EFG19 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 369

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EFG19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 369

File number(s):

SYG 2780 of 2019

Judgment of:

JUDGE SKAROS

Date of judgment:

17 March 2025

Catchwords:

MIGRATION – Judicial Review – Administrative Appeals Tribunal - Protection Visa – China – Where applicant provided limited documentation in support of his claim to the Tribunal – Impermissible merits review – Failure to consider country information – Application dismissed   

Cases cited:

LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

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

Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

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

Division:

Division 2 General Federal Law

Number of paragraphs:

44

Date of hearing:

5 March 2025

Place:

Parramatta

Counsel for the Applicant:

The Applicant appeared in person

Counsel for the First Respondent:

Mr S Knuckey, HWL Ebsworth Lawyers

Counsel for the Second Applicant:

Submitting appearance, save as to costs

ORDERS

SYG 2780 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EFG19

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

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

THE COURT ORDERS THAT:

1.The application filed on 28 October 2019 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 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 SKAROS:

1. By application filed on 28 October 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 1 October 2019. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) in refusing to grant the applicant a Protection (Class XA) (subclass 866) visa (the protection visa) under s 65 of the Migration Act 1958 (the Act).

   [1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings. Therefore, in these Reasons, reference to the Tribunal is a reference to the Administrative Review Tribunal.

   BACKGROUND

2. The applicant is a male citizen of China. He first arrived in Australia on 27 November 2015 on a temporary work (subclass 400) visa. He subsequently applied for, and was granted, visitor visas. He last arrived in Australia on 22 June 2016 on a visitor visa.

3. On 26 September 2016, the applicant applied for the protection visa. In summary, he claimed that he has a fear of political persecution, including arrest, questioning, detention and mistreatment in China because of his opinions about the government and his work as a journalist. He provided a copy of his passport with the application, but did not provide any other documents in support of his claims.

4. On 19 January 2017, the applicant was invited to attend an interview with the delegate that was scheduled for 31 January 2017. The applicant did not attend.

5. On 6 February 2017, the delegate refused to grant the applicant the protection visa.

6. On 27 February 2017, the applicant applied to the Tribunal seeking review of the delegate’s decision. On 21 August 2019, the Tribunal invited the applicant to appear before it at a hearing to give evidence and present arguments on 25 September 2019. The applicant appeared before the Tribunal on 25 September 2019 and at an adjourned hearing on 1 October 2019. He was assisted by an interpreter in the Mandarin and English languages on both occasions. The applicant provided no further supporting documentation to the Tribunal in support of his protection visa application.

7. On 1 October 2019, the date of the adjourned hearing, the Tribunal affirmed the delegate’s decision.

   THE TRIBUNAL’S DECISION

8. The dispositive issue in the review was whether the applicant was a person in respect of whom Australia had protection obligations under s 36 of the Act.

9. The Tribunal identified the criteria for a protection visa; that the applicant must either satisfy the ‘refugee’ criteria or meet the ‘complementary protection’ criteria for protection. The relevant definition of ‘refugee’ and the provisions relevant to the complementary protection grounds under the Act were also set out.   

10. The Tribunal identified that it must have regard to Ministerial Direction No. 56 made under s 499 of the Act, and that it must take into account the policy guidelines titled PAM3 Refugee and Humanitarian - Complementary Protection Guidelines, and PAM3 Refugee and Humanitarian - Refugee Law Guidelines and any relevant country information assessments.

11. The Tribunal then summarised the applicant’s claims for protection (at [18] – [20]):

    18. … The applicant worked as a journalist from June 2013.

    19. The applicant claims that he left China to flee political persecution. The applicant claims that his political views are inconsistent with those of the Chinese authorities, and he has been questioned and detained, and was sacked from his job due to his political views. The applicant claims that his personal website was blocked and prohibited.

    20. The applicant fears being mistreated and arrested by the authorities due to his political views and expression of them against the Chinese government. The applicant claims that this implicates his family members, relatives, and friends. The applicant did not try to relocate, as he claims that it is not possible to escape political persecution in China by moving to other parts of China.

12. The Tribunal then summarised the oral evidence that the applicant gave before it on 25 September 2019 and 1 October 2019. Relevantly, the Tribunal records that the applicant gave the following evidence, inter alia:

    (a)He stands for freedom and democracy and holds opinions ‘against the one party government and communist part.’ He started to form these opinions and values in 2005 and has published his views on the internet and social media from then until now.

    (b)His main concern in coming to Australia was the ‘environment and people’s life.’

    (c)He was a ‘social investigative journalist’ in China before coming to Australia.

    (d)After coming to Australia in 2015 he was ‘inspired by the democratic values’ and when he returned to China and did further research he realised social inequity was engineered by Chinese government policy, in particular the ‘one government party.’

    (e)He believes ‘the party is greater than the law’ and represents the country and that ‘propaganda in China is all about the party.’

    (f)He exposed chemical pollution in 2006, this affected his education, he was dismissed from his employment and his claims were not put on the university website. When asked why he did not provide any supporting evidence of this the applicant claimed he did not know that he could.

    (g)He is fearful of returning to China ‘because of what he reports and his values.’ The applicant gave an example in 2013 when a chemical factory was illegally built and operated with the agreement of the local government and the ‘people from the factory’ captured him and beat him. He was then captured by a special police force and was only released after writing a statement promising not to do the same again. When asked by the Tribunal who the special police force was, the applicant said that they were employed by the official police force who hire local homeless people to do the job when controlling social order. The applicant said he was detained for a week, lost three months’ pay and was warned not to attend public events. This was the only time he had been detained in China (this was inconsistent with his later evidence detailed below).

    (h)After returning to China, he continued work as an investigative journalist (there being 100 such journalists in China, according to the applicant) and he held public meetings (later confirmed to be from February 2015 to June 2015) to expose the facts about the government. The meetings were monitored and those who gave speeches were taken away to the ‘police security bureau in a mini bus’. These people were detained for about 7 hours, questioned, fingerprinted, verbally threatened and asked to stop conducting the meetings. After signing a document, they were sent home. Eventually government officials attended the meetings and the applicant was ordered to stop them and later the officials forced him to stop the meetings. Three or four of his associates were accused of affecting public order and trying to demolish the communist party.

    (i)The Chinese government accused him of wanting to organise a new party against the government. The authorities investigated him twice, but he avoided another investigation by telling them he was not home.

    (j)In or around May/June 2016 he moved to a rural area and a government official ‘asked them to stop’ and he was given a warning.

    (k)He holds values contrary to the ‘communist party policy and reality.’

    (l)He was arrested on or about 1 May 2015 as the police were afraid that he would give speeches, and he was placed under strict monitoring. His detention continued for 2-3 days and he was threatened that unless he ceases causing social unrest he ‘will be arrested and not make it out alive.’

    (m)When he first came to Australia he was working for an official Chinese newspaper but when he came the second time he was on leave.

    (n)His website has been blocked and his WeChat account was banned. He was ‘publishing every week and it was banned.’

13. The Tribunal then quoted from country information including that relating to travel, political opinion in China, media workers in China, internet monitoring in China and human rights practices in China.

14. The Tribunal assessed the applicant’s claims for protection. It considered that the claims in his protection visa application ‘were scant and provided no detail.’ Overall, the Tribunal found his oral evidence at the hearing to be ‘convoluted and at times confusing as to the relevance of the issue’ being his fear of returning to China. The Tribunal was also concerned that the applicant did not, until prompted, discuss his claims as set out in the protection visa application including his claims of being sacked or his website being blocked. The Tribunal was also concerned about inconsistencies in his account:

    (a)He stated that he was sacked from his job whilst elsewhere stated that he came to Australia while working for a newspaper;

    (b)His evidence as to the dates when his political activities started were inconsistent;

    (c)He gave evidence that he was arrested once and later stated he was arrested again;

    (d)The applicant’s ability to depart the country on his own passport is inconsistent with his claimed fear of persecution and the available country information.

15. The Tribunal also had further concerns including that the applicant had not provided any further information in support of his application including no cogent or persuasive evidence of any information or opinions he had posted on the internet.

16. The Tribunal stated that country information before it suggested that those engaging in the activities the applicant claimed to have engaged in would not be able to continue to work in a state sanctioned newspaper or exit China on work delegations, contrary to the applicant’s claims.

17. After outlining these concerns, the Tribunal concluded that the applicant was not a refugee:

    107. On the evidence provided the Tribunal does not accept the applicant’s claims that he was an anti-government agitator for some years. The Tribunal does not accept that he would have been able to consistently criticise the Chinese communist party, be arrested, subject to house arrest and continue to work as a journalist for a large mainstream Chinese newspaper, to exit and return to China and own two properties.

    …

    110. … The Tribunal does not accept that he is at any risk from detention, continued threats and harassment that is condoned or uncontrolled by those higher authorities.

    111. For these reasons, and the Tribunal’s finding about the applicant’s evidence being his own assertions, the inconsistencies and finding his claims unpersuasive, the Tribunal rejects that the applicant had been involved in the reporting of corruption, organising anti-government meetings, posting anti-government and anti-party views on the internet for many years. The Tribunal rejects the claim that the applicant was detained twice, tortured and monitored for several years before he exited China with his work delegation or when he returned and sought leave from his work for a tourist visa. The Tribunal rejects the applicant’s claim that he spoke to people about his political views, the corruption and the injustices and that he participated in demonstrations and organised meetings. The Tribunal does not accept that he continues to post antigovernment political views and that his Weibo account was recently blocked. After considering all the evidence Tribunal finds that the applicant will not pursue antigovernment activities or publicly criticise the one party rule if he returns to China.

    112. The Tribunal has above outlined the applicant’s inconsistencies in relation to the incidents in which he claims he was involved. Due to those inconsistencies and his lack of credibility the Tribunal rejects his claim that his family and friends may be subjected to any persecution because of their connection to him or of any issues relating to the demolition of houses.

    113. The Tribunal rejects the applicant’s claim that the applicant was of any interest to the authorities, the police or other elements influenced by the local government which was ultimately controlled by the Chinese government.

    114. After considering the applicant's claims individually and on a cumulative basis, the Tribunal finds that if the applicant returns to China now or in the reasonably foreseeable future, there is no real chance that he will be persecuted for the reason of his political opinion, membership of a particular social group or for any other Convention reason.

18. The Tribunal then turned its mind to whether the applicant met the complementary protection criteria. It found, for the same reasons, that there was no substantial ground for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk he will suffer significant harm.

    APPLICATION TO THIS COURT

19. On 28 October 2019, the applicant filed the originating application with this Court which advanced five grounds. Also filed on the same day was an affidavit of the applicant which annexed the Tribunal’s decision. It was not necessary for the Court to take this affidavit into evidence as the Tribunal’s decision was included in the Court Book filed by the Minister which was tendered at the hearing and marked Exhibit CB.

20. On 13 February 2025 the Minister filed written submissions. The applicant has not filed any submissions despite being given an opportunity to do so.

21. The matter was listed for final hearing on 5 March 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 14 January 2025.

22. At the hearing on 5 March 2025 the applicant appeared in person before the Court with the assistance of an interpreter in the English and Mandarin languages. The Minister was represented by Mr Knuckey, a solicitor advocate.

23. Being mindful that the applicant was unrepresented, the Court explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.

24. The applicant was guided through his application and was invited to make oral submissions in support of the grounds of review raised in his application.

    CONSIDERATION

25. The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476.

26. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:

    The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.

27. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2]; LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [32].

28. Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272

    GROUNDS OF REVIEW

29. The application for judicial review raises the following grounds (without alteration):

    1. THE TRIBUNAL OFFICER REFUSED MY APPLICATION BECAUSE I COULD NOT PROVIDE ENOUGH EVIDENCE TO SUPPORT MY CLAIMS.

    2. THE TRIBUAL OFFICER DID NOT ACCEPT THAT I WAS PERSECUTED BY CHINESE GOVERNMENT.

    3. THE TRIBUAL OFFCIER DID NOT CONSIDER THE NATIONAL CONDITIONS OF CHINA.

    4. I HAVE LEFT CHINA FOR SUCH A LONG TIME AND CAN NOT PROVIDE MORE EVIDENCE FOR MY CLAIMS.

    5. IF I RETURN BACK TO CHINA, I WILL BE HARMED AGAIN.

    The applicant’s oral submissions

30. In relation to grounds one and four, the applicant submitted that he did not have access to the documents requested by the Tribunal. In relation to ground two, the applicant also took issue with the Tribunal’s finding that he would not suffer serious or significant harm in China and said that the Tribunal did not accept that his opinions and views would cause him persecution.

31. As to ground three, the applicant submitted that the Tribunal interpreted ‘persecuted’ to mean that you were sent to gaol but in China this is not the case. It was contended that in China if you hold opinions against the government, you will be harassed, have your phone taken away and your posts deleted.

32. For the reasons that follow, the Court is not satisfied that any of the grounds advanced by the applicant have been made out.

    Grounds one and four

33. By grounds one and four, the applicant contends that the Tribunal refused his visa application because he did not provide enough documentary evidence, which he says he was unable to provide because he had been outside of China for such a lengthy period.

34. As noted by the Minister, the applicant has not explained which documents he intended to provide, why he has been unable to provide them and how they would have supported this application. It was for the applicant to provide the relevant facts and evidence to establish his claims for protection.

1. In the present matter, the Tribunal considered the applicant’s claims (at [15] – [20]), outlined the oral evidence the applicant gave at the Tribunal hearing (at [21] – [22]), outlined the relevant country information (at [83] – [90]) and assessed his claims accordingly (at [93] – [114]). The Tribunal did not fall into error, let alone a jurisdictional error, by proceeding to determine the review on the evidence before it.

2. Grounds one and four do not establish jurisdictional error.

   Grounds two and five

3. By grounds two and five the applicant appears to take issue with the Tribunal’s finding that he had not been and would not be persecuted in China (to the level of serious or significant harm).  The Court accepts the Minister’s submissions that these ‘grounds’ are not allegations of error but bare statements that invite the Court to engage in impermissible merits review.

4. Grounds two and five do not establish jurisdictional error.

   Ground three

5. By ground three the applicant contends that the Tribunal ‘did not consider the national conditions of China.’ In oral submissions, he contended that the Tribunal fell into error by interpreting ‘persecuted’ to mean that you were sent to gaol but in China this is not the case and a person can be harassed and have their posts deleted.

6. To the extent that this ground alleges that the Tribunal fell into error by failing to consider some relevant country information, this is not made out. The Tribunal considered the relevant country information (at [83] – [90]) and relied on it when assessing the applicant’s claims (at [102]-[106]). The Tribunal considered, on the basis of the country information before it, that ‘those accused of such serious crimes are not able to continue to work in a state sanctioned newspaper, nor exit/enter China with ease, especially after being detained and arrested for such crimes.’ The Tribunal discussed with the applicant the country information before it (at [104]) and he was given an opportunity to respond. The Tribunal complied with its procedural fairness obligations in respect of the country information it considered when reviewing the applicant’s claims. The applicant has not identified with any particularity which information (specific to the ‘national conditions in China) that the Tribunal failed to consider, and the onus is on the applicant to do so.

7. Insofar as this is an allegation that the Tribunal failed to consider an integer of one of the applicant’s claims, this is also not made out.  The Tribunal considered the applicant’s claims that he may be detained or be harassed and concluded that there was not risk of this occurring. The Tribunal also considered the applicant’s claims as to his social media posts and accounts being deleted and blocked. It found (at [111]) that he had not and would not post anti-government views and did not accept that his social media account had been blocked.

8. The Tribunal ultimately concluded that the applicant was not of any interest to the authorities in China and on this basis found there was no real chance that he would be persecuted for any of the reasons claimed. No error is disclosed in the Tribunal’s reasoning.

9. Ground three does not establish jurisdictional error.

   CONCLUSION

10. As none of the grounds raised establish jurisdictional error on the part of the Tribunal, the application for judicial review filed on 28 October 2019 must be dismissed. The parties will be heard on the issue on costs.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.

Associate:

Dated:       17 March 2025