EFV19 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1057

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EFV19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1057

File number(s):

MLG 3724 of 2019

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

10 July 2025

Catchwords:

 MIGRATION – Protection (subclass 866) visas – Administrative Review Tribunal – four grounds of judicial review – whether the Tribunal failed to afford the applicant’s procedural fairness – whether the Tribunal erred in applying country information – whether the Tribunal erred in making the findings without supporting evidence – whether the Tribunal failed to provide the applicant’s opportunity to make further submission in regard to their claims – no grounds of judicial review have merit –Application dismissed

Legislation:

Migration Act 1958 (Cth) ss 5J, 36(2), 36(3), 425

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

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

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

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

57

Date of hearing:

2 July 2025

Place:

Parramatta

Solicitor for the First Applicant:

Self-represented litigant

Solicitor for the Second Applicant:

The Second Applicant did not appear

Solicitor for the First Respondent:

Ms Maker, Sparke Helmore Lawyers

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 3724 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EFV19

First Applicant

EFX19

Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	10 JULY 2025

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.

2.The Application is dismissed.

3.The First Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.

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. This is an application for judicial review of a decision of the Administrative Review Tribunal (the Tribunal) dated 16 October 2019, affirming a decision of a delegate of the First Respondent (the delegate) refusing to grant the applicants Protection (subclass 866) visas (the visa).

2. For the reasons set out below, the application must be dismissed.

   BACKGROUND

3. The first applicant (the applicant) is a citizen of China and the mother of the second applicant (second applicant). The applicant first arrived in Australia on 11 September 2015 as the holder of a Visitor visa. This ceased on 11 December 2015.

4. The second applicant is also a citizen of China. The second applicant arrived on 9 July 2015, as the holder of a student visa. That visa was subsequently cancelled on 2 November 2015.

5. On 5 January 2016, the applicant lodged the protection visa application, which included the second applicant as a member of the same family unit, but did not raise any protection claims on his behalf. The applicant claimed to have left China because there was no religious freedom, and as a Christian, if she returned, she would be persecuted. The applicant further alleged she had escaped arrest by police in 2014 at a house church gathering in her village but was now on a blacklist and would be gaoled if she returned.

6. At the time of the visa application, the applicant had remained onshore as an unlawful non-citizen for 26 days, and the second applicant had remained onshore as an unlawful non-citizen for 35 days.

7. On 16 September 2016, the applicant attended an interview with the delegate.

8. On 16 November 2016, the delegate refused the visas. The delegate was not satisfied of the applicant’s claims and on that basis, she was not owed protection obligations under ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act).

9. On 5 September 2016, the applicant applied to the Tribunal for review of the delegate’s decision.

10. On 29 August 2019, the Tribunal invited the applicants to attend a hearing before it on 9 October 2019. The hearing invitation stated that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.

11. On 16 October 2019, the Tribunal affirmed the decision under review.

    THE TRIBUNAL’S DECISION

12. The Tribunal summarised the claims and information provided by the applicant in her protection visa application at [14]. They are as follows:

    a.She left China because the whole of China has no religious freedom.

    b.She is a Christian and if she returns to China, she will be persecuted.

    c.She is a member of a house church in China. They had a gathering during Christmas 2014. During that gathering, six policemen from the J town police station attended the gathering to check on them. The policemen arrested eight people. Most people ran away.

    d.The Government does not allow Christians to have home gatherings.

    e.She is unable to relocate to another part of China because she cannot take her children with her and there is no religious freedom anywhere in China because the authorities do not like Christians.

    f.The authorities will not protect her because they do not like Christians.

13. The Tribunal noted that no documentary evidence was provided to it or the Department of Home Affairs in support of these claims [15].

14. At [16], the Tribunal summarised the oral evidence presented by the applicant at the Tribunal hearing on 9 October 2019. This included the following:

    ·The applicant does not have a fixed address and was able to provide her current address, but she did not remember it, nor did she have it written down. The applicant does not live with her son, the second applicant. The second applicant also has no fixed address.

    ·The applicant does not have a job but sometimes works in the restaurant and sometimes she does cleaning.

    ·The applicant became a Christian in 2014 because someone told her that Christians go to heaven when they die. The applicant was told that if she had a good mood and was nice to people, then when she died, she would go to heaven.

    ·The applicant came to Australia because she believes in Christianity. During Christmas 2014, in China, the applicant attended a gathering at a friend’s place. Police came and took away more than eight people. The applicant ran away. The applicant claimed her name is now on a blacklist and because of that she came to Australia.

    ·Between December 2014 and September 2015, when the applicant came to Australia, she hid by staying in different places.

    ·The applicant did not apply for protection when she first came to Australia because she did not know that she could do that. Later on, the applicant heard from others that you could apply for a protection visa, so she sought out a lawyer.

    ·The applicant has attended church in Australia, although she did not know the name of the church or the suburb.

    ·The applicant claims that if she returns to China, she will be sent to prison because “they don’t believe in religion”. The applicant does not want to go back to China because she is scared they will catch and arrest her.

15. The Tribunal accepted that the applicants are nationals of China and, for the purposes of review, China was the receiving country. Further, it noted that the applicants do not have a right to enter and reside in another country for the purposes of s 36(3) of the Act.

16. The Tribunal then turned to an assessment of the applicant’s claims. The Tribunal found that the applicant’s written claims lacked detail, and her oral evidence was not persuasive.

17. The Tribunal put to the applicant information contained in a 2017 Department of Foreign Affairs (DFAT) Country Report on China (DFAT Report) when addressing the applicant’s concern that she will be sent to prison because “they don’t believe in religion” [21]. This information reports the statistics of religious believers in China, including 23 million Protestants and 6 million Catholics and the likelihood that the number is higher and rising. The Tribunal put to the applicant that this information suggested people in China have the scope to practice their faith. The applicant responded that she did not go to church; she attended family gatherings [22].

18. The Tribunal put more information before the applicant from an updated 2019 report, which has different statistics from the 2017 DFAT Report, however, it still shows the situation in China with respect to religious participation.

19. The Tribunal summarised the applicant’s evidence in regard to her claim that she is a Christian and put to the applicant that, for several reasons, her evidence was not supportive of her claims [25]. In response, the applicant began to cry and stated that she did not want to go back and further, that her husband was ill. The Tribunal was not satisfied with her response, concluding that her motivation to remain in Australia relates to her husband’s illness.

20. As to the claim that the applicant’s name is on a blacklist, the Tribunal was not convinced, given her level of involvement in the gatherings and by her own admission, she had run away and had never been questioned by police. The applicant did not have anything further to add to her claims and only reiterated that her husband was ill, reinforcing the Tribunal’s earlier conclusion that her motivations to stay in Australia was because of her husband [26].

21. The applicant did not add anything further when pressed about the time between her arrival in Australia and the lodgement of her protection visa application. The Tribunal was prepared to accept that the applicant may not have been aware that she could apply for protection when she first arrived in Australia, due to an earlier explanation she had given [27].

22. The Tribunal’s findings as to the applicant’s claims are as follows:

    ·The Tribunal did not accept that the applicant fled China because of her religious beliefs, that she was a Christian and that she practised Christianity in Australia [31]. The Tribunal was unconvinced by the evidence the applicant gave at the hearing, not limited to her motivations to become a Christian, her rudimentary knowledge of the basic tenets of Christianity, and not knowing the suburb or the name of the church she attended in Australia [28]-[30].

    ·The Tribunal did not accept that the applicant’s name was on any blacklist for attending gatherings, that she had come to the attention of Chinese authorities, that she would be arrested upon her return [33].

    ·The Tribunal was not satisfied that the applicant is a genuine or practising Christian, it did not accept that she would seek to attend a church or house gatherings if she returned to China.

23. The Tribunal found at [35], that the applicants were not refugees or people owed complementary protection. The Tribunal was not satisfied that the applicant faced a real chance of harm for any of the reasons set out in s 5J(1)(a), nor that they had a well-founded fear of persecution as set out in s 5J of the Act.

24. The Tribunal was not satisfied that there were substantial grounds for believing there is a real risk the applicants will be subject to significant harm for any reason, as a necessary and foreseeable consequence of them being removed from Australia to China.

25. The applicants did not meet the requirements of s 36(2)(a), being persons in respect of whom Australia owes protection obligations to, nor the criteria in s 36(2)(aa).

    GROUNDS OF JUDICIAL REVIEW

26. The applicant advances four grounds of judicial review contained in an Originating Application filed on 28 October 2019. They are as follows:

    1.The Tribunal failed to afford procedural fairness.

    2.The Tribunal erred in applying the country information in this this case.

    3.The Tribunal erred in making the findings without supporting evidence.

    4.The Tribunal failed to provide the applicant’s opportunity to make further submission regarding of her name in a blacklist.

    THE APPLICANT’S SUBMISSIONS

27. The first applicant appeared before the Court unrepresented.  There was no appearance of the second applicant, her son. The applicant 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.

28. An offer was made to interpret the first respondent’s written submissions to the applicant, but she declined.  The Court also ensured the applicant had access to a pen and paper so she could take notes during the course of the hearing should she so wish to. The applicant told the Court she did not write.

29. 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.

30. Despite Court orders, no written submissions or other material were provided to the Court by the applicant in support of her case.  The applicant told the Court that she did not understand the Court proceedings. The applicant stated she had been helped by a Lawyer with her initiating application, but was unable to add anything regarding the matters set out in the application.

31. The Court went through each of the four grounds of judicial review with the applicant and sought any additional material that she might wish to add.

32. In relation to the first ground, the applicant was asked what the issue was with the way the Tribunal treated her and what unfairness she had suffered. The applicant responded that she had been treated unfairly, but was unable to add anything further to that claim.

33. Asked about the second ground and any error in how the Tribunal erred in applying country information, the applicant replied that she did not know.

34. The applicant made a similar response to the third ground of judicial review, that the Tribunal made findings without supporting evidence.

35. As to the fourth ground, the applicant reiterated she was on a blacklist due to engaging in religious activity. At that time, people were not allowed to be Christians.

36. At the conclusion of the first respondent’s oral submissions, the applicant was asked if she wished to state anything in reply.  The applicant answered that she did not understand.

37. The Court attempted to elicit further information from the applicant regarding any assistance she had in completing her initiating application, given her lack of English language skills. The applicant replied she had a Lawyer but could no longer afford legal assistance.

    THE FIRST RESPONDENT’S SUBMISSIONS

38. The applicant asserts in ground one that she was not afforded procedural fairness. The applicant was validly invited to attend a hearing and present her arguments pursuant to s 425 of the Act. The applicant was informed prior to the hearing that she should submit a written submission setting out all claims by 2 October 2019. The applicant did not avail herself of this opportunity, despite completing the response to the hearing invitation form. The decision record evidences that the applicant was provided with an opportunity to give evidence and respond to the issues on review. The first respondent submits that there is nothing before the Court to suggest the Tribunal did not comply with other procedural fairness obligations, or that it breached its natural justice requirements.

39. The applicant alleges in ground two that the Tribunal erred in “applying” country information. The ground does not make clear what country information it is referring to. The Tribunal was responsible for identifying such material as it found relevant, consisting of a 2017 DFAT Report and a more recent report from 3 October 2019 (CB 136, [23] and CB 137 [32]) which addressed religious practice in China. The Tribunal also weighed the applicant’s oral evidence but preferred the contents of the report, as it was entitled to do: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 (Tran) at [5]-[7]. There is no jurisdictional error present in the Tribunal’s treatment or application of country information.

40. Ground three is a complaint that the Tribunal made findings “without supporting evidence”. The applicant’s argument is misguided if, by this ground, she suggests that the Tribunal was required to hold rebutting evidence that would reject the factual premise of her claims. The Tribunal assessed the applicant’s oral evidence and country information. Without the provision of documentary evidence by the applicant, the Tribunal considered and weighed up available evidence as part of its fact-finding function: Tran at [5]-[7]. The Tribunal made findings which were open to it based on the limited evidence before it, for the reasons it gave.

41. By ground four the applicant contends that the Tribunal failed to provide her with an opportunity to make further submissions in relation to her name appearing on a “blacklist”. Firstly, the delegate in its decision had found that the applicant was not on a blacklist. The applicant had three years from this decision to put forward material to the Tribunal to address this finding. Secondly, the Tribunal put country information to the applicant at [23]-[24] of its decision, to which the applicant had limited responses which were not directly relevant to the information pressed to her.

42. The onus rested on the applicant to put evidence and arguments and bring them to the attention of the Tribunal in sufficient detail for it to establish the claims. There is no obligation for the Tribunal to have made the applicant’s case for her.

    CONSIDERATION

43. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a court conducting judicial review was described in this manner:

    … An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

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

45. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.

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

1. It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].

2. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].

   Ground One

3. Ground one is a bare assertion that the Tribunal failed to afford the applicant procedural fairness, with no particulars provided in support of that bare assertion. A review of the relevant Court book and associated documentation indicates that the applicant was validly invited to attend the Tribunal hearing to give evidence and present arguments. Although the applicant did not provide any submissions or other material in support of her case, she attended the hearing and provided some material in support of her case, although it was clearly very limited.

4. The Court agrees with the first respondent’s submissions that there is nothing to indicate that the Tribunal failed to follow the relevant procedural fairness guidelines. The Tribunal discussed relevant country information with the applicant, which indicated that there was freedom of religious practice in China. The Court is not satisfied that there was any procedural irregularity on the part of the Tribunal. Ground one has no merit.

   Ground Two

5. Ground two is an allegation that the Tribunal erred in “applying” country information. Again, there was a lack of any particulars that might assist both the first respondent and the Court in identifying what error occurred. It is clear from the Tribunal decision record that the Tribunal put to the applicant relevant country information that indicated there was a degree of religious freedom of practice in China. The Court is satisfied that the Tribunal considered the applicant’s oral arguments, such as they were given the limited nature of her interaction with the Tribunal.

6. The selection and relevant weight to be given to country information is a matter for the Tribunal. The Tribunal was entitled, for the reasons it gave, to prefer the relevant country information before it is compared to the applicant’s vague and unsupported evidence. No error is apparent. Ground two has no merit.

   Ground Three

7. Ground three complains the Tribunal made findings “without supporting evidence”. As noted by the first respondent, the Tribunal is not required to have rebutting evidence before holding that a particular assertion was not made out. The Tribunal properly considered the limited evidence that was available to it from the applicant as well as relevant country information contained in two DFAT country information reports. The Court is satisfied there was a logical and probative basis for the Tribunal to arrive at the conclusion it did, based on the evidence that was before it and for the reasons it gave. Ground three has no merit.

   Ground Four

8. Ground four is an assertion the Tribunal failed to provide the applicant with an opportunity to make further submissions regarding her name on blacklist. Again, as noted by the first respondent, it was for the applicant to satisfy the Tribunal that she met the criteria for the grant of a protection visa. The Tribunal was not required to make the case for the applicant, nor provide her with an unlimited opportunity to provide further evidence to the Tribunal so that it could possibly make a favourable decision. The Court is satisfied the applicant had several opportunities to provide further information, which she did not avail herself of. No jurisdictional error arises. Ground four has no merit.

9. As the applicant was unrepresented, the Court has carefully perused the relevant Court books, together with other relevant document and the Tribunal’s decision record. The Court is unable to ascertain unarticulated jurisdictional error.

   DETERMINATION

10. Given that none of the grounds of judicial review have any merit, the application must be dismissed.

11. As the second applicant relies upon the first applicant being granted a visa for him to be granted a visa, his application is also dismissed.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       10 July 2025