CER19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 37
•21 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CER19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 37
File number: MLG 1802 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 21 January 2025 Catchwords: MIGRATION – protection (subclass 866) visa – review of decision of the (then) Refugee Review Tribunal – applicant applied for FOI request for access to documents – applicant applied for Ministerial Intervention request – extension of time – significant delay – where there is no acceptable explanation for the delay – where there is no arguable case of jurisdictional error – not satisfied it is in the interests of administration of justice to grant an extension of time – application to extend the 35-day period is dismissed Legislation: Freedom of Information Act 1982 (Cth)
Migration Act 1958 (Cth) pts 5, 7, div 4, ss 36(2)(a), 36(2)(aa), 375, 415, 417, 438, 422B(1), 477(1), 477(2), 477(2)(b), 477A(2), 477A(2)(b)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, pt 2, div 1, item 2
Cases cited: BQQ15 v Minister for Home Affairs [2019] FCAFC 218
Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280
Gallo v Dawson (1990) 64 ALJR 458; 93 ALR 479
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293
Manna v Minister for Immigration and Citizenship [2013] FCA 400
McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609
Mentink v Minister for Home Affairs [2013] FCAFC 113
Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang [1996] HCA 6; 185 CLR 259
Parker v The Queen [2002] FCAFC 133
Porter v Ghasemi [2021] FCAFC 144; (2021) 286 FCR 556
Re Commonwealth; Ex parte Marks [2000] HCA 67
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
SZNYE v Minister for Immigration and Citizenship [2010] FCA 500
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579
Vella v Minister for Immigration and Border Protection [2015] HCA 42
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of last submission/s: 22 November 2024 Date of hearing: 28 November 2024 Place: Melbourne Counsel for the Applicant: Mr P Berg Solicitors for the Applicant: KWL Lawyers Counsel for the First Respondent: Mr A Cunynghame Solicitors for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1802 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CER19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
21 JANUARY 2025
THE COURT ORDERS THAT:
1.The application for an order extending the 35-day period within which an application for judicial review of a migration decision of the (then) Refugee Review Tribunal may be made is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $4,189.38.
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 Gostencnik
BACKGROUND
In late 2011, the applicant, a citizen of the People’s Republic of China, applied for a Protection (Class XA) (Subclass 866) visa: Court Book (CB)1-CB25, having arrived in Australia in mid-2008 on a student visa: CB13. The applicant claimed: her whole family had been persecuted by the Chinese government “because [they] believed in Christ”; her parents were the mainstays of Christianity in her village and they often evangelised; she and her parents’ were arrested and detained in 2007 for attending a gathering; and her parents were arrested and detained again in 2010 for organising a gathering and were subsequently prohibited from continuing to operate a seafood store which her parents had operated for many years. The applicant claimed that since arriving in Australia she had given birth and did not want to return to China with her child because she did not want her child to live in a country where freedom and democracy does not exist: CB32-CB33.
On 12 March 2012, a delegate of the (then) Minister for Immigration and Citizenship refused the visa application: CB45-CB60. The delegate concluded that the applicant is not a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Act): CB60.
The applicant subsequently applied to the (then) Refugee Review Tribunal for review of the delegate’s decision: Supplementary Court Book (SCB)1-SCB5. The Tribunal received the application on 2 April 2012: CB61-CB62. On 5 July 2012, the Tribunal invited the applicant to attend a hearing scheduled for 27 July 2012 to give evidence and present arguments relating to the issues in her case: CB63-CB64. The invitation also requested the applicant complete and return an enclosed ‘Response to hearing invitation’ form to confirm her attendance at the hearing, and to provide the Tribunal with any additional or new information which the applicant might wish the Tribunal to consider. The applicant provided a completed ‘Response to hearing invitation’ form on 5 July 2012: CB65. The applicant attended the scheduled hearing at which she gave evidence and presented arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages: CB77 at [39].
By its decision on 3 January 2013, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa: CB71. The Tribunal notified the applicant of its decision on 4 January 2013: CB70.
TRIBUNAL’S DECISION
In its Statement of Decision and Reasons (Decision): CB71-CB96, the Tribunal set out at [1]-[3], a brief background and at [4]-[18], the relevant statutory provisions engaged by the applicant’s claims. At [19]-[101], the Tribunal discussed the applicant’s claims and evidence and other material including relevant country information. At [102], the Tribunal finds that it did not have jurisdiction to conduct a review in relation to the applicant's child, as a decision on the child's deemed protection visa application is still pending before the (then) Department of Immigration and Citizenship.
The Tribunal’s findings about the applicant’s protection claims are summarised at [104]-[108] of the Decision. At [112]-[138], the Tribunal sets out its findings and reasons therefor. It noted that at times, the applicant’s claims were “patchy and lacked convincing detail”: at [116]; “illogical in the absence of further detail”: at [116]; contradictory: at [117]; inconsistent: at [120]; and further noted that “the applicant did not provide corroboration, documentary or otherwise, for any of her claims”, outside of her attendance at the church: at [122]. In substance, the Tribunal:
(a)accepted the applicant is a Christian in Australia, and was so in China: at [105];
(b)found that the applicant fabricated her claims that she had been arrested and detained in China in February 2007: at [112];
(c)did not accept that her parents had been arrested and detained twice, in February 2007 and April 2010 for being religious organisers, nor that their shop had been closed by the police in April 2010: at [112];
(d)found that the parents were of no adverse interest to the authorities at the time the applicant departed China: at [115];
(e)found that the applicant was not subjected to any form of harm as a result of being a Christian, nor is she at risk of any harm if she returned to China by reason of her parents being religious organisers, and the Tribunal found that the applicant’s claims in this respect were fabricated as a means of promoting her migration intentions: at [125], and the chance that the applicant would be persecuted because of her religion if she returned to China is remote: at [106];
(f)accepted that the applicant was a Christian in China, she was baptised there and attended informal religious gatherings: at [126];
(g)found that the applicant and her parents are not of a profile that would attract adverse attention by the Chinese authorities and was satisfied that the applicant does not have a well-founded fear of persecution: at [127]-[132]; and
(h)did not accept that any harm which the applicant might experience in having a baby in breach of China’s family planning regulations is persecution for a Convention reason and does not amount to serious harm within the meaning of the Convention: at [136]-[138].
Consequently, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under ss 36(2)(a) or (aa) of the Act: at [139]-[140]. The Tribunal affirmed the decision not to grant the applicant a protection visa: at [142].
REQUEST FOR ACCESS TO DOCUMENTS
In early August of 2015, the applicant applied under the Freedom of Information Act 1982 (Cth) for access to documents and information relating to her protection visa application (FOI request): SCB18-SCB19. The (then) Administrative Appeals Tribunal released to the applicant certain documents from its case file, an audio recording of the hearing and a copy of information from its case management database on 10 August 2015: SCB20-SCB21, and on 14 August 2015, the (then) Department of Immigration and Border Protection decided to release the department file CLF2011/173730 pertaining to the applicant’s visa application and the audio recording of the protection visa interview: SCB22-SCB29. A copy of the Decision appears to have been released to the applicant in response to the FOI request: applicant’s affidavit sworn on 8 June 2019, annexure A.
MINISTERIAL INTERVENTION REQUEST
By letter dated 4 November 2015, the applicant requested the (then) Minister for Immigration and Border Protection to substitute, under s 417 of the Act (as then in force), the Tribunal’s decision with a decision that was more favourable to the applicant: SCB30-SCB50. The applicant made submissions about being a young mother and sought consideration for the best interests of her children. On 12 November 2015, the Minister notified the applicant that the power of s 417 is not available in respect of the child, as there had been no decision made for them under s 415 of the Act (as then in force). The request for Ministerial Intervention in respect of the applicant was still ongoing: SCB65-SCB66.
CONSIDERATION
By application lodged on 8 June 2019 in the (then) Federal Circuit Court of Australia, the applicant seeks judicial review of the Tribunal’s decision. An application to the Court for a review of a decision of the Tribunal must be made within 35 days of the date of the Tribunal’s decision: s 477(1) of the Act. The Tribunal made its decision on 3 January 2013 and the 35-day period within which an application to the Court must be made ended on 7 February 2013. The applicant therefore applied for judicial review of the Tribunal’s decision 2,313 days after the time prescribed for making such an application had lapsed. Section 477(2) of the Act allows the Court, by order, to extend the 35-day period as the Court considers appropriate if it is satisfied that it is necessary in the interests of the administration of justice to do so.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 Kiefel CJ, Gageler, Keane and Gleeson JJ explained the exercise of the Court's discretion under s 477(2) of the Act, by reference to the corresponding provision for applications made to the Federal Court of Australia in s 477A(2). In short compass, the focus of s 477A(2)(b) (and so also s 477(2)(b)) is not on the interests of the applicant, but the broader interests of the administration of justice. This allows the Court to consider “a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application”: Tu'uta Katoa at [12]. Their Honours noted that the level of satisfaction that must be reached is not low because the Court “must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice”: at [12]. In this regard, their Honours noted that it is appropriate to consider the well-established principles guiding decisions whether to extend time in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349: Tu’uta Katoa at [13].
The non-exhaustive principles set out in Hunter Valley to which reference in Tu'uta Katoa is made were cited with approval in Parker v The Queen [2002] FCAFC 133 at [6] as follows:
1.applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;
2.action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3.any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4.however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5.the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
See also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]-[36]; SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]; Porter v Ghasemi [2021] FCAFC 144; 286 FCR 556 at 566, [40].
In determining what is necessary in the interests of the administration of justice for the purposes of s 477(2)(b) of the Act, it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level” because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. But there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, where a delay in making an application is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". And in other cases, the proposed ground of review may be hopeless, but it may be necessary to examine the proposed application in some detail to reach that conclusion. In cases of that kind, a proper exercise of the power conferred by s 477(2) will not require the Court to confine its consideration of the merits to an assessment of that which is "reasonably arguable" or some similar standard. The broad power in s 477(2) does not prevent the Court from undertaking a detailed examination of the merits of the application: see discussion in Tu'uta Katoa at [17]-[18].
Extent and reason for the delay
The extent of the delay – more than six years or 2,313 days – is as the applicant accepted quite substantial and to use the first respondent’s description, it is an extreme delay. It may be accepted therefore that this is a circumstance in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. And the lengthy delay may require the applicant to show that her case is strong or even "exceptional": see Tu'uta Katoa at [18]; Vella v Minister for Immigration and Border Protection [2015] HCA 42 at [3]; Re Commonwealth; Ex parte Marks [2000] HCA 67 at [13]; Gallo v Dawson (1990) 64 ALJR 458 at 459; 93 ALR 479 at 481. I will return to the merits of the application shortly.
The applicant’s grounds in support of her application for an extension of time specify the following:
1.I just came to aware of that the failure to afford procedure fairness is reviewable in Court.
2.I am in fear of being persecuted in China when I return.
3.I am in fear of safety of my children born in Australia.
In an affidavit affirmed by Jiawei Wang, the applicant’s solicitor, Mr Wang deposes that when he inquired of his client why the judicial review application was made outside of the statutory time frame, the applicant told Mr Wang that:
(a)she did not have a solicitor or other representative at the time;
(b)her legal representative at the time of the Tribunal application requested further payment in order to assist her with appealing the Tribunal’s decision;
(c)she could not afford to engage a solicitor to assist her;
(d)she was not aware of the process and time frame;
(e)she did not recall receiving any communication or further information in the Mandarin language; and
(f)she did not recall receiving the information factsheet about tribunal decisions attached to the Tribunal’s decision.
The explanation for the delay is therefore threefold. The absence of legal representation and the financial means by which to engage legal representation; the lack of awareness of the process by which the Tribunal’s decision might be reviewed and the time frame for doing so; and the absence of any information in her native language about Tribunal decisions and their review.
The applicant has not provided any evidence about how her financial circumstances affected her capacity to make the application to the Court in a timelier manner. There is also no evidence about whether the applicant took any steps to obtain assistance other than through a paid lawyer to assist her in making a judicial review application. But there is some evidence that the applicant was able to engage a lawyer for the purposes of making her FOI request: SCB11, SCB14, SCB18 and that she engaged a lawyer in respect of the Ministerial Intervention request: SCB36-SCB38, SCB51, SCB54-SCB55, SCB64-SCB65. There is no evidence about the nature of the engagement – whether it was pro bono or fee for service – but the applicant had the opportunity to explain and did not do so. While I am not unsympathetic to the challenges an unrepresented prospective litigant with limited English language comprehension might face in bringing a judicial review application before the Court, without more, the applicant’s contention that financial constraints or difficulties provide a reason for the delay, does not satisfactorily explain the very lengthy delay: SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24]-[26] and the authorities cited therein. Neither does a lack of, or inability to obtain legal advice or representation, alone, provide a sufficient excuse for a failure to lodge an application within the time prescribed nor provide an acceptable explanation for the delay: Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17] and the authorities cited therein. More so when there has evidently been engagement by the applicant with lawyers in connection with the Tribunal’s decision some 31 months after the Decision was made, but no explanation provided for the course then adopted instead of making a judicial review application at that time.
The applicant does not contend she did not receive the Tribunal’s decision at or around the time it was made. To the contrary, the applicant’s evidence is that her legal representative at the time of the Tribunal application requested further payment in order to assist her with appealing the Tribunal’s decision: affidavit of Jiawei Wang at [5], suggesting that the applicant was, at that time, aware of the Decision and that there was an avenue for review, albeit one on which the lawyers then engaged would not guide the applicant without further payment. Apart from the material in the SCB, which the first respondent supplied, the applicant has not provided any evidence about what she was doing in the period between the Tribunal’s decision and application for review. The applicant led evidence through the solicitor to the effect that she did not recall receiving the information about tribunal decisions attached to the Tribunal’s decision or any information in her native Mandarin. But this is not evidence that information about tribunal decisions attached to the Tribunal’s decision was not received by the applicant, merely that she cannot recall whether she received the information – a state of affairs that is not surprising given the passage of time since the information was dispatched.
In any event, the Decision and other correspondence from the Tribunal to the applicant were amongst the documents obtained by the applicant through the FOI request. Again, the applicant’s evidence at its highest is that she does not recall receiving or viewing the information, which is not the same as not receiving the information. I accept the first respondent’s contention that it was the applicant’s responsibility to ascertain her review rights and any applicable time limits attaching to the exercise of those rights. Moreover, at the time the applicant obtained documents through the FOI request, she had or had access to the Decision and accompanying information, and she had legal representation, but there is a dearth of any explanation about why the applicant embarked on the Ministerial Intervention route or whether there was any consideration then of seeking an extension of time to apply for judicial review of the Tribunal’s decision. As to any language barrier, even considering that the information provided by the Tribunal is in English, a diligent litigant should take prompt action to seek assistance with a translation. As already noted, the applicant has not provided any evidence about what she was doing in the period between the Tribunal’s decision and application for review. Nor is there any evidence about what the applicant did in the period following her request for Ministerial Intervention and the date on which she applied for judicial review. The need for any information to be translated does not explain the lengthy period of the delay. To the extent that the applicant says she was unaware of the time limit attached to making a judicial review application to this Court, an unrepresented litigant's ignorance of the time limit for a review is not, without more, a satisfactory explanation for delay: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]-[9]. Here, there is no more, and the various reasons proffered by the applicant for the delay, viewed individually or cumulatively, do not in the circumstances satisfactorily explain the very lengthy delay.
Although, action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether there is an acceptable explanation for the delay: Hunter Valley at 348, Parker at [6], I accept that the applicant’s request for Ministerial Intervention does not provide an explanation for the delay in making an application for judicial review to this Court. This is because the applicant could, at the same time, have applied to the Court for an extension of time to seek judicial review of the Tribunal’s decision: M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 at [22]-[24].
In the circumstances, both the extent of the delay and the absence of an acceptable explanation for the lengthy delay are matters that weigh against a conclusion that it is necessary in the interests of the administration of justice to extend the 35-day period within which a judicial review application may be made.
Prejudice
The first respondent accepts that he is not specifically prejudiced beyond the public interest in the finality of administrative decision making, but points out that which may readily be accepted that the mere absence of prejudice is not a sufficient reason to grant an extension of time.
Merits
Turning to the merits of the judicial review application, the applicant’s proposed review grounds as set out in her application are:
1.The Tribunal failed to afford procedural fairness.
2.The Tribunal made a finding without supporting evidence.
3.The Tribunal failed to disclose any certificates issued pursuant to s438 or s375 of the Act.
None of these grounds are particularised. During the interlocutory hearing of the extension of time application, the applicant’s counsel synthesised the proposed grounds to a contention that the Tribunal ignored, overlooked, or misunderstood relevant facts or materials. And although argued under cover of a heading asserting the Tribunal failed to afford procedural fairness, the contention is in substance one of a failure by the Tribunal to consider and deal with a material claim or integer thereof in that the Tribunal either ignored, overlooked or misunderstood the applicant’s claim to fear harm because of her religion by reason of her parents’ characteristics as “mainstays of Christian[ity] in [their] village” who “often evangelised and helped people who were in need”: see Decision at [31]. Put another way, the applicant contends the Tribunal did not deal with her claim of a significant risk of serious harm because of her parents’ evangelical activities.
The applicant contends that although the Tribunal:
(a)noted at [31] of the Decision that the applicant “describes her parents as "the mainstays of Christian[ity] in our village" and states that they often evangelised and helped people who were in need”; and
(b)identified the classes of persons at risk in China for the Convention reason of religion – those who evangelise or proselytise – indicating that the applicant’s parents are within a class at risk;
the Tribunal did not deny or find the applicant’s parents’ had the characteristic of persons who evangelise as claimed, and did not but should have, given proper and genuine consideration to the associated risk to the applicant, because of her parents’ characteristics as persons who evangelise.
Whilst it is correct that the Tribunal did not, in express terms, find that the applicant’s parents were not persons who evangelise, that is not the end of the matter. It is trite law that reasons for a decision of an administrative decision-maker under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error, because the reasons are meant to inform and not to be scrutinised over-zealously on judicial review by seeking to discern whether there is some inadequacy in the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang [1996] HCA 6; 185 CLR 259 at 271-272; Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287; McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616. Here, when the Decision is read fairly and as a whole, it seems palpably clear the Tribunal considered, then rejected, the applicant’s claims as to her parent’s characteristic as persons who evangelise. This is because rejection of the claim is subsumed in the Tribunal’s findings of greater generality thus rendering that claim irrelevant. As is evident from the analysis below, the Tribunal rejected the applicant's claims in total and rejected the "factual premise upon which" the claim is said to arise. Accordingly it was unnecessary for the Tribunal to make an express finding on the particular matter because it is subsumed in findings of greater generality and the factual premise upon which the claim rested had been rejected: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; 256 FCR 593 at [47].
The Tribunal relevantly begins with the applicant’s written claims, noting at [31]-[33] of the Decision that:
(a)the applicant described her parents as "the mainstays of Christian[ity] in our village" and states that they often evangelised and helped people who were in need: CB32;
(b)the applicant and her parents were arrested and detained by police in February of 2007 for attending a religious gathering: CB32; and
(c)the applicant’s parents were arrested, detained and lost the right to conduct their seafood store in April 2010 because they had organised a religious gathering: CB33.
Next, the Tribunal recounts some of the applicant’s oral evidence, noting she told the Tribunal that:
(a)gatherings were held in her village and that they were family gatherings in the homes of brothers and sisters of the church: Decision at [50];
(b)the gatherings were held in different locations: Decision at [50];
(c)she attended with her parents: Decision at [50];
(d)approximately 20 people would attend the gatherings: Decision at [50];
(e)a lot of different people preached at the gatherings, including her father: Decision at [50];
(f)the main preacher was a man in his 40's who was very religious and a university graduate: Decision at [50];
(g)on the occasion of the arrest of the applicant and her parents in February 2007, she and her parents were attending a gathering at someone’s home and her father and the university graduate had been preaching: Decision at [58];
(h)she had no difficulty obtaining a passport and exit permit in her own name to leave China because although she was a Christian she was not an organiser: Decision at [65];
(i)her parents are organisers so if she were to return to China she would be adversely affected because of their activities: Decision at [65]; and
(j)her “main concern about returning to China [was] being persecuted and her parents being arrested” and that during her last telephone contact with her parents, her parents had confirmed “they were still attending the church gatherings”: Decision at [48].
Next the Tribunal proceeded to make findings and give reasons for its finding at [102]-[138] of the Decision. In summarising the applicant’s claims, the Tribunal records that: the applicant and her parents are Christians; her parents are organisers of the church they attended; the applicant and her parents were arrested in 2007 while attending a gathering; her parents were again arrested in 2010 for organising a religious gathering; and the applicant feared being arrested and mistreated if she returned to China because her parents were Christians and religious organisers: Decision at [104]. The Tribunal summarised its finding about the applicant’s religious based claims at [105] as follows:
The Tribunal accepts that the applicant is a Christian in Australia and was so in China. However, the Tribunal does not accept the applicant's claims to have experienced adverse attention in China because of her religion, nor that her parents have been the subject of adverse attention by the Chinese authorities before or since the applicant's departure from China because of their religious beliefs or activities. The reasons for these findings are set out below.
At [112] of the Decision, the Tribunal finds the applicant “fabricated her claim to have been arrested and detained in China in February 2007, and her claim that her parents were arrested and detained twice, in February 2007 and April 2010, and had their shop closed by police in April 2010”. The underlying basis of the applicant’s claims that she feared harm because of her religious beliefs and her parents’ religious activities was thus rejected. In reaching this conclusion the Tribunal reasoned that:
(a)if as the applicant had claimed, following her February 2007 arrest, the police “gave her an official document with a stamp on it stating that she had been arrested and detained for seven days”, this meant that a record of her arrest and detention had been created and was available to Chinese authorities during the period her application for a passport was pending: at [113];
(b)that the passport was issued to the applicant in May 2007 contradicts her claim to have been arrested in February 2007 and being provided with an official document evidencing the arrest and detainment: at [113];
(c)that the applicant was able to leave China on that passport, having obtained an exit permit and having experienced no difficulty leaving China in June 2008 also supported an inference that neither she nor her parents were of any adverse interest to Chinese authorities at the time of the applicant’s departure: at [114]-[115];
(d)the applicant’s description of her arrest was patchy and lacked convincing details: at [116];
(e)the applicant’s claim the police searched her parent’s home two days after her release in 2007 was, absent any other details, illogical, because assuming the purpose of the search was to find incriminating evidence, such a search would logically be undertaken immediately after the arrests: at [116];
(f)the applicant’s claim that she was in fear of persecution in China as a Christian and as the daughter of Christian organisers of her village's religious community is contradicted by the delay which attended her departure from China – she obtained her passport in May 2007 but did not depart until June 2008: at [117];
(g)the applicant’s explanation for the delay suggests her depart was orderly and planned and lacked urgency which is also the case in respect of her application for a protection visa – the applicant arrived in Australia in June 2007 (sic), her student visa expired in June 2010 but she did not lodge her protection visa application until October 2011: at [117]-[118];
(h)the delay between her arrival and her protection visa application was 40 months; the delay between becoming an unlawful non-citizen and lodging her protection visa application was 16 months; and the delay between the claimed second arrest of her parents and lodging her protection visa application was 18 months: at [119]; and
(i)these delays were not consistent with a genuine fear of persecution, either at the time the applicant arrived or when, she claims, her parents were arrested for the second time because they were organisers and the danger to her increased for that reason: at [120].
The Tribunal also noted the lack of documentary evidence to support any of her claims and it did not accept her explanations for the absence of any corroborating documents: Decision at [122]-[123]. The Tribunal concluded at [124] the 2007 and 2010 arrests and the closure of her parent’s shop did not happen, and at [125] she was not at risk of harm if she returned to China “because her parents [had] twice been arrested and detained as religious organisers”. The Tribunal considered the applicant’s claims of being subjected to harm because of her religion were fabricated “as a means of promoting her migration intentions”: at [125].
It is for the reasons I have summarised above that the Tribunal did not accept at [127] of the Decision that “the applicant is, or that her parents are, of a profile such as would attract adverse attention by the Chinese authorities”. The Tribunal noted at [128] “that the persons who are subjected to harm by the Chinese authorities by reason of their religious beliefs and activities are clergy or lay leaders of underground churches, evangelists and organisers, public worshippers, and persons who by reason of their religious activities with organisations outside China are considered by the Chinese authorities to amount to a threat to its political hegemony”.
The Tribunal earlier acknowledged the applicant had variously claimed that her parents where mainstays of the church, often evangelised, organised and attended religious or church gatherings. By finding that the applicant’s claims about the 2007 and 2010 arrests and the closure of her parent’s shop did not happen, that she was not at risk of harm if she returned to China “because her parents [had] twice been arrested and detained as religious organisers” and by its finding at [127] that her parents were not of a profile such as would attract adverse attention by the Chinese authorities, the Tribunal effectively rejected the applicant’s claim that the parents organised religious or church gatherings and evangelised.
The Tribunal’s reasoning appears cogent, and its findings appear open on the evidence. The Tribunal’s consideration of the matters described above as providing foundation for its findings were relevant and logically probative of the issue whether the applicant’s claims had any substance, or as the Tribunal concluded, were fabricated for an anterior purpose.
Returning to the grounds in the application, as to the allegation of a denial of procedural fairness, the delegate’s decision the applicant sought to have reviewed by the Tribunal was a Part-7 reviewable decision. Section 422B(1) of the Act (as then in force) provided that Pt 7 Div 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the conduct of a review. As earlier noted, the Tribunal received the application on 2 April 2012. On 5 July 2012, the Tribunal invited the applicant to attend a hearing scheduled for 27 July 2012 to give evidence and present arguments relating to the issues in the case. The invitation also requested the applicant, inter alia, to provide the Tribunal with any additional or new information which the applicant might wish the Tribunal to consider. The applicant attended the scheduled hearing, which was conducted with the assistance of an interpreter, where she gave evidence and presented arguments. And as is evident from the Decision at [41]-[71], the applicant was asked questions by the Tribunal and gave evidence about a range of matters relevant to her claims. There is no evident procedural fairness failure, and none is particularised.
As to the two other grounds, these are not particularised nor explained. As bare allegations, they do not disclose any arguable case of jurisdictional error. In any event, the findings without supporting evidence allegation does not appear to have any substance. The Tribunal identified the evidence on which it relied to ground its findings. The Tribunal noted the absence of corroborative documentary evidence to support some aspects of the applicant’s claims, and it explained why it did not accept the applicant’s explanations for such absence. The allegation that the Tribunal failed to disclose any certificates issued pursuant to s 438 or s 375 of the Act (as then in force) appears baseless. Section 375 applied to Pt 5 reviewable decisions. The matter with which the Tribunal was concerned involved a Pt 7 reviewable decision. Section 438 is concerned with documents certified by the Minister as disclosing matters or information in a document that would be contrary to the public interest because it would be prejudicial on security, defence or international relations grounds or involve disclosure of decisions or deliberations of Cabinet or a committee thereof. No such issue appears to arise here, and no particulars are given about any certificate having been issued or any document in respect of which a certificate may have been issued.
For the reasons given, the grounds in the application do not appear to have any reasonable prospect of success. The more synthesised ground advanced in the applicant’s written submissions and during the extension of time hearing does not have sufficient prospects of success for the reasons explained. Despite the absence of prejudice, considering the extent of the delay, the absence of any acceptable explanation for the lengthy delay and the merits just discussed, I am not persuaded that it is necessary in the interests of the administration of justice to extend time. The 35-day period within which the applicant can bring a judicial review application will therefore not be extended.
The first respondent sought costs in the sum of $5,000.00 in the event the applicant was unsuccessful. As the proceeding will be dismissed at an interlocutory stage, the amount sought is more than the amount for which provision is made in item 2 of Div 1, Pt 2, Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). I do not consider that an amount greater than that for which Sch 2 of the Rules provides is warranted. An order for costs in the sum of $4,189.38 will be made in favour of the first respondent.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 21 January 2025
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