CVM18 v Minister for Home Affairs

[2019] FCCA 2456

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVM18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2456

Catchwords:
MIGRATION – Reinstatement – application to reinstate – where Registrar dismissed the application at a callover for non-attendance – where the applicant did not attend a callover – no arguable prospects of success – reinstatement refused.

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr.13.03C(1)(c), 16.05(2)(a)
Migration Act 1958 (Cth) ss.5H, 5J(1)(a), 36(2)(a), 36(2)(aa), 425 .

Cases cited:

CAL15 v Minister for Immigration and Border Protection (2016) FCA 1344

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Sikari v Minister for Immigration & Anor (No.2) (2019) FCCA 1341

Applicant: CVM18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1534 of 2018

Judgment of: Judge Baird

Hearing date: 30 July 2019

Date of Last Submission: 23 July 2019

Delivered at: Sydney

Delivered on: 30 July 2019

REPRESENTATION

The Applicant appeared in person:

Solicitors for the First Respondent: Mr R.White, Mills Oakley

THE COURT:

1. DISMISSES the application in a case dated 15 March 2019.

2. ORDERS the Applicant pay the First Respondent’s costs fixed in the sum of $2,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1534 of 2018

CVM18

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT
(Ex tempore, revised from transcript)

Introduction

1. This is an Application dated 15 March 2019, filed on 18 March 2019, and accepted for filing on 25 March 2019, for reinstatement of the Applicant’s application for judicial review filed 31 May 2018. The Applicant’s judicial review application was dismissed by a Registrar of this Court on 12 March 2019 under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) due to the non-appearance of the Applicant on that occasion, which was a callover.

2. The First Respondent, the Minister for Home Affairs, opposes the application for reinstatement, and further argues that there is no jurisdictional error made by the Administrative Appeals Tribunal in its decision dated 14 May 2018.  The Minister further submits that the Applicant’s explanation for her non-appearance before the Registrar in this Court is unsatisfactory and inadequate, and points to the lack of supporting material proffered by the Applicant.

Factual Background

1. The Applicant was born in 1994 in Jilin in China.  She arrived in Australia by plane under a TU573 Student visa on 17 June 2014.  She applied for a Protection (Class XA) (Subclass 866) Visa on 21 May 2015.  The grounds on which she applied for the Visa are based on her family’s Falun Gong practice and her Falun Gong practice in China.

2. The Applicant attended a protection Visa interview at the offices of the Department of Home Affairs (then the Department of Immigration and Border Protection) in Sydney on 8 October 2015.

3. By decision dated 26 October 2015, a Delegate of the Minister refused to grant the Applicant the Visa. The Delegate found the Applicant’s claims not to be credible. In particular, the Delegate did not accept that the Applicant was a genuine Falun Gong practitioner, or that various claims she made concerning her family’s practice of Falun Gong were credible. The Delegate further found that, even if the Applicant was a Falun Gong practitioner, based on country information, the Delegate was not satisfied that there was a real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Migration Act 1958 (Cth), and therefore, the Applicant was not a refugee as defined in s.5H, and that the criterion in s.36(2)(a) of the Act was not satisfied.

4. The Delegate considered the criterion for complementary protection under s.36(2)(aa) of the Act, and was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to the People’s Republic of China there was a real risk that the Applicant will suffer significant harm. The Delegate therefore found that the Applicant was not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

Proceeding before the Tribunal and the Tribunal’s decision

1. On 20 November 2015, the Applicant lodged an application with the Tribunal to review the Delegate’s decision.  The Applicant was invited to attend a hearing before the Tribunal on 18 March 2018, which she accepted.  That hearing date was later postponed, and the Applicant was invited to attend a rescheduled Tribunal hearing on 8 May 2018, which she also accepted. On 7 May 2018 the Applicant sent the Tribunal a supplementary statement in which she claimed she no longer practiced Falun Gong but feared harm in China as a devoted Christian and Jehovah’s Witness.  On 8 May 2018 the Applicant attended the Tribunal hearing and provided a copy of her Chinese passport.  The Tribunal made its decision dated 14 May 2018, and, as I have said, affirmed the Delegate’s decision not to grant the Applicant a protection Visa.

2. Mr White, solicitor appearing on behalf of the Minister, in his written submissions reviews the Tribunal’s decision in some detail.  As Mr White notes, the Tribunal’s decision was comprehensive.  It extended over 18 pages of the substantive decision and some 77 paragraphs.  After setting out the criteria and mandatory considerations, the Tribunal member from [9] onwards, first set out the Tribunal’s “consideration of claims and evidence” under sub‑headings which I list as follows:

   (a)“Delay in lodging protection visa” (considered by the Tribunal at [10] -[15]);

   (b)“Country Information – Falun Gong practise in China” (at [16]);

   (c)“Preliminary findings”.

3. The Tribunal then turned to consider the Applicant’s claims for “Refugee Protection” and set out its consideration of the Applicant’s evidence in her protection Visa form, her statement accompanying the Visa application, her supplementary statement, and the discussion at hearing under the following further sub-headings:   

   (a)“The claimed Falun Gong practise of the applicant and her parents in China” (at [28]-[30]);

   (b)“The applicant’s claimed practise of Falun Gong in Australia” (at [31]-[42]); 

   (c)“The attendance at the 21 November 2014 protest in Australia” (addressed at [43]-[46]); 

   (d)and then, from [47]-[64], what it described as “New Claims” which related to the Applicant’s “New-found Christian Beliefs”, and thereafter “Failed asylum seeker” at [65]-[68].

4. The Minister’s submissions set out the Tribunal’s consideration and findings at [26] through to [38]. Upon review, I am satisfied that those submissions set out with sufficient detail and accuracy for present purposes the Tribunal’s consideration and findings. I adapt and incorporate that description in the following paragraphs.

5. The Tribunal noted that although the Applicant arrived in Australia on 17 June 2014, she did not apply for a protection Visa until 21 May 2015.  It also noted that despite her claims in her supplementary statement about her reasons for coming to Australia, the Applicant did not practice Falun Gong in Australia between 17 June 2014 (her arrival date) and 21 November 2014 (when she "chanced upon" a Falun Gong protest in Sydney), it also found she did not lodge her protection visa application for five months after the protest (Tribunal at [10]-[11]).  The Tribunal considered, but did not accept, the Applicant's reasons for this inaction (Tribunal at [12]-[13]).

6. The Tribunal noted an inconsistency in the Applicant's evidence to the Delegate about the date she commenced practising Falun Gong in Australia, and found it was not plausible that she would have delayed lodging her protection Visa application for 11 months if she was compelled to depart China for the reasons she claimed (Tribunal at [14]-[15]). The Tribunal extracted country information about Falun Gong in China, and accepted that the Applicant was a citizen of China (Tribunal at [16]).  It summarised her written and oral claims, and evidence (Tribunal at [18]-[20]), and noted her evidence at the hearing was that her father was only arrested/ detained on one occasion (although she was not sure when this occurred) and that the only time the family home was raided was during her father's claimed arrest (Tribunal at [21]).

7. Although the Applicant's evidence at the hearing discussed significant events and material reasons why she departed China, the Tribunal found it was “inconsistent” with her previous claims about her father's arrests and the raids on the family home.  Whilst noting she was a minor when some of these events occurred, the Tribunal did not accept it was plausible that, if the claims were true, the Applicant would not remember such significant events with more detail.  Given its other adverse credibility findings, the Tribunal found this was one reason why it found her claims about her parent's Falun Gong practice in China were false and it rejected those claims (Tribunal at [22]).

8. The Tribunal nonetheless considered the situation if it was wrong in its finding about the Applicant's parents, but found that even if her parents came to the adverse attention of the Chinese authorities on one occasion in 2007 for being accused of practising Falun Gong, it was not satisfied they continued to have any serious problems in China for this or any other reason since that time. On the basis of the available country information, the Tribunal also did not accept the Applicant faced a real chance of any harm on return to China “because of her parents (possible) prior practise of Falun Gong in 2007” (Tribunal at [23]).

9. The Tribunal noted the Applicant confirmed at the hearing that she only practised Falun Gong with her parents (and possibly an uncle) and only “for a little bit”.  Also, she did not claim that any relatives were arrested or harmed when the fellow practitioner who rescued her was arrested (Tribunal at [23]).  The Tribunal noted the Applicant's parents supported her during college and that she had told the Delegate that her parents were not practicing Falun Gong when the police allegedly came to her college, which was inconsistent with what she told the Tribunal.  The Tribunal noted that, at the hearing before it, the Applicant said she only began practising Falun Gong in 2012 and only practised “a little bit”, and it put to her that she had not been disadvantaged in China given her ability to attend university (Tribunal at [25]‑[27]).

10. The Tribunal rejected as false the Applicant's evidence about her practice of Falun Gong in China because she “knew very little about” her practise of Falun Gong in China, and she did not even attempt to practise Falun Gong in Australia until after November 2014.  The Tribunal was not satisfied she was generally credible.  As the Tribunal was not satisfied that her parents continued to have problems in China, even if it accepted that they ceased their brief practice of Falun Gong in 2007, the Tribunal also did not accept that the Applicant would suffer any discrimination or face a real chance of serious harm in China because of her or her parents practice of Falun Gong (Tribunal at [29]-[30]).

11. The Tribunal noted the Applicant's evidence to the Delegate was that her parents had not practised Falun Gong for “a long time” (Tribunal at [32]).  She also told the Tribunal that she practised Falun Gong in Australia between November 2014 and October 2015 but ceased after October 2015 (Tribunal at [33]).  The Tribunal accepted the Applicant's evidence that she commenced some form of Falun Gong practice in Australia after November 2014 following meeting with protestors but found it implausible that she would have waited five months after her arrival to do so if she was a genuine Falun Gong practitioner.  It also found it was implausible that she would have ceased all practice of Falun Gong in Australia in October 2015 (after she was notified by the Department that her visa application was refused) if she was a genuine practitioner (Tribunal at [35]-[36]).

12. The Tribunal was not satisfied the Applicant had ever been a genuine Falun Gong practitioner, and given her limited engagement with Falun Gong in Australia, which the Tribunal said it was satisfied was undertaken substantially to enhance her protection case, it was not satisfied the Applicant had a profile that would give rise to her facing a real chance of any harm on return to China (Tribunal at [40]).  The Tribunal was also not satisfied that the Applicant or her parents had any type of profile as Falun Gong practitioners “at least since 2007” and did not accept the Applicant faced a real chance of suffering any harm for this reason on return to China (Tribunal at [41]).

13. The Tribunal outlined to the Applicant the Delegate's concern with her claims and evidence about attending a demonstration with Falun Gong activists in November 2014, and to have held a banner.  Given her evidence that she was scared at the time, the Tribunal put to her that her claims to have participated in a protest may not be plausible.  It also noted she did not say what was written on the banner (Tribunal at [43]-[44]).  The Tribunal was not satisfied the Applicant attended a Falun Gong protest “as an active participant”, and found that, if she did attend, it was as an unengaged bystander.  It did not accept she faced a real chance of serious harm for this reason (Tribunal at [45]-[46]).

14. The Tribunal summarised the Applicant's new claims to no longer practise Falun Gong and to be a devoted Christian, in particular a Jehovah's Witness (Tribunal at [47]-(52]).  It noted she again gave inconsistent evidence about Falun Gong practice (Tribunal at [50]), and that she claimed she read the Bible every day.  The Tribunal cited country information that indicated independent Bible study and independent thinking were discouraged by Jehovah's Witnesses (Tribunal at [52]-[56]).  The Applicant told the Tribunal she only first attended a Jehovah's Witnesses premises one week prior to the hearing and only “very recently” commenced reading the Bible (Tribunal at [57]).

15. Whilst accepting the Applicant's engagement with Jehovah's Witnesses in Australia was not undertaken for the sole purpose of enhancing her protection claims (Tribunal at [58]), the Tribunal found she had done very little to engage with the Jehovah's Witnesses in Australia, and that she understood “so little” about her new faith that it was not satisfied she understood what it was that she was “purportedly prepared to risk persecution for”.  The Tribunal was not satisfied the Applicant was a genuine Jehovah's Witness, and based on the country information and her accepted claims, was not satisfied she had a real chance of serious harm in China due to an actual or imputed engagement with Jehovah's Witnesses in Australia.  It also did not accept the claims flowing from this claim (Tribunal at [59]-[60]).

16. The Tribunal discussed with the Applicant country information about the treatment of failed asylum seekers in China, including those who were considered to be Falun Gong practitioners (Tribunal at (65]-[66]). It was not satisfied the Applicant had any type of profile that gave rise to a real chance of serious harm in China (Tribunal at [67]-(68]). Considering the Applicant's accepted claims cumulatively, the Tribunal did not accept she had a well-founded fear of persecution or met s.36(2)(a) of the Act (Tribunal at [69]-[70]).

17. As "real chance" and "real risk" imposed the same standard, and on the basis of the claims it had accepted, and its assessment of the country information, the Tribunal was also not satisfied that the Applicant faced a real risk of significant harm for reason of any accepted claim. It was not satisfied the Applicant met s.36(2)(aa) of the Act (Tribunal at [72]-[76]).

Application for reinstatement in this Court

1. Before me for hearing today is the Application for reinstatement. As I have said, on 12 March 2019 there was no appearance by the Applicant at the scheduled callover when the matter was called at 11:57 am. A Registrar made orders dismissing, with costs, the Applicant’s judicial review application under r.13.03C(1)(c) of the Rules.

2. On 13 March 2019 the solicitors for the Minister wrote to the Applicant in accordance with order 2 of the orders made 12 March 2019 informing her of her rights under r.16.05 of the Rules.  As I have said, on 18 March 2019 the Applicant filed the present Application in a case seeking to reinstate her judicial review application to the Court’s list.  She supported this Application with an affidavit.

3. The affidavit dated 15 March 2019 attached the Registrar’s orders of 12 March 2019 and attested to the following (without alteration): 

   (1)I disagree with immigration and AAT’s decision since I am genuine Falun Gong member.   They did not consider that I will be in danger if I return.

   (2)AAT did not consider that I am still actively practicing in Australia, and it will also bring me a big trouble if I return home.

4. In the Application in the case, the Applicant set out the following, under the heading “orders sought” (without alteration):

   (1)I WOULD LIKE TO FILE MY APPLICATION AGAIN IN CASE TO REINSTATE

   (2)I MISSED IN ATTENDING THE COURT DUE TO I WAS UNWELL ON THAT DAY AND I REMEMBER THE WRONG DATE.  I APOLOGISE FOR IT.

Grounds of review – substantive application

1. The substantive Application under the heading “Attachment to Grounds of Application Orders Sought by Applicant” set out some 11 paragraphs, which are followed under the heading “The Grounds of The Application Are” by a further 3 paragraphs.  I set out those 14 paragraphs as follows (without alteration):

   Attachment to Grounds of Application

   Orders sought by Applicant

   1.I could not accept the decision made by DIBP and AAT to my application for a protection because I don't think it is fair, persuasive and rational decision for me.

   2.        I don't think my situation has been well considered, in particular the fact as described in my statement that my parents as committed Falungong practitioners has been persecuted.  I don't think my parents adverse impact on me has been taken into a good account in my case.

   3.I truly believe my special circumstance as victim has been thoroughly ignored. I know for certain, as a family member of Falungong, I will be inevitably and politically affected in every aspect of life and social stand.

   4. I will not been accepted by the society under China communist regime and eventually fall into a victim, no matter how I behaved or strive. I will definitely have no future, being biased treatment in China as China national law and policy will never support or save me in brink. Therefore my tragedy in such is obvious and foreseeable according to the harsh policy against Falungong in present China.

   5.AAT has failed to well consider my new circumstance in my complimentary statement in relation to my religious pursuit, church practice and commitment of Jehovah Witnesses after the interview arranged by the immigration department provided before hearing. My faith currently faces great challenge in China without legal status.

   6.AAT has failed to give me more chance to demonstrate my understanding and knowledge in my religion and that is unfair to assess or make a judgment in my genuine faith.

   7.AAT has failed to give me a chance further to invite my witnesses for my religious practice in Australia and this is vital for my future and bear adverse impact for my fate if I return to my origin.

   8.I don't accept the assessment made by the tribunal due to the concern about my knowledge of religion allegedly converted to, and such kind of assess is against a Christian faith indeed. AAT's assessment is hypercritical and biased and betrayed a Christian way of thinking. My faith stand on trust and conviction of Christ, instead of knowledge according to biblical and church teachings.

   9.AAT has ignored the risk and potential persecution of mine if I was forced to return to my origin due to my religion.

   10.I truly believe tribunal has ignored the harsh fact that religious repression and persecution in China, for both Falungong and Jehovah witnesses.

   11.Tribunal's attitude to give less weight on my critical evidence is against proper hearing procedure and result in an irresponsible solution as a consequence. Tribunal's prejudiced and reluctant attitude in my case made me stressful and traumatized.

   The Grounds of the Application are:

   1.I, as oversees student from China living in a family of Falungong. My parents have suffered a hard experience, and my father had been arrested once before due to his commitment of Falungong. I have been fallen into a victim as Falungong family member who biased treated in every aspect of social life in China, and that is why I came to Australia for study to avoid tragedy for my future, and for myself saving as well,

   2.I once have involved in Falungong practice after arrived in Australia but I couldn't follow it up due to my conversion to Christian faith at later stage after a thorough pondering and study. I have now become a convert of Jehovah witnesses and actively engaged in church practice.  I commit to devote in Christ and gospel missionary for rest of my life whilst I have a fear and concern of my faith will be facing a life challenge according to China's current law and harsh policy against Jehovah witnessed as well as Falungong.

   3.I long for integration in Australian society and wish for a protection by Australian government. I am eager to do my contribution to my church, the missionary and Australia the country I beloved and indebted. I truly believe Australia is the most ideal and secured place for me to settle for sake of my faith and wellbeing.

Legal Principles

1. The Court’s power to reinstate is provided in r.16.05(2)(a) where an order has been made in the absence of a party. The relevant principles for reinstatement were recently set out by Emmett J in this Court in Sikari v Minister for Immigration & Anor (No. 2) (2019) FCCA 1341 at [9]. In short, the Court has a broad discretion which in general requires consideration of three factors, and the determination whether on balance they tend for or against reinstatement. These factors are:

   (a)whether there is a reasonable excuse for the party’s absence at the hearing when the proceedings were struck out;

   (b)whether there is any prejudice, and the existence and nature of any prejudice, to the other party from the reinstatement.  

   If reinstatement were granted, the extent to which this may be addressed by adjournment, order for costs or other relief. This factor also includes consideration of the impact of reinstatement on the efficient allocation and use of scarce Court resources, noting that the mere absence of prejudice is not sufficient to grant relief;  and

   (c)whether the applicant has a reasonably arguable prospect of success on the substantive application.

2. In relation to the approach to be taken in considering the prospects of success of the substantive application in a reinstatement application, I note the observations of Mortimer J in CAL15 v Minister for Immigration and Border Protection (2016) FCA 1344 at [5] and [6]. In sum, whilst the Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application at final hearing, the threshold is whether the ground of review is arguable. “That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument with the parties having a fair opportunity to prepare for such argument.  Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed.”

3. Where, however, a substantive application lacks prospects of success, reinstatement would be futile, and an application for reinstatement ought to be refused.

Proceeding in this Court

1. Before me today Ms Applicant appeared unrepresented, but with the benefit of an interpreter in Mandarin and English.  Ms Applicant conducted her application in English however, assuring the Court, and exemplifying, that she had a competent level of English comprehension and understanding, and ability.  The interpreter was available to, and did, provide assistance as Ms Applicant desired. 

2. The Applicant has been unrepresented throughout the Visa process.  I note that in her application for a protection Visa in 2015 she answered the question as to language, (at question 30) that she spoke, read and wrote in both Chinese (namely, Mandarin) and English, and it is apparent from part C of the Visa application, that she completed it in English.

3. At the outset of this hearing, I explained to the Applicant that the role of this Court is very different to that of the Tribunal, and it is not for this Court to reconsider the Applicant’s claims and to reach different factual findings or conclusions.  I also explained to the Applicant that the only issue before this Court on her substantive application is whether or not the decision of the Tribunal was made according to law.

4. I further explained to Ms Applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes a mistake going to the Tribunal’s jurisdiction.  I reiterated that this Court is not a forum in which a party may simply re-argue her case in the hope of convincing the judge to take a different view of the evidence, that this Court has no jurisdiction to consider the factual merits.  I also explained to the Applicant the costs consequences that would flow to her if a costs order was made against her.   

5. Ms Applicant indicated that she wished to proceed with her Application for reinstatement, and, if successful, that she wished to proceed with her substantive application.  In relation to her substantive application, after taking the opportunity that I urged upon her to read the application paragraphs again, the Applicant emphasised that she wished to say that the Tribunal did not investigate the Applicant’s attendance at church and did not ask for more evidence, that the Tribunal judged her faith, and it was not fair they did not appreciate that the amount of study a person can do depends on the person.   

6. Ms Applicant said that the Tribunal judged her faith as a Jehovah’s Witness, and, did not ask her to give further explanation or further evidence.  In response to questioning by me she agreed that paragraphs [2], [6], [7], and [8] of her substantive application were matters she would put, although she did not disavow reliance on any of the paragraphs [1] to [11] or the grounds [1] to [3].  In relation to the explanation for her non-appearance at the callover, at the commencement of the hearing before me, Ms Applicant said that she had been sick.  She had the flu and was dizzy for two days beforehand, and she could not get up, and she forgot about the hearing.   

7. In answer to a question from me she said that she did not have a doctor.  She relied on taking more hot water and a tablet from China that a friend gave her, and that after she felt better, she had made this Application.  Later during the hearing before me, Ms Applicant said that she did not provide any evidence because she was taking her own medicine.  She said that going to the doctor is expensive, and so she stayed home, and that she forgot.  She referred to having to pay further money, by which I understand Ms Applicant to mean that she had to pay for the reinstatement Application, but she did not make clear what she meant.  

Reinstatement application

1. Turning to the criteria for reinstatement, the first factor to consider is the explanation for the non-appearance.  The Applicant’s explanation for non-appearance is made in the Application at [2] (see above at [27]).  Whilst the Applicant filed an affidavit in support (namely, the affidavit of 15 March 2019), the paragraphs of that affidavit do not address the factors for reinstatement.  Orally from the bar table today, as I have said, the Applicant has given her explanation.  Whilst that explanation may be factually what occurred, it is difficult in this Court, in the absence of documentary materials such as a doctor’s certificate, or a supporting affidavit from, in this case, the friend who Ms Applicant says assisted her by providing her with a tablet from China, for the Court to place great weight on the Applicant’s explanation. 

2. Although I have sympathy for such an explanation, I am not persuaded that the explanation given from the bar table, of itself, is a satisfactory explanation of her non-appearance and, more particularly, why, even if sick, and not in any state to attend Court, Ms Applicant could not have telephoned the Minister’s solicitors or the Court.  In the circumstances, I have preferred to consider the matter on the question of the reasonable prospects of success of the substantive application.  

3. I note that the Minister does not assert any prejudice, however, an absence of prejudice of itself does not mean that the Application should be granted.  

The substantive application

1. In relation to the substantive application, as noted above (at [28]), the substantive application contains 11 paragraphs expressed as orders sought by the Applicant, and 3 grounds.  

2. I turn first to the 3 grounds.  It is apparent from their face that each of the first and second ground seeks to invite this Court to engage in an impermissible merits review, which the Court is not able to do.  I find that the first two grounds do not identify any arguable jurisdictional error.  

3. The third ground expresses the desire of the Applicant for integration into Australian society, and a wish for protection, and expresses the Applicant’s eagerness to contribute.  These are desirable wishes, however, as with the first two grounds, they do not raise any arguable jurisdictional error.  I do not see any basis on which the jurisdiction for judicial review in this Court is enlivened. 

Attachment to grounds of application

1. I next turn to the 11 paragraphs of the “orders”, which I will consider as purporting to be grounds of judicial review.  It is appropriate to consider those grounds in the order in which they are expressed.  

2. Beneficially construed, ground 1 may be a contention that the Tribunal decision was legally unreasonable or irrational.   Grounds 2 and 3 expand upon those matters, whilst ground 3 posits that the Applicant’s special circumstance as a victim has been thoroughly ignored.  Ground 4 is a submission which seeks to ask the Court to engage in merits review.   

3. First, in relation to ground 1, this Court has no jurisdiction to review the Delegate’s decision.   In relation to the contentions against the Tribunal, for the Tribunal’s decision to be so irrational to give rise to jurisdictional error, as the High Court said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], the decision must be “…one that no rational or logical decision-maker could arrive at on the same evidence”.   

4. It is apparent from a fair reading of the Tribunal’s decision that it engaged with the Applicant’s claims and evidence and gave cogent reasons for its findings.  A full argument would not expand or better develop the Applicant’s contentions in relation to this ground.  The Tribunal took into account country information, and the particular circumstances of the Applicant’s family as Falun Gong members.  The conclusions that the Tribunal reached were ones that were open to it on the consideration of the evidence before it.   

5. Additionally, the contention that the Tribunal’s decision was neither fair nor persuasive is misconceived.  The obligation on the Tribunal is to make a decision that is lawfully valid, and if it was unable to reach the requisite level of satisfaction that the Applicant met the criteria for grant of a protection visa then the Tribunal had to affirm the decision to refuse the grant of Visa.   

6. As to the contention in ground 2 that the Applicant’s situation has not been well-considered, and her statements regarding her parents, this paragraph is also reflected in grounds 3 and 4 of the Applicant’s 11 paragraphs of grounds.  The contentions here lack a proper basis, and they mischaracterise the Tribunal’s actual findings and reasons.  The Tribunal considered the Applicant’s claims, and the evidence she proffered about her and her parents’ Falun Gong practice in some detail at paragraphs [11] to [42] of the decision, and it gave cogent reasons why the Tribunal was not satisfied that the Applicant faced a real chance of harm.    

7. There is no identifiable basis to found the Applicant’s assertions in ground 2 that the situation has not been well considered, or in ground 3 that her special circumstances been thoroughly ignored.  Grounds 2 to 4 otherwise seek to contend that the Tribunal should have come to a different factual conclusion on the material before it.  This merely invites the Court to engage in impermissible merits review.  I find that these grounds 1 to 4 have no reasonable prospects of success.  

8. Ground 5 is directed to the Applicant’s new circumstance in relation to her “religious pursuit, church practice and commitment of Jehovah’s Witnesses”.  Contrary to the Applicant’s contention, the Tribunal comprehensively considered the Applicant’s new claims about recently converting to be a Jehovah’s Witness, as I have identified: see at [47]‑[64] of the Tribunal’s decision.  Taken at its highest, this ground also seeks impermissible merits review.   

9. Grounds 6 and 7 contend that the Tribunal failed to give the Applicant more chance and express an unfairness.   

10. There is nothing in the material in the Court book in evidence or in any affidavit made by the Applicant in evidence before me to suggest that the Applicant ever sought additional time or one more chance to demonstrate her understanding and knowledge of her religion or that she sought a chance to invite witnesses for her religious practice to appear before the Tribunal.  There is no evidence that the Applicant ever requested the Tribunal take evidence from witnesses.  She did not invite the Tribunal to take such evidence in the two responses to hearing invitations she made.  Nor was there any request at all after the hearing that is referred to in the Tribunal’s decision, or that otherwise appears in the Court book.   

11. As submitted by Mr White, where a person makes a claim to be an adherent to a particular religious movement or set of beliefs, the Tribunal can legitimately explore what that person knows about the religion in order to assess the genuineness of this claim.  In this matter the Tribunal did not take the role of arbiter of doctrine with respect to the Applicant’s claimed religion.

12. In the circumstances where the Applicant gave evidence that she had only first attended the Jehovah’s Witnesses’ premises a week prior to the hearing, and “only started reading the bible very recently”, and did not claim to have done anything else for the Jehovah’s Witnesses (see decision at [57]), the Tribunal’s finding at [59] was open to it.   

13. The weight to be given to the evaluation of the evidence is a matter for the Tribunal.  The Tribunal had no obligation to afford further opportunity to the Applicant to present her best possible case or to improve on the evidence in the circumstances of this case.   

14. It was for the Applicant to provide her evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction.  I do not consider that any argument that there is jurisdictional error in relation to the Tribunal’s findings or approach in respect of the grounds comprised in any of paragraphs [5], [6], and [7] of the “attachment to grounds of application” would have any prospect of success.

15. Ground 8 fairly read is a disagreement with the Tribunal’s findings.  Mere disagreement with the Tribunal’s findings will not establish jurisdictional error.   

16. Whilst there is an assertion of bias, such an assertion must be firmly and distinctly made and clearly proven.  The mere fact of adverse findings in the Tribunal’s reasons does not, in the present circumstances, give rise to an inference of bias or prejudgment.

17. There is, as Mr White submitted and I accept, nothing in the material before the Court to suggest that the Tribunal breached its s.425 obligations or that the Tribunal member had a pre-existing state of mind which rendered it unable to undertake a fair assessment of the Applicant’s claims, and evidence.

18. On my perusal of the decision of the Tribunal, which is comprehensive in this respect, I do not consider that the Applicant has any reasonable prospect of success in relation to a ground of judicial review that might be ascertainable from this paragraph [8].

19. Grounds 9 and 10 can be addressed together.   In these paragraphs the Applicant alleges that the Tribunal has ignored risks and potential persecution and harsh facts of religious repression and persecution in China for both Falun Gong and Jehovah Witnesses.  Given the consideration of the Tribunal at [11]‑[64] of its decision this complaint must fail at a factual level.   

20. I do not consider that there is any reasonable prospect of success on any identifiable ground alleging jurisdictional error that may be gleaned from paragraphs 9 and 10 of the “attachment to grounds of application”.   

21. Ground 11 is made without evidence. I note that the Tribunal is entitled to accept, or reject, or give weight to, the evidence proffered as it thinks appropriate in all the circumstances.  The Applicant makes the assertion in paragraph 11 of the grounds in a global, and unparticularised way.  The Applicant was invited to, and did, appear to give evidence and make submissions.  She had the benefit of an interpreter.  In the proceeding in this Court she consented to timetabling orders permitting the filing of evidence (see below).  I am not able to discern any ground of judicial review that identifies any jurisdictional error in the Applicant’s paragraph 11.   

22. It follows that I have concluded that none of paragraphs 1 to 11 of the “attachment to grounds of application” (characterising them as “grounds” seeking judicial review), or “grounds” 1 to 3 in the Applicant’s substantive application would have any reasonable prospect of success were they to be pursued at a final hearing.   

Timetabling orders for evidence, and late additional material

1. I note that the Applicant attended in person the First Court Date on 25 June 2018 before Registrar Cho, and consented to orders providing for an opportunity for the Applicant by 8 August 2018 to file an amended application and additional evidence including any transcript of the Tribunal hearing.   

2. There is no evidence that the Applicant ever took up the opportunity afforded to her by the Registrar’s orders to provide additional evidence to be relied on, or any transcript of Tribunal hearing.

3. On the hearing of the reinstatement Application before me today the Applicant inquired whether she could provide further evidence of her more recent practice as a Jehovah’s Witness in Australia and gestured to a bundle of documents.   

4. From her description, the material appeared to be documentary material that the Applicant has gathered since the Tribunal’s decision to demonstrate her claim to now be a Jehovah’s Witness.  I informed the Applicant that such new material was not relevant on the hearing of her reinstatement Application.  Further, having regard to the Tribunal decision, and the grounds and paragraphs of review set out in the substantive application, I was not persuaded that material that was not before the Tribunal, and could not have been placed before the Tribunal, would be relevant.  

5. Accordingly, I declined to entertain Ms Applicant’s application to tender recently generated evidence going to the Applicant’s present religious practice as a Jehovah’s Witness in 2019.   

Conclusion

1. I have concluded that none of the grounds and paragraphs of the Applicant’s substantive application have any arguable prospects of success.  Considering the 3 factors discussed in Sikari, I am not persuaded that the Court should exercise its discretion to order reinstatement.

2. It follows that I will make orders dismissing the Application in a case, and that the Applicant pay the Minister’s costs.  

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Baird

Associate:

Date: 11 September 2019