CWO19 v Minister for Immigration

The applicants, including the first applicant, sought review of a decision by the Administrative Appeals Tribunal (AAT) that refused their protection visa applications. The first applicant claimed a fear of harm in China due to her Christian faith. The AAT had disbelieved the first applicant in certain respects and found other claimed fears not to be well-founded. The matter came before Judge Driver of the Federal Circuit Court.

The legal issues before the court were whether the AAT had failed to afford procedural fairness to the applicants or had failed to give proper consideration to certain evidence. Specifically, the court considered whether the Tribunal’s findings regarding the first applicant's religious practice in Australia and her ability to travel to China without incident were adequately considered in light of the country information and the applicant's evidence.

Judge Driver reasoned that the Tribunal's findings were influenced by the country information regarding religious practice in China, which indicated that while restrictions exist, religious practice is possible within state-sanctioned boundaries and that individuals are more vulnerable if they practice in unregistered institutions or engage in activities perceived as challenging government authority. The Tribunal noted that the first applicant's evidence of practice in Australia did not suggest she would engage in activities likely to attract adverse attention. The Tribunal also considered that a witness, a fellow congregant, travelled to China without incident, and the applicant herself had visited China in 2014 without incident. The court found no jurisdictional error, concluding that the applicant had a fair opportunity to present her case, including the fact of her baptism, and that the Tribunal had not overlooked material evidence or failed to give proper consideration to it.

The application was dismissed as the applicants failed to establish that the Tribunal's decision was affected by jurisdictional error. The court ordered that the application be dismissed and heard the parties on the issue of costs.