GBV24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1112
•26 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GBV24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1112
File number(s): PEG 300 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 26 May 2025 Catchwords: MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether the Tribunal failed to investigate the applicant’s claims – whether the Tribunal failed to consider allegation of domestic violence – whether the Tribunal’s decision was legally unreasonable – whether the Tribunal placed excessive weight on outdated country information – jurisdictional error not established – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 36(2), 5J(5)
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules Schedule 2 Part 2 Division 1)
Cases cited: ACL17 v Minister for Immigration & Anor [2018] FCCA 3191
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384,
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
EYQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 10
VTAG v Minister for Immigration and Multicultural Affairs [2005] FCAFC 91; (2005) 141 FCR 291
ACL17 v Minister for Immigration & Anor [2018] FCCA 3191
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of hearing: 26 May 2025 Place: Perth Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Ms Ismailjee of Sparke Helmore Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 300 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GBV24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
26 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application filed by applicant on 30 July 2024 be dismissed.
3.The applicant pay the Minister’s costs fixed in the sum of $6,500.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE LIVERIS
The applicant is a citizen of China. She arrived in Australia on 28 September 2017 as the holder of a Subclass 600 tourist visa. On 19 December 2017, the applicant applied for a protection Class XA, Subclass 866 visa, in which she claimed to fear harm as a victim of domestic violence from her husband.
On 4 October 2018, the applicant was requested to attend an interview with the delegate, scheduled to take place at 9 am on 17 October 2018. The applicant did not attend the interview, and on 23 October 2018, the delegate refused to grant her the protection visa.
On 16 November 2018, the applicant applied to the Administrative Appeals Tribunal for a review of the delegate's decision.
On 1 May 2024, the Tribunal wrote to the applicant and informed her that it had considered the material before it, but was not able to make a favourable decision on that information alone. The Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in her case, and that hearing was scheduled to occur on 22 May 2024. On 10 May 2024, the applicant returned a response to the hearing invitation. She said that she would be relying on a written submission, and she also requested the Tribunal to take oral evidence from her second son, who currently lives in China.
She said her son “has been living in the same house of his parents and was in the house when the family violence perpetrated by his father in that year as a first-hand witness”. On 16 May 2024, the applicant's migration agent sent the Tribunal her written submission for the purposes of the hearing. Also, on 19 May 2024, the applicant's migration agent sent the Tribunal a signed statement from the applicant's second son. The hearing took place on 22 May 2024 as scheduled, and the applicant attended to give evidence and present arguments, represented by her migration agent, and also assisted by a Mandarin interpreter. The Tribunal received oral evidence from the applicant's second son.
On 12 July 2024, the Tribunal affirmed the delegate's decision. The Tribunal set out the applicant's claims that she had left China because she was the victim of domestic violence, and in particular that she gave birth to twin boys in June 1994. She said that she was young and naive, and that the father of her children was unemployed. She married him in 2000 because of household registry requirements. The applicant and her husband would get along with each other in the early days, or the beginning of their relationship, however the relationship soured, particularly as her husband was unemployed, and he would also take the applicant's family's money to gamble.
The applicant claimed that her husband would force her to get money from her parents. On one occasion, when her husband had been drinking and her son was ill, the applicant approached her husband for money for her son's medical treatment, and he hit her and he kicked her. She suffered a broken nose. The applicant claims that her husband also has gangster friends, and that her neighbours cannot assist her. The applicant claimed that she endured her husband's violence because she wanted her sons to have a complete family. She said that one day a woman called at her home and told her that she was her husband's partner, and that they have a daughter together, and she asked her to divorce her husband.
Her husband wanted a divorce, but he asked her for a large sum of money, which he claimed were fees for living with her. The applicant claimed that she did not have that money, and went into hiding at her parents' place. However, her husband and his gangster friends found her and beat her. She claims that her brother was injured when he tried to protect her, and that her husband threatened that he would hurt her family if they failed to give him the money. She looked for other places to hide, however her husband continued to find her and hurt her. It was suggested by a friend of the applicant's that she go overseas, and therefore she came to Australia. The applicant does not think that the authorities in China can help her, or will not protect her if she returns. And she also thinks that she will not be able to relocate within China to another area where she will not be harmed.
Against that background, the Tribunal correctly identified the issue in the matter being whether the applicant meets the criteria in section 36(2) of the Migration Act 1958 (Cth). In assessing the evidence in an overall sense, the Tribunal found that significant parts of the applicant's claims and evidence were consistent and credible. The Tribunal ignored minor and immaterial inconsistencies that it found, such as the applicant's marital status, where she originally declared that she was divorced, but at the hearing said she was still married and separated since 2015.
The Tribunal also found the evidence given by the applicant's son to be consistent with her version of events and incidents. The Tribunal was satisfied that the evidence before it demonstrates that the applicant experienced an unhappy and abusive relationship and marriage with her husband. However, it ultimately did not accept that the evidence demonstrated that she faces a real chance of serious harm, as set out in section 5J(5) of the Act, having regard to all the circumstances, including access to adequate police protection. In analysing the question of whether the applicant faced a real chance of persecution in accordance with Section 36(2)(a) of the Act, the Tribunal noted that the applicant last left China on 27 September 2017 and entered Australia the following day as the holder of a visitor visa.
The Tribunal also accepted the applicant's claim, based on its findings that she was generally a credible witness, that she has not travelled to another country in the last 30 years. The Tribunal also accepted her claims as to her past work experience as a textile worker in a linen factory, as a housewife and also then as a taxi driver. The Tribunal accepted the circumstances in which the applicant commenced a relationship and had twins with and married her husband, and it also accepted that her parents were wary of her choice of partner and that they disapproved. The Tribunal accepted that the applicant's husband was a work-shy man who could be aggressive and violent, and that his defects included gambling and womanising, and that he would turn to the applicant and her family for money.
The Tribunal accepted that the applicant's husband failed to contribute financially to the family and that she was required to take on arduous work, including driving a taxi for 20 hours per day, to provide financial support for the family, especially to support her twin sons' university education. The Tribunal accepted that there have been incidents as the applicant had claimed, where she was mistreated by her husband, including that she once sustained a broken nose when she was beaten by him after approaching him for money for her son's medical treatment. The Tribunal also accepted that there were other instances of mistreatment, including when she was approached by her husband’s girlfriend who demanded she divorce her husband.
The Tribunal accepted that the applicant decided to persist in an unhappy relationship because at the time, she considered it would be beneficial for her sons' future to keep the family together. Having accepted that history, the Tribunal then went on to identify that it was required to assess whether the applicant faces a real chance of serious harm, for the purposes of the non-exhaustive definition set out in section 5J(5) of the Act, if she returns to China. The Tribunal found that based on all of the evidence before, it did not accept that there was a real chance of the applicant suffering serious harm if she returns to China, for the following broad reasons:
(a)Although the marriage between the applicant and her husband was clearly an abusive and unhappy one, and although the applicant suffered physical harm, the Tribunal found that the evidence does not indicate that the applicant's husband shows an intention to inflict serious harm on her if she returns to China now, or in the reasonably foreseeable future. The Tribunal accepted that the conduct of the applicant's husband is repugnant, and the harm that she suffered is abhorrent. However, the Tribunal correctly identified that it was required to look into the reasonably foreseeable future to determine the risk of future harm. Whilst it accepted that the existence of past harm may indicate a real chance of future harm, the Tribunal did not accept that that is the situation in the applicant's case. The Tribunal pointed to the fact that the applicant and her husband separated in around 2015, and according to her and her son, that they continued to live separately under the same roof until around 2017. The Tribunal found that the separation in 2015 is persuasive evidence that the relationship was damaged and on the path to ending. However, it found that the applicant's husband did not inflict serious harm necessitating medical or hospital treatment, or fatal harm upon her, and that that is one of the number of factors or circumstances which led the Tribunal to conclude that the applicant's husband does not hold an intention to seriously harm her should she return to China.
(b)As to threats made to the applicant that she interfered with her husband's new relationship, the Tribunal found no evidence to suggest that she has done so, or intends to do so in the future if she returned to China. Accordingly, the Tribunal found that she does not face a real chance of harm in relation to this. The Tribunal went on to consider that the applicant is now thinking of proceeding with the divorce, and whether this might be a catalyst for harm toward her. However, based on all of the evidence before it, including the passage of time and that her husband has re-partnered, the Tribunal found that there is not a real chance of her being targeted for harm by her husband if she returns to China and so pursues a divorce.
(c)The Tribunal found that the applicant was able to move out of the house, rent accommodation and take up a job driving taxis in around 2017, and was able to do so without suffering serious harm from her husband. It considered this, together with other relevant evidence, supports the conclusion that her husband did not, and does not have, an intention to seriously harm her, despite him being aggressive and threatening. The Tribunal went on to consider and find that financial harm and financial threats can amount to serious harm. However, looking at the reasonably foreseeable future, it did not find that the evidence was suggestive that the applicant will have any relationship with her husband, or that he will be in a position to inflict financial harm upon her.
(d)The Tribunal considered the claim made by the applicant asserting that she left her husband and hid at her parents' place, and that he and his gangster friends found her and beat her. Whilst it accepted that the applicant may have suffered ill-treatment and subsequent threats, looking to the reasonably foreseeable future, the Tribunal did not accept that the applicant would face a similar situation. In finding this, the Tribunal looked at changes in relevant circumstances, including that the applicant has not had any contact with her husband since 2017. The Tribunal took into account country information which showed that the applicant would be able to avail herself of effective protective measures. The Tribunal accepted the applicant's husband threatened that he will hurt her family if they do not pay him money. However, there was no evidence to find that he has in fact done so, albeit even if he did cause an assault on the applicant's brother. The Tribunal did not find the particular assault resulted in serious harm, and the Tribunal was not persuaded that the claim that applicant would be unable to go to any other places to avoid her husband finding her and hurting her, was anything more than an inflation of her claims, designed for the purpose of fostering her protection claims which, as I have observed, is really the only instance where the Tribunal took issue with the claims made by the applicant.
(e)The Tribunal considered the claim that a woman called her at home and asked her to divorce her husband. It accepted that this kind of news would be hurtful to the applicant, however it did not find that it amounted to serious harm. The Tribunal also took into account country information showing that the applicant has the ability to challenge the refusal by her husband to divorce her, together with the demand for money, and that the system of law will deal with that matter in accordance with the law that applies in China. The Tribunal found that the evidence did not demonstrate that the applicant would be denied access to the courts to deal with such a dispute in China.
(f)The Tribunal found that the applicant's assertion that her husband has gangster friends who would harm her, to be speculative. It was not persuaded by the evidence, which it noted were assertions, that her husband has a genuine intention to seriously harm her, or that he would or could marshal gangsters to assist him in this, even if he wanted to in the reasonably foreseeable future if she were to return to China.
(g)The Tribunal accepted that due to what was put to it at the hearing as old-school ideas, and out of wanting to avoid embarrassment, the applicant husband's aggression and ill-treatment was not reported to the police. It also accepted that a further complication for the applicant was that she was worried about the negative impact on the children, at the time, that it might have. However, the Tribunal considered that whilst that might explain the past, it did not accept the proposition that the applicant does not have access to adequate police protection in China in the reasonably foreseeable future. It also noted that the applicant's two sons are now university educated, and there was no evidence to suggest that she needs to be concerned about the social impact that a divorce might have on them anymore. Also, the Tribunal took into account country information, to show that high levels of development in recent cases have improved prospects for women and that, overall, DFAT assesses state protection may be available for women experiencing domestic violence. The Tribunal was also persuaded by country information, which reported that police carry out day-to-day crime-fighting activities and investigate crime, and that day-to-day crime rates are low in China, but where crime does occur, police investigate thoroughly and prosecute criminal behaviour. Overall, the Tribunal found that the applicant is able to access adequate police protection in the unlikely and remote event that she should require it.
(h)The Tribunal took into account the applicant's response at the hearing, where she told it that there is a difference between the country information reporting on these matters and the implementation of them. The Tribunal accepted that domestic violence has not been weeded out completely in China, and it has not been eliminated in many other countries, including Australia. However, the Tribunal observed that that is not the test in assessing whether the applicant needs protection, and it is whether the applicant has effective protection measures available in the country of origin. Based on the totality of evidence before it and the country information, the Tribunal was satisfied that the applicant can access such protection, even if she feels that that might also cause her some embarrassment. The Tribunal accepted that such protection is durable, and it will be effective in preventing harm to her from her husband.
(i)The Tribunal considered the applicant's claim, supported by her son, about her husband's relationship with the other woman. In that respect, the Tribunal accepted that at the time of the confrontation in 2017, a fight started and that a neighbour intervened. The Tribunal considered the fact that the applicant's husband was in a relationship at the time is an additional consideration and factor that reduces his motivation to have anything more to do with her, and in particular it reduces his motivation to inflict harm upon her, noting that he is still in that relationship.
(j)The Tribunal accepted that the applicant's husband having a violent disposition and getting into fights might be an accurate description of his predisposition, finding that when the applicant ended their relationship, in effect, in 2015, and more formally in 2017, that there has been virtually no direct contact between them, even if some threats have been made. The Tribunal found, with a high degree of confidence, that the applicant can avail herself of adequate protection in the unlikely event that her husband or anyone else should threaten her with an intention to inflict serious harm upon her.
(k)The Tribunal considered that the claim made at the hearing that the applicant thinks the main reason why her husband wants to harm her is money related - and it again found that even if her husband had an intention to hurt her or even kill her, so that he would get compensation in respect of the home that they purchased together, the applicant can avail herself of adequate police protection, and that she does not face a real chance of serious harm on this basis.
Accordingly, the Tribunal found that the applicant does not face a real risk of serious harm, and does not meet the criteria in section 36(2)(a) of the Act.
Having made these findings, the Tribunal went on to consider the complementary protection criteria, and considered all of the evidence and claims before it, individually and cumulatively. And based on findings that were made in the refugee assessment, it was not satisfied that there was a real chance of the applicant being harmed in any way, falling within the definition of significant harm. The Tribunal re-emphasised its state of satisfaction that, based on country information, the applicant has access to effective protection measures in China.
The Tribunal found that the applicant does not meet the requirements of section 36(2)(aa) of the Act. The Tribunal was accordingly not satisfied that the applicant is a person in respect of whom Australia has protection obligations, and it decided to affirm the decision of the delegate to not grant the applicant a protection visa.
On 31 July 2024, the applicant applied for judicial review of the Tribunal's decision in this Court. She has been self-represented throughout the proceedings, but in submissions today, she referred to having received some legal assistance at various points throughout the proceedings, including the benefit of some legal advice at least in relation to the Minister's outline of submissions, and also it seems in relation to the grounds of review.
I note that in proceedings of this kind there is no right to legal representation, and procedural fairness does not require that a person be legally represented. Nonetheless, the applicant had limited submissions to make to me today. She was, in this Court, as she was in the Tribunal, assisted by a Mandarin interpreter. And I have understood the submissions that the applicant has been able to make to me.
There are three grounds of review that are pleaded. Orders were made on 20 January 2025, providing the applicant with the opportunity to file and serve written submissions, any amended application and any additional evidence. The applicant did not do so. As the applicant was not legally represented, I am mindful of remarks such as those of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384, including that the consequences of failing to particularise a ground of review will depend on the circumstances, and that it will be rarely appropriate to dismiss an appeal or a review in a migration case for lack of particularisation, where the applicant applies for relief arising out of a protection visa application, and they are self-represented.
Ordinarily, and particularly in these circumstances, it is appropriate for the person to be given an opportunity to explain orally, the matters that they say go to the grounds of review. With these remarks in mind, I provided the applicant with the opportunity to explain orally, the matters that she said went to the grounds of review, and to expand upon, or indeed add to, her grounds of review to help me understand the case that she was putting. I also explained to the applicant the limitations on the Court's jurisdiction, that it does not have the power to grant the applicant a visa, and it is not permitted to conduct a merits review of the Tribunal's decision.
I set out for the applicant some of the commonly recognised categories of jurisdictional error, and explained to her that in order to obtain the relief she is seeking, she must show that the Tribunal's decision is affected by such an error as exceeding the limits of the decision-making authority conferred by the statute upon the decision-maker. And in that sense, to amount to jurisdictional error, the error must be material, in that it could have realistically deprived her of a successful outcome. With that in mind, my assessment of the grounds follows. And noting that the applicant told me that there was nothing more that she wanted to add to her grounds of review, that she did not wish to change them, further particularise them or add to them.
Ground 1
Ground 1 focuses on paragraph 56 of the Tribunal's decision record, and makes a complaint that the Tribunal explained or applied the wrong and incorrect definition of serious harm. It says:
The Administrative Appeals Tribunal failed to take into consideration the material facts that have been accepted by the Tribunal. In paragraph 56 of the Tribunal’s decision, it state that the Tribunal has accepted the inhumane treatment that happened to me and my family members, including the physical harm. Beatings, broken nose, injury medical treatment, however the Tribunal denied and explained the wrong definition of ‘serious harm’, otherwise I would meet the criteria in the Act for refugee protection.
Paragraph 56 is one of the main paragraphs in which the Tribunal set out its findings and analysis of the facts. The applicant told me that she had nothing further to add to ground 1, or say in support of it. As I have explained, an applicant must show more than emphatic disagreement with the conclusions of a decision-maker. It may be that the applicant disagrees with the Tribunal's conclusions, that is, it may be that the applicant sees the Tribunal as effectively accepting her narrative but not finding that she faces a real risk of serious harm, and finds that is something that she disagrees with. But, in my view, this ground is not made out.
The Tribunal set out correctly, throughout the decision record, including at paragraphs 5 to 10, and 45 and 57 through to 61, correctly referencing the statutory provisions and the tests that are applied to the task before it, including its assessment of what is to take place in the reasonably foreseeable future.
The Tribunal found that - as it put to the applicant - even if it accepted that she had suffered past mistreatment, that it was required to consider whether there is a real chance of future harm. And that involves considering all the evidence, including whether circumstances have changed, and the availability of adequate state protection, and whether viable and reasonable internal relocation options exist. And so the task before the Tribunal was not as straightforward as this ground might suggest, that it seems, of accepting the applicant's narrative of past treatment and finding corresponding protection obligations. That seems, to me, to perhaps be a misunderstanding in the way in which ground 1 was put.
In any event, I accept also that within the context of the Tribunal's reasons, it correctly set out the meaning of significant harm and the circumstances in which a person will be taken not to face a real risk of significant harm. The Tribunal found its facts, and correctly went on to consider whether the applicant meets not only the refugee criteria but also the complementary protection assessment, and the circumstances in which a non-citizen will suffer significant harm. As I say, the Tribunal correctly identified that the assessment was a forward-looking one. I do not consider there to be any jurisdictional error evident in the complaint in ground 1, and I dismiss ground 1.
Ground 2
Ground 2 effectively complains that the Tribunal ignored the potential inhumane treatment and serious harm, if the applicant was forced to return to China. Ground 2 says:
The Administrative Appeals Tribunal made jurisdictional error to have ignored the potential in human treatment and serious harm if I was forced to return to my country.
To the extent that this ground is put in illogicality, the Full Court restated the principles about the characterisation of a decision or state of satisfaction as legally unreasonable, because of illogicality or irrationality, is not an easily made out test. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, the Full Court said:
[33] The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at 220 [26]; SZMDS 240 CLR at 647–650 [130]–[135]; CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; 253 FCR 496 at 517 –518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 88 [142].
[34] The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.
[35] Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20 –21 [38]; Re Minister for Immigration &Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.
In this ground, the applicant said to me at the hearing, that if she goes back to China, her husband will definitely find her.
The findings that were made by the Tribunal about the risks moving forward, in my assessment, were based on evidence given by the applicant, they were based on country information which the Tribunal was entitled to have regard to, and I do not consider there to be any error made out in ground 2.
To the extent that this ground also asserts that the Tribunal did not take into account information that it could have obtained, as it was pointed out, it is the applicant's responsibility to adduce evidence and advance arguments in support of their claims, and the Tribunal does not have any general duty to inquire. The principles were summarised by Judge Forbes in EYQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 105 as:
[51] The Tribunal operates in an inquisitorial, rather than adversarial, fashion and it has the power in conducting a review to get any information which it considers relevant. It may invite a person to provide information. It is to have regard to any information so obtained in making its decision.
[52] However, the Tribunal is under no general duty to use, or to consider using, its investigative powers to obtain information relevant to the review. Although the Act confers on the Tribunal wide discretionary powers to investigate an applicant’s claims, the legislation does not impose on the Tribunal a general duty to make inquiries in addition to the information provided to it by the applicant.
[53] It is well-established that a decision-maker has no duty to make his or her own inquiries in order to make out an applicant’s case.
[54] However, in Minister for Immigration & Citizenship v Le (2007) 164 FCR 151 at [60] , Kenny J observed (citations omitted):
[…] On the one hand, the authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant’s case for him or her. These authorities stretch back over the life of the Tribunal[…] On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal’s failure to inquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 .
[55] The circumstances in which a Tribunal decision will be set aside on the grounds of a failure to inquire are “ a confined category of case”.
[56] As to the circumstances where a failure to inquire might give rise to jurisdictional error, the High Court held in Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 (SZIAI) at [25] that:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a duty to inquire, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case […]” (emphasis added)
[57] Further, in SZIAI Heydon J observed at [52]:
The question of whether the Tribunal should have made further inquiries must be assessed bearing in mind that it was for the respondent to demonstrate that his claims were genuine; it was not for the Tribunal to try to achieve a demonstration that he had failed to achieve.
(citations omitted)
The circumstances in which the Tribunal may have a duty to inquire are extremely limited. But, ultimately, the Tribunal did take into account the potential range of risks for the applicant moving forward. The Tribunal recognised that domestic violence has not been weeded out completely, like with other countries.
However, it was not a case where the Tribunal was looking at the situation in China through an Australian prism - as it was suggested to me by the applicant that it may have. I do not consider there to be any jurisdictional error with respect to this ground, and I dismiss ground 2.
Ground 3
Ground 3 refers to country information, which it is suggested too much weight was put on, and that the country information was out of date.
Ground 3 provides:
The Administrative Appeals Tribunal put too much weight on the COI which is out of date and doesn’t reflect the real circumstances and the real chance of harm that I would face. In paragraph 56 (h) the Tribunal accepted the difference between the real acts and COI information, however the Tribunal still made it conclusion on the basis of COI.
The country information is dated 21 December 2021, in respect of a hearing that took place on 22 May 2024. It is not clear to me that that country information is necessarily the most current information. It is just not clear whether it is or it is not. But in any event, I restate my findings mentioned earlier, that it was the applicant's responsibility to put forward material and arguments in support of her review. She put forward a four-page statement made by her migration agent, which was largely, if not entirely, accepted in terms of the facts that the Tribunal found in relation to the claims of past mistreatment. However, in any event, it is well settled that the identification of relevant country information, and the weight to be attributed to it, are matters for the Tribunal.[1]
[1] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] and [13].
I was also referred to the case of VTAG v Minister for Immigration and Multicultural Affairs [2005] FCAFC 91 141 FCR 29187 ALD 333 at [41] where it was said by the Full Court of the Federal Court said that:
It followed that the Tribunal was entitled to conclude that any punishment that the appellant might suffer for illegal departure would not be affected by any alleged political profile. In any event, the choice of country information available was a matter for the Tribunal. The Tribunal was not required by law to accept more recent information even if it had been supplied. Such information might for example have come from a less reliable source than the old information. There was in the circumstances no obligation on the Tribunal to make enquiries: see VAO v Minister for Immigration & Multicultural Affairs [2002] FCAFC 31 at [25].
This has been effectively affirmed in other decisions, including ACL17 v Minister for Immigration & Anor [2018] FCCA 3191 at [42] and [43] where Judge Driver made observations to a similar effect where it was said:
The Tribunal has various pieces of country information before it, it may fall into error by not considering the most recent or cogent information. But that does not, however, mean that the Tribunal has to go hunting for information that it does not have.
Reaffirming that:
There is no general duty to inquire. And nothing triggered -
In that particular case -
an obligation to inquire.
Ultimately, I see this case in the same way. The Tribunal looked at the development of circumstances, both in China more generally and also with respect to the applicant, noting the distance in terms of time that had been placed between her and her ex-husband's relationship, accepting that his behaviour was abhorrent, but pointing it to a number of external factors that indicated that the motivation, incentive and risk for him to harm her is low. And that even if such a risk materialised, then she has access to adequate police protection in the country, and also recourse to courts with respect to disputes that may arise between them.
For these reasons, I do not consider that the Tribunal made any error in relation to ground 3, and I will dismiss ground 3.
Conclusion
Speaking more generally, the applicant made a number of submissions to me, a number of times today, that she just wants to stay in Australia. I set out for the applicant the limits on the Court's jurisdiction, and ultimately those matters may well be so, but they do not establish any error on part of the Tribunal, and they are not claims that I can validly take into account in considering the application. They are limitations on the Court's jurisdiction and those assertions do not make out jurisdictional error. I will make orders as sought by the first respondent.
Costs
Counsel for the Minister has applied for an order that the applicant pay costs fixed in the sum of $6,500. The applicant has spoken about being emailed the details of those arrangements but has not made any real submission against the order. There being no further submissions by the applicant, and noting, firstly, that the application has been dismissed and, secondly, that the sum sought by way of a fixed sum order is within the amount prescribed in Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021, I am satisfied that the amount sought is fair and reasonable.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Liveris. Associate:
Dated: 16 July 2025
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