CVE24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 598
•28 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CVE24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 598
File number: PEG 163 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 28 April 2025 Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the applicant was denied procedural fairness – whether the Tribunal’s decision was biased – whether the Tribunal’s findings were illogical or unreasonable – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K-LA, 36, 425A, 426A, 476 & 499
Migration Regulations 1994 (Cth), reg 4.35
Cases cited: AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
CCU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 616
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 90 Date of hearing: 10 March 2025 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr B Mayne Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 163 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CVE24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
28 APRIL 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
INTRODUCTION
The applicant in this matter seeks judicial review of a decision of the then Administrative Appeals Tribunal (the “Tribunal”) dated 22 April 2024. By that decision, the Tribunal affirmed a decision made by a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (the “visa”).
That application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain relief from this Court, the applicant must show jurisdictional error in the Tribunal’s decision.
For the reasons that follow, the Court has determined that no such error has been established. On that basis, the application is dismissed.
BACKGROUND
Recent amendments to the Migration Act 1958 (Cth)
The Act was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal. That decision is dated 22 April 2024 and thus predates those amendments. Unless otherwise stated, any reference to the Act in this judgment is a reference to the Act as was in force at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
At that time that the applicant sought judicial review of the Tribunal’s decision in this Court (on 14 May 2024), the Tribunal was listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceedings pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, the Court made an order (at the hearing of this matter on 10 March 2025) substituting the ART as the second respondent in this proceeding and will proceed to review the decision of the Tribunal.
Applicant’s migration history
A summary of the applicant’s migration history was provided in written submissions filed on behalf of the Minister (on 3 March 2025). The Court has reviewed and cross referenced those submissions with the materials and information contained in the Court Book and adopts the summary provided as its own. With minor alterations and additions, that overview provides as follows.
The applicant is a citizen of China (Court Book (“CB”) 1-4 & 25-26). He arrived in Australia in July 2017 as the holder of a Tourist (Class FA) (Subclass 600) visa (CB 11 & 43).
On 23 October 2017, the applicant applied for the visa (CB 1-24). As summarised by the delegate, the applicant’s protection claims were as follows (CB 44):
(a)the applicant and his family are members of an underground Christian church from [district, town and province omitted] in the People’s Republic of China;
(b)the authorities have recently intensified persecution of Christians in the applicant’s area and demolished two churches;
(c)the applicant started attending a church that had moved to the priest’s garage but the police were able to locate it and close it down. This happened in March 2017 when a mass was held at that church. The police surrounded the house and forced everyone to get out. Their pastor was nearly beaten to death. The applicant was also beaten and suffered injuries to his lower back muscles. The police made everyone kneel and watch their Bibles and crosses being burned;
(d)the applicant was delivered to a police station in handcuffs with several other church goers and was interrogated. The police questioned him about the religious activities he was taking part in. They accused him of being a member of an organisation that received “foreign training” in proselytising. The applicant denied those accusations. He was also accused of being a member of an illegal organisation which disturbed the public order;
(e)he spent two weeks in detention. He was tortured and abused by prison guards during that time. Whenever the police or guards escorted him, they forced his head down, making him look at the floor. When he refused to eat spoiled food, they threw it on the floor and forced him to eat it from the floor. The first time he was forced to eat the prison food, he vomited;
(f)when he was released from detention, his supervisor at work told him that he had received a visit from authorities and was told that the applicant was a dangerous individual who should not be trusted. The applicant was fired from his job without being given an opportunity to say anything in his own defence. He decided to leave China and travel to Australia for his safety;
(g)in July 2017, the police came looking for the applicant at his home once more. They forced the door open, despite his wife’s attempts to deny them entry. A policeman hit her on the face when she tried to resist. The police searched the applicant’s house looking for evidence of religious activities; and
(h)if he returns to China, he will once again be arrested and – if it happens – tortured in prison. He is afraid to die in prison.
On 25 September 2018, the applicant was invited to provide further information to the Department of Home Affairs (the “Department”) in support of his visa application and to attend an interview with a delegate of the Minister (CB 37-38). The applicant failed to attend that scheduled interview (CB 44).
On 23 October 2018, that delegate refused to grant the applicant the visa (CB 43-54).
On 13 November 2018, the applicant applied to the Tribunal for review of the delegate’s decision (CB 55-61). The applicant provided his email address and postal address for the purposes of receiving correspondence from the Tribunal. He also provided a contact mobile phone number (CB 56 & 58).
On 12 December 2023, the Tribunal emailed the applicant and asked him to complete and return a pre-hearing information form (CB 65).
On 4 and 5 April 2024, the Tribunal attempted to call the applicant on the mobile phone number provided in his application for review. There was no answer and voicemail messages were left requesting that the applicant contact the Tribunal (CB 86).
On 5 April 2024, the Tribunal sent an email and a letter (by pre-paid post) to the applicant at the addresses listed in his application for review, inviting him to attend a hearing before it, scheduled to take place on 22 April 2024 (CB 66-75 & 77-81). As part of that correspondence, the applicant was advised that if he did not attend the scheduled hearing, the Tribunal may make a decision on his review application without further notice (CB 74-75). The email correspondence was returned to the Tribunal as “undeliverable” (CB 76).
On 12 April 2024, the Tribunal emailed the applicant an invitation to attend a “test session on Microsoft Teams” (CB 82-84). That email correspondence was also returned to the Tribunal as “undeliverable” (CB 85).
On 16 April 2024, the Tribunal attempted to call the applicant multiple times. The applicant did not respond to those calls and the calls “went straight to voicemail” (CB 86).
On 15 and 19 April 2024, the Tribunal sent the applicant SMS hearing reminder messages. The applicant did not respond to those messages (CB 86).
The applicant failed to appear before the Tribunal at the scheduled hearing (on 22 April 2024) (CB 88-90).
On that same date (being on 22 April 2024), the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 93-101).
On 14 May 2024, the applicant sought judicial review of the Tribunal’s decision in this Court.
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is nine pages long and spans 37 paragraphs (CB 93-101). The final three pages contain extracts of relevant legislative provisions (CB 99-101).
The Tribunal began by explaining that the application before it related to a decision made by a delegate of the Minister on 23 October 2018 refusing to grant the applicant the visa. The delegate was not satisfied that there was a real chance or a real risk that the applicant would suffer serious or significant harm if he returned to China (at [1]-[2]).
The Tribunal then outlined the legislative criteria for the grant of a protection visa, summarising the requirements of the refugee criterion outlined in s 36(2)(a) of the Act, the relevant definitional provisions in ss 5H(1)(a)-(b), 5J(1), 5J(2)-(6) and 5K-LA of the Act and the complementary protection criterion set out in s 36(2)(aa) of the Act. The Tribunal also explained that, in assessing the applicant’s protection claims, and in accordance with Ministerial Direction No. 84 (made under s 499 of the Act), the Tribunal had had regard to the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they were relevant to the decision under consideration (at [3]-[8]).
The Tribunal explained that the issue in this case was whether the applicant was a person in respect of whom Australia had protection obligations under ss 36(2)(a) or (aa) of the Act and noted that, for the reasons detailed in its decision, it had concluded that the delegate’s decision should be affirmed (at [9]-[10]).
The Tribunal then summarised the applicant’s protection claims, as follows:
11.In his application for a Protection visa the applicant indicated that he is from [province omitted], China. He claims to be married and his wife, one child, and his parents reside in China. He indicated he is Christian. He stated that he was employed as a welder from 2 May 2014 to 3 March 2017 in [town and province omitted]. He stated that from 3 March 2017 to 21 October 2017 he was unemployed because he was in prison. He declared that he departed China on 27 July 2017 from [airport omitted] and arrived in Australia [in] July 2017.
12.The applicant claims that he is a Christian and so are all his family. He states that there has been a lot of persecution of Christians in his district and the authorities demolished two churches in his area.
13.The applicant claims that he moved to pray in a church situated in the garage of the priest’s house but the police found out about this church and closed it down. This occurred on 3 March 2017 during mass on a Thursday night. The police arrived and surrounded the house and forced everybody out. He claims he tried to resist after seeing his pastor beaten almost to death. The applicant claims he was beaten with batons which left him with a lower back injury. The police made them all kneel in the front yard and watch them burn their bibles and the cross.
14.The applicant claims that he and several other members were taken to the police station and interrogated. The police accused him of receiving foreign training in order to preach in public which he denied. They also accused him of being a member of an illegal organisation and disturbing public order. He was held in prison for two weeks and was tortured and abused by the prison guards.
15.After he was released he was fired from his job. His boss informed him that the authorities came to see him and told him that he was a dangerous man and should not be trusted. Because he did not want any trouble he let him go without hearing his explanation. After this the applicant claims he decided to come to Australia to take a break.
16.The applicant claims that on 21 July 2017 the authorities came to look for him and forced themselves inside his house. They pushed and hit his wife on the face and searched the house.
17.The applicant claims he is afraid to return to China because the authorities may have new evidence about his religious activities and his life will be in danger.
The Tribunal then summarised the delegate’s decision, explaining that the applicant had been invited to attend a protection visa interview on 23 October 2018 but had failed to appear. He had also failed to provide any additional information to the Department in support of his visa application (at [18]).
The Tribunal explained that the delegate considered that the applicant was an ordinary church member with a low profile in China and concluded, based on country information, that there was not a real chance or a real risk that the applicant would suffer serious or significant harm in China because of his religion (at [19]).
The Tribunal then outlined its attempts to contact the applicant in relation to what was required of him, as follows:
20.The applicant lodged an application for review with the Tribunal on 16 November 2018. On 12 December 2023 the Tribunal wrote to the applicant advising him that his case was being advanced and requested that he complete and return a pre-hearing information form within 7 days of receipt of the email. The Tribunal’s correspondence was returned to sender.
21.On 4 April 2024 the Tribunal attempted to contact the applicant on the phone number provided in the application for review. The call was unanswered and the Tribunal left a message requesting a call back. The applicant did not respond to the request. On 5 April 2024 the Tribunal again attempted to contact the applicant by phone and the call was unanswered. The Tribunal left another message requesting a call back. The applicant did not respond to the request.
22.On 5 April 2024 the Tribunal wrote to the applicant advising him that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments in support of his case at a video hearing on 22 April 2024 at 9:00 (NSW time). The applicant was advised that if he did not attend the hearing and a postponement was not granted the Tribunal may made a decision on his case without further notice. The Tribunal’s correspondence was returned to sender.
23.On 5 April 2024 the Tribunal sent a courtesy copy of the hearing invitation to the residential address included in the application for review. The applicant was advised that the hearing invitation was previously sent to the email address on file and as it was returned to sender he was requested to provide updated contact details via an attached form. The applicant did not respond to the Tribunal’s letter.
24.On 12 April 2024 the Tribunal emailed the applicant and invited him to attend a test session on Microsoft Teams on 16 April 2024 at 4:00pm. The applicant did not join the call and the Tribunal called him repeatedly but the call went straight to voicemail multiple times. The test session did not proceed.
25.On 15 and 19 April 2024 the Tribunal sent the applicant SMS hearing reminder messages to his mobile phone number. There is no indication that either of those reminder messages failed to be delivered.
The Tribunal then explained that the applicant did not appear before the Tribunal on the day and at the time and place at which he had been scheduled to appear. Nor did he contact the Tribunal about his failure to attend the Tribunal hearing (at [26]).
The Tribunal explained that, on the basis of the above, it was satisfied that the applicant had been properly notified in the manner indicated in his application for review and that numerous attempts had been made to ensure that he was aware of the scheduled Tribunal hearing (at [26]).
In these circumstances (and pursuant to s 426A of the Act), the Tribunal decided to make its decision on the review, without taking any further action to enable to applicant to appear before it (at [26]).
The Tribunal then outlined its findings and reasons as follows.
The Tribunal explained that the mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason(s) claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Further, although the concept of onus of proof is inappropriate for administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the Tribunal to establish the relevant facts. Further, the Tribunal is not required to make the applicant’s case for him. Nor is it required to uncritically accept any and all of the allegations made by an applicant (at [27]-[28]).
The Tribunal stressed that the applicant had been invited by the Department to attend an interview on 23 October 2018 to discuss his visa application and the claims made therein, but failed to appear. Further, he did not provide any additional information to the Department in support of his application. Nor did he provide any written submissions to the Tribunal. As the Tribunal noted, the only information before it was the applicant’s own written assertion that he is a Christian and that he fears returning to China for that reason (at [29]).
The Tribunal then outlined its findings, as follows:
30.The Tribunal is unable to establish from this information alone whether the applicant is a genuine Christian or whether he was previously harmed and detained in China for this reason. Without more evidence from the applicant than the evidence presently before it, the Tribunal cannot be satisfied that the applicant is a Christian or that the claimed past harm in China occurred or whether he cannot or will not return to China because he fears his life will be in danger on religious grounds. If he had attended the hearing the Tribunal would have had the opportunity to discuss his claims with him in more detail and to test their veracity. The Tribunal would have sought more information in relation to the matters raised. The Tribunal would have used the opportunity of the hearing to discuss these issues with the applicant and given him the opportunity to explain the particular details of what he fears would happen if he returns to China now or in the reasonably foreseeable future and the reasons why it would happen. However, it was not possible to discuss any of these issues with him because, despite being advised by the Tribunal that it had considered all the material before it but was unable to make a favourable decision on that information alone, he did not attend a hearing and provided no further information or evidence in support of his claims.
31.The Tribunal has insufficient evidence to be satisfied that the applicant’s claims can be believed and/or are factual. The Tribunal is therefore unable to establish the relevant facts in this matter and is not prepared to accept his claims.
32.On the available evidence the Tribunal does not accept that the applicant and his family are Christians or that he attended underground church gatherings. Nor does the Tribunal accept that the local pastor, he and other parishioners were beaten by police during a raid on the church or that he was detained and tortured while in detention. Nor does the Tribunal accept the applicant was fired from his job for this reason or that the police continued to search for him at his home and assaulted his wife in the process. The Tribunal does not accept that the applicant departed China for these reasons and it follows that the Tribunal is not prepared to accept that the applicant will practice Christianity on return or will be arrested or otherwise harmed on return to China for reason of his religion. The applicant did claim to fear harm in China for any other reason.
33.On the available evidence, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for reason of his race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if she returns to China. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in China. Therefore, he does not satisfy the criterion at s.36(2)(a) of the Act.
The Tribunal then considered the alternative criterion in s 36(2)(aa) of the Act and explained as follows:
34.… For the same reasons already articulated, the Tribunal is not satisfied that the available evidence supports that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore, he does not satisfy the requirements of s.36(2)(aa) of the Act.
35.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act.
On the basis of the findings above, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [36]).
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicant on 14 May 2024) contained two grounds of review as follows (without alteration):
1.The application has not been considered fully.
2.The home affair has been biased.
With his application, the applicant also filed an affidavit (affirmed on 13 May 2024). That affidavit annexed a copy of the Tribunal’s decision and related notification letter and information sheets. The affidavit also stated:
2. The AAT has been biased.
3. The AAT has not considered by situation fully.
4. I am facing persecution and imminent bodily harm if I return to China.
On 29 August 2024, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, additional evidence and written submissions. Unfortunately, no additional documents were filed by or on behalf of the applicant.
The applicant appeared before this Court (on 10 March 2025) without legal representation but with the assistance of a Mandarin interpreter. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions. Mr Benjamin Mayne from the Sparke Helmore appeared at the hearing on behalf of the Minister.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 14 May 2024 (the applicant’s affidavit being taken as read and in evidence at the hearing of this matter), a Court Book numbering 103 pages (marked as Exhibit 1 at the hearing of this matter) and written submissions filed on behalf of the Minister on 3 March 2025.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa that he now seeks even if the Court disagrees with the Tribunal’s ultimate findings. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
When asked by the Court to explain (orally) what he thought the Tribunal “did wrong” in his case, the applicant initially said that there was “nothing” that he wanted to say. The Court gave the applicant multiple opportunities to speak and, at the end of the hearing, the applicant told the Court that he “does not know the criteria for the grant of the protection visa” but said that “the Minister said [he] would not be harmed if he returns [to China] but [he] believe[s that he] will”. The applicant explained that when he came to Australia, he had borrowed a lot of money from a loan shark.
Unfortunately, the applicant’s comments do not give rise to any allegation of jurisdictional error of the sort that this Court can address.
In the circumstances, the Court will interpret the applicant’s concerns raised in his grounds of review and in his affidavit as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) and will itself review the Tribunal’s decision for any possible jurisdictional error.
CONSIDERATION
Having read the applicant’s grounds of review and the concerns articulated in his affidavit as broadly as possible, the Court considers that the applicant raises the following concerns:
(a)by assessing the materials before it without the applicant in attendance, the Tribunal failed to fully assess the applicant’s situation and, as such, denied the applicant procedural fairness;
(b)the Tribunal was biased; and
(c)the Tribunal’s decision is illogical, irrational or unreasonable as the applicant will be harmed if returned to China.
Whether the Tribunal failed to “fully assess” the applicant’s claims and concerns and, in the process, denied him procedural fairness
It is noted that the applicant was not present at the Tribunal hearing and, as such, did not provide any oral evidence to the Tribunal.
The first question that arises in situations such as this is whether the applicant was properly notified of the time and date of the hearing before the Tribunal.
It cannot be said in this matter that the applicant was not properly notified of the Tribunal hearing. As accurately detailed by the Minister (at [20] in written submissions filed in this Court on 3 March 2025), the Tribunal’s invitation letter in this matter:
(a)was addressed to the applicant (CB 67 & 77);
(b)was sent to the applicant via email and post (noting that both were methods approved by s 441A(4) and (5)(b) of the Act) to the applicant’s nominated email and postal addresses. As a result of s 441C(5) of the Act, the applicant was taken to have received the notice at the end of that day: s 425A(2)(a) of the Act and as per the principles articulated in SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36];
(c)clearly indicated the date, time and means by which the applicant could attend that Tribunal hearing and noted that the hearing would be conducted by video conference using Microsoft Teams (CB 67 & 77): s 425A(1) of the Act; and
(d)was given to the applicant 16 days prior to the scheduled hearing (thereby exceeding the minimum notice period prescribed by reg 4.35D of the Migration Regulations 1994 (Cth) – being 14 days after the day the person receives the notice): s 425A(3) of the Act.
At the date of the scheduled Tribunal hearing, the Tribunal was governed by s 426A of the Act, which relevantly provided as follows:
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
….
Other measures to deal with failure of applicant to appear
(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
In this matter, the Tribunal proceeded to make a decision on the materials before it without taking any further action to allow the applicant to appear or file further materials.
The Tribunal’s decision to exercise its powers in that regard (under s 426(1A)(a) of the Act) was discretionary and, as such, must have been made “reasonably”.
It is noted in this matter that the hearing information sent to the applicant contained a statement describing the effect of s 426A of the Act and what would happen if the applicant did not attend the Tribunal hearing (CB 69 & 79). It also attached an information sheet which set out that information in further detail (CB 71-74). Relevantly, that material provided as follows (CB 68):
Things to do before the hearing
Please provide all documents you intend to rely on to support your case by 15 April 2024. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.
It also provided as follows (CB 74):
What if I cannot attend the scheduled hearing?
If you are not able to attend the scheduled hearing, or you would prefer that the hearing take place in a different way (e.g. at an AAT office instead of by video or telephone), you must advise us of this as soon as possible. Please note that we will only make changes if we are satisfied that it is reasonable and there are good reasons for doing so.
If you do not appear at the scheduled hearing we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. Not appearing at the scheduled hearing means:
•if you were invited to appear at an AAT office (including by video from an AAT office), you do not attend the AAT office at the scheduled time;
•if you were invited to appear by video conference using Microsoft Teams, you do not appear via Microsoft Teams at the scheduled time;
•if you were invited to appear by video conference at a specified place, you do not attend the place at the scheduled time; or
•if you were invited to appear by telephone, you do not answer our phone call to you at the scheduled time or you do not call us on the number we provided to you at the scheduled time.
The Court also notes the Minister’s written submissions (at [22]-[23]), which (relevantly) provided as follows:
(a)in this matter, there was no interaction by the applicant with the Tribunal since he filed his application for review in 2018. The Tribunal made multiple attempts to correspond with the applicant using various methods, including by:
(i)emailing him a pre-hearing information form on 12 December 2023 to his nominated email address (CB 65);
(ii)calling and leaving voicemails on his nominated mobile number on 4 and 5 April 2024 (CB 86);
(iii)emailing him the hearing invitation on 5 April 2024 (CB 66-75);
(iv)posting a courtesy copy of the hearing invitation (also on 5 April 2024) to his nominated residential address (CB 77-81);
(v)emailing him on 12 April 2024 with an invitation to attend a test session using Microsoft Teams (CB 82-84); and
(vi)sending two SMS hearing reminder messages on 15 and 19 April 2024 (CB 86);
(b)there were eight instances of attempted communication made by the Tribunal which remained unanswered by the applicant. In circumstances where multiple attempts were made to contact the applicant (in the lead up to the hearing and on the day of the hearing) and there was no interaction by the applicant with the Tribunal since the application for review was filed in 2018, the Tribunal’s exercise of its discretion to affirm the decision on the available evidence without further enquiry of him was open to it, justified in its reasons and cannot be said to have been unreasonable.
The Court agrees with the Minister in this regard. It cannot be said here that the Tribunal exercised its discretion to proceed without any further input from the applicant unreasonably. Every effort was made to encourage the applicant to provide material to the Tribunal, engage with the Tribunal and attend the hearing before it. The applicant simply refused to do so.
The Tribunal then assessed the limited materials before it, addressed the applicant’s core protection concerns as the related to his Christian faith and ultimately determined that, on the limited information provided by the applicant, it could not establish from that information alone whether the applicant was a genuine Christian or whether he was previously harmed and detained in China for that reason.
If the applicant is suggesting that the Tribunal should have undertaken a further investigation of his protection claims and sought further information or evidence of its own accord, the Court disagrees.
Section 5AAA of the Act provides as follows:
5AAA Non‑citizen’s responsibility in relation to protection claims
(1)This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
(2)For the purposes of this Act, it is the responsibility of the non‑citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
(3) The purposes of this Act include:
(a)the purposes of a regulation or other instrument under this Act; and
(b) the purposes of any administrative process that occurs in relation to:
(i) this Act; or
(ii) a regulation or instrument under this Act.
(4)To remove doubt, the Minister does not have any responsibility or obligation to:
(a)specify, or assist in specifying, any particulars of the non‑citizen’s claim; or
(b) establish, or assist in establishing, the claim.
It is not the Tribunal’s responsibility to investigate or substantiate an applicant’s claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43]. That responsibility falls to the applicant.
This does not mean, of course, that the Tribunal should avoid assisting applicants (particularly those who appear without legal assistance) better articulate their concerns and the evidence they rely on.
That approach was adopted here. As noted above, in this matter, the Tribunal went to considerable effort to ensure that the applicant was given ample opportunity to present his case, outline his concerns and present any evidence that might substantiate his fears. The Tribunal took an active role to elicit further information from the applicant in relation to his claims and gave him ample opportunity to participate in the Tribunal’s proceedings. Despite the Tribunal’s efforts in this regard, the applicant simply declined do so.
No error arises in this regard.
Whether the Tribunal’s decision was “biased”
The applicant also stated that the Tribunal was biased.
As explained by this Court recently in CCU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 616, it is well established that an allegation of bias is one that must be distinctly made and clearly proven.
To prove bias, it is for the applicant to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant’s case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32].
There is nothing in the Court Book or the materials before this Court to suggest that the Tribunal was not open to persuasion in this case.
The Tribunal properly invited the applicant to attend a hearing and gave him ample opportunities to provide evidence before the scheduled hearing. The applicant did not avail himself of those opportunities.
Ultimately, the Tribunal assessed the limited information before, assessed the legislative requirements relevant to protection visas, determined that the applicant did not meet the criteria for the grant of the visa and, on that basis affirmed the delegate’s decision refusing to grant him the visa.
No jurisdictional error arises in this regard.
Whether the Tribunal’s decision was “illogical” or “unreasonable”
The applicant stressed that he cannot return to China as he would face persecution and seemed to (arguably) suggest that the Tribunal’s decision was “illogical” or “unreasonable”.
This Court has recently canvassed the jurisprudence in relation to illogicality in its decision in AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98. The Court repeats the overview provided in that decision below.
As explained by the High Court of Australia in SZMDS, the threshold for illogicality and irrationality is as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or 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.
SZMDS sets a very high threshold for findings of irrationality or illogicality. Ultimately, the fact that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence will not be sufficient to establish error: SZMDS at [131] per Crennan and Bell JJ.
Legal unreasonableness is case specific and the facts of each matter should be examined and determined based on the circumstances and evidence in that particular case: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [10].
Having reviewed the Tribunal’s decision in this matter, and noting the very limited evidence before the Tribunal in this matter, it cannot be said that the Tribunal’s decision is illogical, irrational or lacking a basis in a finding or inferences supported on logical grounds: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [52] per McKerracher J.
On the contrary, the Tribunal accurately summarised all relevant legislative provisions as they related to protection claims (at [3]-[8] of its written reasons) and summarised the applicant’s protection claims in detail (at [11]-[17] of its reasons). However, the Tribunal ultimately rejected any concerns arising under both s 36(2)(a) and s 36(2)(aa) of the Act because there simply was not sufficient evidence that harm to the applicant would arise (at [27]-[33]).
Relevantly, the Tribunal stressed that the applicant had been invited by the Department to attend an interview (on 23 October 2018) to discuss his visa application and the protection claims made therein (but failed to appear), he did not provide any additional information to the Department in support of his visa application, he did not provide any written submissions to the Tribunal and the only information before the Tribunal was the applicant’s own written assertion that “he is a Christian and fears returning to China for this reason” (at [29]).
The Tribunal then determined as follows:
(a)the Tribunal was unable to establish from the information before it whether the applicant was a genuine Christian or whether he had previously been harmed and detained in China for that reason (at [30]);
(b)the Tribunal had insufficient evidence to be satisfied that the applicant’s claims could be believed or were factual. The Tribunal was thus unable to establish the relevant facts in this matter and was not, accordingly, prepared to accept the applicant’s claims (at [31]);
(c)on the available evidence, the Tribunal could not accept that the applicant and his family were Christians or that he had attended underground church gatherings (at [31]);
(d)nor did the Tribunal accept that the local pastor, the applicant and other parishioners were beaten by police during a raid on the church or that the applicant had been detained and tortured while in detention (at [31]);
(e)nor did the Tribunal accept that the applicant was fired from his job for that reason or that the police had continued to search for him at his home and assaulted his wife in the process (at [31]);
(f)the Tribunal did not accept that the applicant departed China for those reasons and it followed that the Tribunal was not prepared to accept that the applicant would practice Christianity upon his return or would be arrested or otherwise harmed upon his return to China because of his religion (at [32]); and
(g)on the available evidence, the Tribunal was not satisfied that there was a real chance that the applicant would face serious harm for reason of his race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if he returned to China (at [32]).
The Tribunal then considered the alternative criterion in s 36(2)(aa) of the Act and explained that, for the same reasons articulated above in relation to the refugee criterion, the Tribunal was not satisfied that the available evidence supported that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there was a real risk that he would suffer significant harm in the form of arbitrary deprivation of life, the death penalty being carried out, torture, or cruel or inhuman treatment or punishment or degrading treatment or punishment (at [34]).
The Tribunal’s approach in this matter was entirely appropriate. It cannot be said that the Tribunal made determinations that no logical or rational decision-maker could have made on the particular facts of this case.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review and supporting affidavit (both filed by the applicant on 14 May 2024) have failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 28 April 2025
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