BZV19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 26
•17 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BZV19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 26
File number: SYG 1220 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 17 January 2025 Catchwords: MIGRATION – Administrative Appeal Tribunal - protection visa (class XA) (subclass 866) – Review of a Registrar’s decision where the matter was dismissed for non-appearance – grounds of judicial review have no merit – application dismissed with costs. Legislation:
Migration Act 1958 (Cth) ss 5H(1), 36(2)(aa),36(3),65 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 13.06(1)(c)
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
CDD18 v Minister for Immigration, Migrant Services and Multicultural Affairs [2022] FCA 1283
Charisteas v Charisteas [2021] HCA 29
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214
Minister for Immigration and Citizenship v SZDMS [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 16 December 2024 Place: Parramatta Solicitor for the Applicants: Self-represented litigants Solicitor for the First Respondent: Mr Westenberg (Sparke Helmore) Solicitor for the Second Respondent: Submitting appearance, save as to costs. ORDERS
SYG 1220 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BZV19
First Applicant
BZW19
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
17 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the Second Respondent be substituted to ‘Administrative Review Tribunal’.
2.The application for reinstatement is dismissed.
3.The First and Second Applicant are to pay the First Respondent’s costs fixed in the sum of $1,500.00.
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 D HUMPHREYS
INTRODUCTION
This is an application for a review of a Registrar’s decision not to reinstate an application for judicial review of a decision made by the Administrative Appeals Tribunal (“Tribunal”) on 26 April 2019. The Tribunal affirmed the decision made on 14 July 2016 of a delegate of the then Minister for Immigration and Border Protection (“delegate”) to refuse to grant the applicants a (class XA) (subclass 866) protection visa (“the visa”). The matter was initially dismissed for non-appearance at a call over before a Registrar of this Court.
For the reasons outlined below, the application for reinstatement must be dismissed.
BACKGROUND
The first applicant is a female citizen of China. The second applicant is a male citizen of China who is married to the first applicant. They arrived in Australia on 6 September 2014 using Tourist Visas (class FA) (subclass 600).
The applicants lodged an application for the visa on 26 November 2014. A statement was provided in the application. Their claims are summarised as follows:
(a)The applicants are from the Fujian Province and had three children, which violated the Chinese birth control policy. Consequently, they were required to pay a penalty.
(b)They converted to the I-Kuan-Tao (Tao) faith in 2012.
(c)On 19 September 2013, during a religious gathering with fellow adherents, security guards and police checked their identities, confiscated their books and brought them all to the police station.
(d)The second applicant was previously put into custody for five days for preaching Tao and both applicants had records of being reported and cautioned in police files.
(e)The first applicant was fined 10,000 RMB before she could be bailed out of prison. The applicant declared that she would air her grievances to the police officer’s superiors. The police seized back the detention warrant for fear it could be used as evidence to appeal to the higher authorities. She protested but was ignored and shoved out.
(f)The first applicant sent a letter of complaint and later went to the governmental office but was driven out of the office by security guards.
(g)In 2014, the first applicant was worshipping at home when she was reported to the police, who arrested her and accused her of behaving illegally. She was fined 20,000 RMB and threatened that if she was caught worshipping again, they would punish her more severely. The police ordered her to live under surveillance by community administration and report to the police each month.
(h)The applicant protested the police’s ‘arrogance’ and was thrown into confinement for two days but was released because she was pregnant.
(i)The first applicant had to flee the country because she could not denounce her faith.
(j)The applicants continued their worship in Australia and heard of family members being ‘molested’ by the local government in China and fear the same upon return.
The applicants received a request to attend an interview with a delegate, which they did.
On 14 July 2016 the delegate refused to grant the visas under s 65 of the Migration Act 1958 (Cth) (“the Act”).
The applicants applied to the Tribunal for review of the decision on 10 August 2015.They appeared before it on April 2019. The Tribunal affirmed the decision not to grant the applicants the visas on 26 April 2019.
The applicants applied to this Court on 17 May 2019 for judicial review of the Tribunal’s decision.
On 4 September 2024 a Registrar made orders dismissing the applicant’s originating application pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 when the applicants failed to appear at a call over scheduled before the Registrar on that date.
By application lodged on 2 October 2024, the applicants applied to reinstate their application for judicial review. The Court notes this application was one day late as regards the time frame to seek a review of a Registrar’s decision.
THE LAW IN RELATION TO REINSTATEMENT
The following was said by Stewart J in CDD18 v Minister for Immigration, Migrant Services and Multicultural Affairs [2022] FCA 1283 at [17]:
[17] I respectfully adopt what was said by Davies J in DAE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 79 at [8] with regard to the principles applicable to the exercise of the power under r 16.05(2)(a) of the FCC Rules to vary or set aside a judgment or order that has been entered in the absence of a party:
Generally a court will have regard to three factors in exercising the power and consider whether, on balance, those factors tend for or against the reinstatement. Those factors, as explained by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ) at [7] are:
(a) whether there was a reasonable excuse for the applicant’s absence from the hearing in which the proceeding was struck out;
(b) the existence and nature of any prejudice that might flow to the respondent from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant; and
(c) whether the applicant has a reasonable chance of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi‑Cultural and Indigenous Affairs [2005] FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement. (Ryan J’s emphasis).
However, as the Full Court observed in [FBS18 v Minister for Home Affairs [2019] FCAFC 196] at [55] and [58], the discretion in r 16.05(2)(a) of the FCC Rules is a broad discretion and there are no statutorily prescribed matters that must be taken into consideration when deciding whether or not it is in the interests of justice to exercise that discretion. Factors commonly cited in case law, such as those listed by Ryan J in MZYEZ, are to be taken as a guide to what may be considered when exercising the discretion in r 16.05 of the FCC Rules, and the statutory discretion should not be fettered by judicially imposed rules so that it becomes equated to a statutory check-list.
To the above I would add the length of the delay between the dismissal of the matter and the application for reinstatement. The longer the delay, the more persuasive the reason needs to be for the Court to exercise its discretion to reinstate a matter.
As to the reason why the applicant did not appear at the Registrar’s hearing on 3 September 2024, in an Affidavit of 1 October, the applicant states that the notification of the hearing before the Registrar went to the ‘junk’ inbox of their email account. This is not an adequate explanation for missing the hearing and weighs against reinstatement.
As to any prejudice to the respondent, it has properly been conceded that no real prejudice flows that cannot be mitigated by a costs order. The Court considers this factor to be neutral as regards reinstatement.
The delay in seeking a reinstalment is minor in nature (one day), but is still a delay in terms of the period allowed. This weighs in favour of reinstatement.
This leaves the merits of the substantive application for consideration. If the substantive application has no merit, reinstatement would be pointless. In considering the merits of the substantive application, consideration should be at the impressionistic level.
ADMINISTRATIVE APPEALS TRIBUNAL DECISION
At [4] to [19]. The Tribunal instructed itself as to relevant law for a protection visa to be granted.
At issue, as set out at [20], was whether the applicants met the refugee criterion, and if not, whether they are entitled to complementary protection.
The applicants’ claims were outlined from [28] to [38].
The material before the Tribunal included:
·The applicants' protection visa application forms completed and signed on 26 November 2014, lodged on 26 November 2014;
·The applicants' identity documents being certified copies of passports;
·The protection visa decision record of 14 July 2016;
·The review application form which included a copy of the delegate's decision record;
·Country information from the applicant's submissions and other sources, as discussed at the Tribunal hearing. The Tribunal also had regard to the Department of Foreign Affairs and Trade's (“DFAT”) most recent Country Information Report on China, published on 21 December 2017 and DFAT Thematic Report Fujian Province, People's Republic of China, published on 16 December 2016.
The Tribunal found at [41] that China was the country of nationality for both applicants and the receiving country for the purposes of ss 5H(1) and 36(2)(aa) of the Act.
The Tribunal was satisfied at [42] the applicants did not have a right to enter and reside in any other country and that the applicants therefore were not excluded from Australia’s protection obligations under s 36(3).
The Tribunal at [135] was prepared to give the applicants the benefit of its considerable doubt and accepted they were members of the I-Kuan-Tao in Australia and may have been members of it in China.
The Tribunal was not persuaded at [139] that I-Kuan-Tao is a faith that the Chinese Government is determined to prohibit, and thereby seek to arrest and detain its practitioners. It found at [141] that the first applicant had no well-founded fear of persecution in China by reason of her past or future involvement with I-Kuan-Tao in China.
The Tribunal found at [148] that the first applicant was of no interest to the authorities given she was able to legally depart China. Combined with concerns about the applicant’s credibility, the Tribunal did not accept at [149] that the first applicant and her husband have ever come to the attention of the police in China in relation to any involvement they may have had with I-Kuan-Tao. The Tribunal did not accept that they had ever been arrested, or been held in detention, or fined or harmed in any way in connection with I-Kuan-Tao.
At [151] the Tribunal found that the first applicant will not be of adverse interest to the authorities upon her return to China on account of her absence.
The Tribunal was satisfied at [152] that the first applicant did not have a well-founded fear of persecution for any Convention reason now or in the reasonably foreseeable future, if she returned to China. Accordingly, it found she did not satisfy the criterion in s 36(2)(a) of the Act.
The Tribunal made adverse credibility findings including those at [155]. The Tribunal rejected the first applicant’s claims as to her and her husband having ever come to the attention of the police in China in relation to any involvement that they may have had with I-Kuan-Tao, and that they have ever been arrested, or been held in detention, or fined or harmed in any way in connection with I-Kuan-Tao, and accordingly that she feared harm for her safety due to threats of arrest, torture or death.
The Tribunal was not satisfied at [156] there was a real risk that the applicant would suffer significant harm for any of the reasons claimed if she returned to China now or in the reasonably foreseeable future. The Tribunal was not satisfied at [157] that the first applicant would be arbitrarily deprived of life, the death penalty would be carried out on her, she would be subjected to cruel or inhuman treatment or punishment or that she would be subjected to degrading treatment or punishment if she returned to China now or in the reasonably foreseeable future. The Tribunal was therefore not satisfied the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa).
The applicants were also unable to satisfy the criterion set out in s 36(2)(b) or (c) and could not be granted visas.
GROUNDS OF JUDICIAL REVIEW
Fifteen different grounds of judicial review are contained in an Originating Application lodged on 17 May 2019. They are reproduced as follows (verbatim):
1.Firstly, I and my fellow friends were arrested by police on Moon festival. In 2013 due to our I-Kuan-Tao family alter practice (paragraph 66-67).
2.Secondly, my husband had been arrested in 2004 due to his active engagement in 1- Kuan-Tao religion (paragraph 68).
3.Thirdly, my hard experience that I was once picked up by police and threatens in 2013 and thereafter in 2014. I was arrested again and fined with the penalty of 20, 000RMB due to my involvement in religious practice of I-Kuan-Tao. I have put all these information in my statement and answered the questioners in this regard in the hearing however, my honest explanations have been ignored by the member due to her wrong assessment with prejudice (paragraph 72-78).
4.Tribunal also overlooked the fact that I-Kuan-Tao has banned In mainland China in the 1950s and the situation still remain no change till present. The converts or practitioners of Tao are still regarded Illegal and facing challenge and being placed in perilous stark circumstance at all time (paragraph 96).
5.Tribunal failed to well consider the evidence I provided in regards to my activating practice after arrived in austral, especially the written reference and photo in temple alter. (Paragraph 99-100).
6.Tribunal's provision of country information in relatlon to I-Kuan-Tao in China is less persuasive in making right assess to my origin as the real situation there is contradicted to the fact (paragraph 101-103).
7.Tribunal's comment is wrong and impractical that some branched of Yiguandao have returned and operated within China with tacit of the authorities, as long as they do not preach in public. The reality is I and my husband all wish to preach the ideology and benefit of Tao as a committed and pious Tao's practitioner but be afraid of being detected, arrested and persecuted by police. Tribunal's conclusion by saying we never preach was biased wrong and unacceptable (paragraph 103)
8.
Tribunal's assessment to the information I provided has been abused to interpret that the local police in my origin is still looking for me according to my son at home. The reason I had not been targeted in airport was that I have paid for the guarantee of a
secured pass through. So tribunal’s conclusion has unrealistic and irrelevant(paragraph 115).
9.Tribunal's so called “the onus of proof” is unfair to me because I have never been asked to provide any kind of documents as evidence for my claim however I can do my best in providing some historical records in this regard if I was requested to do so, in or after the hearing (paragraph 117).
10.Tribunal's conclusion for my credibility is unrealistic and unacceptable. Tribunal lack of hard evidence In making such biased judgment merely through superficial reviewing or questioning (paragraph 119-121).
11.Tribunal's conclusion in my lodging time of protection is unacceptable. As a new comer in Australia, it is difficult for me to learn about the local law and organizing the documents for such sophisticated application due to my inability of language barriers and poor education background (paragraph 128)
12.Tribunals' conclusion in finding the evidence of my activities of religion in China is unrealistic and unacceptable for it failed to well consider the actual situation in my country of origin (paragraph 135-140)
13.Tribunal's speculation and judgment in this regard appears highly hypothetical and metaphysical without any reasonable or concrete clues that my purpose in persuading Tao temple especially my belief or faith and involvement with I-Kuan-Tao end up in no real chance that I will suffer persecution as a consequence of my returning to China on the grounds of my I-Kuan-Tao if I returned to China now or the reasonably foreseeable future. I was really puzzled in this wrong verdict.
14.The Tribunal has rashly and unreasonably turned down my explanation. It neither required me to provide more evidence or further investigation, nor did it respect the facts of the long persecution my family had suffered and its negative effects on me:
15.Tribunal failed to take good care of all the reference and documents as evidence provided to illustrate my faith and temple practice in Australia and conclude with bias. Tribunal's decision is ungrounded misunderstanding or prejudiced misjudgements.
THE APPLICANT’S SUBMISSIONS
The first applicant appeared before the Court unrepresented. She appeared on behalf of herself and her husband. She was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that the respondent’s written submissions had been translated to her. The Court also had her grounds of judicial review interpreted to her. The Court also ensured the applicant had access to a pen and paper so she could take notes during the course of the hearing should she so wish to.
At the commencement of the hearing, the Court explained it was undertaking a review of a Registrar’s decision and the considerations involved in such a review. The Court explained that in relation to the original application to the Court all it could undertake was judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of her and her husband’s case. The applicant told the Court that she had nothing further to say in relation to the grounds of judicial review. She had outlined her complaints about the Tribunal decision to a friend who had translated them into English and completed the Originating Application form for her.
At the conclusion of the respondent’s oral submissions, the applicant was asked if she wished to state anything in reply. She answered that she had no further explanations and just wanted another chance to be able to consult with a lawyer. The Court advised it would not grant an adjournment as the matter had been on foot for five years and she should have consulted a lawyer prior to this hearing. She then stated she felt the Tribunal had dealt with them unfairly.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent submitted that the applicant’s reason that they did not attend the call over as the relevant emails went to junk mail is not a reasonable excuse for the applicant’s non-attendance. The applicants took no steps in relation to their matter in the last five years and failed to check their emails. It is not a satisfactory explanation.
The first respondent accepted that there is no prejudice that could not be cured by an award of costs. However, the absence of prejudice is not in itself sufficient or capable of supporting a conclusion that an order for reinstatement should be made; (see: Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 at 349). The significant public interest in the finality of administrative decisions was also stated; (see: Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at [15]-[17]).
It was submitted that the proposed grounds for judicial review are unmeritorious. When considered together, they rise no higher than emphatic disagreement with the Tribunal’s decision and invite the Court to engage in impermissible merits review; (see: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
The applicants have not provided an adequate explanation for their failure to appear on 4 September 2024 nor do the proposed grounds have sufficient prospects to warrant reinstatement. It is not necessary in the interests of justice to reinstate the applicant’s application.
In relation to the merits of the proposed application, there are 15 grounds of review. Given their convoluted nature, the Minister addressed them thematically.
Grounds one to five assert the Tribunal failed to consider various aspects of the applicant’s claims. No such failure exists. The Tribunal considered the applicant’s claims in relation to the moon festival in 2013 where the applicant claims to have set up an altar at home and invited close relatives, some of whom were arrested: see [30] and [67]. It further considered the second applicant police record at [68], the applicant’s experience when she was picked up by police in 2013 and 2014: see [74] and [76]. The Tribunal noted that Tao was banned in mainland China in the 1950s at [96] and this continues until today: see [103] – 104]. The Tribunal accepted at [135] that the applicant practices Tao in Australia notwithstanding credibility concerns.
To an extent, ground 15 contends the Tribunal did not consider the applicants “references and documents”. This claim is without substance as the Tribunal referred to the evidence presented by the applicant and accepted much of that evidence. Insofar as it related to the applicant’s religion, the findings the Tribunal made were open to it on the evidence before it. The grounds rise no higher than disagreement with the Tribunal’s findings and invite the court to engage in impermissible merits review.
Ground six and seven disagree with the Tribunal’s acceptance of country information. It is well established that the choice of an assessment of country information is a matter for the Tribunal; (see: NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 (“NAHI”) at [13]).
Grounds eight, eleven and twelve contain various assertions in relation to ‘illogicality’. To establish jurisdictional error on the basis of illogicality, the Tribunal’s decision must be one where no rational or logical decision maker could arrive at the same decision on the same evidence; (see: Minister for Immigration and Citizenship v SZDMS [2010] HCA 16 at [130] – [131]). No such illogicality is present.
Ground eight contends the Tribunal misunderstood the applicant’s explanation for her ability to leave the airport. The applicant contends that she paid a bribe. However, the Tribunal found this explanation implausible in light of the claimed level of interest in the applicant from authorities. The Tribunal relied on country information regarding the scrutiny faced by people departing China at airports. This finding was available to the Tribunal on the evidence that was before it. The fact that another conclusion might be open on the same evidence does not mean that the conclusion reached was illogical.
In ground eleven, the applicant alleges it was illogical or impermissible for the Tribunal to give weight to her delay in lodging her protection visa application. The Tribunal put weight on the applicants having arrived in Australia on 6 September 2014 and not lodging their protection visa application until 26 November 2014, about one week prior to the tourist visas expiring. It was submitted there was, contrary to the applicant’s disagreement with this, a logical connection between the applicants waiting until one week before their tourist visas expired to advance a claim for protection and the Tribunal scepticism of those claims.
By ground twelve, the applicants contend the Tribunal failed to properly consider the actual situation in China and that its conclusion was unrealistic. The Tribunal’s use of country information was open to it for the reasons it gave. The Tribunal’s references to country information indicating that Tao was not on a list of “banned cults” and the lack of reported incidents of adverse treatment of followers at [102] – 103] provided an intelligible basis for the Tribunal’s findings.
In grounds nine and fourteen, the applicant contends the Tribunal improperly required her to discharge an onus of proof without asking her to provide any kind of evidence. It was for the applicant to present her claims and evidence for the Tribunal to enable it to reach the requisite state of satisfaction; (see: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 (“Lat”)).
Grounds seven, ten and fifteen contend the Tribunal was “biased”. An allegation of bias is a serious allegation which must be firmly and distinctly made and clearly proven; (see: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [127]). This particularised and unsubstantiated allegation lacks merit to justify reinstatement.
Ground thirteen and the further eleven numbered paragraphs under the heading “The Grounds of the Application are” are factual contentions and not proper grounds of review. Therefore, they lack sufficient prospect to warrant reinstatement.
CONSIDERATION OF THE GROUNDS OF JUDICIAL REVIEW
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
It is well established the Tribunal is not required to accept uncritically any and all claims made by an applicant; (see: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451).
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out; (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348).
It is well settled that the country information and the weight it gives to that information is a matter for the Tribunal Authority; (see: NAHI).
It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee; (see: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
It was for the applicant to provide his or her evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction; (see: Lat (2006) 151 FCR 214 at [76].The Tribunal is under no obligation to “afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”; (see: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [82]).
A claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. It is a rare and exceptional case that bias will be demonstrated solely from the published reasons of the decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision maker approached their task other than with a mind open to persuasion; (see: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
The law in relation to apprehended bias is well known. In Charisteas v Charisteas [2021] HCA 29 at [11] the following was said:
Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal; (see: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, the Court concluded at [131] that it was insufficient the different minds might reach different conclusions in a jurisdictional fact and that the test for illogicality or irrationality:
… must be to ask whether logical or rational reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The Court notes that the Tribunal’s decision record runs to to some 164 paragraphs, over 19 typed pages. In the Court’s view, it is a detailed and comprehensive assessment of the applicant’s claims for protection together with the evidence upon which those claims are based.
The Court agrees with the respondent’s submission, but by and large, the grounds of judicial review rise no higher than emphatic disagreement with the Tribunal’s decision and invite the Court to engage in impermissible merits review.
In relation to grounds one to five, the Court is satisfied that the Tribunal did consider the various aspects of the applicant’s contentions that are suggested were overlooked. Each of these claims is covered in the Tribunal’s decision record as set out above in the respondent’s submissions. Grounds one to five have no merit.
In a similar vein, Ground fifteen contends the Tribunal did not consider the applicant’s “references and documents”. As noted by the respondent, the Tribunal plainly accepted much of the evidence insofar as it related to the applicant’s religion, however it made findings that were open to it on the evidence that was before it for the reasons it gave. Ground fifteen has no merit.
Grounds six and seven disagree with the Tribunal’s acceptance of country information. As noted above, is a matter for the Tribunal as to which country information it accepts and the weight it gives to that information. The Court agrees with the respondent that to the extent that ground seven contends the Tribunal failed to consider the applicant did not preach because they fear harm, no such claim was advanced before the Tribunal. Ground six and seven have no merit.
Grounds eight, eleven and twelve assert illogicality on the part of the Tribunal. The Court is satisfied that the impugned findings were open to the Tribunal, based on the evidence that was before it and for the reasons it gave. The mere fact that the applicants contend that a different finding could have been arrived at, based on the same evidence, is not sufficient to justify a finding of jurisdictional error.
In a similar vein, the Court is satisfied that it was open to the Tribunal, based on country information, to conclude that if the first applicant was adversely known to authorities, it was implausible that she would have been able to leave China via the airport. The Tribunal found a claim that the applicant paid bribes simply implausible. Again, this was a finding that was open to the Tribunal based on the evidence before and for the reasons it gave. This ground has no merit.
It was also open to the Tribunal to give weight to the delay in the applicant’s lodging their claims for protection visas. This was a finding that was open to the Tribunal.
The assertion that the Tribunal failed to consider “the actual situation in China” again has no merit. The Tribunal referred to relevant country information, which it was entitled to do. Based on that country information, the Tribunal’s findings were open to it for the reasons it gave.
Grounds 9 and 14 are misconceived. It was not for the Tribunal to investigate the applicant’s claims, or to ask her to provide evidence such that it might be able to accept her claims. It was for the applicant to provide her information and evidence such that the Tribunal could be satisfied she was entitled to the visa she sought. There was no obligation on a Tribunal to make the applicant’s case for her or to request further evidence.
Ground 7, 10 and 15 contend the Tribunal was biased. Such a claim is serious and requires proof. A fair reading of the Tribunal decision record does not indicate any predisposition towards making a finding against the applicant irrespective of the evidence or a basis upon which a claim of apprehended bias might be made out. This claim is unparticularised and for that reason alone the grounds can be dismissed as lacking merit.
Ground thirteen and the eleven numbered paragraphs under the heading “The Grounds of Application are” can be characterised as mere factual contentions and are not proper grounds of review. They reveal no jurisdictional error.
Even on an impressionistic basis, none of the proposed grounds of judicial review have any merit.
DETERMINATION
Given the Court’s findings above in relation to the merit of the proposed grounds of judicial review, as well as the lack of an adequate reason for failing to attend before the Registrar, the Court finds it is not satisfied there are proper grounds for the reinstatement of the application.
The Registrar’s decision to dismiss the application for the nonappearance is confirmed and the application must be dismissed with costs.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 17 January 2025
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