DCH19 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 368

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DCH19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 368

File number(s):

SYG 2080 of 2019

Judgment of:

JUDGE SKAROS

Date of judgment:

17 March 2025

Catchwords:

MIGRATION – Judicial Review – Administrative Appeals Tribunal – Protection Visa - Application dismissed  

Legislation:

Migration Act 1958 (Cth) ss 5J(1)(a), 36(2)(a), 36(2)(aa), 65, 424A

Cases cited:

CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 15 FCR 214

NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816

VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123

Division:

Division 2 General Federal Law

Number of paragraphs:

49

Date of hearing:

12 March 2025

Place:

Parramatta

Solicitor for the Applicant:

Self-represented litigant

Solicitor for the First Respondent:

Mr Wilson, Australian Government Solicitor

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 2080 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DCH19

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE SKAROS
DATE OF ORDER:	17 MARCH 2025

THE COURT ORDERS THAT:

1.The application filed on 7 August 2019 is dismissed.

2.The Applicant pay the First Respondent’s costs fixed in the amount of $5,400.

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 SKAROS:

INTRODUCTION

1. By application filed on 7 August 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 22 July 2019. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) in refusing to grant the applicant a Protection (subclass 866) visa (the protection visa) under s 65 of the Migration Act 1958 (the Act).

   [1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings. Therefore, in these Reasons, reference to the Tribunal is a reference to the Administrative Review Tribunal.

   BACKGROUND

2. The applicant is a citizen of China who arrived in Australia on a student visa on 24 July 2007. He was granted a further student visa which was valid until on 15 December 2009, after which he became an unlawful non-citizen in Australia until he lodged the protection visa application (on 17 April 2015) and was granted the associated bridging C visa (on 21 April 2015).

3. On 15 August 2016 the delegate refused to grant the protection visa. On 19 September 2016 the applicant sought review of that decision.

4. The applicant appeared before the Tribunal on 16 July 2019 to give oral evidence and present arguments in relation to the issues in the review. The applicant was assisted by an interpreter in the Mandarin and English languages.

5. On 22 July 2019, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. The Tribunal’s reasons for the decision are contained in its statement of decision and reasons.

   TRIBUNAL’S DECISION

6. The dispositive issue before the Tribunal was whether the applicant was a person in respect of whom Australia had protection obligations, either because he satisfied the refugee criteria or the complementary protection criteria.

7. After setting out the criteria for a protection visa and mandatory considerations under Ministerial Direction No.56, the Tribunal considered the applicant’s claims and evidence.

8. The Tribunal considered the applicant’s claim that he was a follower of I Guan Dao (or Yiguando) and was scared of being persecuted in China, with his relative’s house shrine being assaulted in 2009 and the relative being fined 1000 yuan and his parents being ‘persecuted for their faith’ in 2010. The applicant also claimed that his parents asked him to return in 2012 to marry a woman he did not know and he refused as he had set up his own house shrine and intended to become a Yiguando preacher. He also claimed to want to continue studying in Australia in future.

9. The Tribunal then considered the evidence before it, including the evidence before the delegate, independent country information and evidence given to the Tribunal at the hearing. Relevantly, the delegate’s decision record indicated that the applicant was unable to provide supporting statements from fellow Yiguando followers because he did not think he had reached a sufficiently high level of Tao in 2016. The delegate had also noted that the applicant’s explanations of Yiguando were vague and lacking detail, that he attended a Temple in Eastwood and had already dismantled his house shrine at home. The Tribunal noted that, at the hearing, the applicant’s evidence remained vague, contradictory and muddled. The following inconsistencies were noted:

   (1)The applicant stated that his parents were seasonal farmers and that he chats on the phone with them once every month or two. However, the applicant also stated his parents have to be cautious because if anyone were to find out they are Yiguandao adherents they would be reported to the police. The Tribunal asked him why they spoke to him about Yiguandao on the phone when they are reportedly easy to monitor in China and he stated that he seldom called them. The applicant did not resolve the discrepancy.

   (2)The applicant did not provide a clear response to the question of why his parents asked him to come back to China in 2012 if they were being persecuted at the time. When it was put to him that his response was not helpful, he said that the persecution his parents were facing at the time was not so serious. This response did not sit with the claim in his original statement about his parents being persecuted at the time.

   (3)Despite the applicant stating that he attends a Yiguandao temple in Eastwood once every month or two, when the Tribunal asked him if he could provide any evidence of him being part of the community of that temple, he contradicted himself and stated that he seldom went to Eastwood due to traffic and inconvenient transport. Additionally, when asked to provide evidence of being part of a temple community he said he used to have a copy of the temple’s ‘card’.

   (4)The applicant could not explain in detail what distinguished Yiguandao from Buddhism, Dao or Tao religions. When asked whether the CCP was mobilising against Yiguandao the applicant stated ‘[he] did not know. [He] just heard from people that this is a religion being persecuted.’

   (5)When asked about the applicant’s claimed interest in becoming a Yiguandao preacher, the applicant stated he was ‘not a real preacher and [he] was just sharing words with other people’.

   (6)Regarding the claim about authorities discovering Yiguandao house altars and destroying them, the applicant acknowledged that they were indistinguishable from Daoist or Taoist shrines, which were not illegal.

10. The Tribunal did not accept that the applicant’s parents called him to come back to China at a time when they were being persecuted due to the religion they and he were purportedly following. The Tribunal also found that when the applicant said that his parents’ situation was not so serious at the time, he was essentially saying that his parents were not being persecuted.

11. The Tribunal had serious credibility concerns as the applicant’s evidence was contradictory in many instances and he displayed, meanwhile, an inability to discuss his claimed Yiguandao religion in any detail or with any perceptible interest. On that basis, the Tribunal did not accept that the applicant follows Yiguandao or has any genuine interest in religion at all, be it Dao or Buddhism or anything else. The Tribunal formed the view, based on the applicant’s responses that when he said that he had  heard from people that Yiguandao is a religion that is being repressed, that this was, in fact, the first thing he had ever heard about Yiguandao. The Tribunal did not accept the applicant’s claims about being persecuted due to being a Yiguandao follower due to an overwhelming lack of credibility.

12. In the alternative, the Tribunal found that the circumstances for Yiguandao followers in China have changed significantly in the last twenty years or so and that the applicant would be free to pursue Yiguandao in China without facing a real chance of being persecuted.

13. The Tribunal found that the applicant did not face a real chance of being persecuted in China in the reasonably foreseeable future for reasons of ‘religion’ or imputed ‘political opinion’ or any other s 5J (1)(a) factor. It found that the applicant was not a refugee and was therefore not a person in respect of whom protection obligations are owed under s 36(2)(a).

14. The Tribunal then considered the alternative criterion under s 36(2)(aa). It set out the law in this regard and subsequently applied it to the facts of the matter.

15. The Tribunal noted that the applicant’s claims to complementary protection are essentially the same as his refugee claims. The Tribunal found that since his refugee claims failed on the basis of inconsistency and lack of credibility, and ultimately due to a failure to meet the ‘real chance’ test, they can no more succeed as complementary protection claims. After considering the evidence as a whole, the Tribunal was not satisfied that, as a necessary and foreseeable consequence of being removed from Australia to China, there was a real risk that the applicant would suffer significant harm.

    APPLICATION TO THIS COURT

16. On 7 August 2019, the applicant filed the originating application with this Court which advanced four grounds of review. Also filed was an affidavit of the applicant, which merely annexes the Tribunal’s decision record. As the written statement of decision was enclosed in the Court Book, which was tendered at the hearing and marked Exhibit CB, it was not necessary to take this affidavit into account.

17. On 9 October 2019, the Minister filed the Court Book in compliance with orders by a Registrar of this Court on 5 September 2019. No further documents were filed by the applicant.

18. The matter was listed for final hearing on 12 March 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 21 January 2025.

19. On 26 February 2025, the Minister filed an outline of submissions.

20. At the hearing on 12 March 2025, the applicant appeared in person before the Court with the assistance of an interpreter in the English and Mandarin languages. The Minister was represented by Mr Wilson, a solicitor advocate.

21. Being mindful that the applicant was unrepresented, the Court explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.

22. The applicant was guided through his application and was invited to make oral submissions in support of the grounds of review raised in his application.

    CONSIDERATION

23. The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476.

24. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:

    The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.

25. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2]; LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [32].

    Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang).

    GROUNDS OF REVIEW

26. The initiating application filed by the applicant contained the following grounds (without alteration):

    1, I am a Chinese citizen and applied for protection due to fears. I cannot return to my home country. If I am forced to leave, my life will not be safe.

    2, Administrative Appeals Tribunal did not give good consideration for my case.

    3, It is unfair for Administrative Appeals Tribunal to doubt my claim. I need protection from Australian government

    4, The Tribunal did not provide a chance for me to reply to the adverse information put to my hearing.

    Ground one

27. Ground one does not appear to be a proper ground of review. At the hearing, the applicant was invited to make oral submissions in relation to this ground but indicated he had nothing further to say.

28. The Court accepts the Minister’s submission that ground one contains no assertion of legal error in either the Tribunal’s decision or its process. Ground one appears to be an invitation for the Court to consider the applicant’s claims for protection. It is well established that the Court has no power to engage in merits review of the Tribunal’s decision. This would be contrary to the principles in Wu Shan Liang.

29. Ground one does not establish jurisdictional error.

    Ground two

30. By ground two the applicant asserts that the Tribunal did not properly consider his case. In oral submissions regarding this ground, the applicant said the Tribunal did not do a ‘thorough investigation.’

31. A fair reading of the Tribunal’s decision demonstrates that it had considered the applicant’s claims for protection. At [13]-[17], the Tribunal set out the applicant’s protection claims as contained in his statement. At [18] it set out the evidence he gave the delegate. At [23] – [29] it also set out the evidence he provided at the hearing before the Tribunal. At [30] – [34] the Tribunal sets out its findings (and provided detailed reasons for those findings) before concluding that it was not satisfied that the applicant faces a real chance of being persecuted in China: at [35]. On the basis of the same findings and reasons, the Tribunal was also not satisfied that the applicant met the complementary protection criteria in s 36(2)(aa).

32. The Tribunal’s decision was detailed and its reasons, as submitted by the Minister, demonstrate that it gave ‘proper, genuine and realistic consideration’ to the applicant’s claims and the evidence before it in respect of those claims: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [29], [32]-[33], [35].

33. The Tribunal’s statement of reasons does not disclose any failure on its part to consider any of the applicant’s claims.

34. As to the possible new ground advanced by the applicant at the hearing, which appears to allege a failure on the part of the Tribunal to make an inquiry, the Minister contends that the Tribunal’s role was to assess the claims and evidence before it and not conduct some sort of inquiry to verify those claims.

35. The Court accepts, as contended by the Minister, that the Tribunal’s duty was to review the decision and not to make inquiries or investigations: Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [20], [22]. That said, an obligation to make an inquiry can arise in ‘rare or exceptional circumstances’: Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60]. The inquiry must, however, be an obvious one about a fact which could be easily ascertained: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 at [25]. In the present case, the applicant has not indicated what investigations (or inquiry) the Tribunal should have made and with whom. If it related to the applicant’s claims for protection, such an obligation did not lie with the Tribunal, and it was for the applicant to provide whatever evidence he wished in support of his claims for protection. No error is disclosed on the part of the Tribunal in that regard.

36. Ground two does not establish jurisdictional error.

    Ground three

37. By ground three, the applicant alleges that the Tribunal erred in not accepting his claims for protection. In oral submissions the applicant said it was unfair for the Tribunal to doubt his claim because ‘I think I am entitled to protection, and they did not give me that answer’. The applicant argues that he did not receive an adequate explanation for why the Tribunal did not accept his claim but, when asked to provide details, he could not specify a claim or evidence which had not been considered by the Tribunal instead stating that ‘he was not protected’.

38. The Court accepts the Minister’s submission that a statement of reasons was provided to the applicant which contained the relevant facts and findings that it made. The Tribunal, having considered the evidence before it, found (at [33]) that it was not satisfied the applicant was a follower of Yiguandao given the concerns it had with the applicant’s evidence. Notwithstanding its confidence with this finding, the Tribunal also found at [34], in the alternative, that the applicant would be free to pursue Yiguandao in China without facing the harm claimed.  

39. The Tribunal was not required to uncritically accept any and all claims made by the applicant nor was it required to have rebutting evidence available to it to find that a claim was not made out. The Court accepts the Minister’s submission that it is for the applicant to provide evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts on the material before it. No error is disclosed in the Tribunal’s reasoning. The findings it made were open to it for the reasons it gave.

40. Ground three does not establish jurisdictional error.

    Ground four

1. By ground four the applicant appears to allege that the Tribunal had not complied with its procedural fairness obligations to give him an opportunity to respond to adverse information. At the hearing, the applicant was asked to clarify which information he was not given an opportunity to respond to by the Tribunal, however, he was unable to provide any detail.  

2. The applicant has not been able to particularise what adverse information that is the subject of this allegation.

3. The failure to particularise a ground of review can be a sufficient basis for a ground of review to be dismissed: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]. Acknowledging that the applicant is self-represented, the Court gave him the opportunity to expand upon this ground and provide particulars, but he was unable to do so.

4. The decision record does not disclose any adverse information relied on by the Tribunal that enlivened its obligation under s 424A or 424AA of the Act to invite the applicant to comment on or responsd to which may have been the reason or part of the reason for affirming the decision under review.

5. As to any country information relied upon by the Tribunal in its reasons, being the DFAT country information at [20]-[22] of its decision, the Court accepts the Minister’s submission that this information was not required to be given to the applicant for comment or response pursuant to s 424A(3) of the Act as it is not information specifically about the applicant or another person and is just about a class of persons.

6. The Court also accepts the Minister’s submission that the adverse information which comprised of the Tribunal’s appraisal of the evidence before it, was not ‘information’ for the purposes of s 424A of the Act. It is well established that information for the purposes of s 424A of the Act does not include the ‘existence of doubts, inconsistencies or the absence of evidence’ nor ‘the Tribunal’s subjective appraisals, thought processes or determinations’ or ‘identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc’: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18].

7. Ground four does not establish jurisdictional error.

   COSTS

8. The Minister sought an order that the applicant pay the Minister’s costs fixed in the sum of $5,400. When invited to make submissions the applicant took issue with the amount of costs sought because it was too much for him to pay. An inability to pay or mere impecuniosity is not a ground for not making a costs order. The Court is satisfied that the costs sought are reasonable and that costs should follow the event and will so order.

   CONCLUSION

9. As none of the grounds raised establish jurisdictional error on the part of the Tribunal, the application for judicial review filed on 7 August 2019 must be dismissed. The applicant is to pay the Minister’s costs in the fixed amount of $5, 400.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.

Associate:

Dated:       17 March 2025