FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DFK19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1553
File number(s): SYG 185 of 2019 Judgment of: JUDGE MARQUARD Date of judgment: 29 September 2025 Catchwords: MIGRATION – Decision of Administrative Appeals Tribunal to affirm decision to refuse protection visa – whether evidence not considered – whether Tribunal biased – whether credibility findings legally unreasonable – whether findings on minimal country information open to the Tribunal – application dismissed Legislation: Australian Constitution s 75(v)
Migration Act 1958 (Cth) ss 5H, 5J, 29, 31, 36, 45, 65, 474, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 11.10
Cases cited: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205
Abebe v Commonwealth (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
Djokovic v Minister for Immigration, Citizenship, Migrant Services and MulticulturalAffairs (2022) 289 FCR 21
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485
Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291
Division: Division 2 General Federal Law Number of paragraphs: 141 Date of last submissions: 15 August 2025 Date of hearing: 7 August 2025 Place: Sydney Applicant: The Applicant appeared in person First Respondent: Ms T Jackson of MinterEllison Second Respondent: Submitting appearances save as to costs ORDERS
SYG 185 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DFK19
First Applicant
DFL19
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MARQUARD
DATE OF ORDER:
29 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The name of the second respondent is amended to Administrative Review Tribunal.
2.The application filed on 23 August 2019 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
Judge Marquard
OVERVIEW
Before the Court is an application filed on 23 August 2019, seeking judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) dated 5 August 2019. The Tribunal affirmed a decision of the Department of Immigration and Border Protection (Department), as delegate of the first respondent, dated 22 July 2016, to refuse to grant the applicants Protection (Class XA) (Subclass 866) visas (Protection visas).
The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
A hearing of this matter took place at the Sydney Registry of the Court on 7 August 2025. The applicants appeared as litigants in person. Ms Jackson from MinterEllison appeared for the first respondent (Minister). A Mandarin interpreter assisted the Court.
The application is dismissed.
BACKGROUND
The applicants are citizens of China (Court Book (CB) 40). The first applicant arrived in Australia on 16 January 2014 as the holder of a Student (Subclass 571) Visa). She was granted a further student visa on 19 February 2016 (CB 159). The second applicant is her infant daughter who was born in Australia (CB 103).
On 20 July 2015, the first applicant applied to the Department for a protection visa (CB 1-43).
On 22 July 2015, the Department acknowledged the application for the Protection visa and invited the first applicant to attend an interview on 5 August 2015 (CB 44-55).
On 9 March 2016, the first applicant made a request to the Department that her daughter be included as an additional applicant in her protection visa application (CB 58).
On 11 March 2016, the Department notified the first applicant that her child had been taken to have applied for a Protection (class XA) visa on 6 December 2016 and that their applications had been combined (CB 58-59).
On 22 July 2016, the Department refused to grant the applicants the visas (CB 128-141).
On 18 August 2016, the applicants applied to the Tribunal for review of the Department’s decision (CB 145-151). The Tribunal acknowledged the application and invited the applicants to provide material or written arguments for the Tribunal to consider (CB 167-168).
On 24 October 2018, the Tribunal notified the applicants, by way of email, that their file was being prepared for hearing allocation and invited the first applicant to provide additional information as soon as possible (CB 178).
On 4 July 2019, the Tribunal sent the applicants an invitation to attend a hearing on 24 July 2019 (CB 180-181).
On 24 July 2019, the first applicant attended the Tribunal hearing in person assisted by a Mandarin interpreter to give evidence and present arguments (CB 193-195). At the hearing, the first applicant provided the Tribunal with a medical report for her daughter (the second applicant) which confirmed that she had been diagnosed with global developmental delay and features of autism. The letter outlined recommendations for ongoing treatment (CB 196-198).
The first applicant provided the Tribunal with a letter from the Local Church in Sydney dated 17 July 2016 confirming the applicant’s attendance at the church since June 2015 (CB 120). The first applicant also provided a series of photographs of church activities (CB 121-127).
On 5 August 2019, the Tribunal affirmed the Department’s decision not to grant the protection visas (CB 206). The Tribunal notified the applicants of the decision on 7 August 2019 (CB 202).
TRIBUNAL DECISION (CB 207-217)
The Tribunal decision is twelve pages long.
The Tribunal began by identifying the visa under review and summarising the procedural history of the matter ([1] of the Tribunal Decision).
The Tribunal set out the relevant legal and policy framework at [2-7] of the Tribunal Decision.
The Tribunal recorded that the first applicant feared returning to China because she was a Christian and intended to raise her daughter as a Christian ([8] of the Tribunal Decision).
The Tribunal recorded the first applicant’s evidence that her parents were members of the Local Church in China ([9] of the Tribunal Decision). The Tribunal summarised the first applicant’s evidence from her statement to the Department about her attendance at the Local Church in China (at [9] of the Tribunal Decision). The Tribunal recorded that the applicant said that her parents attended house churches in different locations in her village, and she also attended until she began junior school at the age of 12. At that age, her parents feared that something would happen to her which would affect her study, because at the time the government was ‘strict’ on the Local Church. Her younger brother also stopped attending ([9] of the Tribunal Decision). The Tribunal recorded the applicant’s evidence that her parents continued to attend the gatherings ([10] of the Tribunal Decision).
The Tribunal recorded the first applicant’s evidence that after she was told to stop attending church, she read the Bible at home every morning, the family prayed together and read Scripture ([10] of the Tribunal Decision).
The Tribunal recorded that the first applicant said that she and her parents had no problems with the Chinese authorities while she was in China ([10] and [11] of the Tribunal Decision).
The Tribunal recorded that the first applicant said that her parents arranged for her to travel to Australia for her safety and study. The applicant said that they feared she would follow them to gatherings and that she would be arrested ([11] of the Tribunal Decision).
The Tribunal recorded that the first applicant told the Tribunal that after she turned 12 years old, she followed her parents to gatherings but not as frequently as when she was younger. She said that she went every fortnight to church until she left China, unless too busy with study ([12] of the Tribunal Decision).
The Tribunal noted that the first applicant said that her parents had no difficulties with the Chinese authorities until Easter 2015, when they were arrested. She claimed that she temporarily lost contact with them but then learnt that they had been detained for a week, investigated and fined. The Tribunal recorded the first applicant’s evidence that since then, they had continued to attend church gatherings and had no further difficulties with the authorities ([37] of the Tribunal Decision).
The Tribunal recorded that the first applicant said that her husband came from the same city in Fujian province in which her village was located. She said that he left China for fear of harm as he was a member of the Local Church. She said that he unsuccessfully applied for protection in Australia ([38] of the Tribunal Decision).
The Tribunal identified a number of credibility concerns ([15] – [46] of the Tribunal Decision).
Firstly, the Tribunal identified that the first applicant had failed to mention in her application or in her interview with the Department that she had continued attending church after she turned 12 ([14] – [17] of the Tribunal Decision), instead stating that she did not attend after the age of 12. The Tribunal reported that when this discrepancy was put to the applicant at the Tribunal hearing she said that her account to the Tribunal was correct and she had not thought it necessary to tell the Department ([17] of the Tribunal Decision).
The Tribunal noted that it was not persuaded that the first applicant would fail to mention that she had continued attending church considering she was claiming protection on the basis of her adherence to Christianity ([18] of the Tribunal Decision).
Secondly, the Tribunal had concerns that the first applicant, while claiming to have been a committed Local Church member, did not attend a Local Church in Australia until 2015 ([31] of the Tribunal Decision), which was 18 months after her arrival ([21] and [34] of the Tribunal Decision). When asked by the Tribunal why she had waited so long, she said that she could not locate a church until she met her husband who was a member. She said that they met in 2014 but he only took her in June 2015 because prior to that they ‘did not have an understanding of each other’ ([21-22] of the Tribunal Decision). The Tribunal expressed concern that her husband would not tell her about the Local Church until June 2015 well after their relationship began and she fell pregnant ([27] of the Tribunal Decision). The Tribunal recorded that when this was put to the first applicant, she said that in the beginning they did not live in the same room ([28] of the Tribunal Decision). The Tribunal did not accept that the subject of religion was not discussed with her husband at the time the relationship began or when she became pregnant ([33] of the Tribunal Decision).
The Tribunal found that difficulty locating the Local Church or not being able to do an online search was not a credible explanation for this delay given that the applicant had demonstrated that she was able to undertake study and locate her own accommodation in Australia ([31-32] of the Tribunal Decision).
Thirdly, the Tribunal expressed concern that the applicant took 18 months to apply for a protection visa in Australia, despite claiming to need protection on the basis of her religious beliefs at the time she left China in 2014 ([45] of the Tribunal Decision). The applicant told the Tribunal that she only found out about applying for protection when she met her husband and prior to that was just thinking of her study ([39 -40] of the Tribunal Decision). She said that her husband told her about protection visas after he told her about the Local Church ([42] of the Tribunal Decision).
The Tribunal did not accept that the applicant was not capable of making enquiries with the Department about seeking protection ([46] of the Tribunal Decision). The Tribunal also did not accept that the topic of protection visas would not have been discussed with her husband, until June 2015 when they met in February or March 2015, as he was from the same province in China, held the same fears of returning to China and was living in Australia temporarily ([43-44] of the Tribunal Decision). The applicant responded to the Tribunal that she was young at the time, hesitant about keeping the child and they respected each other’s privacy ([44-45] of the Tribunal Decision).
The Tribunal considered its concerns in relation to the applicant’s credibility cumulatively and concluded that she was not a witness of truth and the account of events on which her protection claims were based on were false ([47] of the Tribunal Decision). The Tribunal did not accept that the applicant and her parents were practicing Christians in China, that they attended church gatherings there or that her parents were arrested in 2015 while attending a church gathering ([47] of the Tribunal Decision). Further, the Tribunal did not accept that the applicant had since started practicing Christianity or was a committed follower of the Local Church ([47] of the Tribunal Decision).
The Tribunal accepted that the applicant had attended church gatherings in Australia since June 2015, however it did not accept that she was a committed Christian and member of the Local Church ([48-50] of the Tribunal Decision).
The Tribunal refrained from finding that the applicant’s attendance at church in Australia was for the sole purpose of strengthening her refugee claim, however it did find that there was no credible evidence before it about the first applicant’s church attendance including, why the first applicant was attending church, over what period her attendance took place and how often she had attended ([50] of the Tribunal Decision). The Tribunal also considered that the first applicant had only displayed rudimentary knowledge of Christianity and had provided no credible evidence which established an explanation for this ([51] of the Tribunal Decision).
The Tribunal noted that having found that the first applicant was not a witness of truth and that it did not believe her claims that she was a Christian and a committed follower of the Local Church, there was no credible evidence that the applicant would practice Christianity on return to China. The Tribunal also considered that there was no credible evidence that her family had suffered harm in China as it had not accepted her claims about the incident in early 2015. Accordingly, the Tribunal found no credible evidence explaining why the applicant left China and why she did not want to return to China ([52] of the Tribunal Decision).
The Tribunal referred to the report from the paediatrician, Dr Kwok, dated 14 May 2019. Dr Kwok diagnosed the second applicant with ‘global development delay and features of autism’ ([54] of the Tribunal Decision). The Tribunal recorded that the first applicant claimed that she feared that the second applicant would be harmed if they returned to China in that other children would think that she was ‘abnormal’ ([53] of the Tribunal Decision).
The Tribunal referred to the Department of Foreign Affairs and Trade Report for China for 2017 which reported on harm for various groups but not persons with disabilities ([54] of the Tribunal Decision).
The Tribunal accepted that the second applicant could be treated differently by others in China in view of her current development state, but stated that it would be speculative for it to find that this would amount to a real chance of serious harm ([53-54] of the Tribunal Decision), given she would return with her parents who would look after her. The Tribunal also found that there was no credible evidence before it that established that the child would be denied care in China on the basis of one of the refugee grounds ([55] of the Tribunal Decision).
The Tribunal found that the applicants did not satisfy the criterion to be eligible for a protection visa as set out in s 36(2)(a) and (aa) of the Act. The Tribunal affirmed the decision of the Department not to grant the applicants protection visas ([56-57] of the Tribunal Decision).
APPLICATION AND HEARING BEFORE THIS COURT
The applicant applied to this Court for judicial review pursuant to s 476 of the Act on 23 August 2019. She stated that the grounds for her application were (reproduced without alteration):
•I don't think that Tribunal has made a thorough finding in all my evidences provided especially the statement I have given in the hearing. Tribunal's assessment and conclusion in term of my credibility is groundless and hypocritical.
•Tribunal has no substantial evidence to deny my religious commitment with Local Church however my actual practice and engagement with Local Church before and after arriving Australia are authentic and appropriately evidenced.
•Tribunal made careless or biased assumption in my church practice especially my motivation in church attendance at early stage after my arrival in Australia (paragraphs 19-34). Tribunal's assessment is neither unpersuasive nor unconsidered.
•Tribunal lack of good consideration in my limited education and ability to achieve accuracy in written statement and oral expression. I don't think it is related to the critical issue of my credibility and if so, it must be an oversight or a failure in making a logical or reasonable assumption in a sense.
•Tribunal failed to make a fair conclusion in my statement and evidence in terms of my entire family's religion and its risk if we were forced to remove to our origin in China as the religious situation there has never improved but declined according to the current harsh religious rule and restriction on family church practice in particular targeting on local Church that being ill treated as cult by government authority since early 80's.
•Tribunal shorts of good evidence in finding a current fact or live examples in my origin to against religious persecution by law under the Communist Regime.
•Tribunal failed to give a good consideration on my child as member of a Local Church family, especially the adverse or political impact or vulnerability imposed by the government in case we as parents fall into a trap or danger due to our religion in China.
My brief statement for protection:
•I am an overseas student and I came to study in Australia in 2014. My family members are Christians and they all attend the house churches. My parents are baptized Christians. When I was young, I often listened to the bible stories being told in the house church, but when I was old enough to go to middle school, my family members did not allow me to attend any church, lest something bad happened to me and my study was affected. Because the local government had put the house churches under a strictest supervision, I was kept away from the adults' religious gatherings.
•In January of 2014, I came to study in Australia, I have completed the high school courses and I'm now still at school. In Australia, I met my present husband Kecal SUN and we got married in Australia on July 19th, 2015. My husband was my countryman and also a disciple of the Local Church. Influenced by him, I began to attend the local Church in Australia.
•I refuse to take part in the Patriotic Church in China, because our church has a different faith from theirs. I will never accept a church that has no freedom of speech or obligation to preach the gospel.
•The harsh reality has given me a lesson. Now in my hometown, the Local Church is still outlawed. My family members are still deprived of the right to hold a gathering freely. My parents' church is still under the constant repression and supervision by the local government. Some house churches have been demolished. Especially, since 2014 our local government has tightened the policy against underground churches by imposing more stiff penalty and pressure. On the Easter Day of 2015, my parents' church was assaulted by the government and my parents were summoned for enquiries and penalized for holding illegal gatherings. This was not an isolated incident that happened for the first time, and it brought home to me that the religious situation in China had not improved significantly and that we would have no freedom of faith or hope if we chose to go back to China. So, I am filing this application for protection by the Australian Government, for my children's future as well as for my own faith.
On 19 September 2019, Registrar Cridland of this Court made orders by consent that the applicants file and serve any amended application, including full particulars of the grounds and any evidence, including any transcript of a Tribunal hearing, by 28 November 2019.
On 17 February 2025, Registrar Lindsay of this Court made further orders that the applicant file and serve any amended application, written submissions and further evidence at least 28 days before the hearing. The Court also ordered that pursuant to r 11.10(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the first applicant was appointed as a litigation guardian for the second applicant.
On 27 May 2025, the Court made orders that the applicant file and serve any amended application, affidavit evidence and a written outline of submissions by 11 July 2025.
The first applicant did not avail herself of these opportunities and did not file any further documents.
On 7 August 2025, the applicants appeared before this Court as litigants in person. A Mandarin interpreter assisted the court. The first applicant confirmed that she could understand the interpreter.
The affidavit of the first applicant deposed on 22 August 2019 contained the statement, ‘I am unable to accept Department of Home Affairs and AAT’s decision as it is unfair and inconsiderable to be accepted’. At the hearing, before me the Minister consented to this statement being treated as a submission and the affidavit was read into evidence.
The following documents were before the Court – the application for judicial review and the supporting affidavit of the applicant filed 23 August 2019, the Court Book (numbering 217 pages and marked as Exhibit 1R) filed 17 October 2019 and written submissions of the Minister filed on 24 July 2025.
A court has a duty to assist unrepresented litigants: Hamod v New South Wales [2011] NSWCA 375 (Hamod) per Beazley JA, Giles JA and Whealy JA. The touchstone remains that of fairness and a trial judge should take steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the court to ensure a fair trial (Hamod per Whealy JA at [311] – [313]).
I confirmed that the applicants had received copies of the Court Book and the Minister’s written submissions. I outlined the processes of the Court and the role of the Court in judicial review. I explained that jurisdictional error must be demonstrated if the applicants were to succeed in their application, and that jurisdictional error is a kind of serious legal error. I referred the first applicant to some common categories of jurisdictional error, noting that these categories were not exhaustive. I also explained to the first applicant the well-established principle outlined by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272 – that a court cannot engage in reviewing the merits of the decision. The first applicant confirmed that she understood the principles which had been relayed to her.
CONSIDERATION – WAS THERE JURSDICTIONAL ERROR IN THE TRIBUNAL DECISION?
Role of this Court
The applicants have claimed that the Tribunal Decision fell into jurisdictional error. The function of this Court is to review the Tribunal Decision and determine whether the Tribunal has fallen into error.
Section 476 of the Act provides that this Court has the same original jurisdiction as the High Court. The High Court, under s 75(v) of the Constitution, has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
A privative clause as defined at s474 of the Act is final and not amenable to judicial review. The Court can grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
Judicial review was explained in Djokovic v Minister for Immigration, Citizenship, Migrant Services and MulticulturalAffairs (2022) 289 FCR 21 (Djokovic) per Allsop J, Besanko and O’Callaghan JJ at [17] as follows:
…an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom of the decision, nor does it remake the decision.
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 (LPDT), the plurality of the High Court commented on some of the forms of jurisdictional error. The Court stated that jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of authority [2-3] (footnotes omitted):
Because an express or implied condition of a statutory conferral of decision-making can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed.. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
The Court must review the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about the decision: Djokovic at [17]. In cases such as this however, where the applicant is unrepresented, the Court should consider the applicant’s complaints and be astute and alert to legal error: MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 (MZAIB) per Mortimer J at [100].
Legal principles for the Tribunal
The Tribunal was required to consider whether the applicant met the legislative criteria for a protection visa.
Section 29(1) of the Act gives the Minister or its delegate power to grant a non-citizen a visa to travel to and enter or remain in Australia. The Regulations prescribe the criteria for classes of visas: s 31(1) and (3) of the Act. A non-citizen must apply for a visa of a particular class: s 45 of the Act.
The Minister considers whether an application is valid and then grants a visa if satisfied that criteria identified in s 65 (1) (a)of the Act are met. This includes criteria prescribed by the Act or Regulations: s 65(1)(a) (ii) of the Act.
The criteria for a protection visa are set out in subsections 36(2)(a) and 36(2)(aa) of the Act. These provisions provide the criteria for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
Section 5H (1)(a) of the Act provides that a person is a refugee if they are unable or unwilling to avail themselves of the protection of a country owing to a well-founded fear of persecution. Section 5J sets out what it means to have a well-founded fear of persecution.
Consideration of the grounds of jurisdictional error alleged by the applicant
The first applicant specified seven grounds of jurisdictional error in the application to this Court.
Ground 1
The first ground advanced in the application was:
I don't think that Tribunal has made a thorough finding in all my evidences provided especially the statement I have given in the hearing. Tribunal's assessment and conclusion in term of my credibility is groundless and hypocritical.
At the hearing before me, the first applicant was asked if she wished to particularise this ground or make any submissions. She said that she did not wish to say anything further (Tp 6.2-4). I asked if she wished to explain how the findings were groundless and hypocritical. The first applicant said that she did not have anything to submit (Tp 6.6-9). She did however make a general submission at the hearing that she did not feel the way she was treated by the Tribunal was fair (Tp 9.13-14). She said that she provided ‘a lot of explanations to the tribunal member’s questions and doubts. No matter how much I explained, the tribunal member just wouldn’t accept them’ (Tp 9.19-21).
The first applicant may be claiming that her evidence, especially that adduced at hearing, was not properly considered. She may also be claiming that the credibility findings were unreasonable.
To the extent that the first applicant is claiming that evidence was not considered, this ground is liable for failure for want of particularisation: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]:
Due to the vagueness of the application for review and the applicant’s failure to file submissions, the Court is unable to ascertain what error was alleged to have been made by the AAT. The applicant was unable to articulate this ground any further during the course of the hearing. The failure to particularise a ground of review is itself a sufficient basis to dismiss it: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35]; SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 [21].
As the applicants are litigants in person, I have nonetheless considered if the first applicant’s evidence was considered by the Tribunal including her oral evidence at the Tribunal hearing (which she refers to as a statement). I am satisfied that the Tribunal both considered and engaged with her evidence, as follows
·At [8] of the Tribunal Decision, the Tribunal notes that it has considered the application forms to the Department, the applicant’s written statement accompanying her application and her evidence to the Department and Tribunal at interview;
·The Tribunal extracted paragraphs from the first applicant’s statement to the Department ([15] of the Tribunal Decision);
·The Tribunal referenced the first applicant’s interview with the delegate of the Department about events in China ([16] of the Tribunal Decision);
·The Tribunal recorded the first applicant’s evidence to the Tribunal that her parents were members of the Local Church in China ([9] of the Tribunal Decision);
·The Tribunal summarised the first applicant’s evidence to the Tribunal about her attendance at the Local Church in China (at [9] of the Tribunal Decision);
·The Tribunal recorded evidence to the Tribunal that the first applicant said that her parents attended house churches in different locations in her village ([9] of the Tribunal Decision);
·The Tribunal recorded the first applicant’s evidence to the Tribunal that she attended the Local Church until she began junior school at the age of 12, when her parents feared that something would happen to her which would affect her study, because at the time the government was ‘strict’ on the Local Church ([9] of the Tribunal Decision);
·The Tribunal recorded the first applicant’s evidence to the Tribunal that her younger brother also stopped attending the Local Church ([9] of the Tribunal Decision);
·The Tribunal recorded the first applicant’s evidence to the Tribunal that she said that her parents continued to attend the church ([10] of the Tribunal Decision);
·The Tribunal recorded the first applicant’s evidence that after she was told to stop attending church, she read the Bible at home every morning, the family prayed together and read Scripture ([10] of the Tribunal Decision);
·The Tribunal recorded that the first applicant said that she and her parents had no problems with the Chinese authorities while she was in China ([10] and [11] of the Tribunal Decision);
·The Tribunal recorded that the first applicant said that her parents arranged for her to travel to Australia for her safety and study. The applicant said that they feared she would follow them to gatherings and she would be arrested ([11] of the Tribunal Decision);
·The Tribunal recorded that the first applicant told the Tribunal that after she turned 12 years old she followed her parents to gatherings but not as frequently as when she was younger. She said that she went every fortnight to church until she left China, unless too busy with study ([12] of the Tribunal Decision);
·The Tribunal noted that the first applicant said that her parents had no difficulties with the Chinese authorities until Easter 2015, when they were arrested. She claimed that she temporarily lost contact with them but then learnt that they had been detained for a week, investigated and fined ([37] of the Tribunal Decision);
·The Tribunal recorded that the first applicant said that since the arrest in Easter 2015, her parents had continued to attend church gatherings and had no further difficulties with the authorities ([37] of the Tribunal Decision);
·The Tribunal recorded that the first applicant said that her husband came from the same city in Fujian province in which her village was located. She said that he left China for fear of harm as he was a member of the Local Church. She said that he unsuccessfully applied for protection in Australia ([38] of the Tribunal Decision);
·The Tribunal recorded the first applicant’s evidence to the Tribunal about her practice of Christianity in Australia ([19-32] of the Tribunal Decision);
·The Tribunal noted documentary evidence including photographs of church gatherings and a letter from the Local Church ([48] of the Tribunal Decision);
·The Tribunal referred to the first applicant’s evidence to the Tribunal about her child ([53-54] of the Tribunal Decision);
·The Tribunal made findings on the evidence ([8-50] of the Tribunal Decision).
I note that the first applicant’s oral evidence at the Tribunal hearing is referred to throughout the Tribunal Decision and was clearly considered by the Tribunal. There is nothing to indicate that the evidence of the applicant was not considered.
In Ground 1, the applicant has also suggested that the credibility findings were ‘groundless and hypocritical’ and ‘not thorough’. To the extent that she is claiming that the credibility findings were unreasonable, I am not satisfied that this is the case, for the reasons set out below.
The characterisation of a decision as legally unreasonable is not easily made out: Djokovic at [33] citing Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11], [52], and [135] and other related decisions. In the past, a finding of credibility was often said to be a matter for a primary decision-maker par excellence. However, development of principles of legal unreasonableness since Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (SZMDS) and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (Li) has led to increased judicial scrutiny of a Tribunal’s credibility findings: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (CQG15) per McKerracher, Griffiths and Rangiah JJ at [36]-[44].
The Minister has submitted that the credibility findings were open and available on the evidence (Tp 11.32-34). The Minister submitted that the Tribunal provided extensive detailed and cogent reason for rejecting the applicant’s claims (Tp 11.40-43).
In DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 (DAO16), the Full Court of the Federal Court of Australia (Kenny, Kerr and Perry JJ) summarised the principles of legal unreasonableness in relation to credibility findings:
[30] The relevant principles can be summarised as follows.
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
... A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant's evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), "[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54]." Equally jurisdictional error may be established by "a process of reasoning which damns a man's credibility by reference, materially, to a false factual premise concerning a critical document": SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 [60]) that:
An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal's decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal's decision-making processes from scrutiny...
(citations omitted)
(5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality must be demonstrated "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions" (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, "[e]ven emphatic disagreement with the Tribunal's reasoning would not be sufficient to make out illogicality": CQG15 at [61].
It is difficult to know what type of legal unreasonableness is contended by the applicant who did not wish to make oral submissions. I have considered whether the findings had a logical, rational or probative basis in that only one conclusion is open on the evidence, and the Tribunal did not come to that conclusion, or if the decision to which the Tribunal came was simply not open on the evidence, or if there is no logical connection between the evidence and the inferences or conclusions drawn (see Dao at [30.2] and cases cited therein).
Considerations of unreasonableness are entirely case-specific and there are no formulaic tests: BQQ15 v Minister for Home Affairs [2019] FCAFC 218 (BQQ15) per Yates, Wheelahan and O'Bryan JJ at [50]. There is nothing in this Tribunal decision which indicates that the credibility findings were based on illogical or irrational findings or inferences of fact, such that only one conclusion could be open on the evidence. The Tribunal identified a number of credibility concerns ([15] – [46] of the Tribunal Decision). These included the following:
·that the first applicant failed to mention in her application or in her interview with the Department that she had continued attending church after she turned 12 years old ([14] – [17] of the Tribunal Decision), but said at the Tribunal hearing that she had continued attending church;
·that the first applicant, while claiming to be a committed Local Church member, did not attend a Local Church in Australia until 2015 ([31] of the Tribunal Decision), which was 18 months after her arrival ([21], [34] of the Tribunal Decision);
·that her husband would not tell her about the Local Church until June 2015 well after their relationship began and she fell pregnant ([27] of the Tribunal Decision);
·that the first applicant had difficulty locating the Local Church or was unable to do an online search in Australia, although she was able to undertake study and locate her own accommodation in Australia ([31-32] of the Tribunal Decision);
·that the first applicant took 18 months to apply for a protection visa in Australia, despite claiming to need protection on the basis of her religious beliefs at the time she left her home country in 2014 ([45] of the Tribunal Decision);
·that the first applicant was not capable of making enquiries with the Department about seeking protection ([46] of the Tribunal Decision);
·that the topic of protection visas would not have been discussed with her husband, until June 2015 (although they met in February or March 2015), as he was from the same province in China, held the same fears of returning to China and was living in Australia temporarily ([43-44] of the Tribunal Decision);
·that that there was no credible evidence before the Tribunal about the first applicant’s church attendance including why the first applicant was attending church, over what period her attendance took place and how often she had attended ([50] of the Tribunal Decision); and
·that the first applicant had only displayed rudimentary knowledge of Christianity and had provided no credible evidence which established an explanation for this ([51] of the Tribunal Decision).
The Tribunal considered its concerns in relation to the first applicant’s credibility cumulatively and concluded that she was not a witness of truth and the account of events on which her protection claims was based on were false ([47] of the Tribunal Decision). The Tribunal did not accept that the first applicant and her parents were practicing Christians in China, that they attended church gatherings or that her parents were arrested in 2015 while attending a church gathering. Further, the Tribunal did not accept that the first applicant had since started practicing Christianity or was a committed follower of the Local Church. The Tribunal accepted that the applicant had attended church gatherings in Australia since June 2015, however it did not accept that she was a committed Christian and member of the Local Church ([48-50] of the Tribunal Decision).
It is clear from the manner in which the Tribunal set out the credibility concerns and then made findings, that the Tribunal gave clear reasons for its credibility findings: Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]. I accept therefore the submissions of the Minister that the Tribunal’s reasons disclosed ‘substantial and cogent reasons’ for rejecting the first applicant’s claims (Tp 11.40-43), ‘such reasoning disclosing a proper and unbiased evaluation of the material before it’ ([17] of the Minister’s Written Submissions). I agree that there was nothing in the Tribunal's reasoning with respect to the applicant's credibility that revealed any error in its approach. The Tribunal set out the applicant’s evidence and clearly outlined each of the credibility concerns it had. The decision is not illogical or irrational as there was not only one conclusion open on the evidence, and there was a logical connection between the evidence and conclusions drawn: SZMDS per Crennan and Bell JJ at [51].
In AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83 at [28] per Kenny, Griffiths and Mortimer JJ, the Full Court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful. In this case the Tribunal assessed a range of inconsistencies and defects in the evidence cumulatively before reaching the findings. This is not the kind of case where the Tribunal has ‘picked the decision to pieces to uncover little discrepancies’ (Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 per Burchett J at [5]) or where the Tribunal has simply labelled the evidence as inconsistent and moved on to adverse findings of credibility. I am also satisfied that this is not the kind of case where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant's evidence and claims, or where there are unwarranted assumptions (DAO16, at [30 (3)]).
In short, there was nothing in the Tribunal's credibility findings that could be said to be illogical, irrational or unreasonable: SZMDS per Crennan and Bell JJ at [135].
To the extent that the first applicant is claiming in this ground that the decision was wrong, a Court cannot review the merits of a Tribunal decision, or reconsider the weight given by the Tribunal to the evidence produced by the applicant before and at the Tribunal hearings: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J. In Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060 (Ludgero), Judge Lucev stated at [23] and [24]:
[23] The Court has no jurisdiction to engage in merits review, and the Tribunal's fact-finding is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 (NADR) at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (Wu Shan Liang), CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. The weight to be given to an applicant's claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[24] … Mere assertion of jurisdictional error as a cloak for mere disagreement with the Tribunal Decision cannot succeed, because mere disagreement with the Tribunal Decision does not amount to jurisdictional error: Re Minister for Immigration & Multicultural Affairs; ex parte s20/2002 [2003] HCA 30 … [and] are no more than a request for impermissible merits review.
No jurisdictional error is disclosed in Ground 1.
Ground 2
The second ground of review advanced in the application was:
Tribunal has no substantial evidence to deny my religious commitment with Local Church however my actual practice and engagement with Local Church before and after arriving Australia are authentic and appropriately evidenced.
At the hearing before me, I asked the first applicant if she wished to particularise this ground or make any submissions. She said that she would not like to do this (Tp 6.10-20). I asked if she would like to elaborate on how the Tribunal erred in making findings on her practice and engagement in Christianity in China and Australia, she said that she would not (Tp 6.28-35).
As no submissions were made or further particulars provided, I can only surmise that in this ground, the first applicant is claiming that the Tribunal made findings on her lack of religious commitment without evidence and that its findings on her religious commitment were wrong as she had provided genuine evidence.
The Minister claimed that the credibility findings were findings of fact for the Tribunal to determine. The Minister submitted that a tribunal of fact may treat what is proffered as corroborative evidence as bearing no weight where a party's credibility has been so weakened 'the well has been poisoned beyond redemption': SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 per Finkelstein J at [23]–[24] and [27] (SZDGC); Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50 per North and Lander JJ at [36]–[38] and per Katzmann J at [50] ([21] of the Minister’s Written Submissions). The Minister submitted that the Tribunal's adverse credibility findings were open to it, and accordingly, there was nothing untoward in the Tribunal rejecting the applicant's corroborative evidence.
In respect of the first aspect of the ground advanced, that the Tribunal made credibility findings about her religious commitment without evidence, I have in relation to Ground One found that the credibility findings were based on evidence, were findings for the Tribunal and were not unreasonable.
In respect of the second aspect of the ground advanced, that the Tribunal did not consider the evidence, including the corroborative evidence provided, I have in relation to Ground One found that the evidence of the applicant was considered. It was open to the Tribunal to reject corroborative evidence where credibility has been weakened: SZDGC per Finkelstein J at [23]–[24] and [27]. The Tribunal accepted that the first applicant attended church gatherings in Australia (and referred to photographs and a letter from the Local Church provided by the applicant). It did not accept that she was a committed follower of the Local Church. It was open to make these credibility findings, as found earlier in this judgment.
There is no jurisdictional error disclosed in Ground 2.
Ground 3
The third ground advanced in the application was:
Tribunal made careless or biased assumption in my church practice especially my motivation in church attendance at early stage after my arrival in Australia (paragraphs 19-34). Tribunal's assessment is neither unpersuasive nor unconsidered.
At the hearing before me, the first applicant was asked if she wished to particularise this ground or make any submissions. She did not wish to make submissions.
It was explained to the first applicant that bias would need to be substantiated with evidence. She was asked if she could direct the Court to evidence of bias in the Court Book or Tribunal Decision (Tp 6.37-47). She said that ‘it has been a very long time’ and she does not know what she could point to. She said that ‘from memory I provided a lot of explanations to the Tribunal Member back then but the Tribunal Member doubted why I went to a church so late. I provided a lot of explanation but the Tribunal Member just didn’t believe me.’ (Tp 7.1-6)
It was not clear from the application to this Court or submissions at the hearing that the first applicant was alleging that the Tribunal Member was biased. I outlined for her generally what it means to be biased at law and explained to her that if bias was being alleged, she would need to demonstrate it by providing evidence such as the transcript of the Tribunal hearing. I explained that costs may be incurred by having to adjourn in order to obtain the transcript (Tp 7.8-15 and Tp 7.19-38). She said that she did not want to adjourn, and that she was claiming that the Tribunal should have made a different decision, rather than claiming that the Tribunal Member was biased (Tp 7.40 and Tp 7.17).
Notwithstanding that the applicant said at the hearing before me, that she was not alleging bias, she later said that she felt that the Tribunal hearing was not fair in that no matter how many explanations she gave, the Tribunal Member had doubts (Tp 9.19-21). I accept that a litigant in person may not fully understand the concept of bias so I have considered whether there is bias demonstrated through a reading of the Court Book and Tribunal Decision.
The courts have observed that it would be a rare case in which apprehended bias could be made out on the basis of the Tribunal's reasons alone: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 per North and Lander JJ at [18]. That is the situation in this case. Earlier in this judgment, I have summarised the Tribunal Decision. The Tribunal referred to the relevant legislative provisions, the evidence of the applicant and made findings of fact based on the evidence. There is nothing before the Court which demonstrates that a fair-minded lay person might think that the Tribunal did not bring a fair and impartial mind to the making of its decision: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 per Rares and Jagot JJ at [37]. No inference of bias or prejudgment should be drawn from the mere fact of adverse findings: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 (SCAA) per Von Doussa J at [38].
No evidence of bias has been provided by the applicant. The allegations of bias have not been distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 per Gleeson CJ and Gummow JJ at [69]. I am not satisfied that any bias is proved in this matter.
The first applicant also claimed that the Tribunal was ‘careless’ in making assumptions about her practise of Christianity in Australia. To the extent that this is a claim that the Tribunal did not base its findings on evidence, I do not accept this claim. The Tribunal referred to the evidence of the first applicant and to concerns the Tribunal had with the evidence. For example, the Tribunal had concerns that the first applicant, while claiming to have been a committed Local Church member, did not attend a Local Church in Australia until 2015 ([31] of the Tribunal Decision), which was 18 months after her arrival ([21] and [34] of the Tribunal Decision). The Tribunal also had concerns, that when asked by the Tribunal why the first applicant had waited so long, the first applicant said that she could not locate a church until she met her husband who was a member. She said that they met in 2014, but he only took her in June 2015 because prior to that they ‘did not have an understanding of each other’ (21] – [22] of the Tribunal Decision). The Tribunal had concerns that the first applicant’s husband would not tell her about the Local Church until June 2015 well after their relationship began and she fell pregnant ([27] of the Tribunal Decision). The Tribunal did not accept that the subject of religion was not discussed with her husband at the time the relationship began or when she became pregnant ([33] of the Tribunal Decision).
The Tribunal also found based on the first applicant’s evidence, that it was not credible that the first applicant could not find a Local Church, given she had demonstrated that she was able to undertake study and locate her own accommodation in Australia ([31-32] of the Tribunal Decision). The Tribunal also had other concerns about the first applicant’s evidence, which are referred to earlier in this judgment. Overall, the Tribunal accepted that the first applicant had attended church gatherings in Australia since June 2015, however it did not accept that she was a committed Christian and member of the Local Church ([48-50] of the Tribunal Decision). These findings of fact were open to the Tribunal and were based on evidence before it. I have found earlier that the credibility findings of the Tribunal were not legally unreasonable.
The first applicant stated at the hearing of this Court that she disputed the findings reached by the Tribunal. To the extent that the first applicant is claiming that the Tribunal should have reached different conclusions based on the evidence of her practice in Australia, this appears to invite the Court to engage in impermissible merits review. As referred to earlier, it is settled law that the Court cannot review the merits of the Tribunal decision. In Wu Shan Liang the High Court said at 272:
When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (22). In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker (23). The Court continued (24): "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error".
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (25). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court.
For example, it was said by Brennan J in Attorney General (NSW) v Quinn (26):
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
No jurisdictional error is disclosed in Ground 3.
Ground 4
The fourth ground advanced in the application was:
Tribunal lack of good consideration in my limited education and ability to achieve accuracy in written statement and oral expression. I don't think it is related to the critical issue of my credibility and if so, it must be an oversight or a failure in making a logical or reasonable assumption in a sense.
At the hearing before me, the first applicant was invited to particularise this ground or make any submissions, but she refrained from doing so (Tp 8.4-13). Without additional particulars, it is difficult to ascertain what is meant by this ground.
The Minister submitted that the first applicant did not raise any claims about having limited education and an inability to write and express herself, and therefore the Tribunal could not have erred in failing to consider these issues (Tp 12.5-8). The evidence of the first applicant as reported in the Tribunal Decision did not include submissions from her as to having limited education. In her educational history set out in her application to the Department she said that she attended primary and high school in China, then Beverly Hills High School and Warwick Institute in Australia (CB 28). In the first applicant’s statement accompanying her application she did not submit that she had limited education (CB 36 - 37). The Tribunal was not therefore required to consider how her limited education may have impacted on her ability to give evidence, as she had not made this claim to the Department or Tribunal.
I have found earlier that the credibility findings were not unreasonable.
There is no jurisdictional error disclosed in Ground 4.
Ground 5
The fifth ground in the application was:
Tribunal failed to make a fair conclusion in my statement and evidence in terms of my entire family's religion and its risk if we were forced to remove to our origin in China as the religious situation then! has never improved but declined according to the current harsh religious rule and restriction on family church practice in particular targeting on local Church that being ill treated as cult by government authority since early 80's.
At the hearing before me, the first applicant was asked if she wished to particularise this ground or make any submissions. She said she had nothing further to submit (Tp 8.15-23).
The Minister contended in written submissions that this Ground (and Ground Six) allege that the Tribunal did not have evidence before it to support its findings in the context of a decline of the religious situation, and ‘current harsh religious rules and restriction on family church practice’ ([25] of the Minister’s Written Submissions). At the hearing before me, the Minister corrected the submissions, noting that the first applicant had provided some evidence of church demolition, the first applicant’s parents being summoned for inquiries and penalised for holding gatherings and the first applicant noting that the religious situation had not improved (CB 37) (Tp 12.18-30).
The Minister submitted that the Tribunal had not accepted that the first applicant and her family were practising Christians or that her parents were arrested and therefore the Tribunal was not required to accept whether the first applicant would suffer harm on this basis (Tp 12.32-38).
In the statement provided with her application to the Department, the first applicant submitted that ‘now in my hometown the Local Church is still outlawed’ (CB 37). She also said that ‘some house churches have been demolished. Especially, since 2014 our local government has tightened the policy against underground churches by imposing more stiff penalty and pressure’. Referring to her parents’ arrest, the first applicant said that ‘this was not an isolated incident .. and it brought home to me that the religious situation in China has not improved significantly’ (CB 37).
The Tribunal found that the first applicant was not a witness of truth and disbelieved her claims that she was a Christian and a committed follower of the Local Church. Accordingly, the Tribunal found that there was no credible evidence that she would want to practice Christianity on return ([52] of the Tribunal Decision). I have found earlier that these credibility findings were open to the Tribunal and there was no legal unreasonableness. It was therefore also open to the Tribunal to find that there was no real chance of serious harm or real risk of significant harm, based on the fact that the Tribunal was not satisfied that the first applicant would practise in China. It was not necessary therefore for the Tribunal to engage further with her claims about how Local Church followers would be persecuted, given that the Tribunal had found that she would not practise Christianity in China.
No jurisdictional error arises in Ground 5.
Ground 6
The sixth ground in the application was:
Tribunal shorts of good evidence in finding a current fact or live examples in my origin to against religious persecution by law under the Communist Regime.
At the hearing before me, the first applicant was asked if she wished to particularise this ground or make any submissions. She again said she had nothing further to add (Tp 8.27-34).
The Minister submitted that insofar as Ground 6 is to be interpreted as a claim that the Tribunal did not have evidence before it, it was for the first applicant to adduce evidence and the Tribunal does not have a general duty to make inquiries: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at [43] ([28] of the Minister’s Written Submissions).
Further, the Minister submitted that the Tribunal does not have to accept, uncritically, any and all claims made by the applicant and nor does it have to possess rebutting evidence before holding that a particular assertion is not established: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 per Perry J at [24] ([28] of the Minister’s Written Submissions).
As outlined in relation to Ground 5, the Tribunal found that the applicant was not a committed Local Church follower. The Tribunal was not satisfied that the applicant would practice in China ([52] of the Tribunal Decision). I have accepted earlier that these credibility findings were open to the Tribunal as they were based on cogent and detailed reasons.
As the Tribunal found that the applicant was not a dedicated Local Church follower and would not practice in China, there was no need for the Tribunal to consider further whether she would be harmed in China as a Local Church adherent based on country sources. In any event, it was not the role of the Tribunal to make further enquiries, as it was for the applicant to make her case including providing relevant independent information: Abebe v Commonwealth (1999) 197 CLR 510 (Abebe) at 576; Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 (SZIAI) at [25].
Jurisdictional error is not disclosed in Ground 6.
Ground 7
The seventh ground in the application was:
Tribunal failed to give a good consideration on my child as member of a Local Church family, especially the adverse or political impact or vulnerability imposed by the government in case we as parents fall into a trap or danger due to our religion in China.
At the hearing before me, the first applicant was asked if she wished to particularise this ground or make any submissions. She said that she did not (Tp 8.36-43).
The Minister submitted that the Tribunal did consider that the first applicant would raise her child as a Christian. It was submitted that as the Tribunal rejected the claims in entirety the Tribunal did not need to consider whether the second applicant would suffer harm as a Christian ([29] of the Minister’s Written Submissions).
I accept the submissions of the Minister that a finding of a particular matter is unnecessary if it is subsumed in findings of greater generality or if a factual premise upon which a contention rests has been rejected: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Hely JJ at [47]. As the Tribunal found at [52] of its decision, that the first applicant would not practise in China including by attending the Local Church, there is no reason that the first applicant’s child would be harmed by reason of the first applicant’s practise or attendance.
Clearly, the second applicant’s situation was considered by the Tribunal. The Tribunal found that there was not a real chance that the first applicant and her child would suffer serious harm on return to China (emphasis added) ([55] of the Tribunal Decision). The findings were made concerning both applicants.
Jurisdictional error is not disclosed in Ground 7.
Ground raised at hearing: consideration of the second applicant’s autism
At the hearing before me, the first applicant mentioned that she had hoped that the Tribunal would have given more consideration to the second applicant’s autism, although she did not believe that the Tribunal was unfair. She said that it would not be very beneficial for her daughter’s development to live in China. She said that she felt that the Tribunal Member did not care at all about her daughter. She said that Australia is more accommodating than China in terms of the care her daughter would receive (Tp 9.25-34).
The Minister submitted that at [53] of the Tribunal Decision, the Tribunal noted the first applicant’s request for consideration that her daughter was experiencing delay in language development and may be treated differently from other children. It was submitted that at [54] the Tribunal noted that it had considered the report submitted on the day of hearing and was willing to accept the second applicant could be treated differently, although considered it speculative for it to find that she would suffer harm given that she would return with her parents who would support her ([5] of the Minister’s Further Written Submissions).
As the first applicant was a litigant in person, I raised with the Minister whether the Tribunal’s findings at [54] and [55] were open to it considering that the conclusions reached were based on a lack of information in the DFAT Report, rather than positive information (Tp 13.27-46 and Tp 14.1-31). In written submissions provided after the hearing, the Minister submitted that the Tribunal's findings were reasonably open to it and that there was an evident and intelligible justification for its conclusion: Li per Hayne, Kiefel and Bell JJ at [76] ([7] of the Minister’s Further Written Submissions). The Minister submitted that the Tribunal was correct in its assessment that the DFAT report does not provide any information regarding risks of harm for people with disabilities ([8] of the Minister’s Further Written Submissions).
The Minister submitted that the identification of relevant country information and the weight attributed to that information is a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (NAHI) per Gray, Tamberlin and Lander JJ at [13] ([9] of the Minister’s Further Written Submissions). Further, it was submitted that the Tribunal is not obliged to inquire into more recent country information than what was before it: VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 per Heerey, Finkelstein and Lander JJ at [41] ([10] of the Minister’s Further Written Submissions).
I note that the Tribunal referred to the claims about the daughter’s autism, in particular the claim that because of the second applicant’s delay in language she may be treated as ‘abnormal’ and her psychological wellbeing would be harmed because she would be different from other children ([53] of the Tribunal Decision).
The applicant provided to the Tribunal a report from a paediatrician dated 14 May 2019 (CB 196). The report from Dr Kwok confirmed that the second applicant had global development delay and features of autism (CB 196). The report also confirmed that the second applicant had made some progress, and it was recommended she continue with speech therapy and commence occupational therapy (CB 197).
The Tribunal referred to the DFAT Report 2017. The Tribunal noted that ([54] of the Tribunal Decision):
in its country assessment for China, DFAT discussed the risk of harm for certain ‘groups of interest’ but does not mention people with disabilities. The Tribunal is willing to accept that the applicant’s child could be treated differently by others in China in view of her current development state. However it would be far too speculative for the Tribunal to find that this equates with a real chance of suffering serious harm, given that the applicant’s child will return to China with her parents who will be able to support and look after her’ .
A copy of the DFAT Report was annexed to the affidavit of Tahlia Jade Jackson affirmed on 13 August 2025 which the Minister read. On page 23 of the DFAT Report was a heading ‘Groups of Interest’. There were a number of subparagraphs titled ‘human rights defenders, protesters/petitioners, civil society organisations, media, internet and the social credit system, women, sexual orientation and gender identity, people living with HIV/AIDs and people affected by family planning policies.’ The Tribunal has correctly stated that ‘persons living with disabilities’ is not a category identified by DFAT as a group of interest.
The Tribunal went on to find that the claims of harm due to disability were not claims for one of the five legislated reasons and that there was no credible evidence before the Tribunal that care would be intentionally denied to the second applicant ([55] of the Tribunal Decision).
While the Tribunal’s findings were based on skeletal country information material – the absence of information in the DFAT Report indicating risk of harm for people with disabilities in China – and more information would have been preferable, the findings were nonetheless open to the Tribunal. It is well-established that is for the applicant to make his or her case and the Tribunal is not required to investigate on behalf of the applicant: Abebe v Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at [187]. In this case, there was no evidence adduced to the Tribunal demonstrating that the second applicant would suffer harm in China due to her disability.
In VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459, Crennan J at [27] confirmed that it is for an applicant to make out his or her case before the Tribunal and that the Tribunal’s power to get information that it considers relevant is permissive and not mandatory. I accept that the choice of country information, even if very basic information as in this case, and the weight to be afforded to it, is exclusively a matter for the Tribunal: see NAHI per Gray, Tamberlin and Lander JJ at [11] to [13]. The court said (at [11]:
By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
I accept that this is not a case where the Tribunal failed to make an obvious enquiry about a critical fact, the existence of which is easily ascertained: SZIAI per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [25]. In SZIAI, the court noted at [18] that although the Tribunal is inquisitorial, it did not carry the full ordinary meaning of inquisitorial, as ‘one whose official duty it is to inquire or investigate’. Rather, as applied to the Tribunal, inquisitorial delimits the nature of its functions, which are found in the provisions of the Act, most relevantly to ‘review the decision’. The court found in SZIAI that in the circumstances of that case, as no further evidence was provided to contradict a statement that certificates were forgeries and as it would not have been easy for the tribunal itself to have found such evidence, it was not reasonably incumbent upon the tribunal to make further enquiries: per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [26]; per Heydon J at [36], [47], [48]. In the case before me, the first applicant did not provide evidence of the harm a mildly autistic child might suffer in China, and nor could it be said that the information could be easily ascertained.
There is no jurisdictional error disclosed in this ground.
CONCLUSION
There is no jurisdictional error disclosed in the Tribunal Decision.
The application filed on 23 August 2019 is dismissed.
I will hear the parties as to costs.
I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard. Associate:
Dated: 29 September 2025
- AGLC
- DFK19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1553
- Case
- [2025] FedCFamC2G 1553
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the AAT had committed a jurisdictional error in its decision, specifically by not considering relevant evidence, displaying bias, making legally unreasonable credibility findings, or improperly relying on minimal country information. The court was tasked with determining whether the AAT's decision was legally sound and whether it had engaged in any errors that would warrant the court's intervention.
In reviewing the AAT's decision, the court examined the nature and extent of the AAT's errors, if any. It noted the well-established principle that courts cannot engage in merits review, as outlined in Minister for Immigration and Ethnic Affairs v Wu Shan Liang. The court considered the various forms of jurisdictional error, including misunderstanding the applicable law, ignoring relevant material, and making legally unreasonable findings. The court found that the applicants had not demonstrated any jurisdictional error on the part of the AAT, as the AAT had properly considered the evidence, made reasonable findings, and adhered to the legal framework governing protection visa applications.
Ultimately, the court dismissed the applicants' application for judicial review, affirming the AAT's decision. The court found that the AAT had not erred in its decision-making process and that the applicants had not established any grounds for the court to intervene. The applicants' application for judicial review was therefore unsuccessful.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
I confirmed that the applicants had received copies of the Court Book and the Minister’s written submissions. I outlined the processes of the Court and the role of the Court in judicial review. I explained that jurisdictional error must be demonstrated if the applicants were to succeed in their application, and that jurisdictional error is a kind of serious legal error. I referred the first applicant to some common categories of jurisdictional error, noting that these categories were not exhaustive. I also explained to the first applicant the well-established principle outlined by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272 – that a court cannot engage in reviewing the merits of the decision. The first applicant confirmed that she understood the principles which had been relayed to her.CONSIDERATION – WAS THERE JURSDICTIONAL ERROR IN THE TRIBUNAL DECISION?Role of this Court The applicants have claimed that the Tribunal Decision fell into jurisdictional error. The function of this Court is to review the Tribunal Decision and determine whether the Tribunal has fallen into error. Section 476 of the Act provides that this Court has the same original jurisdiction as the High Court. The High Court, under s 75(v) of the Constitution, has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. A privative clause as defined at s474 of the Act is final and not amenable to judicial review. The Court can grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. Judicial review was explained in Djokovic v Minister for Immigration, Citizenship, Migrant Services and MulticulturalAffairs (2022) 289 FCR 21 (Djokovic) per Allsop J, Besanko and O’Callaghan JJ at [17] as follows: …an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom of the decision, nor does it remake the decision. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 (LPDT), the plurality of the High Court commented on some of the forms of jurisdictional error. The Court stated that jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of authority [2-3] (footnotes omitted):Because an express or implied condition of a statutory conferral of decision-making can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed.. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.