Doa18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 112

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DOA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 112  

File number(s):

SYG 1899 of 2018

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

14 February 2024

Catchwords:

 MIGRATION – Administrative Appeals Tribunal – Protection visa - Whether the AAT decision was legally unreasonable, illogical, or irrational – Whether there was procedural error – Whether an allegation of bias is made out – Application dismissed    

Legislation:

 Migration Act 1958 (Cth) ss 36(2)(aa) , 48A, 424A,

Cases cited:

AMA15 V Minister for Immigration and Border Protection [2015] FCA 1424

Charisteas v Charisteas [2021] HCA 29

NAHI v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCAFC 10

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

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

Minister for Immigration and Multicultural and Indigenous Affairs v NAWM (2004) 140 FCR 572

Minister for Immigration and Citizenship v SZIAI 259 ALR 429

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347

SZGIZ v MIAC (2013) 212 FCR 235

Division:

Division 2 General Federal Law

Date of last submission/s:

8 February 2024

Date of hearing:

8 February 2024

Place:

Parramatta

Solicitor for the Applicant:

Appearing in person

Solicitor for the Respondent:

Mr Kovacs

ORDERS

SYG 1899 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DOA18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MUTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	14 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the first respondent’s costs, fixed in the amount of $7328.00.

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 D HUMPHREYS

INTRODUCTION

1. The applicant is a citizen of the People’s Republic of China (China).

2. The applicant arrived in Australia on 14 February 2014 on a Visitor (subclass 676) visa, travelling on a fraudulent passport in another person’s name.

3. The applicant had previously lodged his first application for a protection visa (“visa”) on 17 May 2011. This application was refused by a delegate to the Minister for Home Affairs (“the delegate”) on 13 July 2011.

4. The applicant lodged a further application for a protection visa on 7 March 2014 claiming that he feared significant harm if he were to return to China because of his Christian faith.

5. A delegate of the Minister refused to grant a protection visa on 30 October 2015. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”).  In a decision dated 18 June 2018, the Tribunal affirmed the decision under review.

6. The applicant now seeks judicial review of the Tribunal’s decision.

7. For the reasons set out below, the application should be dismissed.

   THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION

8. At [11] to [23] of the Tribunal’s decision, the Tribunal deals with a preliminary issue which arose in the review, being whether a certificate purporting to restrict disclosure of some Departmental documents was valid.

9. At [23] to [30] the Tribunal considered the course it was required to take to deal with a further protection visa application made before 28 May 2014, given that, where a further protection application is made before that date, s 48A of the Migration Act 1958 (Cth) (“the Act”) applies as it was before the Migration Amendment Act 2014 (Cth). The Tribunal relied on SZGIZ v MIAC (2013) 212 FCR 235 at [38] and AMA15 V Minister for Immigration and Border Protection [2015] FCA 1424 at [48] to support its conclusion that it considered the application for review based on the refugee criterion set out in s 36(2)(aa) of the Act, being the complimentary protection provisions.

10. At [31] the Tribunal was satisfied that the applicant was a citizen of China and that China was a receiving country for the purposes of s 36(2)(aa) of the Act.

11. At [34] to [38] the Tribunal summarises the applicant’s claims for protection and noted that these claims were repeated and expanded upon over time as the applicant’s case has been heard. The claims, as summarised by the Tribunal are reproduced below:

    [36] Essentially the applicant claims that he fears significant harm if he returns to China because he became a devout Christian in China in 2005 and developed and organised a secret underground church organisation in Jiangxi Province from 2007 to 2010. In December 2010 he claims two members of the church group were arrested and as a consequence the applicant went into hiding for about 2 months as he claimed he was regarded as the leader and organiser of the underground church. He claimed several members of his organisation including his wife and father were arrested and some members were sentenced to various terms of imprisonment. His wife and father were released but continued to be harassed by state authorities.

    [37] The applicant arranged to leave China using a false passport in February 2011. Since he arrived in Australia he has been attending the Padstow Congregational Church in Sydney.

    [38] The applicant also initially claimed that his wife has lost her land in China in her village as a result of corrupt activities by local officials. He claimed that the livelihood of the family in China has been threatened and they have been unfairly deprived of their rights. If he returns to China he will demand the return of the land and, with his religious background, powerful local officials will prevent the applicant from regaining his land or obtaining compensation. At the hearing he referred to the unfair transfer of the land to a neighbour but did not claim he would demand the return of the land.

12. At [39] to [49] the Tribunal relevantly sets out a background. The Tribunal noted it accepted a number of claims regarding the applicant’s background as follows:

    [47] The Tribunal accepts the applicant's evidence that he was born in Guixi City district, Jiangxi Province and that he attended school in that province. It also accepts his evidence that he trained as a baker in Guixi. It finds that the applicant moved to work in Fujian Province in 1995 after the bakery in which he worked closed. It accepts that his mother died in 1997 and this had a profound effect on the applicant and his father. He returned to his hometown and he and his father tried for many years to obtain compensation for their claims of medical negligence but were ultimately unsuccessful. This has left the applicant with a strong sense of grievance which continues to date.

    [48] The applicant met his wife when he worked in Fujian Province and they married in 1999. The Tribunal accepts that the applicant's wife went to some effort and expense to have the applicant's household registration transferred to Fujian in 2004. The Tribunal accepts that the applicant found work in a bakery in Fuqing City District and that he worked as a baker in that bakery for many years.

    [49] The Tribunal accepts that the applicant's wife and two daughters live in Fujian Province and that his wife is working as a tailor. It accepts his eldest daughter is attending university and his youngest daughter is attending school.

13. From [50] onwards, the Tribunal’s decisions deals with the applicant’s claims that he was a Christian in China and operated an underground church.

14. In support of his claim that he was in fact Christian, the applicant originally claimed that he was introduced to Christianity in China whilst working at a bakery in Fujian and he subsequently moved to live in his hometown in Guixi, Jiangxi province in 2007 to open a cakeshop. When pressed by the Tribunal as to why he decided to live in Guixi, the applicant claimed that he believed it was God’s intention for him to spread the love of God to other people, and in particular his father and siblings who resided in that area. The Tribunal at the time raised concerns as to why the applicant did not undertake his religious activities in Fujian where there was a large Christian community and authorities were fairly tolerant and pointed to country information that indicated this.

15. At [70] of their decision, the Tribunal did not accept that the applicant moved to his home village to start a cake shop, or that he intended to spread the word of God and give Christian instruction to his father and siblings.

16. The applicant claimed that in the three-year period that he resided in Guixi, he used his cakeshop as a cover to establish and develop secret meeting groups for an underground church, and from 2007 onwards he organised secret meetings in this cake shop. The applicant claims he evangelised to his employees and family. Outside of the cakeshop, the applicant claims he also had three Christian subgroups in neighbouring villages. The Tribunal indicated at [71] that there was a lack of depth and context in the applicant’s description of the Christian groups he established and he did not provide, in his applications or to the Tribunal, any detail that supported his claim about Christian involvement in China.

17. The applicant claimed that in December 2010, two members of the underground church were arrested whilst delivering Bibles and Christian materials from Fujian to Jiangxi, to the church. He claimed that the following day, police raided the applicant’s cake shop and discovered Christian based materials and that the shop was sealed by the PSB. At the time of the police raid, the applicant stated that he had been out delivering goods and was informed by a neighbour what had occurred. The applicant stated that he notified the other members of the church and his family before returning to the Fujian province and shortly after going to Shenzhen in December 2010, where he hid until February 2011. As part of his protection claim, the applicant submitted that the state authorities were strict about underground churches in the Jiangxi provinces, thus his shop was raided after his church members were discovered delivering Bibles. The applicant also claimed that members of his family were arrested and detained as a result of the claimed police raid.

18. The Tribunal raised with the applicant that Bibles were available legally in China, and questioned the applicant as to why the Bibles were being transported from Fujian and further why this would be a problem. The Tribunal found that, his lack of knowledge about the availability of Christian Bibles in China, indicated that he did not have experience of belonging to a Christian group in China and that this suggests he had no contact with registered or unregistered Christian churches or groups. The Tribunal heard evidence from the applicant that, according to his pastor at the Padstow Church he attends in Sydney, Bibles in China were donated by brothers and sisters of the church. The applicant refused to accept that Bibles could be purchased in China. In relation to this claim, the Tribunal also considered evidence given by the applicant’s witness that claimed he was baptised in Sydney. The witness had to be corrected by the applicant that he was baptised in Jiangxi. The Tribunal found this supported a finding that the applicant did not have contact with Christian churches in China.

19. At [72] the Tribunal noted that it discussed with the applicant that “ Bibles and other Christian materials can and could be purchased from the registered churches or approved sellers for internal use and distribution in China,” and that the restriction to the sale of religious materials through online book sellers and non-approved bookshops, at that time, was a recent development but even in those circumstances, religious materials were available through approved booksellers.

20. The Tribunal considered evidence from the applicant’s witnesses, but it noted that they considered that the witnesses had no personal knowledge of the applicant’s claims and were recounting what the applicant had told them about his personal history.

21. The Tribunal, at [75], found that that the applicant did not  set up an underground Christian group in his hometown, or that the church was raided by police in December 2010 and as a result the applicant was wanted as an organiser of an illegal Christian group.

22. In relation to the applicant’s claims about departing China, as he was wanted by Chinese authorities, the Tribunal refused to accept these claims as it considered that it was unlikely that, if the applicant was wanted by authorities and, as claimed, other individuals were arrested for illegal religious activities, that the applicant could have left through China’s border control only two months after these arrests.

23. At [78] to [101] the Tribunal considered the applicant’s claims in relation to his departure from China. The applicant travelled to Australia on a false passport he claims he received from his former master baker from Fujian in the name of Fu Yemin, as the applicant was under the impression he could not leave using his own passport. The applicant had submitted that he had hidden in Shenzen for two months after his cakeshop was raided. He then left from Shenzen to Guilin by air, then to Xiamen in the Fujian province, from where he then travelled to Hong Kong. He departed to Australia from there.

24. The applicant also claims that on arrival in Sydney, he did not have any contacts or connections and that, through following his instincts and God’s guidance, he was instructed by random strangers to travel to Auburn, where he was assisted with finding a church and renting a place to live. The Tribunal did not accept the applicant’s claims about his time in China before departing from Australia or his assertion that he did not have assistance and support when he first arrived in Sydney. The Tribunal found that the applicant had assistance in obtaining a bogus Chinese passport with a tourist visa and was assisted with contacts, work and finding accommodation when he first arrived in Australia in February 2011. Further, these persons advised the applicant on obtaining migration advice.

25. The applicant claimed that he was not living in Fujian province prior to his departure from China, however the Tribunal considered the passport he provided to the Tribunal, which was issued in 2010, in his own name, in the Fujian province. The Tribunal noted that this supports the finding that the applicant was living in Fujian at the time he left China. The Tribunal found that, because the applicant obtained a Thai visa on 31 January 2011, and left mainland China using his own passport on 13 February 2011, that he did not have difficulty passing through Chinese border controls because he was not wanted by authorities. He was thus not a person of interest to them at the time he left China.

26. The Tribunal found that after the applicant used his genuine passport with a Thai visa to depart China and then arrived in Hong Kong after passing mainland Chinese and Hong Kong immigration, he was given a false passport which contained an Australian tourist visa to enable him to enter Australia. The applicant claimed that he was following the instructions of his former master baker from Fujian, who had arranged his departure.

27. In relation to the applicant’s claim that he has been involved in Christian activities in Australia and the details he shared with the Tribunal at hearing, the Tribunal accepted that the applicant had found and joined the Padstow Congregational church when he arrived in Australia but found that the applicant was not a Christian when he first attended.

28. At hearing, the applicant provided supporting evidence from other churchgoers who had observed his attendance at church and photographs to support their evidence. Further there were witnesses who spoke to the length of time he had attended church for at Padstow, the regularity of his attendance at church and another witness who provided evidence that the applicant introduced them to the church through their working relationship in the tiling industry.

29. At [108] to [ 112] of the Tribunal’s decision, the Tribunal considered the applicant’s claim that if he were to return to Fujian, he would be unable to claim his legal right to access land which was taken by powerful and corrupt persons in his wife’s village and there was a possibility he would be harmed and his religious faith would be used against him. The Tribunal raised concerns about the applicant’s evidence, stating this claim been raised in writing but at hearing, the evidence given did not suggest that the applicant would take action in respect of an unfair land transfer and the land transfer in question only affected the applicant and his wife economically.

    GROUNDS OF JUDICIAL REVIEW 

30. The applicant advances seven grounds of judicial review that are handwritten on the Originating Application filed with the Court on 9 July 2018. They are difficult to follow and contain more by way of submissions than precise grounds of judicial review with particulars.

31. Accordingly, the Court has adopted the summary of the grounds provided by the first respondent.

    THE APPLICANT’S SUBMISSIONS

32. The applicant appeared before the Court unrepresented.  He was assisted by an Interpreter.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that the first respondent’s written submissions had been translated to him.  The Court also ensured that the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.

33. At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

34. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case.  The applicant told the Court he wished to raise three issues.

35. First, he claimed that the Tribunal failed to consider how the applicant’s mother had lost her life and that he would pursue that issue if returned.

36. Second, the applicant claimed that he was not asked to comment if the s 438 certificate was legal or not.

37. Third, the applicant claims that if returned, he believed he will be prosecuted for leaving China on a false passport and/or persecuted as a failed asylum seeker.

38. As to the first issue, this was noted at [95] of the delegate’s decision. It was not dispositive of the application. No error exists if the Tribunal did not specifically mention this issue.

39. As to the second issue, the Tribunal dealt with the certificate at [11]-[22]. The Tribunal noted at [15] that the applicant and his representative were asked to make any submissions on the certificate. They declined to do so. In any event the Tribunal determined that there was not any material in the certificates that was relevant to the matter. No error arises.

40. As to the third issue, this is a new claim and cannot be considered by the Court. The Court can only consider the matter based on the claims and evidence that was before the Tribunal.

1. At the conclusion of the respondent’s oral submissions, the applicant was asked if he wished to state anything in reply.  The applicant repeated his claim that he would be prosecuted for leaving China on a false passport and claimed that Chinese authorities were aware he had sought a protection visa in Australia.

2. In any event, the Tribunal dealt with this issue at [124] of its reasons, finding that there was no evidence that failed asylum seekers were susceptible to either violence or discrimination unless they have openly expressed dissenting political views or criticised the Chinese Communist Party. The applicant has not made any claims in this regard.

   CONSIDERATION

   GROUND ONE

3. Ground one consists of a clear allegation of bias by the Tribunal.  The allegation is repeated in other grounds but can be dealt with to finality in the consideration of this ground.  The first respondent submitted that the Tribunal’s decision record does not reveal any pre-existing state of mind which disabled it from undertaking or rendered it unwilling to undertake a proper evaluation of the relevant materials before it: (see; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [35] and [72]).

4. The Minister points out that the Tribunal was open to persuasion, given that it was willing to accept evidence regarding the applicant’s Christian activities in Australia and that he may seek to join a Christian church upon returning to China.

5. It was submitted that, the mere fact that the Tribunal was unwilling to accept the applicant’s evidence regarding his alleged Christian activities in China is not an inference of bias or prejudgement. The applicant’s complaints rise no higher than simply disagreeing that the Tribunal made an adverse credibility finding: (see; Minister for Immigration and Ethnic Affairs v Wu Shiang Liang (1996) 185 CLR 259 at [31]). For completeness, the Minister submitted that there was no evidence to ground a finding of apprehended bias on the part of the Tribunal.

6. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]).

7. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out:(see; Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at [348]).

8. A claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing.  It is a rare and exceptional case that bias will be demonstrated solely from the published reasons of the decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision maker approached their task other than with a mind open to persuasion: (see; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

9. The law in relation to apprehended bias is well known. In Charisteas v Charisteas [2021] HCA 29 at [11] the following was said (citations omitted):

   [11] “Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.”

10. A fair reading of the entirety of the Tribunal’s decision does not reveal any evidence of either actual bias or apprehended bias on the part of the Tribunal.  The applicant’s complaints in this ground rise no higher than simply vehement disagreement with the factual conclusions arrived at by the Tribunal.  The Tribunal accepted some of the applicant’s claims but not all of them.  The fact that the Tribunal did not accept the applicant’s claims in relation to his Christian activities in China, is not evidence of bias on the part of the Tribunal. 

11. Ground one has no merit.

    GROUND TWO

12. Ground two is a complaint regarding the Tribunal’s reliance on country information as compared to his own evidence and experience regarding alleged Christian activities in China, and in particular his experiences in transporting Bibles in Guixi.

13. It was submitted that again, that this complaint rises no higher than a disagreement with the Tribunal’s findings.  It was a matter for the Tribunal as to the treatment and weight afforded to the applicant’s evidence of his experiences as compared to the available country information.  There is nothing illogical or irrational in the Tribunal’s findings or approach to its use of the country information.  The contention amounts to a bare assertion.

14. Further, the applicant’s complaint that he was not allowed the opportunity to view the country information is factually misconceived, in circumstances where the information was directly put to him during the course of the Tribunal hearing.  Further, the Tribunal is under no obligation to afford the applicant the opportunity either prior to, or during the hearing, to review relevant country information available to the Tribunal:(see; Minister for Immigration and Multicultural and Indigenous Affairs v NAWM (2004) 140 FCR 572 at [66] – [71]).

15. It is well settled that the country information and the weight the Tribunal gives to that information is a matter for the Tribunal: (see; NAHI v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCAFC 10).

16. No issue of procedural fairness arises, as the information contained within the country information that was contrary to the applicant’s evidence was drawn to his attention during the course of the hearing and the applicant was asked to comment on it.  The complaint that the Tribunal preferred the information contained in the DFAT Country report to the evidence given by the applicant rises no higher than vehement disagreement with the Tribunal’s factual findings, and by implication asks the Court to engage in impermissible merits review. 

17. Ground two has no merit.

    GROUND THREE

18. Ground three is a complaint regarding a “flawed judgement” in respect of the oral evidence of a witness called by the applicant at the Tribunal hearing.  The applicant claims to have been baptised in China.  The witnesses’ oral evidence was that the applicant had been baptised in Sydney.  On behalf the first respondent, it was submitted that the applicant was plainly alive to this inconsistency, because he then availed himself of the opportunity to comment on the witness’ evidence. In this regard, the Tribunal noted at [105] of their findings that the applicant stated the witness’ evidence was an “error” and that he had been baptised in Fujian and that he “interrupted” and “suggested to the witness that he was mistaken”.

19. The first respondent submitted that the Tribunal noted that the witness’ evidence did not support a finding that the applicant had not had any contact with Christian churches or groups whilst living in China. However, the Tribunal made no concluded findings on the credibility or truthfulness of the applicant’s claim to have been baptised in China, nor do its reasons reveal that any particular weight is given to the witness’ evidence.

20. It was submitted that, in any event, the evidence “in its terms” did not have the quality of constituting a rejection, denial or undermining of the applicant’s protection claims such that it needed to be called to the attention of the applicant pursuant to s 424A of the Act.

21. Thus, s 424A of the Act was not enlivened and no procedural error exists in the matter in which the Tribunal dealt with the evidence.

22. Firstly, the Court notes that the evidence given by the witness, was evidence that was called by the applicant.  The Court is satisfied that the applicant was clearly on notice of the evidence.

23. Secondly, the applicant sought to address the anomaly in the hearing, by suggesting that the witness was mistaken.

24. Thirdly, the Court is satisfied that the evidence did not form of itself, a reason or part of the reason for affirming the decision under review.  The issue of where the applicant was baptised was not a dispositive issue nor did it form part of any concluded finding on the credibility or truthfulness of the applicants claims, in so far as his need for a protection visa.

25. In these circumstances, the issue had no impact on the ultimate outcome in the ground of judicial review.

26. Ground three has no merit.

    GROUND FOUR

27. Ground four is a complaint about the factual findings of the Tribunal at [69] as regards the applicant’s ‘very limited’ Christian knowledge.  The applicant further asserts that this is evidence of bias. The bias issue has been dealt with in ground one. The applicant complains the Tribunal based their judgement on his Christian knowledge on a very brief and sudden examination given by him to the Department.  The applicant complains that it was ridiculous to assess proficiency in Christianity by asking a few arbitrary questions.  He believes if he was given a fair amount of time to discuss Christianity in his native tongue, he would have convinced the interviewer that he was proficient in Christian knowledge.  Thirdly, he complains that the Tribunal never attempted to find out for themselves as to the applicant’s proficiency in Christian knowledge.

28. The Tribunal accepted that the applicant has attended a Christian Church since his arrival in Australia. However, it found his knowledge was limited when he first arrived, due to the evidence given to the delegate during interview. As noted by the first respondent, the Tribunal was otherwise under no obvious duty to inquire as to his proficiency in Christian knowledge: (see; Minister for Immigration and Citizenship v SZIAI 259 ALR 429 at [25]). Again, this ground merely disagrees with a factual finding that in the Court’s view was open to the Tribunal on the evidence before it and for the reasons it gave. The Court is not satisfied there was any legal unreasonableness, illogicality or irrationality in the factual findings arrived at by the Tribunal.

29. Ground four has no merit.

    GROUND FIVE

30. Ground five is a complaint that the Tribunal failed to consider the risk of harm to the applicant upon return to China as a Christian.

31. The first respondent noted that the Tribunal accepted at [126] that the applicant ‘may seek to join a Christian church in Fujian Province ‘upon return to China. Following this finding the Tribunal made a number of findings based on relevant country information:

    there was no evidence or country information which indicated he would face serious or significant harm on return to China due to his attendance at a Christian church in Australia, nor would he be “susceptible to any form discrimination or violence” on account of being a failed asylum seeker [124-125];

    the risk of persecution for Christians expressing and living their faith in China was “very low”, and there was no evidence indicating a “consistent pattern of persecution, serious harm or other breach of fundamental human rights” [129];

    whilst the Tribunal accepted that the practice of Christianity was “regulated and subject to state control” country information indicated that both registered and unregistered house churches were “tolerated by local government officials” [131].

32. The selection of, and weight to be given to relevant country information, is a matter for the Tribunal.  The Court is satisfied that the conclusions of the Tribunal in this regard were open to it on the evidence that was before it and the reasons given.  The conclusions reached are not infected with either legal unreasonableness, illogicality or irrationality.  Again, this complaint is more an emphatic disagreement with the factual conclusions arrived at by the Tribunal. No jurisdictional error exists in the ground.

33. Ground five has no merit.

    GROUND SIX

34. Ground six is a complaint as to the findings of the Tribunal regarding the applicant’s circumstances upon his arrival in Australia. The applicant claims that he was able ‘with God’s guidance’ to ask strangers for directions that led him to ‘a very fitting church’ he could attend. The first respondent submitted that the Tribunal’s findings that the applicant was provided with assistance by those who provided him with the false passport to find accommodation, work and other contacts upon his arrival in Australia were open to the Tribunal. The complaint goes no further than an expression of disagreement with those factual findings. The Court agrees with the submission. The Court is conducting judicial not merits review.

35. Ground six has no merit.

    GROUND SEVEN

36. Ground seven is a repetition of the complaint of bias on the part of the Tribunal.

37. For the reasons set out above in ground one, this ground has no merit.

    CONCLUSION

38. As none of the grounds of judicial review have merit, the application must be dismissed.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       14 February 2024