CSJ18 v Minister for Immigration

[2020] FCCA 3168

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSJ18 & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3168

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – First Applicant advancing claims with the other applicants applying as members of her family unit — First Applicant claiming a fear of harm in China as a Yi Guan Dao practitioner – Tribunal found she was not a witness of truth – First Applicant claimed bias, failure to carry out statutory duty, breaches of procedural fairness, and merits review – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.414, 424A, 424AA, 476

Cases cited:

Drake v Minister for Immigration [1979] FCA 39; (1979) 24 ALR 577
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507

SZBEL v Minister for Immigration and Multicultural Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 96 ALD 1

First Applicant: CSJ18

Second Applicant: CSK18

Third Applicant: CSL18

Fourth Applicant: CSM18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1473 of 2018

Judgment of: Judge Baird

Hearing date: 5 November 2020

Date of Last Submission: 5 November 2020

Delivered at: Sydney

Delivered on: 5 November 2020

REPRESENTATION

The First Applicant appeared in person, and on behalf, of the Second Applicant and as Litigation Guardian for the Third and Fourth Applicants

Solicitors for the Respondent: Ms D. Stone, Sparke Helmore Lawyers

ORDERS

1. Amends the name of the First Respondent to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”. 

2. Dismisses the Application.

3. That the First and Second Applicant pay the First Respondent’s costs fixed in the sum of $5000.

4. That time for appeal will not start to run until publication of these reasons.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

No. SYG 1473 of 2018

CSJ18

First Applicant

CSK18

Second Applicant

CSL18

Third Applicant

CSM18

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore, revised from transcript)

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) seeking judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal, made on 11 May 2018, in which the Tribunal affirmed the decision of a Delegate of the First Respondent, the Minister for Home Affairs (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), made on 22 December 2015 to refuse to grant the applicants permanent protection (subclass XA 866) Visas.  The applicants filed their application for judicial review in this Court on 25 May 2018. 

Background

1. The First Applicant, and indeed, all four applicants, are citizens of the People’s Republic of China.  The First Applicant is the applicant who has claimed protection in the Visa application made 3 March 2015 (Visa Application).  The Second Applicant is her de facto partner, and the Third and Fourth Applicants are their children.

2. The First Applicant makes primary protection claims, and each of the other applicants claim protection as members of the First Applicant’s family unit.  They do not, in the Visa Application, make independent claims of their own.

3. The First Applicant was born in 1990, and is from the Fujian Province in China.  She first arrived in Australia in September 2006 as the holder of a student visa, and she held student visas, and associated bridging visas, until 2015, in which year she made the present Visa Application which is before me on review today.

4. The Second Applicant arrived in Australia from China in December 2007.  He held a student visa which expired in March 2010.  He has remained in Australia since then, and in the period from March 2010 until March 2015, was an unlawful non citizen.  Since March 2015, he has held a bridging visa pursuant to the present Visa application.

5. The Third Applicant, their daughter, was born in Australia in 2013.  She has held various bridging visas, and a student dependent visa. 

6. The Fourth Applicant, their son, was born in Australia in 2014.  As with his sister, he has held a bridging visa and student dependent visas.  Further to the lodging of their present Visa application, the subject of review before me, he, as was his sister, was granted a bridging visa in association with his application for the Visa.

7. On 16 December 2015, the First Applicant attended an interview with a Delegate of the Minister, and on 22 December 2015, the Delegate refused to grant the applicants protection Visas.

8. On 8 January 2016, the applicants applied to the Tribunal for review of the Delegate’s decision.  On 27 February 2018, the First Applicant attended a hearing before the Tribunal, and, as I have said, on 11 May 2018, the Tribunal affirmed the Delegate’s decision refusing the applicants protection Visas.

9. The First Applicant’s claims for protection were contained in a Written Statement accompanying her Visa Application.  Those claims have been summarised in the Tribunal decision, and also have been set out in summary in the Minister’s written submissions. 

The applicants claims

1. Before me today the First Applicant has indicated that she accepts the summary set out in the Minister’s submissions, and it is with that assistance that I summarise the First Applicant’s claims:

   [3.1]The First Applicant’s family were Yi Guan Dao practitioners. The First Applicant’s father invited many “Daoquin” (Tao relatives) to their home, which had a worship hall, for gatherings.

   [3.2]In 2004, people from the Community Committee stormed the worship hall and accused the Daoquin of being an illegal, evil, cult. On another occasion, the Community Committee and police came to the First Applicant’s house and took her parents to the police station, where they were detained for three days.

   [3.3]The First Applicant was sent to Australia to continue her high school studies, and lived with a Chinese family who also practised Yi Guan Dao.

   [3.4]In 2009, the First Applicant returned to China, bringing some Yi Guan Dao books that were published in Australia. While she was in China, the Community Committee and police again raided a gathering at her home, and the Daoquin were taken to the police station. The First Applicant was released. When the First Applicant’s father was released, he advised her to return to Australia as soon as possible.

   [3.5]The First Applicant continued to go to the worship hall in Australia. She posted some Yi Guan Dao books to her father, but he asked her not to do so as the books had been confiscated. In 2010, her father was diagnosed with terminal cancer. Her visa expired and she was refused a further student visa. She wanted to return to China but her father forbade it. Before the First Applicant’s father died, he told her mother and sister they should continue to preach.

   [3.6]In 2012, the First Applicant met her partner and became pregnant. She went to Canberra to enlighten people. In 2013, she got pregnant again. In 2014, she obtained a further student visa.

   [3.7]The First Applicant is worried about returning to China due to her beliefs and her two children. She and her partner are not married. Her mother told her they are in breach of the law and the one child policy. They face high fines which are beyond their capacity to pay.

2. When the First Applicant attended her protection Visa interview before the Delegate on 16 December 2015, she made a number of additional claims. Those claims are set out in the Delegate’s decision at [10] as amendments, and additions to her written claims. They are summarised in the Minister’s submissions at [4]. As the First Applicant has indicated to me in Court today, [4] of the Minister’s written submissions relevantly summarises the additional claims. I set them out as follows:

   [4.1]The First Applicant’s mother proselytised Yi Guan Dao in China and had done so since the death of her husband, the First Applicant’s father.

   [4.2]The First Applicant attended the temple and Yi Guan Dao classes in Australia, as well as proselytising in shopping centres and a park. The First Applicant’s partner was also Yi Guan Dao practitioner.

   [4.3]The First Applicant understood that her father had been beaten when he was held in custody by Chinese authorities.

   [4.4]Belief in Yi Guan Dao is not permitted by Chinese authorities.

The Delegate’s Decision

1. The Delegate accepted that all four applicants are members of the one family unit, and that only the First Applicant has made specific claims for protection.  As the Delegate found that the other applicants had indicated on their application forms that they are not advancing their own claims for protection, only the claims by the First Applicant were considered. 

2. At [39], the Delegate found that the Second, Third and Fourth Applicants are members of the family unit, and are, therefore, members of the same family unit as the First Applicant. 

3. The Delegate found that the applicants are nationals of the People’s Republic of China, and that China is their receiving country. 

4. At [46] of the Delegate’s decision, the Delegate found the First Applicant “overall to be generally credible”.  The Delegate said:

   … Based on her varying responses at interview to different questions, the fact that she generally provided complete answers and was not evasive, her overall manner during the interview, and her provision of a card purporting to be a Yi Guan Dao initiation card, I find I am satisfied that she follows and practices Yi Guan Dao, and has done so since at least November 2006 in Australia.

5. At [54], the Delegate was satisfied that the First Applicant fears persecution for reasons of religion. 

6. At [75], the Delegate referred to cited country information and found that Yi Guan Dao is an officially banned religion in China, and is probably regarded by the authorities as an evil cult.  Despite that, the country information also suggested to the Delegate that in some places, depending on the local political climate, Yi Guan Dao in the last couple of decades has been able to operate less clandestinely, and has been afforded a certain level of tolerance by some government officials.

7. At [76], the Delegate found that in Fujian Province at least, where the First Applicant is from, there appears to have been increasing tolerance for the faith by authorities, and the Delegate was not satisfied that the First Applicant would face persecution based on her religion if she was to return to China.  The Delegate then set out in 10 dot points the basis for that finding.

8. The Delegate found from [79] to [81], that the First Applicant was not a person to whom Australia owed protection obligations, and (at [99]) she was not a person owed such obligations under the complementary protection criteria.

9. As the Delegate refused to grant a protection Visa to the First Applicant, the Delegate also refused to grant protection Visas to the remaining applicants as the family unit, and on the basis that they did not satisfy sections 32(b) or (c) of the Act.

The Tribunal’s Decision

1. As I have said, the First Applicant appeared in person before the Tribunal on 27 February 2018 to give evidence and present arguments.  The First Applicant appeared without the other applicants, as she has confirmed today, and was unrepresented (I note here that the applicants have been unrepresented at all times in relation to the Visa Application, and at the various hearings and review stages).

2. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. 

3. At [53], the Tribunal recorded that at the hearing before it, the First Applicant abandoned her claims in relation to the one child policy, and the consequences of having children out of wedlock, and the Tribunal disregarded those claims.

4. In relation to her other claims, the Tribunal found that aspects of the evidence were “inconsistent, implausible, and unconvincing”.  The Tribunal assessed these claims, and the Tribunal’s discussion with the First Applicant concerning (as set out at [24]), her background, her family, her education, her employment, where she lived in China, her practice of Yi Guan Dao in China and in Australia, and why she fears returning to China.  The Tribunal “formed the view that she had fabricated some of her claims and exaggerated others for the purpose of obtaining Protection Visas for the following reasons”.

5. At [25] through to [43], the Tribunal identified nine respects in which the First Applicant stated matters in her Visa application, and evidence given in the hearing before the Tribunal that the Tribunal considered inconsistent, implausible, and unconvincing (see above at [26]).  I summarise these below: 

   (a)First, the First Applicant gave inconsistent evidence regarding the frequency of the Community Committee raids on Yi Guan Dao gatherings at her home in China (at [25] – [26]).

   (b)Secondly (and thirdly), the First Applicant gave different versions and dates of events regarding an incident where the police with the Director of the Community Committee went to her house, smashed items used for rituals, and took her parents and some of the Yi Guan Dao practitioners to the police station, and that her parents were detained for three days by police, as well as in relation to the police raid that occurred on her return to China in 2009 (at [27] to [29]). 

   I interpose here to note that this return to China was from mid‑January 2009 to early February 2009 which would coincide with the New Year celebrations in China.

   (c)Fourth, at [30] - [31], the Tribunal recorded what it found as “implausible” the First Applicant’s evidence that she took books back to China.

   (d)Fifth, at [32] – [34], the Tribunal found implausible her evidence that after her return to Australia she posted some books on Yi Guan Dao to her father, if Yi Guan Dao was banned in China and her father was of adverse interest to authorities (at [34]). 

   The Tribunal also found implausible the First Applicant’s evidence that she asked her landlord, who travels to China once a year, to take books to her father in China, and that the landlord did so on two or three occasions.  The Tribunal found implausible her evidence that the landlord would put himself at risk of harm by taking the books to China, not just on one occasion, but on two or three occasions. 

   (e)Sixth, the Tribunal found that the First Applicant’s oral evidence of the extent of the mother’s involvement in Yi Guan Dao was “helping in the temples as she was uneducated and illiterate” was at odds with the claim that her mother had been proselytising around China. 

   The Tribunal raised as an issue with the First Applicant the inconsistencies in her evidence and the concerns it raised in relation to the credibility of her claims in reference to her mother’s problems.  The First Applicant stated that she has found out in the last two years that her mother has gone through extreme problems, was eager to do good deeds, and her mother told her that as it is not possible to preach Yi Guan Dao openly in China, she has been doing good deeds in the temples.  When the Tribunal pointed out that her response did not explain the inconsistencies in her evidence, the First Applicant, according to the Tribunal, responded she is nervous. 

   At [38], the Tribunal accepted that the First Applicant may have been nervous at the hearing, but did not accept that this explains the inconsistencies in her evidence and reiterated that “These consistencies in her evidence raised concerns in relation to her credibility and the veracity of her claims.” 

   (f)Seventh, the Tribunal found the First Applicant’s oral evidence that her mother wanted her to return to China in 2012, “implausible” if the incidents that the First Applicant had claimed to have occurred prior to 2012 had in fact taken place (at [39]). The Tribunal also found this raised further concerns about the First Applicant’s credibility and veracity of her claims.

   (g)Further (eighth), the Tribunal referred to the First Applicant’s evidence of initiation as a Yi Guan Dao practitioner in Australia in 2006, and that she had since attended the temple every week, and attended classes, noting this was inconsistent with what the First Applicant told the Delegate during her interview with the Delegate in December 2015. 

   At [40], the Tribunal observed that despite the First Applicant’s claim that she feared abuse of persecution if she returns to China the First Applicant did return to China in 2009, and stayed there for three and a half weeks.  The Tribunal found this matter raised concerns in relation to the First Applicant’s credibility and the veracity of her claims.

   (h)Ninth, despite the First Applicant’s claims that she had practiced Yi Guan Dao since 2006, that she claimed she was arrested by Chinese authorities in relation to Yi Guan Dao when she returned to China in 2009, and was kept at the police station overnight, that she did not seek immigration advice or lodge an application for a protection visa on her return to Australia in 2009, and did not lodge a valid application until March 2015, gave rise to credibility concerns as previously stated (at [41]).  The Tribunal raised this delay with the First Applicant and noted her response that she wanted to continue her studies in Australia, and did not know about protection visas, and that she got to know about protection visas from Yi Guan Dao practitioners.

6. At [41] to [43], the Tribunal recorded the First Applicant’s evidence, and engagement with the Tribunal on the above matters and the lack of obtaining immigration advice.  The Tribunal did not accept the explanation and stated the Tribunal was of the view that if the First Applicant had a genuine fear of harm, she would have sought advice about permanent residency on protection grounds from the migration agent organising her student visas.

7. The Tribunal recorded that it had considered the First Applicant’s practice of Yi Guan Dao in Australia, and that the Tribunal asked her a number of questions about the teachings of Yi Guan Dao, and that the First Applicant was able to correctly answer these questions. 

8. At [44] – [45], the Tribunal referred to witness statements and photographs.  However, the Tribunal noted that these witnesses did not attend the hearing before the Tribunal so that the Tribunal was unable to test their evidence.  The Tribunal stated at [45]: “However, the Tribunal accepts their evidence that the first named Applicant has been attending Yi Guan Dao temple in Sydney and participating in various Yi Guan Dao related activities.”

9. In relation to country information, the Tribunal recorded at [47] through to [50] of its decision, country information concerning Yi Guan Dao in China, and that since the 1990s, Yi Guan Dao had been associated with preserving cultural heritage, and that its return to mainland China had been looked upon favourably by the authorities for several reasons.

10. The Tribunal recorded that it discussed the country information with the First Applicant (at [51]), and that the First Applicant had responded that according to a file she had looked at online people are still not practicing Yi Guan Dao in public places, that she did not think China would provide her with an environment for a temple, and that because of the incident involving her family, she does not think the local council will allow her to open a temple in her home town.

1. The Tribunal noted that it is unable to locate any recent information on Yi Guan Dao practitioners being arrested, detained or imprisoned in mainland China (at [52]). 

2. At [54] and [55], the Tribunal referred to a new claim that the Second Applicant was a Yi Guan Dao practitioner made at the interview before the Delegate.  The Tribunal raised with the First Applicant that the Second Applicant had not made a claim in his own right that he was a Yi Guan Dao practitioner, and that he did not attend the hearing.  When asked whether he was going to attend the hearing, the First Applicant responded that the Second Applicant was at work.

3. The Tribunal noted that the Second Applicant had not made claims for protection in his own right, and had not attended the hearing to give evidence, and that this raised the issue whether he is, in fact, a Yi Guan Dao practitioner, or if he is one, that he has no concerns about practicing Yi Guan Dao if he returns to China.

4. The Tribunal recorded that the First Applicant responded that the Second Applicant’s mother lived in a remote area, and did not agree with him practicing Yi Guan Dao, and that his mother said he must have lost his mind because he can eat meat and chooses to eat vegetables (I note both the First and Second Applicants are vegetarian).  The Tribunal recorded that the response of the First Applicant did not address the issues raised with her.

5. At [56], the Tribunal concluded in relation to the First Applicant’s credibility that: 

   the Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility and the case law.  The Tribunal has also had regard to the Department’s policy guidelines and country information assessments prepared by DFAT expressly for protection, status determination purposes, to the extent that they are relevant to the decision under consideration. 

6. At [57], having considered all of the material before it, the Tribunal found that the First Applicant was not a witness of truth.  It found that she had fabricated some of her material claims for the purpose of obtaining protection Visas. 

7. At [59], the Tribunal did not accept that the First Applicant and her family had been Yi Guan Dao practitioners in China, or that they were, or continue to be, of adverse interest to authorities.  The Tribunal did accept that since coming to Australia, the First Applicant had become involved in Yi Guan Dao, but did not accept that she held any position of leadership, or that she would set up a temple or proselytise on return to China (at [60]).

8. At [61] and [62], whilst the Tribunal accepted that the First Applicant may continue to practice Yi Guan Dao in the future, in view of the country information, it was not satisfied that the First Applicant was at risk of serious or significant harm for any of the reasons claimed.  As the Second Applicant had not made any claims of his own, the Tribunal formed the view that he has no concerns about practicing Yi Guan Dao on his return to China now or in the reasonably foreseeable future. 

9. The Tribunal noted that no claims for protection had been made on behalf of the Third and Fourth Applicants (I note that in the context it is reasonable to assume that what the Tribunal is stating here is that the Third and Fourth Applicants made no claim on their own account for protection but sought to be included as members of the family unit).

10. In sum, having considered all of the First Applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal found that the First Applicant was not someone to whom Australia owed protection obligations under s.36(2)(a) of the Act.  Based on its anterior findings of fact, the Tribunal was also not satisfied that there was a real risk that the First Applicant would suffer significant harm as defined in s.36(2)(aa) of the Act for any of the reasons claimed.  It found she does not satisfy the criterion in s.36(2)(aa) of the Act.  The Tribunal proceeded to affirm the decision under review (see [67] to [71]).

Grounds of review

1. The application to this Court advances 4 grounds of review which are reproduced here without alteration:

   (1)I think AATs decision is unfair to me; 

   (2)The true is that I will suffer serious harm if I return to China nor or in the future; 

   (3)the true is that I have a well-founded fear of persecution; 

   (4)I think AATs decision was followed the immigration department’s decision without considering my situation carefully.

The Proceeding in this Court

1. The First Applicant is present in Court today.  She appeared unrepresented and with the benefit of a Mandarin interpreter.  The Minister was represented by his solicitor, Ms Stone.

2. At the commencement of the hearing, and before I came on the bench, I was informed that the Applicant had a copy of the Minister’s written submissions and that they had been translated to her.  At the commencement of this hearing, in response to my inquiry, the First Applicant informed the Court that she had read those submissions.  The First Applicant also indicated that she had received a copy of the Court Book although she did not have it with her today. 

3. I note that at the first court date in this Application, Registrar Cho made consent orders to the effect that the First Applicant is appointed as the litigation guardian of the Third and Fourth Applicants, and dispensed with the requirements under the Federal Circuit Court Rules 2001 (Cth) that an affidavit of consent be filed, and the Minister be notified of the appointment.

4. I provided the First Applicant with a copy of her affidavit filed with the initiating application, to which is attached a copy of the Tribunal’s decision record.  I note that the application to this Court and the supporting affidavit are each signed by both the first and the Second Applicant. 

5. I informed the First Applicant that the role of the Court is very different to that of the Tribunal, and that it is not for this Court to reconsider her claims and reach different factual findings or conclusions.  I explained to the First Applicant that the question before this Court is whether there were “legal problems” with how the Tribunal made its decision, and that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes a mistake going to the jurisdiction of the Tribunal.

6. I also explained to the First Applicant the consequences that would flow to the applicants if they lost and a cost order was made against the applicants.  The First Applicant said that she would pay any costs order, and said that she wishes to continue her application.  She did not have any documents to hand up to me.  I confirmed with the First Applicant that the applicants were not represented at any time during the progress of the consideration of their protection Visa Application and the various hearings.  I also confirmed that the Second Applicant did not attend the hearings before the Delegate or the Tribunal.

First Applicant’s submissions to the Court

1. I asked the First Applicant to tell me what she said the problems were with the Tribunal’s decision.  The First Applicant raised matters of bias.  She said that the Tribunal was biased against her, and that the Tribunal member thought her mother was uneducated, so she cannot proselytise (although she did not use that word) Yi Guan Dao in China.  She submitted that many monks or masters of Yi Guan Dao are uneducated. 

2. Additionally, the First Applicant submitted that because the Tribunal member was biased, it did not believe what she said.  She submitted that between February 2018 when she attended the Tribunal for the interview, and May 2018 when the application for protection visa was rejected, one of her fellow believers of Yi Guan Dao in Australia got a protection visa (that is, in April 2018), but that the First Applicant was rejected.  She submitted that if the law is fair to everyone, then she also should have been granted a protection Visa. 

3. The First Applicant made a separate submission that the Tribunal member was of Indian background, and thus, had a different cultural background to her and did not understand the practice of Yi Guan Dao.  She stated that the Tribunal member did not, or has not, lived in China, so did not know Yi Guan Dao was illegal in China.

4. In reply submissions, the First Applicant said that she was not a dishonest person, and that in Yi Guan Dao religion, a person of loving heart helps the homeless and other people.  She identified a number of instances where her temple, and, as I understand, Yi Guan Dao practitioners in Australia more generally, give out hand sanitisers to schools and other people.  The First Applicant submitted that they are not selfish people, and that at least her temple has given over 30 boxes of protection equipment or masks to the homeless.  She reiterated that one of the teachings of Yi Guan Dao is that you have to be an honest person. 

5. I say here that I accept the characterisation of the teachings of Yi Guan Dao in Australia, and that the First Applicant’s demeanour indicated to me both honesty and sincerity.  However, determination of credit is not the issue before this Court.  The question is rather, as Ms Stone for the Minister identified, whether the Tribunal member had made its decision according to law, and specifically, that whether the grounds of review set out in the Applicant’s Application, and as expanded upon orally today, are made out. 

Discussion and Consideration

1. For the reasons that I set out below, I accept the Minister’s submissions.  It is convenient to incorporate the Minister’s submissions in my consideration of each of the grounds. 

2. Turning first to the submissions made orally today and the question of bias.  It is well established that any allegation of bias must be firmly and distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507.

3. Whether in regards to the bias adverted to in the First Applicant’s submissions orally, or as may be implicit in the general statements of grounds 1 to 3, I do not consider that there is anything in the Tribunal’s decision that indicates that the Tribunal assessed the First Applicant and her claims in the manner that a fair minded lay person might apprehend to be biased. 

4. I find that there is no basis disclosed on the Tribunal’s record, in any of the documents in the Court Book before me, or in the submissions of the First Applicant, for any claim that the Tribunal approached the matter of the First Applicant’s application for Visa, and her conduct at hearing, with a closed mind, or that it did not conduct its review in good faith.

5. Whether or not the Tribunal member is of a different cultural background, or had or had not lived in China, is not in the present case relevant to the consideration of the Tribunal’s decision.  The Tribunal considered the totality of the First Applicant’s evidence, and as I have adverted to above, in some detail, discussed and considered the inconsistencies that it identified raised between the First Applicant’s Written Statement and her answers at the hearings. 

6. None of the matters set out in the decision record, in my view, provide any support for the contention that by reason of any alleged Indian background or cultural background (which I note has not been substantiated), a fair minded and informed person would apprehend reasonably that the Tribunal member might not bring or has not brought an impartial mind to bear on the decision.   Any claims of bias raised orally today, or as may otherwise be impliedly raised in the grounds of review, are not made out. 

7. Each of the findings of the Tribunal are explained in the Tribunal’s decision, and supported by reasons within the decision which are cogent and lead to available findings.  It is not in the present case relevant whether or not the appearance of the First Applicant today, and her demeanour before me in Court, might lead me to reach a different view.

Ground 1

1. I turn now to the written grounds of review.  Ground 1, as Ms Stone has contended beneficially, may be interpreted as a contention that the Tribunal had breached its procedural fairness obligations, which I note are exhaustively set out in the Act (see Division 4 of Part 7 of the Act).

2. The Court Book shows that the applicants were properly invited to a hearing, that the First Applicant attended that hearing, and was given an opportunity to be heard, which she took, and to set out and give evidence. 

3. It was open to the Tribunal to make different findings to the Delegate.  Those findings were made on inconsistent evidence that the Tribunal found given before it.  Although the Tribunal has made different findings than the Delegate on the First Applicant’s credibility, as I have said, those findings were premised or based on inconsistencies that were made apparent by the First Applicant’s own evidence at the hearing before the Tribunal.

4. I accept Ms Stone’s submission, confirmed by my review of the decision record, that these inconsistencies did not enliven the Tribunal’s procedural fairness obligations under either ss.424A or 424AA of the Act: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 96 ALD 1, 8 at [18].

5. I find further, that from the discussion the Tribunal had with the First Applicant at the hearing, the First Applicant was sufficiently on notice that the credibility of her account was in issue.  No error arises in that regard (see particularly the Tribunal’s summary at [23] and [24]): SZBEL v Minister for Immigration and Multicultural Indigenous Affairs (2006) 228 CLR 152, 165 at [47].

6. I have concluded, as is apparent from the above, that Ground 1 does not identify a jurisdictional error and that it should be dismissed. 

Grounds 2 and 3

1. Grounds 2 and 3 may be considered together.  By these grounds, the First Applicant contends that it is true that she will suffer serious harm if she returns to China now or in the future, and that she has a well-founded fear of persecution.  By these two grounds the First Applicant asks the Court to reconsider the evidence before the Tribunal, and to review the merits of the Tribunal’s findings.  It is impermissible for this Court to so review the merits of the Tribunal’s findings: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.

2. As I have said above in relation to the First Applicant’s oral submissions, and as I explained to the First Applicant at the commencement of this hearing, it is not for this Court to engage in a rehearing of the First Applicant’s factual arguments. 

3. I find that there is no jurisdictional error established by either Ground 2 or Ground 3, and these grounds must be dismissed. 

Ground 4

1. I accept the Minister’s characterisation that this ground may be understood as a contention that the Tribunal constructively failed to carry out its statutory duty of independently reviewing the Delegate’s decision pursuant to s.414 of the Act.

2. The contention that the Tribunal followed the Delegate’s decision without considering the First Applicant’s situation carefully is refuted by the Tribunal’s decision record.  That decision record, as I have already set out above, indicates that the Tribunal member actively engaged with the First Applicant’s claims and conducted its own independent assessment: see Drake v Minister for Immigration [1979] FCA 39; (1979) 24 ALR 577 at 591.

3. The Tribunal carefully considered the First Applicant’s claim at [15]. It summarised the First Applicant’s claims from her Written Statement (attached to her Visa Application). At [26] through to [44], the Tribunal considered and engaged with the First Applicant regarding statements made in her Written Statement, and her oral evidence.

4. At [45] the Tribunal asked the First Applicant various questions about the practicing of Yi Guan Dao, and based on her answers, accepted that she had been attending the Yi Guan Dao temple in Sydney, and participated in various activities with the temple.

5. In relation to country information, the Tribunal considered country information in relation to the Yi Guan Dao practice in China, and formed its own conclusions.  I have already identified that the Tribunal asked the First Applicant whether she wished to proceed with her claims regarding the one child policy, and her response. 

6. At [54], the Tribunal addressed claims made in relation to the Second Applicant. 

7. I note further that the Tribunal made findings which were contrary to those of the Delegate in relation to the First Applicant’s credibility. I compare, for example, the Delegate’s finding at [46], and the Tribunal’s finding at [54].

8. Given those inconsistencies, given the careful consideration that the Tribunal gave to the Applicant’s claims at the hearing, and its discussion with the First Applicant at hearing, ground 4 cannot succeed. 

Conclusion

1. It follows for the above reasons that none of the grounds of review are made out. 

2. In relation to the remaining applicants, the claims for protection are raised only by the First Applicant.  Because the Tribunal found that the First Applicant’s claims were not made out, because of its various findings, the remaining applicants’ claims as members of the family unit were also not made out. 

3. As the First Applicant has not made out her grounds of review, the Second, Third and Fourth Applicants’ claims for protection as members of her family unit also fail. 

4. The Application does not reveal jurisdictional error, I dismiss the Application.  I order that the First and Second Applicants pay the Minister’s costs fixed in the sum of $5,000.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Baird

Associate: 

Date: 23 November 2020