Elh21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2022] FedCFamC2G 385

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ELH21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 385

File number: PEG 259 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 applicants 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)

Australian Citizenship Act 2007 (Cth), s 12

Migration Act 1958 (Cth), ss 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 as litigation guardian for ELJ21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 386

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: 163

Date of hearing: 6 May 2022

Place: Perth

Applicants: First applicant, in person

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 259 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ELH21

First Applicant

ELH21 AS LITIGATION GUARDIAN FOR ELI21

Second 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 prior to a related matter: PEG260/2021 (ELH21 as litigation guardian for ELJ21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 386).
The grounds raised by the applicants in both matters mirror one another. The first applicant in this matter (and the litigation guardian in PEG260/2021) relied on oral submissions made during the hearing of this matter in relation to PEG260/2021. Counsel for the Minister, in turn, relied on written submissions which were largely the same and oral submissions made during the hearing of this matter, other than correcting minor typographical errors in the written submissions.
The reasons that follow relate to PEG259/2021 only. A judgment in relation to PEG260/2021 will be published separately.
BACKGROUND
The first applicant is a citizen of the People’s Republic of China (CB 27 & 51). She arrived in Australia in June 2006 as the holder of a student visa (CB 124). She subsequently held a further student visa until its expiry on 15 March 2010. The first applicant then remained in Australia unlawfully until 19 June 2014 (CB 124). The second applicant is her second-born son. He was born in Western Australia in 2016 (CB 78).
On 19 June 2014, the first applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 15-52). That application included the applicant’s first born son (“ELJ21”) who was born in Australia in 2013 and who is the subject of a related application in proceeding PEG260/2021. The second applicant was added to the first applicant’s visa application at the date of his birth (CB 364). In her application, the first applicant 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 subject of a related application in proceeding PEG260/2021). The applicant 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 50).
The first applicant attended an interview at the then Department of Immigration and Border Protection (the “Department”) on 24 June 2015 (CB 53-62).
On 15 February 2017, the Department requested more information from the first applicant in relation to her visa application (CB 63-68).
On 9 March 2017, the first applicant responded to that request via email, attaching a statement from the applicants and ELJ21, a “change of address and/or passport details” form, a copy of the second applicant’s birth certificate and a tax invoice confirming a fax to the Department (CB 71-79).
On 16 March 2017, the first applicant provided to the Department a completed “Form 866B” document (relating to the applicants and ELJ21), a completed “Form 866C” document relating to second applicant and a copy of the second applicant’s birth certificate (CB 80-118).
On 11 April 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 123-139). The delegate was not satisfied that the first applicant had a well-founded fear of persecution and found that the first applicant’s delay in seeking protection in Australia cast doubt on the “genuineness of the [her] claim[s]” (CB 136). The second applicant’s visa was also refused (CB 139).
A separate decision was made by the delegate in relation to ELJ21 on the same day

(CB 144-159).
On 28 April 2017, the applicants in this matter applied to the Administrative Appeals Tribunal (the “Tribunal”) for a review of the delegate’s decision (CB 160-161).
On 18 December 2020, the Tribunal invited the first applicant to attend a hearing scheduled for 3 February 2021 (CB 181-190).
On 21 December 2020, the first applicant asked the Tribunal to combine the hearing with the hearing for ELJ21’s application (CB 191-192) and provided a completed response to hearing invitation form (CB 193-195).
Later that day (on 21 December 2020), the Tribunal confirmed that the hearings would be held on the same day, with the hearing of ELJ21’s matter to be held directly after the first applicant’s hearing (CB 196).
On 13 January 2021, the first applicant provided a letter from a church elder and a bundle of photographs (labelled church activity and baptism) to the Tribunal (CB 197-224).
On 2 February 2021, the Tribunal notified the first applicant that the hearing had been postponed (CB 225-226).
On 16 February 2021, the Tribunal invited the first applicant to attend a hearing scheduled for 11 March 2021 (CB 227-231).
The first applicant appeared before the Tribunal on 11 March 2021 and was assisted at that hearing by a Mandarin interpreter (CB 237-242).
On 12 March 2021, the Tribunal invited the first applicant to the resumption of the adjourned hearing scheduled for 29 March 2021 (CB 243-245).
The first applicant appeared before the Tribunal at the resumed hearing on 29 March 2021 and was assisted again assisted by a Mandarin interpreter (CB 250-253).
On 19 April 2021, the Tribunal invited the first applicant to the resumption of the adjourned hearing scheduled for 13 May 2021 (CB 254-256).
On 10 May 2021, the Tribunal notified the first applicant that the hearing had been postponed (CB 261-262).
On 12 May 2021, the Tribunal invited the first applicant to attend a hearing re-scheduled for 19 May 2021 (CB 263-266).
On 18 May 2021, the Tribunal notified the first applicant that the hearing had been postponed (CB 272-273).
On 21 May 2021, the Tribunal invited the first applicant to attend a hearing scheduled for 31 May 2021 (CB 274-277).
On 31 May 2021, the Tribunal notified the first applicant that the hearing had been postponed (CB 283-284).
On 17 June 2021, the Tribunal invited the first applicant to attend a hearing scheduled for 5 July 2021 (CB 285-288).
On 2 July 2021, the Tribunal notified the first applicant that the hearing had been postponed (CB 294-295).
On 5 July 2021, the Tribunal invited the first applicant to attend a hearing scheduled for 20 July 2021 (CB 296-299).
On 14 July 2021, the Tribunal notified the first applicant that the hearing had been postponed (CB 305-306).
On 15 July 2021, the Tribunal sent invitations to the first applicant inviting her to attend a hearing that had been re-scheduled to 26 July 2021 (CB 307-314).
On 16 July 2021, the first applicant contacted the Tribunal about the number of cancellations in relation to her matter, stating (without alteration) (CB 315):
Please see the attachment. I would like to bring to the tribunal's attention that the hearing has been canceled 8 times since February 2021 which I believe it is very unusual, it does cause a lot of inconvenience to me as each time I had been trying to attend the hearing on time. I hope this time the hearing will not be cancelled again.
Your attention in this matter is appreciated
The first applicant appeared before the Tribunal at the resumed hearing on 26 July 2021. She and was again assisted by a Mandarin interpreter (CB 320-325).
On 27 July 2021, the first applicant sent the Tribunal an email to which was attached a copy of her marriage certificate (CB 326-327).
On 10 August 2021, the Tribunal invited the first applicant to attend a hearing scheduled for 27 August 2021 (CB 328-331).
The first applicant appeared before the Tribunal at the resumed hearing on 27 August 2021. She again had the assistance of a Mandarin interpreter (CB 337-342).
That evening (on 27 August 2021), the Tribunal invited the first applicant to comment on or “respond to information” that questioned the first applicant’s credibility and the genuineness of her protection claims (CB 343-346).
On 15 September 2021, the first applicant responded to that invitation via email with a statement addressing the issues outlined above (CB 352-360).
On 11 November 2021, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas (CB 363-390).
On 3 December 2021, the applicants lodged an application for judicial review in this Court (CB 1-8). That application was supported by an affidavit sworn by the first applicant and annexing a copy of the Tribunal’s decision (CB 9-14). The applicants seek 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 applicants 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) the first applicant 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 litigants, 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 28 pages long and spans 109 paragraphs.
The Tribunal began by identifying the type of visa under review. The Tribunal explained that the delegate had refused to grant the applicants the visas (at [1]) on 11 April 2017 (at [3]), outlined the first applicant’s migration history and noted that the second applicant was born in Australia (and was added to the first applicant’s visa application from that date) (at [2]).
The Tribunal explained that there was a related application for review before the Tribunal in relation to ELJ21 and that, with the consent of the first applicant, the review of ELJ21’s matter was “heard and determined contemporaneously” with the present matter. Further, a decision was made in relation to ELJ21 on the same date as in the present matter (at [4]).
The Tribunal confirmed that the first applicant had appeared before it on 26 July 2021 and 27 August 2021 on behalf of herself and the second applicant. Further, “certain information had been put to the applicants pursuant to s 424AA of the Act at the second hearing” and the Tribunal had confirmed that in writing on 27 August 2021 (at [5]). The applicants provided a written response to that letter on 15 September 2021 (at [6]).
The Tribunal then explained:
7.Applicant 1 seeks protection in Australia under s 36(2)(a) of the Act, and claims to hold a well-founded fear of persecution in China now and for the foreseeable future for the essential and significant reason of her being a child from a family of conscientious church-going Christians in China having a history of State-based persecution in that country. She also fears returning to China because of her renewed personal association with a Local Church in Australia, having been baptised into that communion in 2014. The applicant further fears persecution for having given birth to a child out of wedlock in Australia. Applicant 1 has also asserted that she was unable to marry the father of Applicant 2 because his parents did not approve of the relationship.
8.Applicant 1 also asserts that Applicant 2 will experience persecution in China because they will be unregistered in that country and, therefore, will be unable to access state services including education. Applicant 2 also relies on the claims asserted by Applicant 1 as a member of the same family unit.
The Tribunal then explained that a delegate of the Minister had refused to grant the applicants the visas on the basis that the applicants did not hold a well-founded fear of persecution should they be returned to China. The Tribunal further explained that the delegate found “aspects of the [first] applicant’s narrative were lacking in credibility” – noting the first applicant’s “extensive delay” in seeking protection in Australia (at [9]).
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 [13]) and Australia’s obligations under the Refugees Convention (at [14]-[15]).
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 [17]-[18]). The Tribunal also noted more recent information contained in the UK Home Office publication ‘Country Policy and Information Note, China: Christians’ (at [19]).
The Tribunal then discussed the relevant jurisprudence relevant to whether an applicant facses is 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 [20]-[25]).
The Tribunal noted that these authorities provided guidance that “a decision maker must reach the appropriate level of satisfaction” in relation to s 36(2)(a) of the Act (at [26]) and identified that the issue in this matter was whether the first applicant engaged Australia’s protection obligations (at [27]).
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 [28]).

The Tribunal then detailed the applicable legal principles relevant to applicant credibility, noting that it would be guided by the “observations and comments” of the High Court and Federal Court (at [29]) – referencing (at [30]-[36]), in particular the decisions 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 the first applicant’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 [37]). 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 [38]).
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 [39]-[44]).
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 [45])) and confirmed that it had also considered the Migration and Refugee Division “Guidelines on the assessment of credibility” (at [46]-[48]).
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 [49]) – as outlined in s 5AAA of the Act. The Tribunal noted that it is not obliged to assist the 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 [50]).
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 [51]). 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 [52]). 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 [53]).
The Tribunal then set out the first applicant’s migration history and her date and place of birth and citizenship information (at [54]). The Tribunal also provided birth details for the second applicant, noting that the first applicant is his mother and noting that the applicant’s father is also a citizen of China (at [55]). The Tribunal 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 (Cth), the applicant was not an Australian citizen (at [57]) and was a citizen of China by descent (at [58]-[59]).
The Tribunal found that the applicants had no right to reside in a third country (at [60]) and found that their receiving country was China (at [61]).
The Tribunal noted that the Department’s files indicate that the first applicant arrived in Australia in June 2006 as the holder of a student visa and that the visa expired in March 2010, following which the first applicant remained in Australia unlawfully (at [62]).
The Tribunal explained that the first applicant had attended an interview with the Department on 24 June 2015 and that the applicants’ visas were 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 [sic] claim to fear serious harm PRC in order to escape being ill-treated by the PRC authorities.
The Tribunal confirmed that the applicants had lodged an application for review with the Tribunal and were not represented. The Tribunal further confirmed that the first applicant had appeared at the hearings and was assisted by an interpreter in the Mandarin language at all 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 Applicant 1 the summary of claims contained at Part 8 of the delegate’s decision record which was as follows:
•She and her family are members of the Local Church.
•Although her and her family experienced difficulties from the state authorities due to being Local Church members, the applicant ceased her involvement with the church after being detained by the authorities when she was 1st year middle school (2000) and receiving a warning from the authorities and her school to cease. For the purpose of her studies and at the behest of her family she ceased all Local Church involvement while in the PRC.
•Her parents were also arrested on one occasion when she was in her last year of primary school, however they have escaped any further detention since then. When arrested they were cautioned then released by the authorities.
•After arriving in Australia on 10 June 2006, she would worship by herself or with a small group of friends who she has lost contact with at each others homes.
•She did not attend an actual Local Church in Australia until May 2014, as she was not aware that such a church existed until overhearing some people talking about it at a shopping centre.
•Since identifying the Local Church, she was baptised on in June 2014, and has attended regularly. Although the sermons are in English, she has a friend translate for her.
•She is not aware of any further specific instances of harm to her family in the PRC since her departure; however she believes her parents are holding this information back from her.
•She is unaware of her brother’s claims for protection.
•She will also experience difficulties due to having a child born out of wedlock, which will result in a mandatory fine along with her child being unregistered and unable to obtain services until it is paid.
•She is unable to live with her or her partner’s parents as they do not approve of the relationship.
•She is unable to marry her partner as their parents do not approve.
•She fears that on return she will be harmed due to her faith, and her unregistered children will be unable to access services.
A request for further information was sent to the applicant on 15 February 2017, requesting any further information regarding her own claims and if there was a change in her personal circumstances. A reply was received on the 28 February 2017 not giving any further information regarding the wellbeing of her family in the PRC. However, it did state 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, they will be fined; 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 the first applicant 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.I provided Applicant 1 with a copy of s 5AAA of the Act, which enshrines the common law proposition that it is the applicant’s responsibility to make their claims for protection in as much detail as possible. I also provided the applicant with a copy of ss 99 and 104 of the Act, which together highlight the requirement that answers to questions in relation to a visa application be correct, and incorrect information be corrected at the first reasonable opportunity.
The Tribunal noted that it had explained to the first applicant that the eight year delay in seeking protection “raised significant questions about the credibility of her application” and that this would need to be discussed with her (at [69]).
The Tribunal continued:
70.I also put the following information to Applicant 1 pursuant to s 424AA of the Act, information that, subject to the applicant’s response, would be the reason or part of the reason for affirming the decision on review:
a.Original application for protection form listed “relationship status” as “separated” but provided no other information. This is confusing. On what basis was this answer given? This response is relevant to applicant credibility and the status of the applicant’s children. Note was made of a 2016 birth certificate for Applicant 2 contained on the Departmental file. This certificate lists two parents for the child. The father of the child is listed ([the husband]). This is the same father listed on a birth certificate contained in the Departmental file for the related review application for the first child of Applicant 1. Applicant 1 confirmed that the information on the birth certificates was correct.
Both children of Applicant 1 are listed as having the same family name. Thus in 2013, Applicant 1 had a child with [the husband]. In 2014 Applicant 1 reported that she was ‘separated’. But in 2016, Applicant 1 had a second child with [the husband]. These confusing facts reported by Applicant 1 raise questions about the applicant’s credibility concerning the basic facts of her life.
b.In addition, the true relationship status of Applicant 1 over time is a material fact which will need to be clarified. In response to direct questioning, Applicant 1 stated that she married the father of her children in 2019. She also produced a copy of her marriage certificate, dated 21 March 2019 and issued by the Western Australian Registry of Births, Deaths and Marriages. The applicant stated that she had no idea that she was required to provide this information to the Department or the Tribunal. I pointed out to the applicant, by reference to s 423A of the Act, that her failure to provide relevant information in connection with her application at the first reasonable opportunity might give rise to doubts about the credibility of related claims.
c.Information, including movement records, suggest that the spouse of Applicant 1 was refused a protection visa in Australia in June 2010. This decision was affirmed by the then Refugee Review Tribunal in August 2010. This individual has also been refused a Medical Treatment (Visitor) visa on a number of occasions. This information, together with the foregoing information, suggests that Applicant 1 may have misrepresented the true facts of her relationship status over a considerable period of time while in Australia in order to make her claims, and the claims of her children, stronger. This would reflect poorly on the credibility of the applicant and the credibility of her substantive claims, in the absence of a reasonable explanation. Given the centrality of an assessment of a given applicant’s truthfulness and credibility in any application for review, these considerations are central to the applications currently before the Tribunal as presently constituted.
The Tribunal noted that it had explained to the first applicant that she would need to address these issues (at [71]).
The Tribunal then confirmed as follows:
72.At the second hearing, held on 27 August 2021, the previous hearing was summarised, and the credibility issues raised with the applicant at the end of that hearing were put to Applicant 1 on behalf of the applicants. So too was the information put to the applicants pursuant to s 424AA of the Act.
The Tribunal then outlined the first applicant’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 [73]);
(c)the first applicant’s 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. He does not work and the first applicant provides for the family by working as a cleaner and cashier at a restaurant (at [74]);
(e)in 2012 the first applicant and her husband decided to have children, though neither of their respective parents consented to this; and
(f)in 2019, she and her husband obtained consent from their respective parents to marry (at [75]).
In relation to the first applicant’s religious beliefs, the Tribunal stated:
76.Applicant 1 stated that between 2006 and 2014 she had attended some home church services in Sydney, NSW, to pursue her religious devotion. I asked the applicant what set the “Local Church” apart from other ‘nonconformist’ Christian denominations. The applicant stated that the Local Church believes only in Jesus Christ and not the Apostles. When asked for clarification on this point the applicant gave vague, confusing and unsatisfactory responses. I put to the applicant that all Christian churches believe in Jesus Christ and asked for an explanation in the applicant’s own words as to why the Local Church was different. Applicant 1 said that the version of the Bible relied upon by her church was different to that of other churches, and she referred to it as the “Resumed Bible”. I asked the applicant if she had a Bible of her own she said she did not. I asked the applicant to direct me to an online version of the Resumed Bible. The applicant was unable to direct me to any such online source. The applicant did produce a hard copy, single A4 sheet of paper, with a devotional plan referring to what appeared to be the standard Christian Scriptures.
77.I put to the applicant that Chinese-language-speaking churches are available in every city of Australia. Noting that the applicant had insisted on the use of an interpreter fluent in both English and Mandarin and had spoken exclusively in the Mandarin language during all of her hearings (despite having lived in Australia for approximately 15 years), I asked the applicant why it was important for her to attend a church which delivered its services in English. The applicant stated that she found it convenient to attend an English-speaking church. I put it to the applicant that this response lacked credibility. I stated that despite having lived for such an extended period of time in Australia, the applicant required an interpreter to explain the basic facts of her life in response to straightforward questions. I put it to the applicant that it was inconsistent and illogical for her to suggest in these circumstances that she could only practise her faith beliefs in an English-speaking church when Mandarin-speaking churches were freely available in Australia. The applicant stated that she had looked for a Chinese-speaking church over the years but could not find one and also that no one explained to her that such churches were available. I put to the applicant that her answers to my questions lacked credibility.
78.I also asked why the applicant had chosen to marry in a registry office rather than in her own church. The applicant stated that her witnesses did attend the same church. I put to the applicant that this was not my question and again asked why she had decided not to be married in a religious service in her own church, given that she had stated her religious beliefs were so important to her. The applicant stated that she and her husband decided not to have a celebration to mark their marriage. Once again, I put to the applicant that religious believers of all faiths seek the blessing of their religious community by means of a marriage service. The applicant stated that she did not know that religious weddings were allowed. The foregoing sworn evidence satisfies me that the applicant has not genuinely sought out a community of faith in Australia. Her narrative lacks coherence and credibility in most important respects. These considerations lead me to find that the applicant has never and does not currently have an ongoing involvement in a genuine community of Christian believers in Australia.
The Tribunal discussed the documents provided by the first applicant prior to the first substantive hearing, including a “Certificate of Incorporation” relating to “The Assembly in Perth Inc” and an attendance certificate (signed by [the church elder], Chairman of Elders, The Assembly in Perth Inc) identifying the first applicant, her husband and their two children (at [79]).
The Tribunal asked the first applicant how she knew [the church elder] and was told that she spoke to him reasonably regularly. The Tribunal noted that, when asked to describe the physical layout of the church, the first applicant gave “broad general statements” and was not able to respond when asked if anyone would “notice the church if they walked past” (at [80]).
The Tribunal noted that a search using Google Maps for the address (shown in the attendance certificate signed by [the church elder]) did not show any signs identifying a church or entrance and alternate Google Maps street views were shown but the first applicant was unable to locate “where the entry to the church might be”. The Tribunal noted further that the attendance certificate contained an alternate address but Google Maps indicated that the alternate address was a residential house. Further, none of the addresses confirmed the existence of any church. The Tribunal attempted to call [the church elder] during the hearing, but “there was no answer” (at [81]).
The Tribunal then explained as follows:
82.I put to Applicant 1 that her nominated referee did not appear to be available to confirm any aspects of her evidence. I also put to the applicant that she had confirmed she had not discussed the basic facts of her life with this person in any event, and that, given the applicant’s vague responses relating to the church and that she was not aware that marriages were performed in churches, this raised concerns in my mind that the entity identified as The Assembly in Perth Inc may not, in fact, be a legitimate church or religious body. The applicant’s response was that she had heard sermons at church and that she had a friend explain these to her in the Chinese language.

The Tribunal then noted that it had asked the first applicant about her parents and she had informed the Tribunal that they were “not in bad health” and did not attend church regularly as the “church gatherings in her home village were infrequent”. The Tribunal noted further that the first applicant also confirmed that her father had a good job and partially supported his children’s overseas education (at [83]).
The Tribunal then explained as follows:
84.I pointed out to Applicant 1 that a core aspect of her claims both personally, and with respect to her children, were that they had been born out of wedlock. I pointed out to the applicant that this did not now appear to be a problem, nor did the likelihood of facing fines for having children born out of wedlock on return to China.
85.I asked Applicant 1 to clarify what it was that she feared on return to China. The applicant stated that she would not be able to practise her religion freely as she would want to. I asked the applicant why this would not be the case, given that available country information shows that most Christians are free to practise their religion in China generally and Fujian in particular. The applicant stated that Local Churches in China were subject to persecution. The applicant 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 as Local Churches (or Shouters) prefer to observe it is forbidden in China. I asked the applicant to explain to me how she practised her religion in Australia. The applicant stated that she attends the gathering place on a Sunday morning and Friday evening; and that there are team meetings for her children’s ministry. The applicant says that on these occasions the believers sing songs and read the Bible and share their faith.
86.I asked Applicant 1 why it took her eight years to apply for protection in Australia noting that she had lived unlawfully in Australia for four years during this time. I asked the applicant why it was that she chose not to return to China in 2010 when her lawful visa expired. The applicant stated that her parents encouraged her to stay in Australia. The applicant stated that, at this time, she approached a migration agent and discovered that their fees were too high. I asked the applicant 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.
87.I put to the applicant that her now husband had been refused a protection visa in Australia in 2010. I asked her if he had told the applicant about this. The applicant stated that she did not know about this rejection until 2013. I put to the applicant that in April 2021 her now husband applied for a Medical Treatment (Visitor) visa and that this had been refused, including on review by the Tribunal. The applicant stated that her husband told her about this immediately. I put to the applicant that her conduct in Australia demonstrated a lack of straightforward and honest dealing with the Department which extended back many years. The applicant stated that she did not understand the proposition I was putting to her. I indicated to the applicant that I would write to her with my concerns, giving her an appropriate amount of time to provide written responses; shortly after this, the hearing was concluded.
The Tribunal then detailed the contents of a letter sent to the first applicant on 27 August 2021, pursuant to s 424A of the Act (at [88]), which noted the following concerns and which sought comment from the applicant 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 husband] (husband of the principle applicant in 1709337 and father of the infant applicants in both matters). [The husband] was refused a Protection visa in 2010 and this was affirmed on review by the Tribunal differently constituted. Most recently, [the husband] 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 first applicant] and was not provided to the Tribunal in either matters currently before the Tribunal voluntarily at the fist reasonable opportunity;
•[The first applicant] and [the husband] were married in a registry office on 21 March 2019. This information was known to [the first applicant] 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 first applicant] at the hearing (in both matters) suggests that the church she claims to be associated with may not genuinely be a religious entity;
•[The first applicant]’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 first applicant] and [the husband] 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 first applicant] 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 first applicant] 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 detailed the response received from the first applicant on 15 September 2021 (at 89) as follows:
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 the first applicant 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 [90]) 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:
91.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 applicant’s evidence in this respect is inconsistent with prior sworn statements, including at the first hearing with the Tribunal, and lacking in credibility. I therefore find that this aspect of the applicant’s evidence is unsatisfactory and unpersuasive.
In relation to doctrinal and liturgical matters, the Tribunal found that, given the variance between the vague, confused and unsatisfactory responses given at the second substantive hearing and the extremely detailed information provided in written form, the Tribunal was persuaded that the latter was a “recent invention” and “did not reflect the [first] applicant’s longstanding beliefs and personal knowledge”. Little weight was placed on the written information, with the Tribunal favouring the “in person evidence” given by the first applicant at the hearing (at [92]).
In relation to the first applicant’s marriage, the Tribunal found the first applicant’s written responses to be “a jumble of assertions” and preferred the first applicant’s “in person evidence” that she “was unaware that she could be married in a church in Australia” and chose to marry in a registry office “because no celebration was intended”. The Tribunal considered the first applicant’s written submissions sought to “garnish” her previous evidence and “raise[d] questions about her credibility” (at [93]).
The Tribunal then assessed the first applicant’s evidence about her “choice of church community” and found that the first applicant’s evidence (oral and written) did not explain why a person with limited English would choose to attend an English-speaking church. The Tribunal noted its previous concerns about the existence of “The Assembly in Perth Inc” as an “actual religious community” and found that the applicant’s responses suggested she had never been a member of any genuine religious community in Australia (at [94]).
The Tribunal noted further that the first applicant’s written response regarding country information appeared to be “an artefact of recent invention”. The Tribunal also determined that the country information did not suggest any relevance to “the personal lived experience” of the first applicant or her family in China. The Tribunal found that, although the country information was accurate, it had no relevance to the first applicant or her extended family (at [95]).
In relation to the provision of misleading information, the Tribunal found as follows:
96.I note the applicant’s evidence to the effect that she was merely confused about her ongoing obligation to correct incorrect information in connection with a visa application at the first reasonable opportunity. However, I find that, at the time she first stated that she was “separated” in her initial application for protection in June 2014, she had in fact been in an ongoing relationship of mutual affection and commitment with her now husband since 2006 and had jointly welcomed a child into that relationship in August 2013. Indeed, this relationship resulted in a second child, in September 2016, who was added to the present visa application as Applicant 2. Accordingly, I find that the conduct of Applicant 1 in mis-stating her relationship status and failing to inform the Department of her marriage in 2019 was both directly related to her core claims for protection (and those of her infant children) and engaged in by the applicant specifically for the purposes of strengthening her claims to be a person in respect of whom Australia has protection obligations.
The Tribunal then considered the first applicant’s delay in seeking protection in Australia and found as follows:
97.Applicant 1 seeks protection from harm she claims to have experienced in China prior to 2006 and which she subsequently expects to experience on return to that country. Despite this, she did not seek protection in Australia until June 2014, some four years after she became an unlawful non-citizen in this country and 10 months after she had given birth to a son. As at the date of this decision, the applicant has provided no explanation for this delay. The delay is all the more inexplicable, given that her long-term domestic partner (since 2006) had applied for a protection visa in Australia in January 2010 which had been refused and affirmed on review by August 2010.
98.The only detail of relevance suggested by the applicant in response to the question of her unaccountable delay in seeking protection was that she could not afford a migration agent and did not know how to contact the Department. It is inconceivable that her domestic partner and father of the then only child of Applicant 1 would have applied for protection in Australia entirely without the knowledge of Applicant 1. Accordingly, Applicant 1 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 such a decision, and explained that it was nonetheless mindful that this matter might “give rise to such a decision in the reasonably foreseeable future” (at [99]).
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 [100]).
The Tribunal ultimately found as follows:
101.The evidence of Applicant 1 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 find that, whatever the applicant’s actual religious beliefs before 2006, they were not the cause of any adverse attention or inappropriate harassment to the applicant or any of her immediate family in that country at any time or from any person.
102.To the extent that the applicant 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 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. I do not accept, given the evidence provided by Applicant 1 discussed above, that “The Assembly in Perth Inc” is a genuine religious entity. It follows, therefore, that I do not accept that the applicants face a real chance of serious harm in China now or in the reasonably foreseeable future for the essential and significant reason of their religious beliefs, either actual or imputed, from any person, for any reason.
103.I further find that the claims of the applicants relating to the unmarried status of Applicant 1 and [the husband] being the natural father of Applicant 1 and the applicant in the related review application Tribunal Ref: 1709338 were not genuinely subjectively held by the applicants when these claims were made by the applicants or subsequently. Accordingly, given that I do not find the applicants’ claims to be credible, I do not accept that the applicants subjectively hold 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 the applicants’ claims were credible and noted relevant judicial authority (SZQNO v Minister for Immigration & Citizenship [2012] FCA 326; 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 the applicants’ claims (at [104]).
In relation to the refugee criterion set out in s 36(2)(a) of the Act, the Tribunal was not satisfied that the first applicant was a non-citizen in respect of whom Australia had protection obligations under the Refugees Convention (at [105]).
The Tribunal also noted that it had considered the first applicant’s eligibility under the complementary protection criterion set out in s 36(2)(aa) of the Act (at [106]), 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 [107]).
The Tribunal found that there were no substantial grounds to believe that there was a real risk that the applicants would suffer significant harm if they were removed to China. The applicants were thus not persons in respect of whom Australia had protection obligations as set out in s 36(2)(aa) of the Act (at [108]).
On the basis of the above, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas (at [109]).
PROCEEDING IN THIS COURT
The application for judicial review filed by the applicants on 3 December 2021 contains eight “grounds of review” as follows (without alteration):
•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, the first applicant 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 applicants were 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 applicants.
The materials before the Court thus include the application for judicial review and supporting affidavit, both filed by the applicants on 3 December 2021, an Amended Court Book numbering 399 pages (marked as Exhibit 1), an affidavit of Madisen Scott affirmed and filed on 29 April 2022 and written submissions filed by the Minister on 22 April 2022.
The first applicant appeared before this Court in person and without legal representation. At the hearing, the first applicant spoke on behalf of herself and the second applicant. The first applicant was assisted by an interpreter in the Mandarin language. The Court confirmed with her that she had received a copy of the Amended Court Book and the Minister’s written submissions.
The Court also made an order appointing the first applicant as the litigation guardian for her second-born son (the second applicant in this proceeding).
To assist the first applicant (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 the first applicant 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 visas that the applicants now seek. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the first applicant explained that the Tribunal’s decision was “unreasonable” because the Tribunal member “got upset because of mistakes made by the interpreter” at the March hearings. The applicant stressed 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 the first applicant is raising an allegation of bias, this issue will be discussed in the consideration below.
CONSIDERATION
For ease of reference, the applicants’ grounds of review state:
•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 applicants are 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 applicants’ 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 applicants as unrepresented litigants, 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 applicants 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 first applicant’s grounds of review along similar lines in written submissions filed on 22 April 2022.
Issue 1: whether the Tribunal denied the applicants procedural fairness
The applicants claim 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 the first applicant 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 the first applicant’s demeanour (as was the case in NAIS). Here, the Tribunal had credibility concerns based on a number of factors, being the delay of eight years in the first applicant seeking protection in the first instance, inconsistency in the first applicant’s evidence (that is, discrepancies in oral evidence and information provided in sworn statements), the first applicant’s failure to provide relevant information in connection with her application at the first reasonable opportunity and the misrepresentation of facts about the first applicant’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
The applicants here claim that the Tribunal failed to consider (or failed to properly consider) the following information:
(a)a letter issued by the first applicant’s “church elder”
(b)the first applicant’s statement; and
(c)country information regarding religion.
To the extent that the applicants suggest that the Tribunal did not consider the letter from the “church elder”, this fails on a factual level. The Tribunal considered the letter in detail 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 the first applicant 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 the applicants claim 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
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 [first] applicant [or] her … family”.
Insofar as the applicants claim 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 applicants also claim that the first applicant’s statement was not considered.
There appears to be no specific identification in the Tribunal’s decision of the applicant’s statement as provided with the visa application (CB 48-50). 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 the first applicant’s protection claims (at [66]) which was read to the first applicant at the first substantive hearing (which took place on 26 July 2021). The first applicant confirmed that it was an “accurate summary of her written claims for protection” (at [67]).
While the statement itself was not expressly referenced by the Tribunal, the contents of that statement was conveyed to the first applicant. She was provided an opportunity to amend or add anything further to those claims but did not do so. The first applicant also “stated that she was content for the Tribunal to proceed” based on that information (at [67]). The first applicant’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
The applicants allege that the Tribunal’s credibility findings in relation to the first applicant 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 [29]-[48]). The Tribunal also set out the relevant requirements and principles relating to new claims and evidence – again, in some detail (at [49]-[53]). 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 the first applicant’s evidence in detail. The Tribunal had concerns about the evidence given by the first applicant, 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 the first applicant at two substantive Tribunal hearings (in July and August 2021), as well as information provided by the applicants 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 the applicants to comment on or respond to information and informed the applicants 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 and outlined its concerns and its adverse findings relating to the first applicant’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]).
On the basis of all of the evidence before it, the Tribunal ultimately found as follows:
101.The evidence of Applicant 1 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 find that, whatever the applicant’s actual religious beliefs before 2006, they were not the cause of any adverse attention or inappropriate harassment to the applicant or any of her immediate family in that country at any time or from any person.
102.To the extent that the applicant 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 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. I do not accept, given the evidence provided by Applicant 1 discussed above, that “The Assembly in Perth Inc” is a genuine religious entity. It follows, therefore, that I do not accept that the applicants face a real chance of serious harm in China now or in the reasonably foreseeable future for the essential and significant reason of their religious beliefs, either actual or imputed, from any person, for any reason.
103.I further find that the claims of the applicants relating to the unmarried status of Applicant 1 and [the husband] being the natural father of Applicant 1 and the applicant in the related review application Tribunal Ref: 1709338 were not genuinely subjectively held by the applicants when these claims were made by the applicants or subsequently. Accordingly, given that I do not find the applicants’ claims to be credible, I do not accept that the applicants subjectively hold 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, the Tribunal’s ultimate determination was legally reasonable.
No error arises in relation to issue 3.
Otherwise – Bias
In oral submissions before the Court, the first applicant appeared to suggest that the Tribunal was biased. Specifically, the first applicant stressed that the Tribunal member was “upset and emotional because the interpreter was inadequate”.
After further conversations with the first applicant, 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].
The first applicant 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, the first applicant 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, aggression or impartiality on the part of the Tribunal in this matter. On the contrary, given the Tribunal’s concerted efforts to ensure that adequate translation was provided, it is indeed arguable that the Tribunal went well beyond what was required of it to ensure that the first applicant was able to participate at the hearings before it in a meaningful way.
CONCLUSION
The applicants have 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-three (163) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.
Associate:
Dated: 20 May 2022

File number:	PEG 259 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 applicants 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) Australian Citizenship Act 2007 (Cth), s 12 Migration Act 1958 (Cth), ss 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 as litigation guardian for ELJ21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 386 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:	163
Date of hearing:	6 May 2022
Place:	Perth
Applicants:	First applicant, in person
Counsel for the first Respondent:	Mr C Beetham
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Australian Government Solicitor

PEG 259 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ELH21 First Applicant ELH21 AS LITIGATION GUARDIAN FOR ELI21 Second 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