CXT18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 488
•10 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CXT18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 488
File number(s): SYG 1587 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 10 May 2024 Catchwords: MIGRATION – Whether errors in consideration of inconsistencies by Tribunal – whether Tribunal failed to consider claims and mental state of applicant during hearing – whether Tribunal acting as arbiter of doctrine Legislation: Migration Act 1958 (Cth) s 5 Cases cited: ABX15 v Minister for Immigration and Border Protection [2016] FCA 855
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126
SZQBNv Minister for Immigration and Border Protection [2014] FCA 686
WALT vMinister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of hearing: 10 May 2024 Place: Sydney The Applicant: In person Counsel for the Respondents: Mr R Harvey Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 1587 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CXT18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
10 MAY 2024
THE COURT ORDERS THAT:
1.The application filed on 5 June 2018 is dismissed.
2.The applicant must pay the first respondent’s costs and disbursements, of and incidental to the application, fixed in the amount of $8,371.30.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 1 and 2 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with the Court on 5 June 2018, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 May 2018 affirming a decision of a delegate of the Minister (delegate) to refuse to grant the applicant a Protection (Class XA) visa (visa).
BACKGROUND
The background to the application is derived from the first respondent’s written submissions and, unless otherwise indicated, does not appear to be in dispute.
The applicant is a citizen of China (CB 14), who arrived in Australia on 26 June 2007 together with her mother. The applicant and her mother respectively held a student visa and a student guardian visa on arrival (CB 87).
The applicant made an application for a protection visa in her own name on 19 September 2013 (CB 239 at [3]). She later withdrew that application and, on 29 October 2013, the applicant’s mother (and the mother’s partner) applied for a protection visa, listing the applicant as a member of their family unit (CB 87). The applicant made no protection claims in her own right by the mother’s application, ticking the box to indicate that she had no protection claims of her own (CB 11). The application provided a statutory declaration to the effect that she could not work and was reliant on her mother (CB 54 to 55). The mother claimed to have been abused by her ex-husband, and that she had been forced to fall pregnant 4 times (CB 35).
On 15 April 2014, a delegate found that the applicant had not made a valid protection visa application, because she was not a “dependent” of her mother, and therefore did not form part of the same family unit (CB 95) (first delegate decision).
On 29 April 2014, the delegate made a second decision and found that while the applicant had in fact lodged a valid application, she was not a member of the mother’s family unit (second delegate decision) (CB 127).
On 30 April 2014, the applicant made an application to the (then) Refugee Review Tribunal (RRT) for a review of the second delegate decision (CB 136 at [7]).
On 20 May 2014, the applicant appeared before the RRT (CB 239 [8]) and made the following claims:
(a)she feared her father in China (whom the applicant claimed had beaten both she and her mother, leaving her with bruises (albeit which did not require medical treatment)). The applicant said she was unsure if her father had also beaten her siblings (CB 239 and 240 at [9]); and
(b)she feared loan sharks in China, from whom her father had borrowed money in 2006/2007. The applicant said she had used part of that money to fund her travel to Australia, and feared the loan sharks would come after her and force her into prostitution (CB 240 at [10]).
The applicant failed to attend the final hearing before the RRT on 22 August 2014 (CB 136 to 137 at [8]). On 26 August 2014, the RRT made its decision, by which it found the applicant was a member of the same family unit, but that because her mother did not meet the visa criteria, the applicant was also unable to meet the visa criteria (RRT decision) (CB 135 to 147).
The RRT decision was the subject of a judicial review application and appeal, and was ultimately remitted by the Federal Court of Australia to the Tribunal for redetermining according to law (CB 240 at [14]).
Protection claims
Following remittal by the Federal Court, the applicant made a written submission to the Tribunal on 4 August 2018 (CB 173 to 175), which included claims that:
(a)between 2013 and 2015 she had been in immigration detention and suffering from depression. During that time, the applicant said she was visited by priests and, through them, she “came to know God”;
(b)after she was released from immigration detention, the applicant continued to read the bible and listen to sermons online. The applicant said she found them healing and so she converted to God. She also said that she studied the Bible carefully, attended sermons and read Christian books;
(c)the applicant was raised by her aunt (who was a Christian) because her parents had 3 other daughters. The applicant said she kept in touch with her aunt when she was in Australia;
(d)during the Christmas of 2016, the applicant said that in the course of a telephone conversation with her aunt, the aunt told her that she was planning to bring the applicant some books. During “communications” which transpired “in the days that followed” the applicant said she felt her aunt was preaching the faith of the “Church of Almighty God” (CAG) to her. Both the applicant’s aunt and uncle were said to be believers in the “Almighty God” or “Easter Lightening”;
(e)the applicant believed her aunt, and “got access to the faith of Almighty God”. She received a book from her aunt called ‘The Word Appears in the Flesh’, and would ask her aunt for advice online;
(f)the applicant claimed that in 2017, her aunt advised her that adherents of their faith were being arrested in China and that they two of them must stop discussing their faith, online and only communicate by voice messages;
(g)on 1 July 2017, while the applicant was speaking to her aunt, the aunt “became alert and decided that” the phone line was being tapped. The applicant said her aunt hung up the call and she later discovered that her aunt had been arrested. The applicant said she has had no communication with her aunt since;
(h)the applicant said that an online search revealed that Chinese security forces were engaged in a “crackdown campaign” on CAG followers, and that this caused her to be “horrified”;
(i)the applicant was “convinced” that if a believer of CAG returns to China and preaches, they would face “a lot of danger or crises”; and
(j)the applicant was expecting a baby in October 2017.
On 31 January 2018, the applicant provided the Tribunal with a copy of the Department’s notice about the disclosure of certain information online on 31 January 2014 (data breach), and some medical reports (CB 186 to 197).
On 6 February 2018, the applicant’s migration agent provided the Tribunal with a psychological assessment which said that the applicant had an adjustment disorder with mixed anxiety and depressed mood (CB 203 to 211).
On 7 February 2018, the applicant attended a hearing of the Tribunal, together with her migration agent and supported by her partner/husband, the latter of whom also gave evidence (CB 216).
On 19 February 2018 the applicant provided a supplementary statement and a copy of her partner’s baptism certificate (CB 224 to 233). In the supplementary statement the applicant:
(a)said she was stressed and couldn’t give proper evidence during the hearing (CB 229); and
(b)gave further evidence about her Christian beliefs (seeking to clarify evidence she gave during the hearing).
On 15 May 2018, the Tribunal notified the applicant (via her authorised recipient) of its decision, made on 14 May 2018, affirming the second delegate’s decision (CB 236 to 252).
The Tribunal’s decision
The Tribunal did not find the applicant’s evidence about her adherence to CAG to be credible, reliable or persuasive (CB 245 at [34]). This was because she gave inconsistent evidence about when she first started practicing Christianity and her relationship with her aunt (CB 245 at [35] to [36]). The Tribunal also found that the applicant gave varying evidence about her attendance at church (CB 246 at [37] to [38]). The Tribunal observed that the applicant claimed to have studied the Bible and other religious teachings, but later gave evidence that she had not read “them” in detail and could not demonstrate her knowledge of the beliefs of CAG (CB 246 to 247 at [39] to [44]). The Tribunal found that corroborative evidence given by the applicant’s partner/husband did not overcome its concerns about her religious beliefs or practices.
The Tribunal was willing to accept that the applicant had developed some interest in Christianity. However, it concluded that if she maintained this general interest in China, there would not be a real chance or a real risk that she would face serious or significant harm (CB 249 at [49]).
The Tribunal found that there was no evidence that the applicant had come to the adverse attention of the Chinese authorities and, based on country information, concluded that she would not be at risk of harm because of the data breach (CB 249 to 250 at [53] to [54]).
The Tribunal accepted the applicant’s evidence that her father had beaten her as a child. However, based on the evidence that he had not beaten her since she was a child, and that he had not harmed any of her siblings more recently, found that she would not face relevant harm from her father on return to China (CB 250 at [58]).
In relation to the claimed threats from loan sharks, the applicant gave evidence that she did not know what had happened to her father’s debt since she departed China, and she did not know if any members of her family had been harmed as a result of that debt. On the basis of that evidence, the Tribunal was not satisfied that the applicant would be of any interest to loan sharks (CB 250 to 251 at [61]) or that she would be forced into prostitution if she were returned to China (CB 250 to 251 at [61]).
The Tribunal was not satisfied that the applicant would suffer psychological harm on return to China which would amount to torture of punishment for the purposes of s 5(1) of the Migration Act 1958 (Cth) (Act).
APPLICATION TO THIS COURT
The applicant commenced the present proceeding by an application to show cause filed with the Court on 5 June 2018.
The matter was initially docketed to another Judge of this Court. On 28 June 2018, a Registrar of the Court made orders (by consent) which included that the matter would be listed for hearing before the first primary Judge, at a time to be notified to the parties administratively. Orders were made for the preparation for that hearing, including the grant of leave to the applicant to amend her application by 23 August 2018. The applicant did not file an amended application in accordance with that grant of leave, or at all.
The proceedings were later placed in the central migration docket and were next called over by a Registrar of the Court on 3 April 2023, on which occasion the applicant appeared by telephone. A fresh timetable was made, including a further grant of leave to the applicant to amend. On 5 March 2024, the proceedings were docketed to me, and I made orders on that date listing them for hearing, and granting the applicant further leave to file any amended application on or by 20 March 2024. The applicant and the first respondent were ordered to file and serve written submissions 14 and 7 days before today's hearing (respectively).
The applicant appeared before me this morning in person with the assistance of an interpreter in the Mandarin language. The first respondent was represented by Counsel.
The Court Book and a supplementary Court Book (filed recently) were tendered for the first respondent and, jointly, marked Exhibit “1R”. Accompanying the application to show cause at the time of filing was an Affidavit made by the applicant. That document has been received not as an Affidavit, but instead as a supplementary part of the application on the basis that the grounds of review are contained in a statement annexed to it. The originating application contains no grounds, but makes reference to an attached statement which is not in fact appended to the application itself. Review of the Affidavit document reveals a typewritten document as the first annexure. The other annexure to the Affidavit is the Tribunal's reasons for decision, which have since been included in Exhibit “1R”. The Court had regard to the Affidavit document to the extent that it can be taken as forming part of the for review.
The first respondent filed written submissions in advance of the hearing, as ordered. Other than the originating documents, the applicant has not filed any documents since the commencement of her case.
The statement which is annexed to the Affidavit document contains two headings reflecting those in the Court's prescribed form. The first is ‘Orders Sought’ and the other is ‘Grounds of Application’. In essence, nine paragraphs are included under the heading of Orders. These are more akin not to orders, but seem to be grounds of review. The other four matters raised under the heading ‘Grounds of Application’ are more akin to a recitation of the applicant's protection visa claims, a proposition with which she agreed at hearing. Those paragraphs, being [1], [2] and [4] under that heading, do not properly allege error. Paragraph [3] will be taken as alleging an error, and I will come to that shortly.
Grounds of review
Of the nine grounds under the heading ‘Orders Sought’, they can be grouped into several common issues. The first respondent has identified there being five issues arising in this case, and I consider it appropriate to adopt that numbering. That proposed approach was explained to the applicant, and she agreed to proceed in that way.
As an exercise in cross-referral to ensure that no ground has been missed, the Court has also identified the paragraphs from which the issues arise. The five issues arising from the applicant’s Affidavit are as follows:
(a)the Tribunal erred by finding that the inconsistencies in the applicant’s written statements and oral evidence undermined her credibility (issue 1);
(b)the Tribunal failed to consider the applicant’s fragile mental state during the hearing, and did not allow the applicant to express her answers properly. She was weeping and traumatised throughout the hearing (issue 2);
(c)the Tribunal’s findings on the applicant’s belief in CAG was based on a knowledge test instead of the applicant’s “true conviction and belief” (issue 3);
(d)the Tribunal erred in its consideration of the applicant’s data breach claims (issue 4); and
(e)the Tribunal has failed to consider the applicant’s family as a whole, including her partner/husband’s Christian status and the implications of her having an Australian born child (issue 5).
The issues identified in the preceding paragraph arise from the following paragraphs:
(a)issue 1 arises from [2] and [3] of the grounds;
(b)issue 2 arises from [4], [5] and [7] of the grounds;
(c)issue 3 arises from [2] and [6] of the grounds;
(d)issue 4 arises from the sole issue included under the heading ‘Grounds of Application’, being ground 3 therein; and
(e)issue 5 arises from [8].
In the interests of completeness, [1] and [9] do not raise any conceivable ground of review and, rather, make statements that the applicant does not accept the Tribunal's decision. As such, grounds [1] and [9] are statements which do not raise proper allegations of error.
Turning then to the issues as distilled.
Issue 1
In relation to issue 1, this issue was summarised for the applicant at hearing and she was asked to address the allegation that the Tribunal's findings about inconsistencies in her evidence led it to error undermining her credibility. When asked what she wished to say in respect of issue 1 and the manner in which the Tribunal is said to have erred in relation to the alleged inconsistencies, the applicant said she had nothing to say.
The Tribunal ultimately rejected the applicant’s claim that she would practise in China as a member of, or adherent to, CAG, on the basis of inconsistencies in the applicant’s evidence. The Tribunal had several bases for this finding, including:
(a)inconsistencies between the applicant’s written evidence and oral evidence to the Tribunal. In particular:
(i)the applicant claimed in writing to have lived in China with the aunt who introduced her to CAG. However, in oral evidence, the applicant claimed not to have lived with anyone in China other than her parents and co-tenants. Even accounting for her mental state, the Tribunal was not satisfied that the applicant’s explanation for this inconsistency (that she forgot) was adequate, particularly in light of her being represented, and therefore this raised credibility concerns (CB 245 and 246 at [35] to [36] and [47]);
(ii)the applicant claimed in writing that she had sought clarification at various points from her aunt in China, online, about “The Word Appears” which is an important religious text. In person, the applicant claimed that she had been unable to clarify details about this book with her aunt because she had stopped communicating with her aunt, by way of response to the Tribunal’s concerns as to why she did not understand much about CAG (CB 246 at [39] to [41]); and
(iii)that the applicant claimed in writing to have studied the bible carefully, attended a lot of sermons and read many Christian books, but, in person, she claimed to have only attended a Local Church in Sydney 3 or 4 times (CB 246 at [37] to [38]); and
(b)the applicant’s level of knowledge of the practices and beliefs of CAG did not suggest that the applicant was a genuine adherent to that Church.
In light of those concerns, the Tribunal found that it (CB 249 at [48]):
accepts that [the applicant] had attended a Local Church in Sydney on three of four occasions sometime last year. However, the applicant did not claim and the Tribunal does not accept that she is an adherent, member or follower of the Local Church. The Tribunal, therefore, does not accept that there would be a real chance or a real risk that the applicant would face serious or significant harm on return to China based on being, or being perceived to be, a member or supporter of the Church of Almighty God or the Local Church.
Having regard to the relatively stark inconsistencies arising in respect of a number of issues between the applicant's evidence at the Tribunal hearing and the statement that she prepared while in immigration detention (commencing at CB 173), I agree with the first respondent’s submission that the manner in which the Tribunal approached the issue of credibility was open to it. The applicant does appear to have given inconsistent evidence. The applicant was given the opportunity by the Tribunal to clarify those inconsistencies, and did not do so.
Overall, I am not satisfied that issue 1 gives rise to any jurisdictional error.
Issue 2
By issue 2, the applicant said that she was denied a fair and/or meaningful hearing opportunity because the Tribunal failed to take into account her mental state. This issue is, in essence, directed to an error of the kind identified in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 (SCAR) at [36] to [38] thereof, per Gray, Cooper and Selway JJ, and also SZQBNv Minister for Immigration and Border Protection [2014] FCA 686 at [15] per Flick J.
When asked to speak to this ground and the manner in which the applicant says that she did not receive a fair hearing by reference to consideration of her mental state, the applicant again said that apart from what is in her written statement, she had nothing else to add.
The Tribunal considered the applicant’s claims made both during the hearing and in her post hearing statement, that she felt nervous during the hearing (CB 248 at [46]). The Tribunal accepted that the applicant found the hearing stressful and that the applicant suffered from anxiety and a depressed mood (CB 248 at [46]). However, it also found that this did not explain the inconsistent evidence given by the applicant at the hearing (CB 248 at [46]). Accordingly, the applicant’s complaints about the Tribunal’s failure to consider these matters is not made out.
The first respondent submitted that the hearing lasted 4 hours and the applicant was represented, assisted by an interpreter and supported by her partner/husband (CB 216). There is no suggestion that the applicant sought an adjournment.
The Tribunal’s reasons disclose many occasions on which the applicant was able to provide answers to questions put to her by the Tribunal (see CB 246 at [38], [40] to [41], CB 247 at [44] and CB 250 at [56] to [57]).
The applicant was also granted a short adjournment during the hearing when she spoke with her representative. After she returned from that break, she made further comments at the Tribunal’s invitation, and the applicant’s representative also addressed the Tribunal (CB 247 at [44]).
The first respondent submits that, contrary to the applicant’s assertion, the inference to be drawn from the evidence in the Court Book is that the applicant engaged meaningfully at the hearing.
To the extent that the applicant cavils with the Tribunal’s treatment of the psychologist report,[1] the first respondent submitted that the Tribunal had regard to the report and adopted its findings that the applicant suffers from anxiety and a depressed mood (CB 248 at [46]).
[1] This report was provided to the Tribunal by email, prior to the hearing, and is at CB 206 to 211
I have had regard to the hearing information record which is contained at CB 216 to 218. That document records various logistical matters pertaining to how the hearing of the Tribunal unfolded.
An analysis of it reveals a hearing commencement time of approximately 9:50am and a conclusion time of 2:13pm. It does record that the hearing lasted approximately four hours. It also records that the applicant was accompanied by her partner/husband as a support person and potential witness. The hearing information record shows that the applicant had the benefit of two Mandarin interpreters, the first of whom commenced at the beginning of the hearing and appears to have continued for some hours. A second Mandarin interpreter commenced at 1:15pm, approximately an hour before the conclusion of the hearing. The notation indicates that this was a “TIS” interpreter, which to the Court's understanding means the second interpreter attended by telephone. The applicant says nothing specific about any issues with the interpreter, much less does she make any complaint to suggest that the change in interpreter, or the interpreter attending by phone, caused any difficulty with the hearing. As such, I agree with the submission of the Minister made in Court today that it cannot be said the applicant was not given a fair hearing, at least in relation to practical matters.
As to the allegation that she was not given a fair hearing which took into account her mental state, I am not persuaded that the Tribunal erred in the manner identified in SCAR or otherwise denied the applicant a fair or meaningful hearing opportunity. The Tribunal not only considered the applicant's psychological condition and made reference to the very report that the applicant says was not considered, but it also conducted its hearing in a manner which, on the face of the documents in the Court Book, including what is recounted in the Tribunal's decision, was fair and meaningful.
Accordingly, issue 2 is not made out.
Issue 3
By issue 3, the applicant alleges that the Tribunal “took an erroneous path to arrive at its conclusion”, relied on an “invalid assessment”, and reached conclusions which were “improperly assessed”. In essence, the applicant is making allegations that the Tribunal improperly imposed itself as an arbiter of doctrine in assessing her claims to adhere to CAG as a religion.
The first respondent submitted that the Tribunal did not place undue weight on the applicant’s lack of knowledge or erred in the sense found in Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 (SZLSP) per Flick J. This is because the Tribunal relied on other factors beyond the applicant’s lack of knowledge about the practices of CAG (see for example, at [36] where it found inconsistencies with the applicant’s evidence about whether she had lived with her aunt and at [38] where the Tribunal found the applicant conceded she had not attended any CAG services in Australia): Cf SZLSP (supra) at [38] per Flick J).
Moreover, the first respondent said that the Tribunal did not seek to impose of the applicant any “preconceived views as to the beliefs a person would have to hold in order to be a Christian” (see ABX15 v Minister for Immigration and Border Protection [2016] FCA 855 at [24] per Flick J). Rather, the Tribunal’s concern was that the applicant had not satisfied it, through credible evidence of her behavior, that she was adherent to CAG. The Tribunal’s concerns about the applicant’s lack of knowledge of CAG were, in the first respondent’s submission, a ‘legitimate exploration’ of the applicant’s knowledge, rather than an impermissible, a priori assessment of the applicant’s faith: SZLSP at [38] per Flick J.
When asked to identify what she wished to say about this issue, the applicant's response was that she had nothing to say. The applicant went on to submit that "If they don't believe me, I don't know what to do".
Having regard to the authorities such as SZLSP and ABX15 (supra), I am not satisfied in this matter that the Tribunal set an arbitrary standard of knowledge required. Rather, having regard to the full evidence given by the applicant to the Tribunal as recorded in its decision, the Tribunal was simply not satisfied that the applicant had, through her behaviour or the limited knowledge she demonstrated, established that she was an adherent to CAG. Having regard to the significant inconsistencies that existed between the evidence given by the applicant and her written statement. Those findings were open to the Tribunal and there is nothing to suggest that the Tribunal erred in the manner identified in cases such as SZLSP or WALT vMinister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2.
Accordingly, issue 3 is not made out.
Issue 4
Issue 4 comes from the separate part of the statement annexed to the Affidavit document (see [31(d)] above. The applicant claims by this issue that the Tribunal erred in finding that she would not face a risk of serious or significant harm as a result of the data breach. When asked what she wished to say about this ground, the applicant said, "I'm worried it might affect me" (“it” presumably meaning the data breach). When asked to identify what legal errors the applicant says the Tribunal committed in dealing with the question of the data breach, the applicant's response was, "I don't know about law, so I don't know what legal errors it has made. I only know it will affect me and my child".
Having regard to the manner in which the Tribunal dealt with this issue at (CB 249 [50] to [54]), while the applicant may disagree with the Tribunal's conclusions, that is not a sufficient basis upon which any error will be established. I am not satisfied that the treatment of this issue and the consideration given to it by the Tribunal is in error.
The first respondent observed that the applicant claimed to the Tribunal that because of the data breach she would not be able to go back to China because she made claims of persecution: CB 249 at [50]. In addition, she provided a generic letter from the Department of Home Affairs regarding the data breach, sent in 2014. In essence, the Tribunal accepted that the applicant’s personal information may have been leaked in the data breach and that such information may have been accessed.
However, the Tribunal found that:
(a)there was no evidence that the applicant’s claims of protection were published or accessed by anyone (CB 249 at [52]); and
(b)even if the publication of the applicant’s personal information did identify her as having sought protection in Australia, on the basis of country information, there would be no real risk of suffering serious harm as a result of this profile, because the Tribunal had not accepted that the applicant has come to adverse attention of the Chinese authorities in the past (CB 249 to 250 at [52] to [54]).
Contrary to the applicant’s claim, the Minister submitted that the Tribunal’s reasoning on the data breach issue was reasonable, and that the applicant has failed to demonstrate jurisdictional error in the Tribunal’s decision.
I agree with the submissions of the first respondent and find that issue 4 is not made out.
Issue 5
The final issue which has been distilled is that the applicant alleges that the Tribunal allegedly erred by failing to consider the applicant’s protection claims by reference to her partner/husband, his Christianity, and the fact that she now has a child born in Australia. When asked to identify in what way the Tribunal is said to have failed to give consideration to these issues, the applicant simply replied, "I don't know".
As the first respondent correctly observes, neither the applicant's child nor her partner/husband were joined to her application such that the Tribunal was required to consider whether they had separate claims.
While some issues were raised by the applicant in correspondence in relation to her child, I agree with the submission made by the first respondent that the Tribunal was not required to consider whether they had separate claims of their own. Further, the applicant did not raise any claims to fear harm in connection with her child or her partner/husband. I acknowledge that the applicant was also represented by a migration agent in the Tribunal proceedings, and again make reference to the forensic and practical matters about the hearing, including that it lasted over four hours (see [47] above). There is no evidence that the applicant raised claims in relation to the partner/husband and child in this context in the Tribunal hearing.
Accordingly, I am satisfied that issue 5 does not give rise to jurisdictional error.
Additional issues
When identifying the written statement that was annexed to the Affidavit document, I asked the applicant whether she had prepared it. She said she had not, and that if it was prepared by a friend, and, as a result, after taking the applicant through the issues as distilled from the statement, I also gave the applicant an opportunity to raise any other matters that she wished, given that she had not drafted the statement which contained her grounds. The applicant replied, "No, just those ones". Accordingly, there are no additional issues raised by the applicant at hearing which require consideration.
CONCLUSION
Having read the Tribunal's decision myself, I have discerned no other possible errors.
Accordingly, I am satisfied that the decision of the Tribunal is not affected by jurisdictional error. Absent a jurisdictional error, the decision is therefore a privative clause decision and must be dismissed. I will so order.
COSTS
Consequent upon my dismissal of the application, Counsel for the Minister seeks an order that the applicant pay the first respondent's costs fixed in the sum of $8,371.30. When asked to address the question of whether costs should follow the event, and if so, in what amount, the applicant submitted that she cannot afford the amount sought by the Minister. While that is a factor which may be considered by the Minister later in terms of the enforcement of such an order, it is not relevantly a matter which would be taken into account in determining whether that is a fair indemnity to the Minister for some part of the costs of meeting this application.
In the circumstances of this case, I am satisfied that costs should follow the event in accordance with the ordinary rule from which I find no particular reason to depart. I am also satisfied that the amount sought is reasonable in all the circumstances of this case.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 10 May 2024
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