BVT19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 321
•7 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BVT19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 321
File number(s): SYG 1092 of 2019 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 7 March 2025 Catchwords: MIGRATION – judicial review – Protection visa refusal – credibility – whether Tribunal biased in the making of its decision – whether Tribunal failed to make an inquiry to verify a claim – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36, 474 and 476 Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 11 February 2025 Place: Sydney Applicants: In person Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Mills Oakley ORDERS
SYG 1092 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BVT19
First Applicant
BVU19
Second Applicant
BVV19
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The name of the second respondent be amended to ‘Administrative Review Tribunal’.
3.The application filed on 6 May 2019 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE PAPADOPOULOS
INTRODUCTION
Before the Court is an application seeking judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 12 April 2019. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant each applicant a Subclass 866 Protection (Class XA) visa (protection visa).
The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
For the following reasons, the application is dismissed.
BACKGROUND
The background and procedural history to this proceeding was helpfully summarised in the Minister’s written submissions, which I primarily adopt.
The first applicant, a female national of the People’s Republic of China (China) first arrived in Australia as the holder of a Subclass 571 Schools Sector (Class TU) visa on 18 January 2006. The second applicant, a male national of China, arrived in Australia on 28 July 2007 also as the holder of a Subclass 571 Schools Sector (Class TU) visa. The third applicant was born in Australia and is the son of the first and second applicants. On 30 May 2019, Registrar Cho of this Court made orders by which the first applicant was appointed litigation guardian of the third applicant.
The protection visa application
On 30 March 2015, the first and second applicants made a protection visa application in which they claimed that they feared harm in China for reason of their religion. The first applicant set out their claims for protection in an undated written statement that was included with the visa application.[1] That statement was titled ‘Statement for my husband and I’. By way of that statement, the following claims were raised:
(a)The first applicant was born into a Christian family and from an early age followed her parents to attend house churches. When she was very young her parents were arrested and punished for attending ‘underground gatherings’. Her mother was ‘punished’ by the local government for organising underground house churches.
(b)The second applicant was born into a Catholic family, was baptised, and his family attended the Roman Catholic church which was the target of the government’s ‘crackdown’ in China. Like the first applicant, he was ‘in a state of anxiety’ when he attended church in China.
(c)After the first applicant’s arrival in Australia, she commenced attending church in Australia and was taken by her uncle to be baptised on 14 April 2006. Under her uncle’s influence became enthusiastic about preaching.
(d)The first applicant met the second applicant in Australia. She converted to Catholicism before she and the second applicant registered their marriage in China in 2013. They were subsequently married at a Catholic church in Sydney in October 2014.
(e)The first applicant returned to China almost every year where she distributed gospel materials and information to churches and preached the gospel. In 2014, the first applicant and her cousin distributed gospel pamphlets to a house church and, after the first applicant returned to Australia, her cousin was summoned by the police for ‘inquiries on the charge of preaching illegally’ and her parents were investigated.
[1] Court Book (CB) 63.
On 1 July 2016, the delegate refused to grant the applicants protection visas. The delegate found that the first and second applicants had not evangelised in China in the past and had not been harmed on that basis and are unlikely to proselytise if they return to China. The delegate also found that the applicants would be able to freely and safely attend an underground or family church in China.[2] Accordingly, the delegate formed the view that the applicants would not face a real chance of serious harm or real risk of significant harm and thereby were not persons to whom Australia owed protection obligations.
[2] CB 152 to 166.
The review application
On 28 July 2016, the applicants applied to the Tribunal for review of the delegate’s decision.[3]
[3] CB 167 to 169.
On 5 February 2019, the Tribunal invited the applicants to attend a hearing, scheduled to take place on 7 March 2019 at 9.30 am (NSW time).[4] The applicants confirmed they would take part in the hearing.[5]
[4] CB 182.
[5] CB 191.
On 26 February 2019, the applicants’ representative wrote to the Tribunal to advise that he had just been appointed and would also take part in the hearing. The representative provided the Tribunal with the following documents prior to the hearing:[6]
(a)a completed ‘Appointment of Representative; Appointment of Authorised Recipient – MR Division’ form;
(b)a Certificate of confirmation for the first applicant;
(c)a Certificate of baptism for the third applicant;
(d)a letter of support from a Chaplain Pastor of the Western Sydney Chinese Catholic Community;
(e)three letters of support from members of the Western Sydney Catholic Chinese Community;
(f)photographs of the applicants attending and engaging in various in Catholic events; and
(g)a letter of support from a charismatic prayer group leader in the Sydney suburb of Ashfield.
[6] CB 194 to 224.
On 7 March 2019, the applicants attended a hearing before the Tribunal. Communication between the applicants and the Tribunal at the hearing was facilitated by an interpreter in the Mandarin and English languages.[7]
[7] CB 226.
On 20 March 2019, the representative provided the Tribunal with the following documents after the hearing:[8]
(a)several news articles;
(b)a further letter of support from a Chaplain Pastor of the Western Sydney Chinese Catholic Community;
(c)a further letter of support from a charismatic prayer group member in the Sydney suburb of Ashfield;
(d)a Certificate of baptism for the first applicant’s sister; and
(e)an Order of service.
[8] CB 243 to 250.
On 12 April 2019, the Tribunal affirmed the delegate’s decision to refuse to grant the applicants protection visas.[9]
[9] CB 257 to 280.
The Tribunal’s decision
The Tribunal summarised the first applicant’s claims and evidence to the Department (at [3] – [11]), the delegate’s decision record (at [12] – [33]), and the applicants’ documentary evidence, which included letters of support (at [29] – [31]), certificates of confirmation and baptism (at [32]) and photographs (at [33]).
The Tribunal summarised the first applicant’s evidence at hearing (at [34] – [62]) and the second applicant’s evidence at hearing (at [63] – [69]).
The Tribunal identified the criteria for a protection visa set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth), and that an applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c).
Before considering the first applicant’s claims and evidence, the Tribunal referred to and extracted at length country information about China: various aspects of modern political history and religion, including statistics about the number of religious believers in China; religious freedom and the Constitution; regulations in relation to religious institutions; recognised religions a; unregistered and registered religious organisations; the ability of Chinese citizens to practice religion; ‘house’ or ‘underground’ churches; the groups of people at risk of discrimination or violence on the basis of religion; and the Chinese Catholic Patriotic Association.
Considering the first applicant’s claims and evidence, the Tribunal:
(a)was satisfied the first applicant converted to Catholicism after she met the second applicant and they had attended various church events for several years.
(b)accepted the applicant attended a charismatic prayer group in Sydney from 2012 and the applicants were baptised and Roman Catholics, despite finding inconsistencies in the evidence about when the first applicant converted to Catholicism.
(c)did not accept the first applicant, upon her return to China in 2014, proselytised in China by distributing Christian materials in a house church or by providing religious material to a friend’s mother, as the first applicant’s evidence regarding this had changed over time.
(d)found the first applicant had ‘manufactured her evidence’ about proselytising in China to strengthen her claims for protection and was not satisfied she would proselytise if she returned to China or take religious material back to China.
(e)found the first applicant’s evidence regarding her cousin’s arrest and detention to be inconsistent with country information. The Tribunal was not satisfied that the applicant’s cousin was proselytising, arrested and detained, nor was it satisfied that the applicant’s cousin implicated the first applicant or that the first applicant’s parents were investigated as a consequence. The Tribunal was of the view that the first applicant had manufactured this evidence.
(f)noted the first applicant’s evidence regarding her church attendance in China was inconsistent. It did not accept the first applicant’s mother was arrested, incarcerated and beaten when the first applicant was nine years old, nor did it accept the first applicant’s parents had been arrested and have been constantly called and questioned by the police. The Tribunal was of the view that the first applicant had manufactured this evidence to bolster her claim that she fears coming into contact with the authorities if she practises her religion in China.
In relation to the evidence regarding the second applicant’s religious practice in China, the Tribunal:
(a)considered his oral evidence to be ‘more persuasive and reliable’ than that of the first applicant.
(b)was satisfied he probably did talk to classmates about his Catholic practice and going to his church, however noted that there is no evidence to suggest this resulted in him suffering any harm in China.
(c)accepted he and his family practised as underground Catholics in Fujian province, however noted there is no evidence to suggest that they drew adverse attention from the authorities as a result. The Tribunal found this to be consistent with country information indicating there are millions of underground Catholics in China, many of whom practise their religion in Fujian province.
(d)did not consider there was persuasive evidence to indicate that the second applicant would proselytise in China if he returned.
The Tribunal accepted that the first and second applicants speak in tongues, a practice learnt through their charismatic prayer group in Sydney. However, the Tribunal found there was no evidence to suggest that speaking in tongues is a practice undertaken by Roman Catholics in China. As such, the Tribunal was not satisfied the applicants would continue to speak in tongues in China even if they attended an underground Catholic Church.
The Tribunal was not satisfied the applicants would be church leaders, or would participate in protest activity on behalf of their congregation, in China. The Tribunal accepted that as underground Catholics they may face a low level risk of officially sanctioned harassment and discrimination by the authorities. Nevertheless, the Tribunal found the applicants would be able to participate in underground church activities in Fujian province without being seriously harmed in the reasonably foreseeable future.
The Tribunal had regard to the applicants’ post-hearing submissions, including the country information provided, and accepted that prominent underground Catholics were at higher risk of harassment and persecution by the authorities. However, it found there was nothing before it to suggest that the applicants intended to become priests in the underground church in China.
The Tribunal recorded its discussion with the applicants regarding the country information indicating the relationship between Beijing and the Vatican had improved and that there had been an agreement between the Chinese Communist government and the Church. It accepted there was some conflict within the Catholic community about the negotiations between Beijing and the Roman Catholic Church, but was not satisfied those negotiations or any conflict arising within the church community as a consequence would result in the applicants being harmed in the foreseeable future.
In considering the applicants’ children in Australia who had been baptised as Catholics, the Tribunal was satisfied the applicants would be able to impart their beliefs onto their children if they returned to China. Whilst their children may not be able to study at a Catholic school in China, the Tribunal was satisfied that the children would be able to attend school and receive an education. The Tribunal was not satisfied the inability to attend a Catholic school would result in any of the applicants suffering serious harm.
Finally, the Tribunal considered the first and second applicant’s delay in applying for a protection visa and found that this, when considered cumulatively with their willingness to return to China and attend non-State sanctioned churches there, ‘cast doubt’ on their claims to fear harm in China because of their religion. The Tribunal considered the first applicant’s claim that they did not apply for protection until 2015 because she did not know about it until then, though found that explanation ‘disingenuous’ given the applicants had been attending a Chinese Catholic church in Australia since 2012. The Tribunal was not satisfied the applicants were unaware of protection visas and formed the view the applicants did not apply for protection earlier, and returned to China on occasions and practised their religion while there, because they did not fear harm as underground Catholics in China.
Having considered all of the evidence before it, the Tribunal was not satisfied that:
(a)either the first or second applicant, if they returned to China, will be seriously harmed as a consequence of their Roman Catholic faith practice and participation in the underground Catholic church in the Fujian province.
(b)the third applicant, if he returned to China, would suffer serious harm if his parents practice as Roman Catholics in Fujian province.
(c)any of the applicants had a well-founded fear of persecution if they returned to China as they did not face a real chance of serious harm for reason of religion or any other reason.
Accordingly, the Tribunal concluded that each applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act. Furthermore, based upon its findings in relation to risk of harm to be faced by each applicant in China, the Tribunal concluded that each applicant was not entitled to complementary protection pursuant to s 36(2)(aa) of the Act. Therefore, the Tirbunal affirmed the decision under review not to grant the applicants protection visas.
PROCEEDINGS BEFORE THIS COURT
The applicants commenced proceedings by way of an originating application filed on 6 May 2019. The application raises the following two grounds of review:
I am unable to accept Department of Home Affairs and AAT’s decision as it is unfair and inconsiderable to be accepted. I don’t think AAT’s decision is persuasive and reasonable as it fills with wrong assessment in particular the judgment in respect of our religion.
I couldn’t agree with tribunal’s decision as follows:
The second ground of review then proceeds to list 18 bullet points containing various contentions and complaints about the Tribunal’s decision.
CONSIDERATION
In this judicial review proceeding, the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. This matter was explained to the applicants at hearing where they were afforded an opportunity to particularise their grounds and raise any further matters which indicate the Tribunal had erred in making its decision.
Ground 1
In relation to ground 1, insofar as it pertains to the delegate’s decision or the Minister’s Department, I agree with the Minister that this Court does not have jurisdiction to review a primary decision made by a delegate. This aspect of ground 1 is misconceived and must fail.
Nevertheless, I engaged with the applicants at hearing in order to seek further detail about their concern with the Tribunal’s decision. By way of oral submissions, the applicants made broad assertions about how the Tribunal failed to understand their evidence, was biased in pre-judging their case and relied upon country information that was not entirely accurate. The second applicant also told the Court of his childhood experiences in China where he had witnessed the demolition of churches, the persecution of priests and the need for underground church congregations to move between people’s homes so that religious adherents could avoid being harmed by the authorities.
The Minister submits that, by ground 1, the applicant has failed to explain how the Tribunal’s decision was unreasonable or had made incorrect assessments about their religion. The Minister further submits the absence of particulars and submissions detailing the applicant’s complaint with the Tribunal’s decision goes no further than an expression of dissatisfaction with that decision.
Having considered the parties’ submissions, and closely reviewed the material before the Court, I am unpersuaded by the applicants’ contentions as they are largely unparticularised and without evidentiary foundation. First, an allegation of actual bias must be ‘distinctly made and clearly proved’: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17; (2001) 75 ALJR 679 (Jia Legeng) at [69] per Gleeson CJ and Gummow J. There is nothing in the Tribunal’s approach or reasons which suggest the existence of actual or apprehended bias. Second, the applicants have also been unable to identify exactly how the Tribunal misunderstood the evidentiary material before it and how that gave rise to jurisdictional error. Third, the applicants’ complaints in relation to accuracy of the country information relied upon by the Tribunal are unsubstantiated and do not rise beyond a general compliant that the country information did not accord with their own perceptions and understanding of religious persecution in China. The applicants’ submission is misdirected as it invites the Court to make is own assessment of the truth of the country information and thereby engage in impermissible merits review. This invitation ignores the well-established proposition that any question of the accuracy of country information is one for the Tribunal, not for the Court: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11].
Accordingly, by ground 1, the applicant has not provided a basis upon which to find jurisdictional error on the Tribunal’s part. Subsequently, this ground must fail.
Ground 2
By ground 2, the applicant states ‘I couldn’t agree with the tribunal’s decision as follows’ and lists 18 bullet points, hereafter particulars, by which various contentions are made.
The particulars to this ground take issue with various factual findings made by the Tribunal about the evidence relating to the arrest and detention of the first applicant’s cousin in China, the first applicant’s church attendance in China, the second applicant’s religious practice in China, and the applicants’ religious conduct in China should they return including whether they would continue their practice of speaking in tongues, proselytise or become priests within an underground church network. The particulars also take issue with the Tribunal’s assessment of the country information relied upon to support its conclusion that the applicants would not face a real chance of serious harm or real risk of significant harm in China. The particulars also take issue generally with the merits of the Tribunal’s adverse credibility findings.
The difficulty with the various complaints in relation to the Tribunal’s consideration of the evidence is that the applicants fail to appreciate the Tribunal properly considered the material that was before it, including the evidence and submissions before the delegate, and reached conclusions that were entirely open to it. The Tribunal’s reasons disclose that its consideration of the evidence and subsequent fact-finding was thorough, balanced and logical. The Minister submits, and I accept, that the Tribunal considered the applicants’ evidence and made findings that were open on the material before it. Accordingly, no jurisdictional error has been made out in this regard.
Credibility findings were a key feature of the Tribunal’s decision. The Tribunal took a methodical and nuanced approach towards its credibility assessment, finding that it did accept some of the claims but rejected others as a result of inconsistencies, or being of the view that some of the evidence had been ‘manufactured’ to bolster a number of the claims for protection that had been raised. I am of the view that the Tribunal’s credibility findings had a logical and probative basis and were neither illogical or irrational: see CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [36] – [44] per McKerracher, Griffiths and Rangiah JJ. Accordingly, no jurisdictional error arises on the basis of the Tribunal’s adverse credibility findings.
By way of the particulars, the applicants also contend the Tribunal’s ‘view is biased’. The Minister submits, and I agree, that there is no evidence to establish bias which is a serious allegation that must be distinctly made and clearly proved: see Jia Legeng at [69] per Gleeson CJ and Gummow J. Accordingly, no jurisdiction error arises on this basis.
The applicants also contend by way of the particulars that the Tribunal ‘failed to verify or investigate’ whether speaking in tongues is a practice undertaken by Roman Catholics in China. In my view, the Tribunal was under no such obligation to ascertain this particular matter. Put simply, the Tribunal was unable to form a view that such a practice existed in China given the dearth of persuasive evidence before it in that regard. It is a well-established principle that it is for the applicants to advance their claims and evidence before the Tribunal: see Abebe v Commonwealth of Australia (1999) 197 CLR 510. In an inquisitorial process such as this, it was for the applicants to provide their evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [76] per Heerey, Conti and Jacobson J. Furthermore, the Minister submits, and I agree, the Tribunal is not under a duty to make an inquiry of the type contended by the applicants and there is nothing to suggest that the Tribunal erred by failing to ‘make an obvious inquiry about a critical fact, the existence of which is easily ascertained’ resulting in a failure to review: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25] – [26] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Finally, the contention that the Tribunal failed to provide the applicants an opportunity to comment upon certain country information is not borne out by the evidence. The applicants did not provide any evidence to support that contention, such as a transcript of the Tribunal hearing. Nevertheless, a review of the Tribunal’s reasons discloses some engagement with the applicants at hearing in relation to certain country information which the applicants had not given for the purposes of the review application or given during the process that led to the making of the delegate’s decision. For example, paragraph 95 of the Tribunal’s decision records the Tribunal’s discussion with the applicants of country information pertaining to the improving relationship between Beijing and the Vatican and the agreement between the Chinese Communist Party and the Roman Catholic Church. In the absence of particulars detailing which country information the Tribunal was obliged to invite comment in order to properly discharge the hearing obligation enshrined in s 425 of the Act, along with evidence of the Tribunal’s failure in that regard, jurisdictional error is not made out by this general complaint.
The balance of the applicants’ particulars to ground 2 are either broad assertions which lack meaningful detail or complaints that misconstrue the Tribunal’s reasons and go no further than to invite the Court to undertake impermissible merits review.
Accordingly, the applicant’s contentions insofar as they relate to ground 2, do not give rise to finding of jurisdictional error on the Tribunal’s part. Subsequently, this ground must fail.
CONCLUSION
For the above reasons, the application is dismissed.
Given recent changes to the portfolio title of the first respondent, I will order the name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’. Finally, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to ‘Administrative Review Tribunal’.
I will hear the parties as to costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 7 March 2025
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