Ecf19 v Minister for Immigration

[2020] FCCA 1148

FEDERAL CIRCUIT COURT OF AUSTRALIA

ECF19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1148

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.  

Legislation:

Migration Act 1958 (Cth), ss.5J, 424A

Applicant: ECF19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2719 of 2019

Judgment of: Judge Driver

Hearing date: 12 May 2020

Delivered at: Sydney

Delivered on: 12 May 2020

REPRESENTATION

Applicant appeared in person by telephone

Solicitors for the Respondents: Ms A. Wong of Mills Oakley by telephone

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with rule 44.15(1) and item 3 Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2719 of 2019

ECF19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 27 September 2019.  The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s written submissions. 

3. The applicant is a male citizen of China who arrived in Australia on 13 July 2015 as the holder of a visitor (Subclass 600) visa.[1]

   [1] Court Book (CB) 45, CB 93

4. On 6 October 2015, the applicant lodged a protection visa application,[2] which was prepared with the assistance of his migration agent.[3] The applicant set out his written claims for protection in an accompanying statutory declaration dated 6 October 2015.[4] The applicant claimed that in November 2004 he got a job in a grocery shop to support his family and help pay his father’s medical costs. The grocery shop was owned by “X” who was a Christian at the Local Church (Shouters). X “evangelised” to the applicant and arranged for him to attend secret meetings of the Local Church. In May 2005, the applicant was baptised.

   [2] CB 1-35

   [3] CB 8, CB 47-49

   [4] CB 36-43

5. In September 2008, X went to Taiwan to purchase food products for his grocery shop and was arrested by the police on his return to mainland China for having banned religious books in his luggage. X was later sent for re-education at a labour centre.

6. On 16 September 2008, the police raided the grocery shop where the applicant was celebrating his birthday with other church members. The police searched the shop but found nothing. The police took everyone to the Public Security Bureau (PSB) and questioned them. The applicant was held overnight and questioned, threatened and beaten by the police. The police accused him of being an illegal cult member and questioned him about his relationship with X. The applicant denied involvement in any illegal activities and everyone was released the next morning (2008 police raid).

7. The applicant continued working at the grocery store with X’s wife but it had to close in June 2009 after the business was subjected to continual harassment and searches by the police. After the grocery store closed, X’s wife introduced the applicant to her friend “Y” who ran a grocery shop in Papua New Guinea (PNG) and needed staff. In September 2009, the applicant moved to PNG to work at Y’s grocery store. Y was also a Christian of the Local Church and was in charge of a Local Church gathering group. The applicant became a major activist for the group.

8. In January 2011, the applicant returned to China for a holiday and to get a new visa.

9. In May 2011, the applicant returned to PNG and together with Y and other Local Church members undertook evangelising activities with many Chinese construction workers who came to PNG and became regular customers at Y’s grocery store.

10. In February 2013, the applicant travelled back to China after Y sold her business and returned to China to look after her sick parents. In January 2014, the applicant moved to a Zhejiang Province to again work for X and his wife in their new grocery shop. X was released from the labour centre in 2010 but had faced continual harassment by the police. The applicant helped X and his wife evangelise to the local people and develop their gathering group.

11. On the evening of 20 March 2015, the applicant was assisting X to make copies of the Bible for new members at the grocery shop when it was raided by the police who found the materials. X and the applicant were arrested. The applicant was detained for two weeks until 6 April 2015 and was interrogated and tortured. Following his release, the applicant was not allowed to remain where he was and returned to his home town in Fuqing where he was continually harassed by the authorities because they suspected he was actively involved in an “evil cult”. He was also required to report monthly to the local police and be ready to accept further investigation. X remained in a detention centre.

12. On 12 July 2015, the applicant departed China with assistance from Y and her friends’ contacts with the PSB. He feared persecution on return to China because of his active involvement in the Local Church. His wife, parents and siblings had also been questioned many times by the police since he came to Australia.

13. The applicant gave the Minister’s Department a copy of his passport.[5]

    [5] CB 44-46

14. On 20 July 2016, the applicant was invited to an interview before the delegate.[6]

    [6] CB 66-75

15. On 29 July 2016, the applicant gave the Minister’s Department copies of two supporting letters from members of a Local Church in Sydney.[7]

    [7] CB 76-80

16. On 1 August 2016, the applicant attended an interview before the delegate. The delegate provided a summary of what occurred at the interview.[8] The applicant confirmed at the interview that he was able to depart China legally using his genuinely issued passport.[9] He also gave evidence that after he returned from Zhejiang Province, the police contacted him and asked him to report to them each month. He claimed he only reported to them once in April 2015 because someone had a contact in the PSB who told the applicant that he was a suspect. Accordingly, the applicant hid with his wife and son until he was able to travel abroad.[10]

    [8]  CB 96-100

    [9]  CB 96

    [10] CB 98

17. Following the interview, the applicant’s agent provided the Minister’s Department with various photographs allegedly depicting the applicant’s church activities in Australia.[11]

    [11] CB 81-87

18. On 21 September 2016, the delegate made a decision refusing to grant the applicant a protection visa.[12] The delegate accepted that the applicant was a genuine Local Church adherent, but did not accept that the Chinese authorities had any adverse interest in him. The delegate found the fact that the applicant was not the subject of a warrant or summons and that he had been released by the police, indicated the issue of him copying Bibles had been “dealt with” by the police and that he would not face further repercussions. The delegate also found that being a member of the Local Church group would not of itself lead the police to take an adverse interest in someone. The delegate found further that it was contradictory that the applicant claimed he hid from his reporting obligations but the police did not issue any summons, warrants or other punishments to the applicant or his family. The delegate also found it contradictory that the applicant was able to depart China legally from an international airport on his own passport. The delegate found the supporting letters from the Local Church did not mention that the applicant belonged to a banned or persecuted religious group in China and did not indicate that they supported his application for protection from the Chinese authorities.[13]

    [12] CB 93-115

    [13] CB 110-111

The Tribunal

1. On 30 September 2016, the applicant applied to the Tribunal to review the delegate’s decision.[14] The applicant appointed the same migration agent as his authorised recipient.[15] The applicant also gave the Tribunal copies of the delegate’s notification letter and refusal decision record.

   [14] CB 117-123

   [15] CB 116, 119

2. On 4 July 2019 the applicant was invited to attend a hearing scheduled for 26 July 2019,[16] which the applicant accepted on 5 July 2019.[17]

   [16] CB 132-140

   [17] CB 141-144

3. On 22 July 2019, the applicant emailed the Tribunal various photographs and an .mp4 file of a “video Special conference at the Local Church Meeting place in Kelly Ville NSW on 21 July 2019”.[18] On 23 July 2019, the applicant emailed the Tribunal a further supporting letter from two members of the Local Church in Sydney.[19]

   [18] CB 145-151

   [19] CB 152-153

4. On 26 July 2019, the applicant attended the scheduled hearing before the Tribunal with his authorised recipient.[20] He gave the Tribunal a copy of his passport at the hearing.[21] During the hearing, the interpreter indicated that he had to leave to attend another commitment. A second interpreter took over, but the Tribunal Member formed the view that the second interpreter had difficulty interpreting the Tribunal’s questions. Accordingly, the Tribunal adjourned the hearing.[22]

   [20] CB 154-156

   [21] CB 157-159

   [22] CB 189, [1]

5. On 29 July 2019, the applicant was invited to the resumed hearing scheduled on 4 September 2019,[23] which the applicant accepted.[24] On the same day the applicant’s authorised recipient was sent an audio file of the hearing held on 26 July 2019.[25]

   [23] CB 160-163

   [24] CB 165-166

   [25] CB 164

6. On 4 September 2019, the applicant attended a further hearing with the assistance of the first interpreter.[26]

   [26] CB 167-169

7. On 11 September 2019, the Tribunal sent the applicant an invitation under s.424A of the Migration Act inviting him to comment on particulars of information, namely identified inconsistencies in the evidence the applicant provided in his visitor visa and protection visa applications including in relation to his place of birth and employment.[27] On 17 September 2019, the applicant provided a statutory declaration in response to the s.424A request in which he essentially stated that he had no involvement in the preparation of his visitor visa application and knew nothing about its contents.[28]

   [27] CB 177-181

   [28] CB 182-184

The Tribunal’s decision

1. On 27 September 2019, the Tribunal affirmed the decision under review.[29]

   [29] CB 185-209

2. The Tribunal outlined key dates in the history of the applicant’s protection visa application and identified the relevant law and criteria for a protection visa.[30]

   [30] CB 189-190, [1]-[7]

3. The Tribunal found it had concerns about the applicant’s credibility,[31] and outlined the evidence the applicant gave at the first Tribunal hearing.[32] The Tribunal only recorded the evidence provided with the assistance of the first interpreter and expressly disregarded the evidence provided with the second interpreter.  The Tribunal also summarised the evidence the applicant gave at the second Tribunal hearing, including the specific credibility concerns it discussed with the applicant about his claims and evidence.[33]

   [31] CB 190, [8]

   [32] CB 190-194, [9]-[35]

   [33] CB 194-195, [36]-[82]

4. The Tribunal identified several specific issues with the applicant’s claims and evidence which led it to find that the applicant was not a witness of truth and that his evidence was unreliable,[34] namely:

   a)the Tribunal found the applicant’s evidence that he had moved to join X in Zhejiang province was “unconvincing”. It did not accept that he would move to Zhejiang to undertake covert religious activities with someone who had been of significant interest of the authorities, particularly in circumstances where he was “too afraid” of the Chinese authorities to attend Church gatherings in his home province and was clearly aware the authorities in Zhejiang had “made a crackdown” on Christians;[35]

   b)the Tribunal found the applicant’s evidence about the period before he departed China had evolved between the two hearings.[36] It noted the applicant had initially failed to mention several claims about the alleged police harassment and that he had gone into hiding before leaving China;[37]

   c)the Tribunal found the applicant’s evidence to the delegate about his police reporting requirements differed to that provided to the Tribunal. The applicant told the delegate that he had only reported to the police on one occasion, which was inconsistent with his statement to the Tribunal that he was required to report “every few days” causing such disruption to his work that he lost his job;[38]

   d)the Tribunal was “concerned” that once the applicant had finished working in PNG he had not attempted to go to another country where he would be able to freely practise his religion and instead chose to return to China;[39]

   e)the Tribunal was sceptical of the applicant’s claims to be completely ignorant of the basis on which he applied for a visitor visa including the passport and basic personal information submitted with it.[40] It noted the applicant had initially made statements about the visitor visa application,[41] but later claimed he “knew nothing” about the contents of that application and the materials submitted with it;[42]

   f)the Tribunal noted that the information in the applicant’s visitor visa[43]  contradicted the information provided with his protection visa application and added another “layer” of inconsistency. It found this information cast “significant doubt” over the credibility of the applicant’s account of his entire life as put forward in relation to his protection claims.[44] For instance, the (purportedly fraudulent) passport provided with that application[45] had travel stamps which contradicted the applicant’s alleged travel history;[46]

   g)the Tribunal found “unsatisfactory and unconvincing” the applicant’s evidence about his wife’s religious beliefs. It found his evidence overall about his wife’s religious beliefs was “vague, equivocal and diffident”. Given his apparent deeply religious convictions, the Tribunal had difficulty accepting that the applicant would: marry a woman who was not Christian; not tell his wife that he was a Christian; and not tell his wife that he had been arrested because of his faith.[47]

   [34] CB 203, [83]

   [35] CB 195-196, [37]-[45]

   [36] CB 196, [46]

   [37] CB 197, [51]

   [38] CB 198, [54]

   [39] CB 198, [57]

   [40] CB 200, [69]; Supplementary Court Book (SCB) 1-15

   [41] CB 199, [63]-[64]

   [42] CB 200, [68]

   [43] SCB 1-5

   [44] CB 201, [70]

   [45] SCB 6-15

   [46] CB 200-201, [67]-[70]

   [47] CB 201, [71]-[74]

5. Considering these concerns cumulatively, the Tribunal found the applicant was not a witness of truth and that his evidence was unreliable.[48] Accordingly, it rejected the applicant’s protection claims in their entirety.[49] The Tribunal did not accept that the applicant had become a Christian or any of the consequential claims about the harm he allegedly experienced in China. The Tribunal also found there was no credible evidence that the applicant ever lived or worked in PNG and did not accept that he moved there to practise Christianity.[50]

   [48] CB 203, [83]

   [49] CB 203, [84]

   [50] CB 203, [85]-[86]

6. The Tribunal considered the applicant’s religious activities in Australia, including the documentary evidence he provided in support of this claim.[51] Although it accepted that he had attended Local Church in Australia,[52] given its previous adverse credibility findings and its rejection of his account of becoming a Christian and practicing Christianity in China, the Tribunal disregarded the applicant’s Christian activities in Australia under s.5J(6) of the Migration Act because it found he was not a genuine Christian and had engaged in these activities for the sole purpose of strengthening his claims to be a refugee.[53]

   [51] CB 204, [87]-[93]

   [52] CB 204, [88]

   [53] CB 204-205, [90], [92]-[93]

7. The Tribunal summarised its adverse findings and found the applicant would not seek (or want to) practise Christianity on return to China because it did not accept he had ever become a Christian. Accordingly, there was no real risk that the applicant would suffer significant harm on this basis.[54]

   [54] CB 205, [94]-[95]

8. These proceedings began with a show cause application filed on 21 October 2019.  The grounds in it are expressed in handwriting in eight paragraphs and focus upon the issue of bias.  The grounds are:

   1. I am of the belief that the Tribunal member was under significant bias when reviewing my protection visa case, and that bias influenced his decision making process including the final decision that was made. Thus, I do not think I was given a fair opportunity at having my case reviewed and I think the Tribunal member was inclined to make his decision since the very start.

   2. I believe the Tribunal member was biased because the Tribunal member, throughout the entire review process, was only looking to disagree with my claims. I felt as if the Tribunal had already made up his mind about my claims and was only looking to fight against y claims so that he could find reasons to back up his already made up mind. I felt this style of questions was oppressive and made me feel hopeless. A few examples of this areas follows.

   3. The Tribunal’s continual assertion that it was improbable for me to continue practicing my faith in Zhejiang. As devout Christian, it is of utmost importance to me that I consistently practice my faith, even if it means to face the risks that may come with that commitment. That being said, the actual risk of my practice has been overstated by the Tribunal. Zhejiang is a very large province and the general consensus of increased attention paid towards religious activities by the authorities does not apply to every area of Zhejiang. It seemed like the Tribunal did not even consider this as it was so married to any reasons it could use to undermine my claims.

   4. The Tribunal’s refusal to accept that I do not know the details to my visitor visa application even though it has accepted the fact that I was not the one who constructed and submitted the application. As I have repeatedly stated in my written materials, in my interview at the Department and during the hearing before the Tribunal, as well as my response to the Tribunal’s concern after the hearing, my trip to Australia was prepared and arranged by [a named person] through her friends, because [that person’s] friends were not only specialized in organizing people to go to the overseas but also had some contacts with the Public Security Bureau (PSB). I have never ever personally been involved in the visitor visa application. I completely know nothing about contents, including the information and materials that [the named person] or her friends had submitted in the visitor visa application.

   5. I have to say that the two differing lines of reasoning here seems to me like the Tribunal is contradicting itself on this issue, but beyond that, the Tribunal has offered no explanation for their disbelief, it just does not believe in it. Here, I felt completely hopeless in the Tribunal accepting the truth.

   6. The Tribunal’s insistence that if I return to China then I would not practice my religion in the manner which I have done so while in Australia. The Tribunal is making this assumption based entirely on its own biases on the situation. There is no evidence for the Tribunal to factually believe in this statement and it is unfair for them to make this assumption of me. I have been devout practitioner for so much of my life and, yet the Tribunal is still willing to make that assumption.

   7. Furthermore, the Tribunal has not considered the new religious laws enacted under President Xi which has quashed religious freedoms even more so that before. With the enactment of the new law, I now have even greater fears for returning to China because the situation for people like me have become so much worse.

   8. The Tribunal’s biases in their decision making process makes me feel like the entire review process was unfair and inevitably futile.

   (errors in original)

1. The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 9 January 2020 and a supplementary court book filed on 24 April 2020. 

2. The supplementary court book contains a copy of an application for a visitor visa made by the applicant for the purposes of his travel to Australia.  That application featured prominently in the Tribunal decision. 

3. Only the Minister filed submissions for today’s hearing. I invited oral submissions this morning from the applicant.  Those submissions proved to be quite extensive.  He spoke with apparent sincerity about his religious beliefs and his fear of harm.  He is adamant that in rejecting his claims, the Tribunal demonstrated bias or prejudgement.

4. That applicant’s problem, however, is that his focus is upon the outcome and the Tribunal’s reasoning process, rather than any procedural issues.  While noting that the Tribunal went to the trouble of organising a second hearing in his case because of interpretation problems, the applicant maintains that that hearing was a mere formality.  I disagree.  In my view, the Tribunal went to considerable lengths to attempt to ensure that the applicant was given a fair hearing opportunity. 

5. The applicant in his submissions sought to deconstruct elements of the Tribunal’s reasoning which he takes issue with.  Those submissions, however, go to the merits of the Tribunal decision, which are beyond the scope of this hearing.  He also referred to his religious activities in Australia.  Those activities were disregarded by the Tribunal in relation to the protection criterion, but they were considered for the purposes of the complimentary protection at [95] of the Tribunal’s reasons. I see no arguable case of error in relation to the Tribunal’s approach. 

6. The applicant also referred to a crackdown on religious cults by President Xi of China.  The applicant had also made that submission to the Tribunal which took the view, as I understand it, that it was a matter of little moment given that it did not accept that the applicant was a member of a group the subject of the crackdown. 

7. In his submissions today, the applicant referred to some very recent arrests.  That is, obviously, not something the Tribunal could have considered.  It is something the Minister could consider if he was so minded. 

8. In other respects, I agree with the Minister’s submissions concerning the grounds of review advanced. 

9. Whilst the application for judicial review contains eight purported grounds of judicial review, in substance, the applicant simply asserts (in Grounds 1 and 8) that the Tribunal was biased and then sets out (in Grounds 2, 3, 4, 5 and 6) particulars or examples of the alleged bias by the Tribunal.

Grounds 1 and 8

1. Grounds 1 and 8 contain assertions that: the Tribunal was biased when it made its decision; the applicant was not given a fair opportunity to have his case reviewed; and the “entire review process was unfair and inevitably futile”. An allegation of bias is a serious allegation that must be firmly and distinctly made and clearly proven.   The applicant’s complaints of bias lack any supporting evidence and, for the reasons provided below, the asserted examples of bias cannot be made out.

Ground 2

1. In Ground 2, the applicant contends that the Tribunal: was “only looking to disagree with my claims”; had “already made up his mind about my claims”; and adopted a “style of questioning [that] was oppressive” and made him “feel hopeless”.

2. Contrary to the applicant’s contentions, the Tribunal’s decision record indicates that the applicant was provided with a meaningful opportunity to give evidence and present arguments at the hearing. The Tribunal comprehensively set out the claims that the applicant made at the first hearing and the extensive questions it put to the applicant in relation to those claims.[55] The Tribunal also provided the applicant with numerous opportunities to address the Tribunal’s concerns about his oral evidence.[56] There is nothing to suggest that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have bought an impartial mind to bear on the decision, or that it did not take a fresh look at the applicant’s claims and evidence.

   [55] CB 190-194, [9]-[35]

   [56]  See, for example CB 194-197, [36]-[38], [42], [46], [50]-[52]

3. No inference of bias or prejudgment should be drawn from the mere fact of adverse findings in the Tribunal’s reasons, and robust or forthright testing of an applicant’s claims by the Tribunal does not sustain a finding of apprehended bias.  Without any supporting evidence, such as a transcript of the Tribunal hearings, the applicant’s complaints about the conduct of the hearings and his allegation of bias cannot be established.

Ground 3

1. In Ground 3, the applicant contends the Tribunal continuously asserted that it was improbable for him to continue practising his faith in Zhejiang. He also contends that he was a devout Christian and it was important that he consistently practised his faith, even if it meant facing risks. He also asserts that the actual risk of him practising Christianity in Zhejiang was “overstated” by the Tribunal because it is a large area and the authorities did not monitor every area, and that it did not consider this and instead sought to use any reason to undermine his claims.

2. The applicant’s complaints about the Tribunal’s questioning of him at the hearing again lack any evidentiary basis. Where credibility is in issue (as in the present case), the Tribunal will necessarily have to test the evidence presented, often vigorously. The requirements of procedural fairness will often mean that an applicant be plainly confronted with matters which bear adversely on their credit or bring their account into question.  

3. The balance of the applicant’s complaints in this ground essentially re-state his factual claims for protection and attempt to engage in impermissible merits review.  There is nothing to suggest that the applicant ever claimed before the Tribunal that the authorities did not monitor “every area” of Zhejiang, despite evidently being afforded the opportunity to make such a claim when the Tribunal indicated that it had difficulty accepting he would move there because of the “consequent risk to his safety if those activities were uncovered by the police”.[57] Further, the Tribunal’s decision record[58] demonstrates that the applicant meaningfully engaged with the Tribunal about his time and conduct whilst in Zhejiang, which undermines his complaint of bias.

   [57] CB 196, [42]

   [58] CB 193, [27]-[30], CB 195-196, [37]-[43]

Ground 4

1. In Ground 4, the applicant takes issue with the Tribunal’s refusal to accept that he did not know what was stated in his visitor visa application and continues to maintain that he did not prepare and lodge it.

2. Again, this complaint simply expresses the applicant’s disagreement with the Tribunal’s factual findings, which amounts to impermissible merits review. The Tribunal considered the applicant’s explanation,[59] but did not believe he was completely ignorant of what his visitor visa application contained given that it contained basic details such as his employment and as he had submitted his passport with the application.[60] The Tribunal also noted that at the second hearing, the applicant claimed the information in his visitor visa application was correct.[61] The Tribunal was under no obligation to uncritically accept any and all allegations made by the applicant, and the complaint in Ground 4 fails to support the applicant’s allegation of bias.

   [59] CB 200, [68]

   [60] CB 200, [69]

   [61] CB 201, [70]

Ground 5

1. In Ground 5, the applicant contends that the Tribunal contradicted itself “on this issue” (presumably about his lack of knowledge of the contents of his visitor visa application) and that it offered “no explanation for their disbelief”. This ground misconceives the Tribunal’s role and cannot succeed for the same reasons as provided in relation to Ground 4. It was for the applicant to make out his case before the Tribunal and, if the Tribunal cannot be satisfied on the basis of the material presented that the applicant’s claims are genuine, it does not have any duty to make further inquiries or obtain information beyond what is provided to it by the applicant. 

Ground 6

1. In Ground 6, the applicant alleges the Tribunal’s finding[62] that he would not practise Christianity in the same manner that he practised in Australia was based on an assumption and its own bias and was made without any evidence.

   [62] CB 204, [90]

2. Contrary to the applicant’s assertion, there was a logical basis for the Tribunal’s finding[63] that the applicant would not practise Christianity in China. As it had earlier found that the applicant was not a real Christian and that his religious activities in Australia were undertaken for the sole purpose of strengthening his claim for protection,[64] it flowed logically from this reasoning that it would find the applicant would not practise Christianity in China. Again, the Tribunal had no obligation to uncritically accept the applicant’s claims and had a statutory duty to be affirmatively satisfied that the applicant met the relevant criteria for the grant of the visa. If not so satisfied, the Tribunal was required to refuse the visa. No inference of bias or prejudgment should be drawn from the mere fact of adverse findings in the Tribunal’s reasons.

   [63] CB 205, [95]

   [64] CB 205, [94]

Ground 7

1. Ground 7 alleges the Tribunal did not consider the “new religious laws enacted under President Xi which has quashed religious freedom even more” and that the applicant now has an even greater fear of returning to China.

2. The applicant does not identify whether information about the allegedly “new religious laws” in China was even before the Tribunal or formed the basis of any claim that was either expressly made or could be said to clearly arise on the available materials. It is not apparent that such information was before the Tribunal or that such a claim was made by the applicant in this regard. Again, this complaint appears to be a further attempt to engage in impermissible merits review.  In any event, the question of the accuracy of country information is one for the Tribunal, not for the Court. Both the choice and the assessment of the weight of such material are matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.

3. Even if such information was before the Tribunal (or that a claim in this regard could be said to have been expressly made or to clearly arise on the materials), as the Tribunal found[65] that the events upon which the applicant’s protection claims were based were false and it did not accept that he was a Christian who practised Christianity in China, it was unnecessary for the Tribunal to make a specific finding on such information or claims because the factual premise upon which the relevant contention rested had been rejected.

   [65]  CB 203, [84]-[85]

4. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

5. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules)

6. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant, while not opposing a costs order, expressed the view that he has been in a disadvantaged position in this case from the outset.

7. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with rule 44.15(1) and item 3 Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 15 May 2020