Elh21 (litigation guardian) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 386
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ELH21 (litigation guardian) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 386
File number: PEG 260 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 20 May 2022 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to consider information or evidence – whether the Tribunal acted unreasonably – whether the Tribunal was biased – no jurisdictional error – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Australian Citizenship Act 2007 (Cth), s 12
Migration Act 1958 (Cth), ss 5AAA, 36, 104, 424A, 476
Migration Regulations 1994 (Cth), Schedule 2
Cases cited: Abebe v The Commonwealth of Australia [1999] HCA 14
Altintas, Turay v The Minister for Immigration and Ethnic Affairs [1997] FCA 15
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
DGS18 & Ors v Minister for Immigration & Anor [2020] FCCA 1973
DJG18 v Minister for Home Affairs [2020] FCCA 2141
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
ELH21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 385.
Guo Wei Rong v Minister for Immigration and Ethnic Affairs [1996] FCA 89
Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 52
Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v MZYNN [2012] FCA 1177
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
NACB of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 140
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
PW87/2001 v Minister for Immigration and Multicultural Affairs [2001] FCA 1083
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZIIF v Minister for Immigration & Citizenship [2008] FCA 913
SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198
SZQNO v Minister for Immigration & Citizenship [2012] FCA 326
SZRCI v Minister for Immigration and Citizenship [2012] FCA 965
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZSHV v Minister for Immigration and Border Protection [2014] FCA 253
SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
Division: Division 2 General Federal Law Number of paragraphs: 160 Date of hearing: 6 May 2022 Place: Perth Applicant: ELH21 in person (as litigation guardian for the applicant) Counsel for the First Respondent: Mr C Beetham Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 260 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ELH21 AS LITIGATION GUARDIAN FOR ELJ21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.The application be 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 KENDALL:
INTRODUCTION
This application for judicial review was heard on 6 May 2022, immediately following the related matter of PEG259/2021 – ELH21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 385.
The grounds raised by the applicants in both matters mirror one another. The litigation guardian in this matter relied on oral submissions made during the hearing in relation to PEG259/2021. Counsel for the Minister, in turn, relied on written submissions which were largely the same and oral submissions made during the hearing of matter PEG259/2021 (other than when correcting minor typographical errors in the Minister’s written submissions).
The reasons that follow relate to PEG260/2021 only and necessarily (for the reasons outlined above) replicate those made by this Court in relation to PEG259/2021 (with minor amendments made to the relevant factual background, dates and Tribunal references specific to this matter).
A judgment in relation to PEG259/2021 has been or will be published separately.
BACKGROUND
The applicant is a national of the People’s Republic of China (CB 77 & 150). He was born in Western Australia in 2013 to two citizens of the People’s Republic of China (CB 52 & 150).
The applicant’s mother (“ELH21”) is the litigation guardian in this matter. She is also the first applicant in the related application in proceeding PEG259/2021. ELH21 arrived in Australia in June 2006 as the holder of a student visa (CB 150-151). She subsequently held a further student visa until its expiry on 15 March 2010. ELH21 then remained in Australia unlawfully until 19 June 2014 (CB 151).
On 19 June 2014, ELH21 applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 16-53). That application included the applicant (CB 45-52). The second applicant (“ELI21”) in the related proceeding PEG259/2021 was added to ELH21’s visa application at the date of his birth (CB 98). In her application, ELH21 claimed to fear harm on the basis of her religious beliefs, claiming that she is unable to keep her faith in China “without risking her safety”. She also explained that she had given birth to a son in Australia in 2013 (the applicant). ELH21 claimed that if she returned to China, she would have to “pay a huge penalty for violating the birth-control policy” and that her child would be discriminated against (in terms of education, medical care and socially) (CB 44).
ELH21 attended an interview at the then Department of Immigration and Border Protection (the “Department”) on 24 June 2015 (CB 80-83).
On 15 February 2017, the Department requested more information from ELH21 in relation to her visa application (CB 91-96).
On 9 March 2017, ELH21 responded to that request via email, attaching a statement from herself, the applicant and ELI21, a “change of address and/or passport details” form, a copy of ELI21’s birth certificate and a tax invoice confirming a fax to the Department (CB 99-106).
On 16 March 2017, ELH21 provided a completed “Form 866B” document (relating to herself, the applicant and ELI21), a completed “Form 866C” document relating to ELI21 and a copy of ELI21’s birth certificate (CB 107-145).
On 11 April 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 150-165). The delegate was not satisfied that ELH21 had a well-founded fear of persecution and found that the delay in seeking protection in Australia cast doubt on the “genuineness of [ELH21’s] claim[s]” (CB 162).
A separate decision was made by the delegate in relation to ELH21 and ELI21 on the same day.
On 28 April 2017, ELH21 applied to the Administrative Appeals Tribunal (the “Tribunal”) on behalf of the applicant for a review of the delegate’s decision (CB 166-167).
On 21 December 2020, the Tribunal invited ELH21 to attend a hearing, on behalf of the applicant, scheduled for 3 February 2021 (CB 184-189).
On 25 January 2021, the Tribunal wrote to ELH21 reminding her of the upcoming hearing in relation to the applicant and stating (CB 195):
This is a reminder for your upcoming hearing. New documents are to be provided at least seven days before the hearing. If you intend to provide new submissions for the upcoming hearing, please provide them no later than close of business 27 January 2021.
On 22 January 2021, the Tribunal wrote to ELH21 regarding the upcoming hearing in relation to the applicant and stating (CB196):
If you intend to provide new submissions for the upcoming hearing, please provide them no later than close of business 28 January 2021.
On 2 February 2021, the Tribunal notified ELH21 that the hearing had been postponed (CB 197-199).
On 16 February 2021, the Tribunal invited ELH21 to attend a hearing regarding the applicant, scheduled for 11 March 2021 (CB 200-205).
ELH21 appeared before the Tribunal on behalf of the applicant on 11 March 2021 and was assisted at that hearing by a Mandarin interpreter (CB 211-216).
On 12 March 2021, the Tribunal invited ELH21 to the resumption of the adjourned hearing regarding the applicant scheduled for 29 March 2021 (CB 217-221).
ELH21 appeared before the Tribunal at the resumed hearing on behalf of the applicant on 29 March 2021 and was assisted again assisted by a Mandarin interpreter (CB 226-229).
On 19 April 2021, the Tribunal invited ELH21 to the resumption of the adjourned hearing regarding the applicant scheduled for 13 May 2021 (CB 230-233).
On 10 May 2021, the Tribunal notified ELH21 that the hearing in relation to the applicant had been postponed (CB 238-240).
On 12 May 2021, the Tribunal invited ELH21 to attend a hearing, on behalf of the applicant, re-scheduled for 19 May 2021 (CB 241-245).
On 18 May 2021, the Tribunal notified ELH21 that the hearing regarding the applicant had been postponed (CB 251-253).
On 21 May 2021, the Tribunal invited ELH21 to attend a hearing regarding the applicant scheduled for 31 May 2021 (CB 254-258).
On 31 May 2021, the Tribunal notified ELH21 that the hearing regarding the applicant had been postponed.
On 17 June 2021, the Tribunal invited ELH21 to attend a hearing, on behalf of the applicant, scheduled for 5 July 2021 (CB 266-270).
On 2 July 2021, the Tribunal notified ELH21 that the hearing regarding the applicant had been postponed (CB 275-277).
On 5 July 2021, the Tribunal invited ELH21 to attend a hearing, on behalf of the applicant, scheduled for 20 July 2021 (CB 278-282).
On 14 July 2021, the Tribunal notified ELH21 that the hearing in relation to the applicant had been postponed (CB 287-289).
On 15 July 2021, the Tribunal invited ELH21 to attend a hearing, on behalf of the applicant, that had been re-scheduled to 26 July 2021 (CB 290-294).
ELH21 appeared before the Tribunal at the resumed hearing regarding the applicant on 26 July 2021. She and was again assisted by a Mandarin interpreter (CB 299-304).
On 10 August 2021, the Tribunal invited ELH21 to attend a hearing, on behalf of the applicant, scheduled for 27 August 2021 (CB 305-309).
ELH21 appeared before the Tribunal at the resumed hearing regarding the applicant on 27 August 2021. She again had the assistance of a Mandarin interpreter (CB 315-320).
That evening (on 27 August 2021), the Tribunal invited ELH21 to comment on or “respond to information” that questioned her credibility and the genuineness of her protection claims (CB 321-325).
On 7 September 2021, ELH21 requested an extension of time of one week within which to provide her response (CB 326-328). That extension was granted (CB 329-331)
On 15 September 2021, ELH21 responded to the invitation to comment letter via email with a statement addressing the issues outlined above (CB 337-344).
On 11 November 2021, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 348-371).
On 3 December 2021, ELH21 lodged an application for judicial review in this Court on behalf of the applicant (CB 1-8). That application was supported by an affidavit sworn by ELH21 and annexed a copy of the Tribunal’s decision (CB 9-15). The applicant in this matter seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29] to [32]. This is particularly the case when (as is the case here) ELH21 appeared before the Court without legal representation and had difficulty articulating her concerns. In these circumstances the Court will, in its duty to the self-represented litigation guardian, remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
The Tribunal’s decision is 24 pages long and spans 102 paragraphs.
The Tribunal began by identifying the type of visa under review. The Tribunal explained that the delegate had refused to grant the applicant the visa (at [1]) on 11 April 2017 (at [3]), outlined ELH21’s migration history, noted that the applicant was born in Australia and that ELH21 had applied for the visa on the applicant’s behalf on 19 June 2014 (at [2]).
The Tribunal explained that there was a related application for review before the Tribunal in relation to ELH21 and that, with the consent of the ELH21, the review of ELH21’s matter was “heard and determined contemporaneously” with the present matter. Further, a decision was made in relation to ELH21 on the same date as in the present matter (at [4]).
The Tribunal confirmed that ELH21 had appeared before it on 26 July 2021 and 27 August 2021 on behalf of the applicant. Further, “certain information had been put by the Tribunal pursuant to s 424AA of the Act at the second hearing” and the Tribunal had confirmed that in writing on 27 August 2021 (at [6]). ELH21 provided a written response to that letter on 15 September 2021 (at [7]).
The Tribunal then explained:
8.The applicant seeks protection in Australia under s 36(2)(a) of the Act, and derivatively claims to hold a well-founded fear of persecution in China now and for the foreseeable future for the essential and significant reason of his mother being a child from a family of conscientious church-going Christians in China experiencing State-based persecution in that country. The applicant also derivatively fears returning to China because of his mother’s renewed personal association with a Local Church in Australia, his mother having been baptised into that communion in 2014. The applicant further fears persecution for having been born out of wedlock in Australia. The applicant has also asserted that he faces ongoing hardship on return to China because his mother is unable to marry his father because their parents do not approve of his parents’ relationship.
9.The applicant also asserts that he will experience persecution in China because he will be unregistered in that country and, therefore, be unable to access state services including education.
The Tribunal then explained that a delegate of the Minister had refused to grant the applicant the visa on the basis that the applicant did not hold a well-founded fear of persecution should he be returned to China. The Tribunal further explained that the delegate found “aspects of [ELH21’s] narrative were lacking in credibility” – noting ELH21’s “extensive delay” in seeking protection in Australia (at [10]).
The Tribunal detailed the criteria for the grant of a protection visa as set out in s 36 of the Act and Schedule 2 of the Migration Regulations 1994 (Cth) (at [14]) and Australia’s obligations under the Refugees Convention (at [15]-[16]).
The Tribunal confirmed that, as provided by Ministerial Direction No. 84, it had had regard to the ‘Refugee Law Guidelines’, ‘Complementary Protection Guidelines’ and country information prepared by the Department of Foreign Affairs and Trade (at [18]-[19]). The Tribunal also noted more recent information contained in the UK Home Office publication ‘Country Policy and Information Note, China: Christians’ (at [20]).
The Tribunal then discussed the relevant jurisprudence relevant to whether an applicant faces a “real chance” of persecution – notably, as set out in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; NACB of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 140; SZRCI v Minister for Immigration and Citizenship [2012] FCA 965; Altintas, Turay v The Minister for Immigration and Ethnic Affairs [1997] FCA 15 and PW87/2001 v Minister for Immigration and Multicultural Affairs [2001] FCA 1083
(at [21]-[26]).
The Tribunal explained that these authorities make it clear that “a decision maker must reach the appropriate level of satisfaction” in relation to s 36(2)(a) of the Act (at [27]) and identified that the issue in this matter was whether the applicant engaged Australia’s protection obligations (at [28]).
The Tribunal also had regard to the President’s Directions: “COVID-19 Special Measures Practice Direction – Migration and Refugee Division” and “Conducting Migration and Refugee Reviews” (at [29]).
The Tribunal then detailed the applicable legal principles relevant to assessing an applicant’s credibility, noting that it would be guided by the “observations and comments” of the High Court and Federal Court (at [29]) – and referencing, in particular, the decisions (at [30]-[37]) in DJG18 v Minister for Home Affairs [2020] FCCA 2141; Guo Wei Rong v Minister for Immigration and Ethnic Affairs [1996] FCA 89; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 (“Wu Shan Liang”); Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198; Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76; Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547; and Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719.
The Tribunal acknowledged that, if it made an adverse finding about one of ELH21’s material claims but could not do so “with confidence”, it would need to undertake the “what if I am wrong” test and, in that regard, noted the observations set out by the High Court in Abebe v The Commonwealth of Australia [1999] HCA 14 (“Abebe”) (at [38]). The Tribunal also explained that it was entitled to consider whether an applicant genuinely had a well-founded fear of persecution before considering whether that fear was subjectively held (at [39]).
The Tribunal then referenced the decision in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 52 (“Iyer”) and Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788. Relevantly, the Tribunal acknowledged that credibility findings were often a central consideration when considering an applicant’s substantive claims and evidence. In this regard, the Tribunal noted the decision of Flick J in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253. The Tribunal also outlined the findings in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 and SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 (at [40]-[45]).
The Tribunal then discussed how “credibility findings might be affected by legal unreasonableness” (as considered in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 (at [46])) and confirmed that it had also considered the Migration and Refugee Division “Guidelines on the assessment of credibility” (at [47]-[49]).
The Tribunal explained that an applicant is expected to present all claims to the primary decision maker “unless they have a reasonable explanation for not doing so” (at [50]) – as outlined in s 5AAA of the Act. The Tribunal noted that it is not obliged to assist an applicant to establish his or her claim (referencing the decisions in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225; Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 and Abebe (at [51]).
The Tribunal then explained that an applicant is expected to present their case in full – noting the requirement in s 104 of the Act for an applicant to change any incorrect information and update their relevant details (at [52]). The Tribunal also noted that it is open to it to draw unfavourable inferences about credibility if there is no reasonable explanation as to why a claim was not raised earlier (at [53]). In that regard, the Tribunal acknowledged that it would be mindful of the considerations outlined in the President’s Direction “relating to opportunities to raise a claim or evidence” (at [54]).
The Tribunal then confirmed that it had received a copy of the applicant’s birth certificate, which set out the relevant parental information and his date and place of birth (at [55]). The Tribunal also explained that, because the applicant was born in Australia to two Chinese citizens, on the basis of s 12(1)(a) of the Australian Citizenship Act 2007, the applicant was not an Australian citizen (at [56]-[57]) and was a citizen of China by descent (at [58]-[59]).
The Tribunal found that the applicant had no right to reside in a third country (at [60]) and found that his receiving country was China (at [61]).
The Tribunal noted that the Department’s files indicate that ELH21 arrived in Australia in June 2006 as the holder of a student visa and that the visa expired in March 2010, following which ELH21 remained in Australia unlawfully (at [62]).
The Tribunal explained that the applicant and ELH21 had attended an interview with the Department on 24 June 2015 and that the applicant’s visa was refused on 11 April 2017 (at [63]). The Tribunal then noted as follows:
64. The delegate’s record of decision indicates that:
This significant delay in seeking protection, their behaviour in Australia raises doubts in my mind as to the genuineness of the applicant’s mother’s claim to fear serious harm PRC in order to escape being ill-treated by the PRC authorities.
The Tribunal confirmed that the applicant had lodged an application for review with the Tribunal and was represented by ELH21. The Tribunal further confirmed that all hearings took place with the assistance of interpreters in the Mandarin language and that the applicant did not attend any of those hearings (at [65]).
The Tribunal continued:
66.At the first hearing on 26 July 2021 I explained what documents the Tribunal had in its possession. I read to the applicant’s mother the summary of claims contained at Part 8 of the delegate’s decision record which was as follows:
•His mother is a Local Church member, and he will experience harm due to his mother’s religion on return to the PRC.
•His mother and her family have experienced difficulties due to their faith in the PRC.
•As he (and his brother) was born out of wedlock, a social maintenance fee will be levied against their parents, of which they will be unable to pay.
•He will also experience difficulties due to being an unregistered child and being unable to access government services until it is paid.
•His parents are unable to be married due to their families not approving of the relationship.
A request for further information was sent to the applicant on 15 February 2017, requesting any further information regarding his mother’s claims and that of her children, as well as if there was a chance [sic] in her personal circumstances. A reply was received on the 28 February 2017 stating that that both her children born in Australia would suffer due to their parents not being able to register to marry and that due to the fines being imposed from being born out of wedlock, being outstanding; resulting in them being unregistered and being unable to access government services. It also stated that her children will face prejudice due to their status as being unregistered and being children of unmarried parents. The statement also claimed that they are at risk of harm due to their parent's faith.
The Tribunal noted that ELH21 had confirmed that the delegate’s summary was accurate and that she did not wish to amend or add anything to those claims. Further, she was “content for the Tribunal to proceed based on the information discussed above” (at [67]).
The Tribunal continued:
68.The applicant’s mother consented on behalf of the applicant to having his application determined contemporaneously with his own claims, given that his claims were derived from those of his mother.
The Tribunal noted that it had explained to ELH21 that the eight year delay in seeking protection “raised significant questions about the credibility of the application” and that this would need to be discussed further (at [69]).
The Tribunal then confirmed as follows:
70.At the second hearing, held on 27 August 2021, the previous hearing was summarised, and the credibility issues raised with the applicant’s mother at both related hearings at the end of those hearings were put to the applicant’s mother as representative for the applicant.
The Tribunal then outlined the ELH21’s evidence at the second hearing as follows:
(a)she and her husband are from the same part of China, however, the families did not know one another;
(b)she met her husband in June 2006 in senior high school in Sydney and their relationship had been exclusive since that time (at [71]);
(c)her husband resides in Australia and had previously applied for protection in Australia (unsuccessfully);
(d)her husband does not have good eyesight and had sought medical treatment in this regard five years prior (at [72]);
(e)in 2012 she and her husband decided to have children, even though their respective parents did not consent; and
(f)in 2019, she and her husband obtained consent from their respective parents to marry (at [73]).
The Tribunal then explained as follows:
74. Between 2006 and 2014 the applicant’s mother claims to have attended some home church services in Sydney, NSW, to pursue her religious devotion. When questioned about the basic foundations of her faith-beliefs, the applicant’s mother gave vague, confusing and unsatisfactory responses. As discussed in [the Tribunal’s decision in related proceeding PEG259/2021], I have made adverse credibility findings about the mother of the applicant’s claims to have been involved with the Local Church movement in both China and Australia. I have also articulated concerns that the entity identified as “The Assembly in Perth Inc” in submissions made by the mother of the applicant in the course of these concurrent proceedings may not, in fact, be a legitimate church or religious body.
The Tribunal then noted that ELH21 had informed the Tribunal that her parents were “not in bad health” and did not attend church regularly as the “church gatherings in her home village were infrequent” (at [75]).
The Tribunal then explained as follows:
76.I have put to the mother of the applicant that, given she is now legally married to the father of the applicant, his birth status no longer appeared to be a problem, nor did the likelihood of the applicant’s parents facing fines for having children born out of wedlock on return to China.
77.The mother of the applicant has stated that she would not be able to practise her religion freely as she would want to. I pointed out to the applicant’s mother that available country information shows that most Christians are free to practise their religion in China generally and Fujian in particular. The applicant’s mother has stated that Local Churches in China are subject to persecution. She has further stated that country information suggested that ordinary practitioners of the Christian faith from Local Churches faced persecution from the Chinese authorities because the practice of religion such as Local Churches (or Shouters) prefer to observe it is forbidden in China. The applicant’s mother has stated that she attends the gathering place on a Sunday morning and Friday evening; that there are team meetings for her children’s ministry. The applicant’s mother has stated that on these occasions the believers sing songs and read the Bible and share their faith.
78.As discussed in [the Tribunal’s decision in related proceeding PEG259/2021], I noted that the applicant’s mother took eight years to apply for protection in Australia and that she had lived unlawfully in Australia for four years during this time. I asked the applicant’s mother why it was that she chose not to return to China in 2010 when her lawful visa expired. She stated that her parents encouraged her to stay in Australia. The applicant’s mother stated that, at this time, she approached a migration agent and discovered that their fees were too high. I have also asked the applicant’s mother if she had considered approaching the Department for help. The applicant’s response was that she did not know she could approach the Department for help.
The Tribunal then detailed the contents of a letter sent to the applicant on 27 August 2021, pursuant to s 424A of the Act (at [79]), which noted the following concerns and which sought comment from ELH21 as follows:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
•An invitation (pursuant to s.424AA) was provided relating to [the father] (husband of the principle applicant in 1709337 and father of the infant applicants in both matters). [The father] was refused a Protection visa in 2010 and this was affirmed on review by the Tribunal differently constituted. Most recently, [the father] was refused a Medical Treatment (Visitor) visa in 2019 and on 21 April 2021 that decision was affirmed on review by the Tribunal differently constituted. This information was known to [the mother] and was not provided to the Tribunal in either matters currently before the Tribunal voluntarily at the fist reasonable opportunity;
•[The mother] and [the father] were married in a registry office on 21 March 2019. This information was known to [the mother] and was not provided to the Tribunal in either matters currently before the Tribunal voluntarily at the fist reasonable opportunity;
•The information available to the Tribunal and put to [the mother] at the hearing (in both matters) suggests that the church she claims to be associated with may not genuinely be a religious entity;
•[The mother’s] identification of her unique scriptures as being the “Resumed Bible”
•which was not relied upon in other Christian denominations was unconvincing and unable to be corroborated at the hearing by electronic means;
•The decision of [the mother] and [the father] to marry in a Registry Office appears inconsistent with the applicant’s claims to be a committed member of a genuine religious entity;
•The decision of [the mother] to attend a predominantly English speaking church in Australia and not seek in any way at any time to locate a predominantly Mandarin speaking church community appears to be illogical and contradictory;
•Country Information discussed at the hearing suggests that Christians are able to practice their faith in China without necessarily experiencing persecution; and
•The conduct of [the mother] in both applications suggests that she has provided false or misleading information to the Department and the Tribunal over a period of years and has failed to correct this information at the first reasonable opportunity. This conduct is contrary to law, common-sense and the accepted teachings of Christ relating to dealings with the governing authorities as these are generally understood to apply.
This information is relevant to the review because this information suggests that the claims relied upon in both applications are not genuine or credible. If we rely on this information in making our decision, it would be the reason, or part of the reason, for affirming the decision under review.
The Tribunal then detailed a response received from ELH21 on 15 September 2021 (at 80), noting that her response was:
The following is my response and comments to the questions raised by the AAT in its letter dated 27th August 2021.
Regarding the date of marriage: The letter states: MY wedding date is on 21st March, 2019, which I am aware of, but I did not take the initiative to provide this information prior to the AAT hearing. In fact, I have already explained this question in the hearing. Here I would like to reiterate the fact that I did not know that I had to provide this information to the immigration office voluntarily at that time, and no one reminded me that I had to do so. In addition, I did not realize the importance of this information to my application. If my ignorance prevented the application from proceeding smoothly, or if my ignorance caused great inconvenience or trouble to the hearing trial, I deeply regret. But in any case, I definitely did not intentionally conceal the motive and purpose of my history. If there was any doubt, it was entirely a misunderstanding caused entirely by my ignorance, for which I sincerely apologize.
About church: According to the letter, my church may not genuinely be a religious entity, because the church I attend uses a “Resumed Bible” but cannot find information about it online. I recall that I explained this problem in the hearing, and I would like to add that the English translation of “Resumed Bible” is inaccurate (I found this problem with the help of people who know English in the church).
According to the verification, the correct translation should be Bible Recovery Version. If you can't find Resumed Bible online, then the problem may be caused by the translation. I was informed of this by my church fellows. I was also told that the Bible Recovery Version should be available online, because it is the Bible particularly used by Local Churches that is different from other churches or denominations. Bible Recovery Version is a multi-language Bible translated and edited by brother Witness Lee. It has unique annotations on the scriptures by Local Churches under the revelation of God, which forms a clear contrast with other bibles in form and is the unique wealth and spiritual inheritance in Local Churches' beliefs. The Bible Recovery Version also focus on reflecting in the annotations with the Christian understanding of the holy revelation in the Bible over the past two thousand years, so as to help readers to make progress in this respect.
Regarding marriage registration: I also explained this question in the hearing. What I need to be further explained here is that, according to my understanding, the church is not a marriage registration office, but it can hold wedding ceremony for its members. Therefore, I first chose the marriage registration office designated by the government to go through the legal marriage registration formality. But the truth is that we didn’t have a wedding, so we didn't alert the church. But our two people to witness our marriage are both members of our church, and they are right in the position to give evidence for our marriage. In fact, we had planned to hold a church wedding, but due to the impact of COVID-19 since 2020, the church is not able to hold a wedding ceremony for the time being, so we had to shelve our plan accordingly. About the Church I attended in Australia: I also answered this question in the hearing. However I like to add that in fact, our church has people from different countries. English is not the only language spoken there. At large gatherings, English is used, but the translation is always provided. There are many Chinese in my church, so we always speak Chinese in our group meetings and private communication. That was something I valued the most when I was looking for a proper church fit me because I was satisfied with a church without the language barrier. Since my church is exactly what I want, I don’t think it is necessary for me to switch to a purely Chinese-speaking Church again.
About churches in China: The letter says that according to national information, Christians are able to practice their faith in China without necessarily experiencing persecuted. I think I also answered this question in the hearing. Here my supplementary explanation is that although the Local Church and other churches all believe in Christ, the Local Church is essentially different from the “Three Self Patriotic Church”, the only officially recognized church in China. To further illustrate this point, I refer to information on this subject from Chinese websites, especially the historical evolution of Local Churches, in order to confirm the current Chinese government’s hostile policy towards Local Churches. I have summarized the national information in this regard for your reference as follows.
•Local Church is a Christian movement founded in 1921 by Watchman Nee and Witness Lee. Their origins and special parts are influenced by the English Brethren. It is also known in China as “Restoration of the Lord” and “Little Flock Gathering”.
•In 1983, the Communist Party of China designated the Christian “Shouters” as a cult and cracked down on it at all levels. In 1995, the Local Church of independent Protestant Denomination, which was founded and led by Witness Lee, was listed as the “Shouters” sect. Local church books and periodicals, such as “Bible Recovery Version”, and “The Holy Word of Morning Recovery”, used by Local Churches, was also identified as “cult” publications. The Communist Party is sinicizing the church in China. According to a report by the Association for the Protection of Human Rights and Religious Freedom, an international religious freedom group, since Xi Jinping took power in 2012, the China Communist Party (CCP) has called for the “Sinicization of Christianity” and intensified its crackdown on Christianity and Catholicism, persecuting and banning Christian house churches or underground churches. A nationwide campaign began in 2014 to remove crosses from church tops and many churches in Zhejiang province, where Mr. Xi once ruled. Then it forms a national action. The newly revised Regulations on Religious Affairs, which took effect on 1rst [sic] February, 2018, allow local governments to close house churches at any time. On 30th March the same year, the Cyberspace Administration of the CCP ordered a complete ban on the sale of bibles. House churches that refuse to obey follow CCP and refuse to join the Three Self Patriotic Church recognized by the government will be fully shut down. At the same time, CCP has been increasingly controlling the Three Self churches, monitoring their sermons, forcing them to preach CCP policies and controlling their money.
Questions about false information: I was asked this question in the hearing, but I didn’t answer, because the hearing officer directly under the judgment at that time, by saying that I have been providing false or misleading information, and not take the initiative to submit the information, such as marriage certificate, this problem I've explained above already that I have no intention to conceal my background history indeed. If there's any doubt about it, I think it’s a total misunderstanding.
Once again, I would like to thank the case officer for your painstaking efforts in my review. Although the trial process has gone through many ups and downs, for Christians suffering is a trial and frustration is a test. I confessed and repented before God and prayed for his mercy, hoping that God, through the hand of the judge, would save me as a sinner and give our Christian family a bright way out. Finally, I would like to face the reality by borrowing the prayer of Church congregation, oath of faith, loyalty to the law, the moral cultivation and teachings in faith over the past years. I wish to clarify the facts, and dispel misunderstandings. As a Christian, I can’t set aside God’s Word. I want to be committed, reconciled and joyful. I sincerely hope that you are able to listen, understand and accept my heart voice in good faith.
The Tribunal then explained that it had concluded that ELH21 had not been “candid in any respect relevant” to her relationship status until directly questioned at the first hearing about this issue. The Tribunal noted (at [81]) her evidence in this regard, which provided:
I did not know that I had to provide this information to the immigration office voluntarily at that time, and no one reminded me that I had to do so. In addition, I did not realize the importance of this information to my application.
The Tribunal then determined as follows:
82.Given the centrality of Applicant 1’s relationship status to the core claims pressed by herself and her dependent children as having been born “out of wedlock”, the evidence provided on behalf of the applicant in this respect is inconsistent with prior sworn statements and lacking in credibility. I therefore find that this aspect of the evidence provided on behalf of the applicant is unsatisfactory and unpersuasive.
83.I further find that any state-imposed fees and charges relating to the birth or registration of the applicant would be applied to the applicant’s parents and not the applicant. Further, the applicant’s mother has not provided any corroborative evidence to suggest that such fees and charges, if imposed by the authorities in China, would cause or otherwise amount to conduct reaching the requisite threshold for significant harm to the applicant as envisaged by s 36(2)(aa) and (2A) of the Act.
In relation to doctrinal and liturgical matters, the Tribunal noted the variance between the vague, confused and unsatisfactory responses given by ELH21 at the second substantive hearing and the extremely detailed information provided in written form and determined that the latter was a “recent invention” and did not “reflect [ELH21’s] own longstanding beliefs”. Little weight was placed on the written information, with the Tribunal favouring the “in person evidence” given by ELH21 at the hearing (at [84]).
In relation to ELH21’s marriage, the Tribunal determined that the written submissions “raise[d] questions about the credibility and sincerity of the evidence provided” by ELH21 (at [85]).
The Tribunal then assessed the evidence about ELH21’s “choice of church community” and found that her responses suggested that she had never been a member of any genuine religious community in Australia (at [86]).
The Tribunal further noted that the country information had no relevance to the lived experience of the applicant or his family (at [87]).
In relation to the provision of misleading information, the Tribunal found as follows:
88.As discussed in [the Tribunal’s decision in related proceeding PEG259/2021], I note the evidence of the applicant’s mother is unsatisfactory in numerous material respects.
89.As discussed in [the Tribunal’s decision in related proceeding PEG259/2021], I note the evidence of the applicant’s mother is unsatisfactory in numerous material respects.
The Tribunal then considered ELH21’s delay in seeking protection in Australia and found as follows:
90.As discussed in [the Tribunal’s decision in related proceeding PEG259/2021], the applicant’s mother has given evidence in connection with her delay in seeking protection in Australia which is entirely lacking in credibility in important respects. This undermines her claim to be a witness of truth in the present review.
The Tribunal acknowledged that the COVID19 pandemic was a factor in relation to removal decisions, noted that this was not, however, such a decision but explained that it was nonetheless mindful that this matter might “give rise to such a decision in the reasonably foreseeable future” (at [91]).
The Tribunal found that COVID measures in place in China did not “amount to an intentional act or omission for the purposes of complementary protection provisions” (at [92]).
The Tribunal ultimately found as follows:
93.The evidence of the applicant’s mother about being a Christian in China before 2006, however this term might be defined, is equivocal and unsatisfactory with respect to its lack of detail in terms of actual lived experience and corroboration from available sources. I have found in [the Tribunal’s decision in related proceeding PEG259/2021] that, whatever the applicant’s mother’s actual religious beliefs before 2006, they were not the cause of any adverse attention or inappropriate harassment to the applicant’s mother or any of her immediate family in that country at any time or from any person.
94.To the extent that the applicant’s mother has engaged in or participated in any activities in any community of faith in Australia since 2006, I find that this has been for the purpose of social cohesion or otherwise for the purpose of strengthening her claims to be a person in respect of whom Australia owes protection obligations. I do not accept that the applicant’s mother has a personal involvement with, or commitment to, the community of belief associated with the teachings of Watchman Nee now, or at any time in the past, whether known by the sobriquet “Shouters” or “Local Church” or anything related to this community of belief.
95.I do not accept, given the evidence provided on behalf of the applicant discussed above, that “The Assembly in Perth Inc” is a genuine religious entity. It follows, therefore, that I do not accept that the applicant faces a real chance of serious harm in China now or in the reasonably foreseeable future for the essential and significant reason of his parent’s religious beliefs, either actual or imputed from any person, for any reason.
96.I have, separately, found that the claims of the applicant derived from or related to the unmarried status of his mother and father as outlined in the related review application [the Tribunal’s decision in related proceeding PEG259/2021] were not genuinely subjectively held by those persons when those claims were made or subsequently. Accordingly, given that I do not find the claims from which the applicant’s claims in this application are substantially derived to be credible, I do not accept that the applicant subjectively holds a genuinely well-founded fear of harm in China from any person, for this essential and significant reason now or in the reasonably foreseeable future.
The Tribunal did not accept ELH21’s claims as credible and noted relevant judicial authority (SZQNO v Minister for Immigration & Citizenship [2012] FCA 326 and Iyer and SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120) which, the Tribunal determined, stood for the proposition that the Tribunal was not required to assess other aspects of ELH21’s claims (at [97]).
In relation to the refugee criterion set out in s 36(2)(a) of the Act, the Tribunal was not satisfied that the applicant was a non-citizen in respect of whom Australia had protection obligations under the Refugees Convention (at [98]).
The Tribunal also noted that it had considered the applicant’s eligibility under the complementary protection criterion set out in s 36(2)(aa) of the Act (at [99]) and noted that the provision refers to “a real risk of an applicant suffering significant harm” and that the test imposed was the same as that adopted in the “real chance test” (at [100]).
The Tribunal found that there were no substantial grounds to believe that there was a real risk that the applicant would suffer significant harm if he was removed to China. The applicant was thus not a person in respect of whom Australia had protection obligations as set out in s 36(2)(aa) of the Act (at [101]).
On the basis of the above, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas (at [102]).
PROCEEDING IN THIS COURT
The application for judicial review filed by the applicant on 3 December 2021 contains nine “grounds of review” as follows (without alteration):
•I am the mother and guardian of the applicant [ELJ21]. Since the applicant is under 18, I am authorised to act his behalf for this court proceeding. I am consented to file the application in the proceeding. I was acting on his behalf for his visa application and AAT review.
•First of all, my honest and instinct tells me that the tribunal has failed conducted my hearing with a fair go. Tribunal postponed about 7 to 8 times of the hearing without reasonable and good explanations. I was very much annoyed and stressed by such a long delay of the hearing that was poorly managed and conducted.
•I couldn’t accept the decision made by the tribunal on 11th November 2021. I don’t believe Tribunal has well considered my honest statement and explanation through the hearings. I don’t believe the tribunal has reviewed my case in a reasonable and comprehensive manner.
•I don’t think the tribunal has given a reasonable finding or assessment in my immigration history and religious background. Tribunal’s assertion in regards to my credibility is unacceptable and unpersuasive.
•Tribunal failed to give complete and responsible consideration to all the evidence in relation to my claim and statement thoroughly provided before and after the hearing, especially documentation and supporting letter issued by my church elder.
•Tribunal’s assessment for my purpose of religion, church practices, engagement of religious activities is incorrect and totally unacceptable because the tribunal’s decision is reckless, imprudent, and irresponsible.
•Tribunal’s finding lack of reasonable evidence or concert proof to make a case for my genuine purpose of the application and commitment in faith.
•Tribunal fails to make a reasonable consideration to the latest county information I provided which is relevant to my religious belief, Local Church. Tribunal ignored the fact and documents provided. Tribunal’s unfair attitude with an unwillingness to offer a logical and reasonable consideration in my case makes me and my family traumatic stressful and overwhelmed in motion.
•Tribunal fails its finding of the country information in relation to the devastating religious update, the legislative practice, and laws in China, in particular the escalating religious challenge, risk, and persecution against Local Church and house church practice.
In support of the application for review, ELH21 swore an affidavit on 3 December 2021. That affidavit simply restated the “grounds of review” outlined above and annexed a copy of the Tribunal’s decision.
The applicant was given an opportunity to file an amended application, any affidavit evidence and written submissions. Unfortunately, no additional documents were filed by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit, both filed by ELH21 on behalf of the applicant on 3 December 2021, a Court Book numbering 371 pages (marked as Exhibit 1), an affidavit of Madisen Scott affirmed on 29 April 2022 and filed on 5 May 2022 and written submissions filed by the Minister on 22 April 2022.
Before this Court ELH21 appeared on behalf of her son. She appeared in person and without legal representation. ELH21 was assisted by an interpreter in the Mandarin language. The Court confirmed with her that she had received a copy of the Court Book and the Minister’s written submissions.
The Court also made an order appointing ELH21 as the litigation guardian for the applicant.
To assist ELH21 (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave ELH21 an opportunity to outline orally what she thought the Tribunal “did wrong”.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s protection claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
(g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 (“Singh”) at [44].
The Court also explained that the Court cannot undertake a merits review of the Tribunal’s decision: Wu Shan Liang. Importantly, the Court cannot grant the visa that the applicant now seeks. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, ELH21 relied on her oral submissions in the related matter of PEG259/2021. Those oral submissions stressed that the Tribunal’s decision was “unreasonable” because the Tribunal member “got upset because of mistakes made by the interpreter” at the March hearings. ELH21 emphasised that, instead of getting upset, the member could have just asked the interpreter to repeat things (but did not do so).
To the extent that ELH21 is raising an allegation of bias, this issue will be discussed in the consideration below.
CONSIDERATION
For ease of reference, the grounds of review state:
•I am the mother and guardian of the applicant [ELJ21]. Since the applicant is under 18, I am authorised to act his behalf for this court proceeding. I am consented to file the application in the proceeding. I was acting on his behalf for his visa application and AAT review.
•First of all, my honest and instinct tells me that the tribunal has failed conducted my hearing with a fair go. Tribunal postponed about 7 to 8 times of the hearing without reasonable and good explanations. I was very much annoyed and stressed by such a long delay of the hearing that was poorly managed and conducted.
•I couldn’t accept the decision made by the tribunal on 11th November 2021. I don’t believe Tribunal has well considered my honest statement and explanation through the hearings. I don’t believe the tribunal has reviewed my case in a reasonable and comprehensive manner.
•I don’t think the tribunal has given a reasonable finding or assessment in my immigration history and religious background. Tribunal’s assertion in regards to my credibility is unacceptable and unpersuasive.
•Tribunal failed to give complete and responsible consideration to all the evidence in relation to my claim and statement thoroughly provided before and after the hearing, especially documentation and supporting letter issued by my church elder.
•Tribunal’s assessment for my purpose of religion, church practices, engagement of religious activities is incorrect and totally unacceptable because the tribunal’s decision is reckless, imprudent, and irresponsible.
•Tribunal’s finding lack of reasonable evidence or concert proof to make a case for my genuine purpose of the application and commitment in faith.
•Tribunal fails to make a reasonable consideration to the latest county information I provided which is relevant to my religious belief, Local Church. Tribunal ignored the fact and documents provided. Tribunal’s unfair attitude with an unwillingness to offer a logical and reasonable consideration in my case makes me and my family traumatic stressful and overwhelmed in motion.
•Tribunal fails its finding of the country information in relation to the devastating religious update, the legislative practice, and laws in China, in particular the escalating religious challenge, risk, and persecution against Local Church and house church practice.
This Court’s preferred approach is to be mindful that, where an applicant (or, as in this case, their guardian) is unrepresented and may not have adequate knowledge and an ability to prepare for a hearing, or understand, what is required of them, the Court should read the applicant’s grounds of review as broadly as possible and remain astute to the possibility of legal error in the Tribunal’s decision and raise any concerns in that regard with the Minister. Further, in its duty to the applicant (or in this case, their guardian) as an unrepresented litigant, this Court has remained astute to error in the Tribunal’s decision and, to the extent that this decision reveals any material error, the Court will say so: MZAIB.
Having reviewed the application for judicial review and the material before the Court, the following issues appear to arise:
(a)Issue 1: whether the Tribunal denied the applicant procedural fairness;
(b)Issue 2: whether the Tribunal failed to consider information or evidence; and
(c)Issue 3: whether the Tribunal acted unreasonably.
The Minister also addressed the grounds of review along similar lines in written submissions filed on 22 April 2022.
Issue 1: whether the Tribunal denied the applicant procedural fairness
ELH21 claims that the Tribunal failed to afford them procedural fairness because there was an extended delay between the filing of the application for review with the Tribunal and the date of the Tribunal’s decision.
In this case, the delay was a period of four years and four months.
During that time, the application was either adjourned or postponed on nine separate occasions during the period from 18 December 2020 to 27 August 2021. The first hearing (scheduled to take place on 3 February 2021) was postponed “due to circumstances beyond the Tribunal’s control” (CB 225-226). The following two hearings (scheduled to take place on 11 March 2021 and 29 March 2021 respectively) were adjourned due to issues with the interpreter (CB 237-242 & 250-252). The five hearings which followed (scheduled to take place on 10 May 2021, 18 May 2021, 31 May 2021, 2 July 2021 and 15 July 2021) were all postponed “due to circumstances beyond the Tribunal’s control” (CB 261-262, 272-273, 283-284, 294-295 & 307-308).
There were then two substantive hearings before the Tribunal. The first substantive hearing took place on 26 July 2021 (CB 320-325). That hearing was adjourned to allow ELH21 additional time to respond to matters raised by the Tribunal (CB 378-380). The second substantive hearing (and the final hearing in this matter) took place on 27 August 2021 (CB 337-342 & 380-386).
The Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) states that, in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick: s 2A of the AAT Act. That section is, however, aspirational. There is no statutory period within which the Tribunal must determine an application.
In some contexts, however, a significant delay in the Tribunal’s delivery of reasons can prove problematic, particularly in circumstances where the Tribunal’s ultimate finding relies on credibility findings.
As previously explained by this Court (in DGS18 & Ors v Minister for Immigration & Anor [2020] FCCA 1973 at [85]-[87]), in NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 (“NAIS”), the High Court reviewed a matter in which there were two hearings held by the Tribunal. The first hearing took place in mid-1998 and the second was in late December 2001. The Tribunal in that matter made its decision in January 2003. There was thus a delay in that matter between the first hearing and the date of the Tribunal’s decision of four and a half years.
In NAIS the High Court found that the “inordinate delay” in that matter had deprived the Tribunal of the ability to properly asses the applicants’ evidence and claims. In this regard, Chief Justice Gleeson stated:
5Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare. Of course, statutes of limitation impose a legislative direction that certain delays will bar proceedings; and analogous consequences may flow from the application of equitable principles. There is, however, nothing in the Act that prescribes a time limit for decisions of the Tribunal, and this Court has no power to determine some such limit. A court may have power to relieve against oppressive conduct of a complainant, or a prosecutor, and delay may be a factor in the oppression. In such circumstances, the ground for relief is the oppression, not the delay. A court of appeal, reviewing a decision of a primary judge, may conclude that delay in giving judgment has contributed to error, or made a decision unsafe. Again, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself. Where delay gives rise to a ground of supervisory or appellate intervention, the remedy must be tailored to the circumstances and justice of the case. In adversarial litigation, for example, neither party may be at fault, and it may be unnecessary and unjust to visit the successful party with all the consequences that flow from having to start again. Remedies available where delay has caused problems may be discretionary. (In the present case, counsel for the first respondent disclaimed any reliance upon a discretionary argument.) In some cases, mandamus may be an available remedy for dilatory behaviour, and failure to seek mandamus could constitute a discretionary reason to deny later relief.
NAIS is authority for the principle that a lengthy delay which goes unacknowledged by the Tribunal in its reasons for decision can (in certain circumstances) give rise to jurisdictional error in the form of, for example, a failure to take into account a relevant consideration or a denial of procedural fairness: SZIIF v Minister for Immigration & Citizenship [2008] FCA 913 at [83].
In order to demonstrate that jurisdictional error arises, it is necessary to identify a flaw in the process of the Tribunal’s reasons that can reasonably be attributed to the passage of time: Minister for Immigration & Citizenship v MZYNN [2012] FCA 1177 at [32].
That is not the case in this matter.
Here, as outlined above, the first substantive Tribunal hearing took place on 26 July 2021 and the second substantive hearing took place on 27 August 2021. The delay here was only one month. The Tribunal made its decision on 11 November 2021. The delay between the first substantive hearing and the Tribunal’s decision is a period of three and a half months. In this matter, unlike in NAIS, there was no lengthy delay between the two substantive hearings or between the second hearing and the Tribunal’s decision.
Further, in this matter, the Tribunal’s credibility findings were not based on ELH21’s demeanour (as was the case in NAIS). Here, the Tribunal’s credibility concerns were based on a number of factors – relevantly, the delay of eight years in ELH21 seeking protection in the first instance, inconsistency in ELH21’s evidence (that is, discrepancies in oral evidence and information provided in sworn statements), ELH21’s failure to provide relevant information in connection with the application at the first reasonable opportunity and the misrepresentation of facts about ELH21’s relationship status.
The issues that arose in NAIS are not present in this case and the delays prior to the substantive hearings, whilst unfortunate (and, arguably, unusual), do not give rise to any error on the part of the Tribunal. The “delays” here did not impact on the Tribunal’s ability to discharge its statutory obligations in this matter.
No jurisdictional error arises in relation to issue 1.
Issue 2: whether the Tribunal failed to consider information or evidence
ELH21 claims that the Tribunal failed to consider (or failed to properly consider) the following information:
(a)a letter issued by ELH21’s “church elder”
(b)ELH21’s statement; and
(c)country information regarding religion.
To the extent that ELH21 is suggesting (on the applicant’s behalf) that the Tribunal did not consider the letter from the “church elder”, this fails on a factual level. The Tribunal implicitly considered the letter as follows:
74.Between 2006 and 2014 the applicant’s mother claims to have attended some home church services in Sydney, NSW, to pursue her religious devotion. When questioned about the basic foundations of her faith-beliefs, the applicant’s mother gave vague, confusing and unsatisfactory responses. As discussed in [the Tribunal’s decision in related proceeding PEG259/2021], I have made adverse credibility findings about the mother of the applicant’s claims to have been involved with the Local Church movement in both China and Australia. I have also articulated concerns that the entity identified as “The Assembly in Perth Inc” in submissions made by the mother of the applicant in the course of these concurrent proceedings may not, in fact, be a legitimate church or religious body.
The Tribunal also did so by reference to passages in its related decision in PEG259/2021 as follows:
79.I referred Applicant 1 to the documents that she had provided ahead of her first hearing to the Tribunal. One of these documents is a ‘Certificate of Incorporation’ of an entity known as ‘The Assembly in Perth Inc’ showing an incorporation date of the ‘12th day of June 2001’. The applicant also submitted a certificate of attendance, which identifies the applicant, her husband and two children. This certificate is dated 12 January 2021 and is signed by [the church elder], who identifies himself in the certificate as a “Chairman of Elders” of The Assembly in Perth Inc. This certificate provides a meeting hall address in Bentley, Western Australia, and states that Applicant 1 has been attending the church since 2014 with her children. Contact details for this person were also provided in the certificate.
80.I asked Applicant 1 how she knew [the church elder]. The applicant stated that although she had not had a detailed conversation with this individual about the circumstances of her life, she spoke with him on a reasonably frequent basis. I asked the applicant to describe the physical layout of the church. The applicant’s responses to these questions were in given broad general statements. I asked the applicant if anyone would notice the church if they walked past the building on the footpath. The applicant was unable to provide a reasonable answer to this fairly simple question.
81.I referred the applicant to available Google Maps street view images of the address shown for The Assembly in Perth in the certificate of attendance signed by [the church elder]. I pointed out to the applicant that there were no signs identifying the church, and that it was difficult to see from Google Maps street view if there was even a way to the entry to the church. Several alternative Google Maps street view angles were used to observe the local environment with the applicant’s involvement, and she was unable to identify a location where the entry to the church might be. I noted that the address appears to be in a light-industrial area with some businesses, factories and warehouses. I also noted that The Assembly in Perth Inc certificate of attendance contains a street address in Dianella at the bottom of the document. Using Google Maps street view once again, it was revealed that this address appears to be a residential house with several potential entries and multiple parking spaces. None of the available addresses, when viewed using Google Maps street view, suggested the existence of any form of church. During the hearing a telephone call was placed to [the church elder] on the nominated telephone number, but there was no answer.
As outlined in the passages above, the Tribunal considered the evidence from the “church elder”, asked ELH21 questions about her relationship with him and considered information provided in the documents. The Tribunal also attempted to contact [the church elder] by telephone during the hearing. There was no answer.
It cannot be said that the Tribunal failed to consider this information.
To the extent that ELH21 claims that the Tribunal failed to consider country information, this also fails on a factual level. The Tribunal considered the country information provided to the Tribunal as follows:
Country information
87.As discussed in [the Tribunal’s decision in related proceeding PEG259/2021], I have found that there is no apparent relevance of this information to the lived experience of the applicant or his family unit.
The Tribunal also referenced a passage in its related decision in PEG259/2021 as follows:
Country Information
95.As with other aspects of Applicant 1’s written response of 15 September 2021, the information provided appears to be an artefact of recent invention. Most notably, there is nothing in the written submission of 15 September 2021 to suggest any relevance of the country information therein summarised to the personal lived experience of either the applicant or her extended family in China. Accordingly, while I accept the summary of the country information contained in the applicant’s written submission of 15 September 2021 relating to the “Local Church” or “Shouters” as being accurate, I find that there is no apparent relevance of this information to the lived experience of either the applicant or any of her extended family.
It is clear that the Tribunal considered the country information. It simply found that the information provided, while accurate, had no relevance to the “lived experience of the applicant or his family”.
Insofar as the applicant claims that the Tribunal failed to give proper weight to any country information, it is well accepted that the Tribunal is entitled to either accept or reject or give such weight to country information as it thinks is appropriate: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; Wu Shan Liang; SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15 at [62] and Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
No error arises in relation to the Tribunal’s consideration of the letter from the “church elder” or the country information provided by the applicants.
The applicant also claims that the statement from ELH21 was not considered.
There appears to be no specific identification in the Tribunal’s decision of the ELH21’s statement as provided with the visa application (CB 42-44). This is not, however, an error in and of itself.
The Tribunal’s obligation under the Act to prepare a statement of reasons does not require it to identify or directly discuss each item of evidence to which it had regard: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. Further, the fact that a document is not referred to in the Tribunal’s reasons, does not necessarily mean that the particular piece of evidence was not considered by the Tribunal: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34].
The Tribunal does, however, set out a summary of ELH’s protection claims (at [66]) which was read to ELH21 at the first substantive hearing (which took place on 26 July 2021). ELH21 also confirmed that it was an “accurate summary of her written claims for protection” (at [67]). Again, this is also discussed in the Tribunal’s decision in the related matter of PEG259/2021.
While the statement itself was not expressly referenced by the Tribunal, the contents of that statement was conveyed to ELH21 at the combined hearing. She was provided an opportunity to amend or add anything further to those claims but did not do so. ELH21 also “stated that she was content for the Tribunal to proceed” based on that information (at [67]). ELH21’s protection claims were then discussed with her at length in the two substantive hearings in this matter.
No error arises in relation to issue 2.
Issue 3: whether the Tribunal acted unreasonably
Arguably, ELH21 alleges that the Tribunal’s credibility findings in relation to her were unreasonable.
The Minister’s outline of the core principles of legal reasonableness as provided in written submissions filed on 22 April 2022 (at [37]-[39]) is accurate and succinct. The Court adopts it as its own (with some minor amendments) as follows.
Legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision making: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (“Stretton”) at [4] (Allsop CJ); Li at [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88] (Gageler J). Parliament is taken to intend that statutory power will be exercised reasonably: Li [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88] (Gageler J).
The legal standard of unreasonableness is not limited to what is, in effect an irrational, if not bizarre, decision: Li [68] (Hayne, Kiefel and Bell JJ). Legal unreasonableness may arise in two contexts: as a conclusion after the identification of jurisdictional error for a recognised species of error, and an as “outcome-focused” conclusion without any specific jurisdictional error being identified: Stretton at [6] (Allsop CJ); Li [27]-[28] (French CJ) [68] [72] (Hayne, Kiefel and Bell JJ); Singh at [44] (Allsop CJ, Robertson and Mortimer JJ). An inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified: Li at [68] (Hayne, Kiefel and Bell JJ).
Determining the boundaries of power is not a definitional task, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power: Stretton at [11] (Allsop CJ).
Before considering any of the evidence in the matter before it, the Tribunal set out in detail the applicable legal principles and relevant case law that needs to be considered by a decision-maker when making findings in relation to an applicant’s credibility (at [30]-[49]). The Tribunal also set out the relevant requirements and principles relating to new claims and evidence – again, in some detail (at [50]-[54]). The Tribunal’s approach here reflects an in-depth understanding of what was required of it when making credibility findings and when considering new claims or evidence.
The Tribunal in this matter considered ELH21’s evidence in detail. The Tribunal had concerns about the evidence given by ELH21, particularly insofar as it related to her reasons for seeking protection (and the delay in seeking that protection) and her religious beliefs.
The Tribunal’s ultimate decision was based on information provided by ELH21 at two substantive Tribunal hearings (in July and August 2021), as well as information provided by the ELH21 on 15 September 2021 in response to a letter sent by the Tribunal pursuant to s 424A of the Act. The Tribunal’s letter (dated 27 August 2021), asked ELH21 (and, through her, the applicant) to comment on or respond to information and informed the applicant and his mother that:
This information is relevant to the review because this information suggests that the claims relied upon in both applications are not genuine or credible.
If we rely on this information in making our decision, it would be the reason, or part of the reason, for affirming the decision under review.
The Tribunal forensically considered all of the evidence before it in its decision in the related matter of PEG259/2021 and outlined its concerns and its adverse findings relating to ELH21’s delay in seeking protection in Australia (at [86] & [97]-[98]), its concerns regarding her commitment to her local church (at [102]), her vague descriptions of church teachings (at [76]) (compared to detailed doctrinal and liturgical information provided after the hearings (at [92])), her decision to attend an English-speaking church (at [77] & [94]), her decision not to be married in the church (at [78]) and her failure to disclose information about her marriage to the Department or the Tribunal (at [90]-[91] & [96]).
In its decision in the present matter, the Tribunal references its discussions and considerations in the related decision made in proceeding PEG259/2021.
On the basis of all of the evidence before it, the Tribunal ultimately found as follows:
93.The evidence of the applicant’s mother about being a Christian in China before 2006, however this term might be defined, is equivocal and unsatisfactory with respect to its lack of detail in terms of actual lived experience and corroboration from available sources. I have found in [the Tribunal’s decision in related proceeding PEG259/2021] that, whatever the applicant’s mother’s actual religious beliefs before 2006, they were not the cause of any adverse attention or inappropriate time or from any person.
94.To the extent that the applicant’s mother has engaged in or participated in any activities in any community of faith in Australia since 2006, I find that this has been for the purpose of social cohesion or otherwise for the purpose of strengthening her claims to be a person in respect of whom Australia owes protection obligations. I do not accept that the applicant’s mother has a personal involvement with, or commitment to, the community of belief associated with the teachings of Watchman Nee now, or at any time in the past, whether known by the sobriquet “Shouters” or “Local Church” or anything related to this community of belief.
95.I do not accept, given the evidence provided on behalf of the applicant discussed above, that “The Assembly in Perth Inc” is a genuine religious entity. It follows, therefore, that I do not accept that the applicant faces a real chance of serious harm in China now or in the reasonably foreseeable future for the essential and significant reason of his parent’s religious beliefs, either actual or imputed from any person, for any reason.
96.I have, separately, found that the claims of the applicant derived from or related to the unmarried status of his mother and father as outlined in the related review application [the Tribunal’s decision in related proceeding PEG259/2021] were not genuinely subjectively held by those persons when those claims were made or subsequently. Accordingly, given that I do not find the claims from which the applicant’s claims in this application are substantially derived to be credible, I do not accept that the applicant subjectively holds a genuinely well-founded fear of harm in China from any person, for this essential and significant reason now or in the reasonably foreseeable future.
The Tribunal’s findings were open to it. It cannot be said that no reasonable person could have made the same findings. While this Court might have assessed the evidence before it differently, that is not the test on review. The question that the Court must answer is whether, on the evidence, the Tribunal’s conclusions are “clearly unjust” or “arbitrary” or “capricious” or “unreasonable”.
Given the nature of the evidence before the Tribunal and the Tribunal’s forensic assessment of that evidence, the Tribunal’s rejection of that evidence was legally reasonable.
No error arises in relation to issue 3.
Otherwise – Bias
In oral submissions before the Court in PEG259/2021, ELH21 appeared to suggest that the Tribunal was biased. Specifically, ELH21 stressed that the Tribunal member was “upset and emotional because the interpreter was inadequate”.
After further conversations with ELH21, it seems that her concern relates to hearings before the Tribunal on 11 March 2021 and 29 March 2021. That is, this allegation does not appear to be in relation to the substantive hearings before the Tribunal in July and August 2021.
To the extent that the Tribunal member took issue with the interpreter, this was because the level of translation was not satisfactory. No findings were made by the Tribunal in relation to the March hearings. In fact, those hearings were both adjourned on the basis that the interpretation services were inadequate.
Further, it is well settled that an allegation of bias must be distinctly made and clearly proven. To prove bias, it is for the applicants to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
ELH21 has not advanced any evidence in support of her presumed allegation that the Tribunal was biased. She says that the Tribunal member was upset and emotional in his demeanour and approach in the March hearings. However, no transcripts of those hearings have been provided.
As outlined above, ELH21 did not allege any bias in relation to the substantive hearings held in July and August 2021.
On the evidence before this Court, there is nothing to suggest any bias or lack of objectivity on the part of the Tribunal. On the contrary, given the Tribunal’s concerted efforts to ensure that adequate translation was provided to ELH21, it is indeed arguable that the Tribunal went well beyond what was required of it to ensure that ELH21 was able to participate at the hearings before it in a meaningful way.
CONCLUSION
ELH21 (on behalf of the applicant) has failed to identify any jurisdictional error in the Tribunal’s decision. The Court is otherwise satisfied that no error arises.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 May 2022
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