EEI19 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 365

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EEI19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 365

File number(s):	SYG 2758 of 2019
Judgment of:	JUDGE MCCABE
Date of judgment:	17 March 2025
Catchwords:	MIGRATION – review of a decision of the Administrative Appeals Tribunal – protection visa – no jurisdictional error established – application dismissed.
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	32
Date of hearing:	6 March 2025
Place:	Sydney
Applicant:	The applicant appeared in person
Solicitor for the first respondent:	Ms D Salehi (Australian Government Solicitor)
Second respondent:	Submitting appearance, save as to costs

ORDERS

SYG 2758 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EEI19

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

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

THE COURT ORDERS THAT:

1.The application for judicial review 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 MCCABE:

1. Mr EEI19 came to Australia from China on a tourist visa in 2015. He applied for a Protection (subclass 866) visa (the visa) later that same year. He said in his visa application that he feared returning to China because he would be persecuted by authorities over a land dispute. He also mentioned he had joined an underground church in China. He said he had come to value the freedom to worship as he pleased since arriving in Australia.

2. A delegate (the delegate) of the first respondent (the minister) refused the application for the visa. Mr EEI19 sought review of that decision in the Administrative Appeals Tribunal (the Tribunal).

3. The Tribunal affirmed the delegate’s decision on 27 September 2019. The Tribunal was not satisfied Australia owed the applicant protection obligations. The Tribunal’s decision turned on an adverse credit finding made against Mr EEI19. The Tribunal made that finding after exploring what it took to be inconsistencies in the applicant’s evidence that was provided to the delegate and the Tribunal. The Tribunal was also concerned about what the applicant acknowledged was false information about his religious practices that had been provided in connection with his application for the visa.

4. Mr EEI19 filed an application in this Court for judicial review of the Tribunal’s decision on 24 October 2019. His application for review contends the Tribunal’s decision was marred by a series of errors. The grounds of review were drafted with the assistance of an unnamed friend. At the hearing before me, the unrepresented applicant was unable to shed any light on what he meant in the grounds of review. He was also unable to articulate in his own words where the Tribunal’s decision went wrong. He said he was not sure if he faced a risk of serious harm if he returned to China.

5. I am not satisfied the applicant has identified any material jurisdictional error, nor is any error evident on the face of the decision. Material jurisdictional error is the sole basis on which I am permitted to interfere with the Tribunal’s decision. I must therefore dismiss the application for review. I explain my reason for that conclusion in more detail below.

   BACKGROUND

6. Mr EEI19 is a citizen of China. He provided a version of his personal history in a statement accompanying his application for the visa. The application documents are reproduced in exhibit one (the court book) at pp 1ff and the statement is found at pp 39ff. Mr EEI19 said he lived in a small village in China where his family had lived and farmed for generations. He claimed a local government authority resumed the family’s land in 2013 without paying proper compensation. He claimed he was harassed and beaten by local officials and police when he objected to the irregular resumption, and he was prevented from appealing to higher authorities. He said he resolved to leave China and had an opportunity to obtain a visitor visa for Australia. Once he arrived in this country, he applied for the protection visa. That was in 2015. He has lived in this country ever since while participating in the immigration decision-making and appeal process.

   THE DELEGATE’S REASONS FOR DECISION

7. Mr EEI19 was assisted by a registered migration agent when he lodged his application for a visa: see form reproduced at p 36ff of the court book. 

8. A copy of the delegate’s decision and statement of reasons is reproduced in the court book at pp 68ff. The delegate noted in the reasons that Mr EEI19 did not attend a scheduled interview with departmental officers that was intended as an opportunity for them to obtain information and ask questions about his claim for protection. The delegate proceeded to make their decision having regard to the limited evidentiary record available. The delegate concluded on that basis of that record the applicant was unable to satisfy the criteria applicable to protection visas which are set out in ss 36(2)(a) (for refugees) or 36(2)(aa) (for those seeking complementary protection) of the Migration Act 1958 (Cth) (the Act). The delegate held (see p 79 of the court book):

   In the present case the written material does not provide a sufficient basis to be satisfied that the applicant is, in fact, Christian, or that he has an actual or imputed political profile, or that he faces harm of any kind for such a reasons on return to the People's Republic of China.

   In the light of all the information before me, considered individually and cumulatively, I am unable to be satisfied there is a real chance that on return to the People's Republic of China the applicant would suffer persecution for reasons relating to his religion or actual or imputed political opinion. He does not claim to fear harm in the People's Republic of China for any other s5J(1)(a) reason and no other reason is apparent on the face of the information before me.

9. The delegate relied on the same evidence to conclude (at p 80 of the court book) the applicant did not have a real chance of experiencing significant harm on account of his religion or political opinions, should he be required to return to China.

   THE APPLICATION TO THE TRIBUNAL

10. The delegate’s decision set the scene for the Tribunal’s review. The Tribunal was provided with the material before the delegate (including the applicant’s statement reproduced at pp 39‑40 of the court book). It also invited the applicant on several occasions to provide further information in support of his claim. Those requests for information were contained in:

    ·the letter acknowledging receipt of the application for review (court book at p 86);

    ·the letter enquiring as to the applicant's availability for a hearing (court book at p 89);

    ·the invitation dated 2 July 2019 to attend a hearing on 19 July 2019 (court book at p  91); and

    ·the notice dated 20 August 2019 of a resumed hearing listed for 13 September 2019 (court book at p 99).

11. It appears the applicant did not take up the repeated invitations to provide information in the course of the review. He did attend the hearings. There were two. The first hearing was conducted on 19 July 2019 by a Tribunal officer who took evidence on commission pursuant to ss 364 and 428 of the Act. The second hearing was conducted by the presiding member on 13 September 2019. The applicant was not represented by an agent at either event. He was asked questions about his story on both occasions. He answered those questions with the assistance of an interpreter.

    THE TRIBUNAL’S DECISION ON REVIEW

12. The Tribunal’s decision and statement of reasons are reproduced in the court book at pp 113ff. The reasons commence with notes about the procedural history and a discussion of the criteria for a protection visa. The Tribunal thereafter set out its findings, explaining as it did so its concerns with the applicant’s credit.

13. The Tribunal began its factual analysis by recounting the evidence the applicant gave at the hearings about what happened in China when (and after) his property was resumed. The Tribunal then summarised the evidence contained in the applicant’s written statement. The Tribunal noted that account differed in some respects from the applicant’s oral evidence. The Tribunal noted the claims about the applicant’s religious awakening in China and the history of his worship in Australia. The Tribunal then recorded how it put discrepancies between the two accounts to the applicant at the hearing.

14. Mr EEI19 downplayed the discrepancies in detail. The Tribunal found he did not provide a clear explanation for some of the discrepancies when asked about them: at [20] of its reasons. The Tribunal also concluded it was unlikely that some of the details referred to at the hearing would have been missed in the statement if they were true: at [22]. Mr EEI19 sought to blame the agent for some of these gaps. He said the agent may have misunderstood or mistranslated some of his claims when the statement was prepared: at [21]. The Tribunal did not accept that some of these omissions in the statement were the product of an innocent mistake: at [21]-[22].

15. The Tribunal noted the applicant also resiled from the claims in his written statement about his church attendance in China and Australia: at [25]. Mr EEI19 acknowledged the statement included false claims that were made by his agent. The Tribunal asked the applicant why he would sign a statement making false claims. He blamed his poor English skills and claimed he did not understand what the agent had said in the statement: at [26]. The Tribunal was not satisfied with that explanation. The reasons record (at [27]):

    The Tribunal finds that the applicant has signed a document advancing his protection claims and which included false information. The applicant referred to his English language skills and not understanding what was in the document. However, the Tribunal finds the presence of false information in the document to be only further indicative of the lack of credibility on the applicant's part as a witness and in his evidence.

16. The Tribunal also explored inconsistencies between the evidence provided at the first hearing before the Tribunal officer in July 2019 and the information provided at the subsequent hearing before the presiding member in September 2019. The Tribunal held the applicant did not satisfactorily explain those discrepancies: at [29].

17. The applicant’s evidence about his living circumstances in China post‑May 2013 was also the subject of adverse comment. The applicant had claimed he and his family were forced to leave their home because of ongoing harassment they experienced at the hands of the local authorities. The family had decamped to the home of a relative who lived only 40 or 50 kilometres away. The Tribunal concluded that story “seemed inconsistent with someone claiming to have had to go into hiding to avoid being apprehended by the authorities”: at [31]. The Tribunal also noted the applicant had remained in China for two years before seeking to leave, although he had visited another country during that period. The Tribunal was not satisfied with the applicant’s explanation for his delay given his claims: at [32]-[34].

18. After that discussion, the Tribunal found (at [35]-[36]):

    35.Considered cumulatively, the concerns that the Tribunal holds about the applicant's credibility cause the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false. Accordingly, the Tribunal disbelieves the applicant's claims that officials resumed farmland he owned; that they assaulted him in that process; that they confronted him on the street on his way to complain about that; that officials frequently came to the applicant's home checking on him and that the applicant fled from his marital home and lived in another area.

    36.There is no credible evidence before the Tribunal that the applicant or any member of his family suffered harm in China. There is no credible evidence that Chinese authorities or anyone else in China seek to harm the applicant or any member of his family. There is no credible evidence as to why the applicant left China and came to Australia. There is no credible evidence as to why the applicant does not want to return to China. For all of these reasons, the Tribunal finds that the applicant does not hold a well-founded fear of persecution within the meaning of s.5J(1) of the Act. For the same reasons, the Tribunal finds that the applicant does not meet the complementary protection criterion.

19. In a footnote to [36], the Tribunal dealt with the documents covered by the certificate that was issued in reliance on s 376 of the Act. The Tribunal said:

    For the sake of completeness, the Tribunal records that the delegate issued a certificate restricting the disclosure of a document on the Department file. There was no need for the Tribunal to raise this with the applicant because the document is nothing more than an administrative record relating to arrangements for an interpreter to be present at any interview between the applicant and the delegate. The contents of this document are not relevant to the grounds on which this review has been determined and they are not adverse to the applicant. Further, disclosure was restricted on the basis that the document contains 'information relating to an internal working document and business affairs'. This is not satisfactory justification for the delegate's claim that disclosure of this information would be contrary to the public interest. Accordingly, the certificate in question is not valid.

    THE APPLICATION FOR JUDICIAL REVIEW

20. The application for judicial review asserted “There exist Jurisdictional errors” and identified four grounds (although grounds two and three were included in a single numbered paragraph). Those grounds were:

    1.Tribunal did not correctly consider I would be seriously harmed after I return to China.

    2.        Tribunal handles my case with bias.

    Tribunal member refused my claims and did not give me a chance to provide evidence just because he doubted my credibility.

    3.Tribunal did not consider whether all relevant information was disclosed to me.

21. I deal with each of the four grounds below, although I also asked the applicant to explain in his own words where he thought the Tribunal’s decision went wrong. I provided that opportunity after attempting to explain to him the task of the Court and the scope of judicial review pursuant to s 476 of the Act. I attempted to explain the concept of material jurisdictional error in ways that a layperson who required an interpreter might understand.

22. The applicant did not bring to the hearing any of the documents that we were to discuss. He was provided with a copy of the court book, the minister’s submissions filed 25 February 2025, the applicant’s application filed 24 October 2019 and the supporting affidavit filed 24 October 2019. He had already been provided with those documents in advance of the hearing, but it was unclear whether he had engaged seriously with their contents. It soon became apparent the applicant had no clear idea of what was contended in the grounds of review. He said an unnamed friend had assisted with the drafting of the grounds. While he indicated the friend was acting on his instructions, the applicant appeared to be a stranger to the contentions.

23. The minister’s submissions had been provided to the applicant two days before the hearing due to an oversight. They should have been provided at least 14 days before the hearing. The minister’s solicitor apologised for the unfortunate delay. I considered whether I should allow the applicant an adjournment in light of that delay, but I decided an extended adjournment was unlikely to be productive. The applicant had not taken the opportunity to engage with the material that has been in his possession for some time. He had not taken any steps to engage with the minister’s submissions that arrived more recently, nor had he expressed any interest in doing so.

24. I decided on a short adjournment of the hearing so the interpreter could translate the minister’s submissions while the applicant sat with her in the court room. When the hearing resumed, I asked the minister’s solicitor to speak to their submissions before I reverted to the applicant. I adjourned the hearing again to allow the applicant an opportunity to collect his thoughts after he made his submissions. I wanted to give him another chance to consider whether there was anything else to be said. I invited him repeatedly to tell me his criticisms in his own words. He was unable to assist me when we resumed, and the hearing concluded.

    CONSIDERATION OF THE GROUNDS OF REVIEW

25. That brings me to the individual grounds of review. As I explained, the first ground contends the Tribunal did not correctly consider whether the applicant would be seriously harmed if he returned to China. The minister’s solicitor pointed out in her written submissions that this ground does not clearly refer to a jurisdictional error, the only basis on which I am permitted to intervene in the Tribunal’s decision. Indeed, the minister’s solicitor suggests the grounds as drafted are an impermissible invitation to engage in merits review by simply revisiting the Tribunal’s factual findings.

26. The applicant had little to say about this ground when I asked him about it during his submissions.

27. I am satisfied this ground of review must fail. As I have explained, the Tribunal’s decision ultimately turned on an adverse credit finding. Mr EEI19’s evidence was central to the outcome of his case in circumstances where there were few documents on the file. The Tribunal analysed the factual claims and identified inconsistencies and anomalies in his evidence and the fact his earlier statement contained false information. The Tribunal simply did not accept the applicant’s account. It explained its reasons for doing so; whether a different Tribunal would have weighed the evidence in the same way, or took such a dim view, is not the test. The Tribunal had an evident basis for the findings it made, and the findings provided a rational basis for the ultimate conclusion.

28. The second ground contended there was bias. This claim was not particularised. The applicant was unable to identify any basis for establishing apprehended or actual bias on the part of the Tribunal when I asked him to explain what he meant. I am satisfied a fair‑minded observer would not see anything in the reasons for decision or in the description of the hearing processes that suggest bias. This ground of review must fail.

29. The third ground of review is misconceived. To the extent the applicant alleges a want of procedural fairness, that claim cannot be sustained. The applicant was repeatedly invited to provide information in advance of the hearings – and there were two hearings. The Tribunal put to him its concerns about the discrepancies in his evidence, and it referred to his answers in the reasons for decision. This ground of review is not made out.

30. The fourth ground is without substance. The applicant was unable to identify what he was referring to when he contended material was not disclosed to him. I infer he was referring to the documents that were subject to the certificate issued under s 376 of the Act. I have set out the way in which the Tribunal dealt with that issue in the footnote to its decision. The Tribunal concluded the certificate was invalid. While it is ultimately unclear whether the documents in question were provided to the applicant, the Tribunal makes clear it did not rely on them nor did it refer to them in its decision. There are no reasons to suppose that a document relating to an internal administrative matter would assist or prejudice the applicant.

1. I should add that even if the applicant had articulated a coherent ground of review that pointed to a jurisdictional error, I am not satisfied I should exercise the discretion to provide relief. I reach that view in light of the applicant’s admission during the hearing that he was not sure whether he faced serious risk of harm if he returned to China. If that is so, it is difficult to see how the applicant could satisfy the criteria in s 36(2) of the Act. There would be no point in requiring the Tribunal to reconsider the matter.

   CONCLUSION

2. For the reasons above, the application for judicial review must be dismissed.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.

Associate:

Dated:       17 March 2025