NAHI v Minister for Immigration & Multicultural Indigenous Affairs [2004] FCAFC 10
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
Oshlack v Richmond River Council (1998) 193 CLR 72
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Plaintiff S183/2021 v Minister for Home Affairs (2022) 178 ALD 289
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297
SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291
VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29
Division: Division 2 General Federal Law Number of paragraphs: 128 Date of last submission/s: 2 June 2025 Date of hearing: 2 June 2025 Place: Melbourne Solicitor for the Applicant: Mr Jiang, VStar Lawyers and Consultants Solicitor for the First Applicant: Mr Cunynhame, Sparke Helmore Solicitor for the Second Applicant: Submitting notice, save as to costs ORDERS
MLG 1285 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BPZ21
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
10 JUNE 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the proceeding, including any reserved costs, fixed in the sum of $6,500.
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 Fary
INTRODUCTION
By way of Application filed on 25 June 2021, the Applicant seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 18 May 2021 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
In the Tribunal’s Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant (Applicant) a Protection (Class XA) (Subclass 866) visa (Visa) on the basis that the Applicant had not satisfied the Delegate that she is a person in respect of whom Australia has protection obligations as outlined in s36(a) or s36(aa) of the Migration Act.
The hearing of the Application took place at the Melbourne Registry of the Court on 2 June 2025 (Hearing). Both the Minister and Applicant were represented by solicitors. At the conclusion of the Hearing, judgment was reserved[1]. These are the reasons for judgment in relation to the Hearing.
[1] Orders made by Judge Fary on 2 June 2025, Order 1.
ISSUE IN DISPUTE
The issue in dispute is whether the Tribunal erred in its decision on the papers that the Applicant does not meet the refugee criterion in s 36(2)(a) of the Migration Act and is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) upon her return to the People’s Republic of China.
BACKGROUND
The Court has before it a Court Book with 127 pages filed by the Minister on 29 January 2025 (Court Book). The Court has reviewed the Court Book in detail. The Outline of the Minister’s Submissions filed 19 May 2025 (Minister’s Submissions) accurately summarise the background to this matter at [3] to [7]. The Court adopts those submissions with amendments as follows.
The Applicant is a citizen of the People’s Republic of China.
Between 23 March 2006 to 15 March 2015, the Applicant has held three student visas.
On 4 March 2015, the Applicant last arrived in Australia.
On 15 July 2015, the Applicant’s fourth student visa was refused and her bridging visa ceased on 12 August 2015.
On 13 August 2015, the Applicant applied for a protection visa, the Visa in relation to these proceedings.[2]
[2] Court Book (CB) 1-34.
On 7 September 2017, the Minister acknowledged receipt of the Applicant’s Application.[3]
[3] CB 37.
On 12 September 2017, the Minister wrote to the Applicant requesting that she attend an interview on 26 September 2017.[4]
[4] CB 43.
On 27 September 2017, a Delegate of the Minister refused to grant the Applicant the Visa (Delegate’s Decision). The Delegate found that the Applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) and 36(2)(aa) of the Migration Act.[5]
[5] CB 46-58.
On 10 October 2017, the Applicant sought review of the Delegate’s Decision before the Tribunal (Review Application). The Applicant was represented by a migration agent from VSTAR Lawyers and Consultants (Representative).[6]
[6] CB 59-60.
On 10 October 2017, the Tribunal wrote to the Applicant to confirm acknowledgement of the Applications.[7]
[7] CB 61-67.
On 9 April 2021, the Applicant was invited to attend a hearing before the Tribunal on 26 April 2021 (Hearing Invitation).[8]
[8] CB 68-78.
On 19 April 2021, the Applicant’s Representative advised the Tribunal that the Applicant would not be attending the scheduled hearing and requested the Tribunal to make a decision on the information before it.[9]
[9] CB 89.
On 20 April 2021, the Applicant’s Representative provided a response to the Hearing Invitation signed by the Applicant declining the invitation to the hearing.[10]
[10] CB 94-97.
On 18 May 2021, the Applicant was notified of the Tribunal’s Decision and upheld the Delegate’s Decision.[11]
[11] CB 102-120.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 102 to 123 of the Court Book.
The Tribunal first outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [1] to [20].
The Tribunal noted that in accordance with Direction 84 made under s 499, the Tribunal had regard to the DFAT report titled “People’s Republic of China” dated 3 October 2019.[12]
[12] CB 108-114.
The Tribunal did not accept the Applicant’s evidence that she:[13]
(a)Was bisexual and active in heterosexual and homosexual relationships as she produced no evidence to corroborate the assertions which would be reasonable to expect from a person in her situation;
(b)Was sent back to China because of her sexuality, confined to her house and sent to hospital where someone tried to inject her with medicine;
(c)Was allowed to return to Australia by her family provided she “changed her lifestyle” as it would be unlikely that her parents would allow her to return to Australia if they were offended by her lifestyle; and
(d)Would have return to China on so many occasions if she had genuine fear of persecution.
[13] CB 115.
The Tribunal found the Applicant had travelled to Australia on 8 April 2006 but did not claim protection until 13 August 2015. The delay in seeking protection could support an adverse credibility finding that the Applicant did not have a well-founded fear of harm.[14]
[14] CB 115.
Following careful consideration of the evidence provided by the Applicant and on the basis of country information, the Tribunal was not satisfied on the basis of its factual findings that the Applicant’s claims warranted protection obligations under ss 36(2)(a) or 36(2)(aa).[15]
[15] CB 116-117.
PROCEEDINGS IN THIS COURT
The Application was filed in this Court on 15 June 2021, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 18 December 2024, Orders were made by Registrar Downing of this Court for the First Applicant to file: written submissions, any amended application with proper particulars and any additional evidence. That the First Respondent file: the Court Book, written submissions with proper particulars and any additional evidence.
On 18 March 2025, Orders were made by Registrar Lindsay of this Court for the First Respondent’s name be amended to Minister for Immigration and Multicultural Affairs. For the Applicant to file: written submissions, any amended application with proper particulars and any additional evidence. That the First Respondent file: the Court Book, written submissions with proper particulars and any additional evidence.
On 6 May 2025, the Applicant filed an amended application (Amended Application).
On 20 May 2025, Orders were made by me, vacating Order 4 of the Orders made by Registrar Lindsay on 18 March 2025. That by 8 May 2025, the Applicant file and serve any Amended Application, written submissions or further evidence.
This matter was heard on 2 June 2025 at 10:00am for a Final Hearing before me.
The Applicant relied upon the following documents:
(a)The Application filed, 15 June 2021;
(b)The Affidavit of the Applicant, sworn and filed 15 June 2021 (Applicant’s Affidavit);
(c)The Amended Application, filed 6 May 2025; and
(d)The Applicant’s Outline of Submissions, filed 8 May 2025.
The Minister relied upon:
(a)The Response, filed 23 June 2021;
(b)The Minister’s Submissions, filed 19 May 2025; and
(c)List of Authorities, filed 21 May 2025.
Both parties relied on the Court Book.
The Amended Application contains one (1) ground of review (Ground of Review):
1. The Tribunal made the jurisdictional errors for (i) failing to take in to account the country information that the delegate had taken into account, and relying solely on the DFAT report thereby substituting its own evaluation as to whether the applicant faces a real chance of persecution, ii) The Tribunal took irrelevant consideration by adopting forensic approach to support its subjective and speculative findings as such conduct is not consistent with having a fear of persecution in that country. (Ground 1).
Particulars
1.1From CBI 14 to CBI 15, the point 6 of the Tribunal's decision summarise the country information that 'However, many individuals identifying a LGBTI report being forced into 'conversion therapy' by family members. Members of the LGBTI community also claim high level of familiar violence and stigma from family and members who do not accept their sexuality, as well as high levels of intimate partner violence. While public opinion regarding homosexuality is gradually becoming more tolerant, it remains predominantly negative. DFAT assesses that LGBTI people face a moderate risk of official discrimination. DFAT assesses LGBTI people face a low risk of official violence, but face a moderate risk of violence by family members and intimate partners.
1.2At CB52, the delegate gave some assessment to the country information about LGBTI to found that LTBTI people may suffer varying degrees of discrimination in China due to societal disapproval or sexual orientation.
1.3On the route of rejecting the applicants claims for the vague nature of the assertions, the failure to provide relevant details and documents and the failure to provide corroborate testimony, is not end mark to prevent the Tribunal to at least take into account quoted country information as per particular I.I indicate, as the overall assessment by DFAT of 'moderate risk' and 'low risk' should not substitute for an evaluation by the Tribunal as to whether the applicant faces a real chance of persecution.
1.4It is true that the applicant elect to choose consent to decision made on paper, but it is not means the Tribunal to adopt comer-cutting approach to eschew its statutory obligations under s424 of the Act, in fact the wording at the Tribunal's decision (27] at CB115 'try to inject me with medicine is referable to the country information that many individuals... being forced into 'conversion therapy' by family members.
1.5At Tribunal's reasons at [27] at CB115, it is evident that the applicant's international travel records to base its heavy weight allocation to its purported finding that 'Returning to China on so many occasions is not consistent with having a fear of persecution in that country', but all of the travel record have no temporal connection to the date of protection visa lodgement on 13 August 20 l 5, as Article 1C(l) of the Refugee Convention did not apply to any of the said international movement areas.
Materiality
a. The jurisdictional errors are apodictic, and its mate1iality threshold is satisfied because the reasoning process took by the Tribunal relied on the country information to the extent of impermissibly constraint its independent assessment over the applicant meet the criteria of s 5J(l)(a) of the Act, in tandem with the Tribunal gave the temporal factor of international movement records in excessive weight without finely balance the other equally important considerations.
b. Had the Tribunal not fell into the jurisdictional error of impermissibly substitute its own analysis and assessment with the country information as to whether the applicant is subject to a real chance or real risk of persecution, and if it had reached the state of satisfaction predicated on the proper exercise of its statutory power, then a reasonable and objective decision maker shall have decided differently.
(Words in bold added otherwise as written).
APPLICANT’S SUBMISSIONS
The Applicant submits that the Tribunal and Delegate failed to take into account the country information and evaluate the circumstances based on the Applicant’s evidence.
The Applicant submits that the Tribunal omitted the key part of the Applicant’s evidence, this being the nature and effect of the medicine the Applicant was ingesting.
While a decision was made on the papers, the Applicant submits that if new issues arise after a Tribunal Hearing a future hearing must be convened.[16]
[16] ABV16 v Minister for Immigration and Border Protection [2017] 184; SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1.
The Applicant contends that the Tribunal took into account irrelevant considerations, including the Applicant’s travel to and from China. The Applicant submits that while it is an understandable approach to reject the Applicant’s claim, no reasoning was given as to why it is not consistent with having a fear of persecution in that country.
The Applicant submits that in taking into account the Applicant’s international movement records that pre-date the Visa Application, this should not affect the assessment of whether the protection obligations may cease under Article 1C(1) of the Refugee Convention.
The Applicant’s solicitor elaborated on these points in oral submissions. He indicated that the allegation of bias was not being pursued.
RESPONDENT’S SUBMISSIONS
The Minister submits that the identification of relevant country information, and the weight to be attributed to it, was a matter for the Tribunal alone. The Tribunal was not obliged to inquire into more recent country information that was before it and ordinarily, Parliament is taken to intend decision-makers to act upon up to date information. Accordingly, there was no error in the Tribunal having regard to the most recent country information contained in the DFAT report which is extracted at paragraph [24] and summarised at [25].
The Tribunal did not make any express findings as to whether the Applicant faced a real chance of persecution on the basis of applying the information contained in the DFAT report. This was in circumstances where the Tribunal rejected the entirety of the Applicant’s claims that she had been sent back to China because of her sexuality.
The Minister submits that based on the lack of corroborative evidence together with the Applicant’s extensive travels between Australia and China, the finding that the Applicant’s claims were not credible was open to the Tribunal. The only material provided by the Applicant was her assertions in her Visa Application; she did not provide any supporting documents, additional information or attend the hearing to give oral evidence.
To the extent the Applicant is asserting the Tribunal failed to engage in her claim regarding being injected with medicine, the Minister submits this argument has no merit as the Tribunal outlined this claim in full at paragraph [21] of the decision record. The Minister does accept individuals identifying as LGBTI reportedly being forced into conversation therapy by family members as per the DFAT report. The Minister submits that no corroborative evidence was present to establish the facts being asserted and the Tribunal’s Decision not to accept this event was plainly open to it.
The Minister submits the reasons for the Tribunal’s finding that the Applicant’s multiple return trips to China were not consistent with having a fear of persecution are obvious.
The Applicant’s alternative argument that her travel records have no temporal connection to her Visa Application in Article 1C(1) of the Refugee Convention fails to apply; the Minister submits that if any date were to apply in this context, it would be the date the Applicant first claimed to fear harm, not the date of the Visa Application itself. The Applicant claimed that she realised she was bisexual in 2006/2007 while studying in Australia and that her bisexuality was discovered by an auntie who sent her back to China in December 2007, which indicates that her fear of harm began approximately seven years and eight months prior to the making of her Application. Whilst the Minister acknowledges the operation of s 5J(6) of the Migration Act, the Tribunal was not required to make findings in this regard in circumstances where it had rejected the entirety of the Applicant’s claims.
The Minister submits that the Applicant’s argument does not demonstrate that the Tribunal had a pre-existing state of mind which disabled it from undertaking a proper evaluation of the matter. On the current material, the Minister submits that this ground is without basis and cannot succeed.
The Minister submits that the Tribunal complied with its procedural fairness obligations arising out of Division 4, Part 7 of the Migration Act. The Tribunal had regard to the Applicant’s movement records, country information and the Applicant’s written evidence to the Department.
The Minister submits that there was no jurisdictional error arising out of the Tribunal’s findings and that it was the Applicant’s responsibility to provide sufficient evidence of her claims.
The Minister seeks that the Application be dismissed with costs fixed in the amount of $6,500.
PRINCIPLES
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[17]
[17] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157/2002).
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[18] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[19]
[18] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[19] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82]
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[20] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[21] Different kinds of error may overlap.[22] The categories are not closed.[23]
[20] Plaintiff S157/2002.
[21] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[22] Yusuf at [82].
[23] LPDT at [3].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[24] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[25] It has been described as an “undemanding” standard.[26]
[24] LPDT at [7].
[25] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[26] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
Protection Visas
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) have been satisfied, and to refuse to grant the visa, if not so satisfied.
Section 36(2)(a) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. The term “refugee” is defined by s 5H of the Migration Act in terms that require the applicant for the visa to have a “well-founded fear of persecution”[27] as defined by s 5J.
[27] See s 5H(1)(a) of the Migration Act.
Section 36(2)(aa) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non‑citizen in Australia (other than a non‑citizen mentioned in s 36(2)(a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.
The criteria that the Applicant was required to satisfy for the grant of a Protection visa (Subclass 866) are set out in cll 866.1 to 866.6 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
CONSIDERATION
It is convenient to analyse the Applicant’s grounds of review under three headings:
(a)Country Information Ground;
(b)Irrelevant Information Ground; and
(c)Procedural Fairness Ground.
Country Information Ground
Application Ground 1(i) is that:
The Tribunal made the jurisdictional errors for (i) failing to take in to account the country information that the delegate had taken into account, and relying solely on the DFAT report thereby substituting its own evaluation as to whether the applicant faces a real chance of persecution
Particular 1.1 is that:
From CBI 14 to CBI 15, the point 6 of the Tribunal's decision summarise the country information that 'However, many individuals identifying a LGBTI report being forced into 'conversion therapy' by family members. Members of the LGBTI community also claim high level of familiar violence and stigma from family and members who do not accept their sexuality, as well as high levels of intimate partner violence. While public opinion regarding homosexuality is gradually becoming more tolerant, it remains predominantly negative. DFAT assesses that LGBTI people face a moderate risk of official discrimination. DFAT assesses LGBTI people face a low risk of official violence, but face a moderate risk of violence by family members and intimate partners.
Particular 1.2 is that:
At CB52, the delegate gave some assessment to the country information about LGBTI to found that LTBTI people may suffer varying degrees of discrimination in China due to societal disapproval or sexual orientation.
Particular 1.3 is that:
On the route of rejecting the applicants claims for the vague nature of the assertions, the failure to provide relevant details and documents and the failure to provide corroborate testimony, is not end mark to prevent the Tribunal to at least take into account quoted country information as per particular I.I indicate, as the overall assessment by DFAT of 'moderate risk' and 'low risk' should not substitute for an evaluation by the Tribunal as to whether the applicant faces a real chance of persecution.
Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about (a) the performance of those functions; or (b) the exercise of those powers. Section 499(2A) of the Migration Act provides that a person or body (which would include the Tribunal) must comply with a direction given under s 499(1).[28]
[28] See Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR 209 at [65].
Direction 84 is a direction given by the Minister under s 499(1) of the Migration Act concerning decision makers performing functions or exercising powers under ss 65, 414 or 415 of the Migration Act when considering an application for the grant of a Protection visa when reviewing a decision to grant a Protection visa.
Direction 84 provides that per the powers under ss 65, 414 or 415 of the Migration Act, the decision maker is to take into account the following guidelines prepared by the Department to the extent that they are relevant to the decision under consideration:
(a)‘Refugee Law Guidelines’; and
(b)‘Complementary Protection Guidelines’.
Direction 84 also provides:
Where the [Department] has prepared country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
In Plaintiff S183/2021 v Minister for Home Affairs (2022) 178 ALD 289 (Plaintiff S183/2021), the applicant contended that there was jurisdictional error because the decision maker failed to take into account country information prepared by DFAT that fell within Direction 84. Gordon J identified questions; first, whether the country information report was relevant, and second, whether the delegate took it into account. Her Honour found that the delegate had fallen into error by not considering the country information, but did not need to resolve the question of whether the information was material having earlier found jurisdictional error:
But there is no country information footnoted in the decision record. That does not necessarily mean that it was not considered, as required by s 499(2A) and Direction 84 , but it may be inferred that it was not considered in circumstances where, first, the delegate specifically referred to country information “as footnoted throughout the decision record”, but none is footnoted, and second, the country information was broadly consistent with the plaintiff’s claims, but the claims were rejected on the basis that they were not credible without referring to it.
As for ‘country information’, other than country information assessments expressly prepared by the DFAT for protection status determination purposes:
(a)In NAHI v Minister for Immigration & Multicultural Indigenous Affairs [2004] FCAFC 10, the Full Court held (at [13]) that both the choice of ‘country information’ and assessment of its weight were matters for the Tribunal, and that the court should not substitute its own view of the material. In rejecting submissions that the Tribunal erred by failing to comment on ‘country information’ material submitted by the applicants, the Full Court stated:
The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item or attributed less weight to it than to another item.
(b)In VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291, the Full Court held (at [41]) that the choice of country information available was a matter for the Tribunal, and that it was not required to accept more recent information even if it had been supplied, noting that such information might have come from a less reliable source.
(c)In VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29, the Full Court held that in its true light, the appellant’s challenge to the Tribunal’s treatment of ‘country information’ was a challenge to the weight to be attributed to information contained in two documents, which was not a ground of jurisdictional error. The Full Court noted that it was not a case where a decision maker had failed to take into account a mandatory consideration (cf. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45).
(d)In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (MZYTS) the Full Court stated (at [73]):
Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see Peko-Wallsend [1986] HCA 40; 162 CLR 24 at 45) in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person's fear of persecution for a Convention reason on return to her or his country of nationality is well founded.
The core finding that the Applicant seeks to challenge by Ground 1(ii) is the Tribunal’s determination that it “does not accept the matters asserted by the applicant [as] the basis for her claim for protection” (at [27] and [28]).
The Tribunal Decision records (at [24]) that in accordance with Direction 84, the Tribunal has taken into account Country information assessments prepared by the DFAT in the form of a report titled “People’s Republic of China” dated 3 October 2019 (DFAT Report).
The Tribunal’s consideration of the country information assessment in the DFAT Report is recorded at [24] and summarised at [25].
The Delegate’s assessment of other “country information” is recorded at pp 3 and 4 of the Delegate’s Decision.[29] The footnotes reveal the information to have a variety of sources, not limited to the country information assessments prepared by DFAT. The footnotes to the record that the “country information” referred to by the Delegate had a date range of 2009 to 2015, which is significantly earlier than the DFAT Report dated 3 October 2019. By the time of the Tribunal’s Decision, the ‘country information’ referred to in the Delegate’s Decision was up to 12 years out of date, whereas the DFAT Report was significantly more current, being less than 2 years old.
[29] CB 51-52.
As the Full Court held in MZYTS, “attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction”. Whether the Tribunal was to have regard to the additional country information before the Delegate was a matter for the Tribunal. I can discern no error in the approach of the Tribunal in basing its decision on the more recent information contained in the DFAT Report.
While unnecessary for me to decide, I reject the Minister’s alternative submission that any error by the Tribunal in relation to ‘country information’ could not be material to the Tribunal’s Decision.
In Plaintiff S183/2021, Gordon J stated (at [59]):
The Minister submits that “[i]n circumstances where the delegate disbelieved all of the plaintiff’s claims, the country information had no relevance”. That submission misunderstands the nature and potential relevance of country information. Such information provides context for the assessment of a visa applicant’s claims. It does not matter that, in the present case, the delegate was not satisfied that the plaintiff’s claim to be a lesbian — as distinct from her claims to have suffered harm — was credible. The inquiries are not siloed. If the plaintiff’s claims to have suffered harm were (or were not) consistent with the country information, that would be relevant not only to the plaintiff’s claims to have suffered harm but also to the plaintiff’s claim to be a lesbian.
I also reject the Applicant’s contention that the Tribunal substituted the DFAT Report assessment of risk for its own assessment as to whether the Applicant faced a real chance of persecution. The Tribunal’s conclusions (at [30]) that it was “not satisfied that the applicant fears being persecuted…” and “that there is a real chance that, if the applicant is returned to China, the applicant would be persecuted…” are based on the detailed analysis set out at [25] to [29]. The DFAT Report was used appropriately to give “context”[30] for the assessment of the Applicant’s claims.
[30] Plaintiff S183/2021 v Minister for Home Affairs (2022) 178 ALD 289 at [59].
I am not satisfied that the Tribunal made a jurisdictional error by reference to the Country Information Ground.
Irrelevant Information Ground
Ground 1(ii) is that:
The Tribunal took irrelevant consideration by adopting forensic approach to support its subjective and speculative findings as such conduct is not consistent with having a fear of persecution in that country.
Particular 1.5 is that:
At Tribunal's reasons at [27] at CB115, it is evident that the applicant's international travel records to base its heavy weight allocation to its purported finding that 'Returning to China on so many occasions is not consistent with having a fear of persecution in that country', but all of the travel record have no temporal connection to the date of protection visa lodgement on 13 August 20 l 5, as Article 1C(l) of the Refugee Convention did not apply to any of the said international movement areas.
The Applicant’s written submissions provided (at [16] and [17]):
Secondly, the applicant contends that the Tribunal took into account the irrelevant consideration in the way in which the applicant travelled extensively to China as based gave this fact the significant weight on the route against the applicant’s fear of persecution in that country. While it is an understandable approach to reject the applicant’s claim, no reasoning or explanation was given as to why it is not consistent with having a fear of persecution in that country.
Alternatively, in taking into account the applicant’s international movement records that are all precede the protection visa application date on 13 August 2015, which neither surrounds nor affects the assessment of whether the protection obligation may cease under Article 1C(1) of the Refugee Convention, the Tribunal took into account an irrelevant consideration, being a circumstance that is outside the boundary of the temporal period ‘of and concerning’ the post-protection visa application.
The “irrelevant consideration” complained of by the Applicant was her movement records upon which the Tribunal placed significant weight.[31]
[31] CB 106, [21] and 115, [27]-[28]
The Applicant alleges that the Tribunal took into account an “irrelevant consideration” and failed to set out “reasoning or explanation” as to why the Applicant’s conduct were inconsistent with having a fear of persecution are interrelated. It appears to me that the Applicant’s fundamental complaint is that the Applicant does not accept the Tribunal’s reasons given, which included that “Returning to China on so many occasions is not consistent with having a fear of persecution in that country” (at [27]). A premise of the Applicant’s argument was that there was no temporal connection between the travel movement and fear of persecution.
The relevant date for the purposes of the Tribunal’s assessment is the date when the Applicant first claimed fear of persecution, and not the date of the lodgment of the Application for a protection visa. The Applicant’s Visa Application records that she realised she was bisexual in 2006/2007 while studying in Australia and that her bisexuality was then discovered by an auntie who sent her back to China in December 2007.[32] This brings into relevance the earlier dates of travel referred to in the Tribunal’s Decision at [27]. It is also noteworthy that the last departure and return were within 12 months of the date of lodgment of the protection Visa Application.
[32] CB 29.
I am not satisfied that the Tribunal made a jurisdictional error by reference to the Irrelevant Information Ground.
Procedural Fairness Ground
The third ground that can be discerned from the Applicant’s Amended Application is that the Tribunal failed to comply with its procedural fairness obligations under the Migration Act.
Particular 1.4 is that:
It is true that the applicant elect to choose consent to decision made on paper, but it is not means the Tribunal to adopt corner-cutting approach to eschew its statutory obligations under s 424 of the Act, in fact the wording at the Tribunal's decision [27] at CB115 'try to inject me with medicine is referable to the country information that many individuals... being forced into 'conversion therapy' by family members.
The Applicant’s written submissions provided (at [15]):
Even though the applicant elects to consent to the decision made on paper without the hearing, the obligation under section 425 of the Act, which provides that the Tribunal “must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review” is a continuum and ongoing obligation (emphasis added). This obligation has long formed part of the review scheme set out in the Act and does not operate on a “once and for all” basis. If new issues arise after a Tribunal hearing, a further hearing must be convened. We contend that where there is a doubt or concerns, the Tribunal should elect is statutory obligation to issue the invitation to comment to address the claims that the Tribunal want of more clarity.
The Applicant’s complaint related to the use by the Tribunal of:
(a)The “Country Information” in the DFAT Report; and
(b)The migration history (in particular information recording travel between Australia and China).
While the Applicant’s written grounds appear to focus on the requirements in ss 424 and 425 of the Migration Act, both the Hearing and the Minister’s written submissions[33] also covered s 424A of the Migration Act. I will consider each of these sections in due course.
[33] At [29] and [30].
The requirements of natural justice in relation to the Applicants’ hearing before the Tribunal were codified by Div 4 of Part 7 of the Migration Act in relation to the matters dealt with in that Division.
Section 422B of the Migration Act provided (at the date of the Tribunal’s Decision):
1. This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
2. Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
3. In applying this Division, the Tribunal must act in a way that is fair and just.
Section 424 of the Migration Act provided (at the date of the Tribunal’s Decision):
1. In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
2. Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
3. A written invitation under subsection (2) must be given to the person:
a. except where paragraph (b) applies—by one of the methods specified in section 441A; or
b. if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
Section 424A(a) of the Migration Act provided (at the date of the Tribunal’s Decision):
1. Subject to subsections (2A) and (3), the Tribunal must:
a. give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
b. ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
c. invite the applicant to comment on or respond to it.
2. The information and invitation must be given to the applicant:
a. except where paragraph (b) applies—by one of the methods specified in section 441A; or
b. if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
2A.The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
3. This section does not apply to information:
a. that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
b. that the applicant gave for the purpose of the application for review; or
ba. that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
c. that is non-disclosable information.
4. A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Section 424B of the Migration Act (at the date of the Tribunal’s Decision) set out the requirements for a written invitation under ss 424 or 424A.
Section 425 of the Migration Act provided (at the date of the Tribunal’s Decision):
1. The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
2. Subsection (1) does not apply if:
a. the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
b. the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
c. subsection 424C(1) or s(2) applies to the applicant.
3. If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Section 424
Section 424 of the Migration Act provided, amongst other things, that in conducting the review the Tribunal “may get any information that it considers relevant”.
In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Gleeson CJ and Hayne J stated (at [49]) "[i]n the ordinary case ... what an applicant is entitled to by way of a hearing is a consideration of the written information provided in the application".
In VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459, Crennan J held (at [27]) that it is for an Applicant to make out his or her case before the Tribunal. The Tribunal’s power to get information that it considers relevant is permissive and not mandatory.
In Ismail v Minister for Immigration (2024) 417 ALR 36, Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ stated (at [25]):
Making of a decision, the decision-maker having failed to inquire about a relevant fact or matter, may involve jurisdictional error capable of characterisation as either a constructive failure to exercise jurisdiction or a legally unreasonable exercise of a particular duty or power. While decisions have expressed the criteria for an error of this kind as including that the potential fact was readily ascertainable and was critical or central to the decision, these criteria merely reflect the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law.
The Applicant does not identify what information should have been sought by the Tribunal exercising its power to “get any information that it considers relevant”. I am unable to discern any error in the approach of the Tribunal to getting information. In particular, I reject the allegation (in Particular 1.4) that the Tribunal “adopt[ed] corner-cutting approach to eschew its statutory obligations under s 424 of the Act”.
The conclusion that the Tribunal did not act unreasonably in not seeking further information finds support in the decision in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, where the Full Court stated (at [5]):
In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
I should add for completeness, that where an applicant consents to the Tribunal deciding a review on the papers, as occurred here, the applicant is not entitled to appear.[34]
[34] See ss 425(2)(b) and 425(3) of the Migration Act.
I am not satisfied that there was a breach of s 424 of the Migration Act.
Section 424A
Section 424A of the Migration Act provided, amongst other things, that the Tribunal must give clear particulars of information that “would be the reason, or a part of the reason, for affirming the decision that is under review” together with other information.
The term “information” in this context “is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.[35]
[35] SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297 at [18].
The notification requirement in s 424A of the Migration Act is mandatory, such that a breach of the section may constitute jurisdictional error.[36]
[36] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294.
While it is arguable that both the DFAT Report and the travel history constituted “information” that “would be the reason, or a part of the reason, for affirming the decision that is under review”, I consider that they each fell within a statutory exception to the notice requirement in s 424A of the Migration Act:
(a)In the case of the DFAT Report, s 424A(3)(a) of the Migration Act provides that the obligation to give particulars of certain information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review did not apply to information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”; and
(b)In the case of the travel history, s 424A(3)(b) of the Migration Act provides an exception in the case of information that the applicant gave for the purpose of the application for review. As the Minister identified, the Applicant’s travel history was recorded in the Delegate’s Decision which was provided to the Tribunal when lodging the application for review.[37] Accordingly, the information that is recorded in the Delegate’s Decision, and subsequently utilised by the Tribunal, falls within the exception. To the extent that there are some minor discrepancies between the dates in the Delegate’s Decision and the dates in the Tribunal’s Decision, I do not consider them to be material.
[37] See CB60. “Documents upload” includes “Notification and decision from department”.
I am not satisfied that there was a breach of s 424A of the Migration Act.
Section 425
Section 425 of the Migration Act provided, amongst other things, that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments “relating to the issues arising in relation to the decision under review”.
The Applicant contended that the Tribunal had breached s 425 of the Migration Act in relation to two matters: first, the use of the DFAT Report, and second, the use of the migration history (in the form of departure and arrival information). The Applicant referred to the decision in ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 (ABV16) in the context of the uncontroversial proposition that s 425 of the Migration Act imposed an ongoing requirement.
It is relevant to observe that:
(a)The Delegate did not have regard to the DFAT Report in the Delegate’s Decision because it post-dates the Delegate’s Decision; and
(b)While the travel history is referred to in the Tribunal’s Decision, it was not relied upon by the Tribunal as part of its reasoning for rejecting the Applicant’s claims.
In Minister for Immigration & Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553, the Full Court held (at [37]-[38]) that provision s 425 of the Migration Act requires that applicants be provided with a “real and meaningful opportunity” to make arguments and present evidence before the Tribunal”:
.. it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL), the High Court stated (at [35]):
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.
Where the Tribunal takes no step to identify issues, other than those considered by the delegate to be dispositive, the applicant is entitled to assume that those are the issues on review. Hence, unless the Tribunal tells an applicant something different, he or she would be entitled to assume that the reasons of the delegate will identify the issues that arise in relation to that decision.[38]
[38] SZBEL at [36].
However, the Tribunal is not confined to the issues identified by the delegate as dispositive. Whether the Tribunal seeks to rely on other dispositive uses, those issues are required to be identified, so that the applicant may be afforded the opportunity to give evidence and present arguments in respect of them. But the Tribunal is not required to give “a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure”.[39] On the other hand there is no obligation to identify matters that are “obviously… open on the known materials”.[40]
[39] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 per Gleeson CJ and Hayne J (at 69).
[40] SZBEL at [38].
The first question that arises in the present case is what were the “issues arising in relation to the decision under review”. As the High Court held in SZBEL (at [34], [35] and [39]):
Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular…
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.
…
If the issues on the review of the delegate's decision by the Tribunal are identified no more particularly than by the question "is the applicant entitled to a protection visa?", rejection of some, or all, aspects of his account of the past events said to found his fears of persecution would self‑evidently be a conclusion open to the Tribunal. The conclusion would be open because every aspect of the applicant's claim would be in issue in the Tribunal's review of the delegate's decision. But if the issues are to be identified more particularly, other questions arise.
In SZBEL, the court held that the applicant’s “account of how his ship's captain came to know of his interest in Christianity, and his account of the captain's reaction to that knowledge, were issues arising in relation to the decision under review”, in circumstances where the Tribunal held that the applicant’s claim lacked credibility for reasons, including that the basis upon which the captain came to know of the applicant’s Christianity was said to be “so tenuous as to be implausible”.
A critical question in the case before me is what was the consequence of the use made by the Tribunal of the DFAT Report and the migration history for the purposes of s 425 of the Migration Act; in particular, did the use give rise to a new “issue” in relation to the decision under review.
I am not satisfied that the use made by the Tribunal of the DFAT Report gave rise to any new issues for the purposes of the review. I note that the question of the treatment of people identifying as LGBTI in China was considered extensively in the Delegate’s Decision.[41] While the DFAT Report contained different information to the information considered by the Delegate, I do not consider that its use gave rise to any new issue on review.
[41] CB 51-52.
Similarly, I am not satisfied that the use made by the Tribunal of the Applicant’s migration history gave rise to any new issues for the purpose of the review. The Delegate’s Decision made it clear that the Applicant’s claim of a genuine fear of harm was in dispute.[42] The Delegate noted that it would be “reasonable to expect” that such a person would seek protection at the first available opportunity, and that she did not make the claim until after her student visa was refused and bridging visa ceased.[43] Hence, an issue before the Delegate was whether the Applicant’s conduct was consistent with that of a person who had a genuine fear of persecution. While the Tribunal used the travel movement information in a way that the Delegate had not, I do not consider that its use gave rise to any new issues on review.
[42] CB 53.
[43] Ibid.
Further or in the alternative, I consider that the issue of whether the Applicant’s conduct was consistent with that of a person who had a genuine fear of persecution was one that was “obviously… open on the known materials”.[44] The “known materials” include the Delegate’s Decision which included both a summary of the travel information and the observation: “Furthermore, it would be reasonable to expect a person who genuinely feared being harmed in her home country to seek protection at the first available opportunity.”[45]
[44] SZBEL at [38].
[45] CB 53.
I am not satisfied that there was a breach of s 425 of the Migration Act.
Conclusion
I am not satisfied that the Tribunal made a jurisdictional error by reference to the Procedural Fairness Ground.
CONCLUSION
As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error, the Application for review must be dismissed. Given my conclusions in relation to the Country Information Ground, the Irrelevant Information Ground and the Procedural Fairness Ground, the question of materiality does not arise.
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that the application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $6,500 being an amount less than the scale amount.[46] I am satisfied that costs ought to follow the event,[47] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the court file.[48]
[46] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12.
[47] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[48] Compare Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172.
I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 10 June 2025
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