DUA19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 208
•18 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DUA19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 208
File number(s): SYG 2557 of 2019 Judgment of: JUDGE KAUR-BAINS Date of judgment: 18 February 2025 Catchwords: MIGRATION– Judicial review – decision not to grant a Protection (Class XA) (subclass 866) visa – unparticularised assertions that the Tribunal considered irrelevant and inaccurate information -unparticularised grounds of review- litigant in person - no jurisdictional error disclosed-application dismissed Legislation: Migration Act 1958 (Cth) s 476 Division: Division 2 General Federal Law Number of paragraphs: 25 Date of hearing: 18 February 2025 Place: Sydney Counsel for the Applicants: The First Applicant appeared in person Solicitor for the First Respondent: Ms C Juarez of MinterEllison for the First Respondent Counsel for the Second Respondent: Submitting Appearance Save as to Costs ORDERS
SYG 2557 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DUA19
First Applicant
DUD19
Second Applicant
DUE19
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
18 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Application 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 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 Kaur-Bains
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal dated 4 September 2019. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicants’ Protection (Class XA) (subclass 866) visa (visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the (Act).
The first applicant raised three grounds alleging jurisdictional error. Despite orders being made for the applicants to file written submissions no such submissions were filed. At the hearing before me the first applicant could not provide further particulars or submissions as to the three grounds of review as to the alleged jurisdictional errors.
Given that the applicant was a litigant in person, I reviewed the Tribunal’s decision to identify whether there were any obvious jurisdictional errors and I could not identify any. For these reasons, I dismiss the application.
BACKGROUND
On 16 February 2015, the first applicant, second and third applicant were granted holder Temporary Work (Class UC) (Subclass 457) visas (temporary work visas). On 18 February 2016 the temporary visas were cancelled (CB 158).
On 17 August 2015, the applicants applied for protection visas (CB 1).
On 28 July 2016, the delegate of the Minister invited the first applicant to attend an interview (CB 147).
On 8 August 2016, the first applicant attended an interview with the delegate (CB 159).
On 12 August 2016, a delegate of the Minister refused to grant the applicants protection visas. The delegate was not satisfied that the applicants were owed protection obligations as they were neither refugees nor owed complementary protection. Further, the delegate found the first applicant was not a credible witness with regards to certain protection claims made. The delegate concluded that ss 36(2)(a), 36(2)(aa), 36(2)(b) and 36(2)(c) of the Act had not been met (CB 172).
On 8 September 2016, the applicants applied to the Tribunal for review of the delegate's decision (CB 174).
On 24 July 2019, the applicants received a hearing invitation from the Tribunal (CB 203).
Protection Visa Claims
The first applicant’s protection claims, as set out in an undated statement accompanying his visa application, are as follows (CB 89):
(a)The first applicant was a practicing member of the Christian faith and on account of his faith, faced persecution by the Chinese government.
(b)The first applicant and his family were in regular attendance at a family church in China. The Chinese government actively prevented attendees of family churches from having contact with other churches and congregation members overseas.
(c)At their place of worship, the first applicant and other members of his family were arrested and detained for 10 days by Chinese police. Whilst detained, the church goers were subject to insulting comments and were coerced into renouncing the Christian faith.
(d)The first applicant’s friend’s house was searched by Chinese police. Churchgoers detained from the applicant’s church were subject to beatings by the Chinese police.
(e)After the applicant was released, he ceased regular attendance and involvement at his church for fear of persecution. The applicant’s employer threatened the applicant that his employment would be terminated on account of his religious belief.
(f)The applicant subsequently consulted a migration agent in China who assisted him in obtaining a visa to arrive in Australia.
TRIBUNAL’S DECISION
On 27 August 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The applicants were assisted by a Mandarin interpreter. The second and third applicants as well as the applicants' representative were not in attendance at the hearing (CB 218).
The Tribunal found inconsistencies in the evidence concerning first applicant’s core protection claims. After a consideration of the first applicant’s claims individually and cumulatively, the Tribunal made adverse credibility findings such that it was not satisfied that the first applicant faced a real chance of serious or significant harm should he return to China ([79]- [83] of the reasons).
On 4 September 2019, the Tribunal affirmed the decision under review.
RELEVANT LAW
The Act provided at the relevant time:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion 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; 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; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as applied for by the applicant; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as applied for by the applicant.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment
…
GROUNDS IN THE APPLICATION
The applicants’ grounds for judicial review are set out in his application dated 21 September 2019 as follows:
Jurisdictional errors were made by the Tribunal.
1.Tribunal considered irrelevant or inaccurate information to judge my case .
2.Tribunal did not believe I would be harmed due to my religion if I return to China based on subjective assumption.
3.Tribunal did not consider facts that believers of family church have been prosecuted by the government in China.
(as per the original)
PROCEEDINGS BEFORE THE COURT
The first applicant appeared at the hearing unrepresented, assisted by a Mandarin interpreter. Mindful of the Court’s duties to a litigant in person, I explained to the first applicant the role of the Court in undertaking judicial review. I ensured the first applicant was in possession of all relevant documents, namely the Court Book, Application, supporting Affidavit of the applicant filed on 26 September 2019 and the Minister’s written submissions.
Mindful that the first applicant is a litigant in person, I granted the first applicant leave to amend the application to include an order seeking a writ of mandamus directed to the Tribunal.
The Minister’s representative objected to the tender of the Google search’ headed Persecution Family Church in China annexed to the Affidavit dated 26 September 2019. I rejected the Google search document being tendered as it was not before the Tribunal. Further, the Google search is not relevant to any issues before me.
CONSIDERATION
Ground One
At the hearing before me, the first applicant said to me that the Tribunal considered irrelevant and inaccurate information to determine his case. The first applicant told me that his legal representative had drafted the application, and he did not understand this ground. The first applicant could not expand upon this ground.
Accordingly, given the ground is an unparticularised assertion that the Tribunal considered irrelevant or inaccurate information, I find no jurisdictional error is disclosed by this ground.
Grounds Two and Three
In relation to grounds two and three, the first applicant’s only submission was “I have nothing to say”.
Given that there has been no identification as to the error in relation to these grounds, I find no jurisdictional error is disclosed.
CONCLUSION
The application must be dismissed, as no jurisdictional error is disclosed.
I will hear the parties as to costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 18 February 2025
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