FEDERAL COURT OF AUSTRALIA

AXR16 v Minister for Immigration and Border Protection [2019] FCA 42

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Federal Circuit Court of Australia be set aside, and in lieu thereof:

(a)    there issue absolute in the first instance:

(i)    a writ of certiorari directed to the second respondent to quash the decision of 12 April 2016; and

(ii)    a writ of mandamus directed to the second respondent requiring it to determine according to law the applicant’s application for review of the decision made by a delegate of the first respondent on 7 November 2014; and

(b)    order that the first respondent pay the applicant’s costs.

3.    The first respondent pay the appellant’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THAWLEY J:

1    This is an appeal from orders of the Federal Circuit Court of Australia made on 19 June 2018 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal made on 12 April 2016. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection (now the Minister for Home Affairs) made on 7 November 2014, refusing an application for a Protection (Class XA) visa.

background

2    The claims as provided by the appellant in support of her visa application were as follows:

(1)    The appellant was born in Zeqi Village, Sanshan Town, Fuqing City, Fujian Province and is a citizen of China.

(2)    The appellant’s father was a stonemason and her mother farmed on land allotted to her family by the government. The appellant’s father travelled to construction sites for work and was rarely at home.

(3)    In around October 2003, the appellant’s mother was converted by an activist (Ms H) of the “Local Church”. Ms H was a vegetable wholesaler who collected agricultural products from farmers such as the appellant’s mother.

(4)    Following the conversion of the appellant’s mother, the appellant, her father and her brother began attending meetings of the Local Church and were baptised in February 2004.

(5)    The appellant’s mother took the appellant and her brother to attend meetings of the Local Church on weekends. These meetings could only be held at the homes of its members because the Local Church was regarded as an “evil cult” by the Chinese Government. Due to the attention of authorities, particularly the Public Security Bureau (PSB), they changed the locations of their meetings frequently. The appellant’s home was one of the locations of these meetings.

(6)    In late July 2007, the appellant’s father and brother went to Fuzhou after the appellant’s father was contracted to a project manufacturing stone statues for a new residential area. Fuzhou is also in Fujian Province.

(7)    In early August 2007, Ms H and her husband (Mr X) arranged for five or six people from Anhui Province to stay at the appellant’s family home while they were attending an induction programme or “perfecting training” of the Local Church. They had come to Fujian solely for that purpose. The appellant and her mother took them to different places for training each day.

(8)    Mr X was also an activist of the Local Church. He evangelised to local residents and had established a secret meeting group for the Local Church in Anqing City, Anhui Province.

(9)    On 10 December 2007, at the age of 17, the appellant was removed from her classroom by police and taken to the PSB in Fuqing. While there, she saw that both Ms H and her mother had also been arrested. They were not allowed to speak with each other.

(10)    The appellant was interrogated by three members of the police, one female and two male. During the interrogation she was asked to confess as to her involvement with the Local Church, as well as to the activities of her mother and Ms H. She claimed that the police showed her photos of her mother and Mr X with the five or six people that had lived at her home from August 2007. She was told that the secret meeting group established by Mr X in Anqing City had been destroyed. Some Christians, including the five or six that had stayed at her home, had been arrested and Mr X’s shop had been sealed by the authorities. The police could not locate Mr X.

(11)    She claimed that the female member of the police had slapped her across the face, mistreated her with an electrical baton, and humiliated her through various methods. The appellant divulged nothing to the police.

(12)    During the evening of 10 December 2007, the appellant was transferred to Fuqing Detention Centre with her mother and Ms H. While at the detention centre she was continually interrogated and was subjected to “inhuman treatments”.

(13)    The appellant’s father was, at this time, working at a construction site in Yingtan, Jiangzi Province. On learning what had occurred, he returned home and organised, through one of his regular customers, Mr W, to pay a bribe to a member of the PSB.

(14)    The appellant was released on 21 December 2007, having been held for 11 days.

(15)    The appellant’s mother was detained for almost 3 months before being released on 7 March 2018.

(16)    Ms H, who the authorities regarded as a dangerous person and a threat to security due to her involvement with the “evil cult”, was sentenced to 2 years at the “Fujian Female Centre of Re-education Through Labour” in March 2008.

(17)    Before the events in December 2007, namely in July 2007, the appellant’s father had started organising, through a friend of Mr W, for the appellant to study in Australia.

(18)    The appellant said that her father bribed an officer at Fuzhou Airport, again with the assistance of Mr W. She left China on 4 April 2008.

3    The appellant was granted a Student (Class TU) (Subclass 571) visa on 17 March 2008 and arrived in Australia on 5 April 2008.

4    The appellant was granted a further student visa, with work limitations, on 5 May 2008. This visa ceased on 15 March 2010.

5    The appellant also claimed that her parents and Mr X formed a secret meeting group of the Local Church in Tongling area of Anhui Province in 2009. She claimed that Mr X was arrested following a meeting on 9 February 2014.

6    The appellant remained in Australia after her visa had ceased for over four years as an unlawful non-citizen before applying for a protection visa on 18 March 2014.

The DElegate’s Decision

7    The delegate of the Minister accurately summarised the appellant’s written claims in the decision record. The delegate made several adverse credibility findings in relation to the appellant’s claims.

8    The delegate found that the appellant was not a member of the Local Church in Fujian and was not detained by authorities in December 2009 on the basis of what the delegate regarded as “discrepancies” in her claims:

(1)    In the interview with the delegate, the appellant said that she attended several church activities each week. One activity, Thursday Bible reading group, was held each week in her home. A youth meeting was also held at a place next to the high school and 30 people attended Sunday church in another person’s house. The delegate found it unlikely that authorities in Fujian would be unaware of the activities of a group of up to 30 people which occurred each week for over three years in the same locations.

(2)    The appellant stated that when she was arrested, the police showed her photographs that were found in the Anqing City Local Church of Mr X and some of the people who had stayed at her house from August 2007. The delegate did not find it plausible that the Fujian authorities would rely on photographs found in Anhui Province or that the appellant and her mother would be identified as Christians and members of the Local Church based on those photographs.

(3)    It was unlikely that the appellant’s father would pay a bribe for the release of his teenage daughter but leave his wife in detention for almost three months.

9    The delegate found that because the appellant obtained her passport (issued on 10 July 2007) with ease, obtained permission to leave China and was not stopped at the border, the appellant was of no interest to authorities, at least in July 2007.

10    The delegate also found it significant in relation to credibility that the appellant had “fled China in April 2008 because she was a member of the Local Church”, but only registered with the Local Church in Sydney in February 2009 after ceasing her studies in December 2008. The delegate found that waiting until the completion of a course of study and then a further two months to make contact with the Local Church in Australia was inconsistent with the claim that she was an active and devoted member of that church.

11    The delegate found that the appellant was a member of the Local Church in Australia on the basis of supporting letters, photographs and other evidence provided by the appellant. However, the delegate noted that the appellant provided no evidence of having attended a function at the Local Church in Australia before 2012 and the only testimony surrounding her participation in the church was a standard form of letter with a date drawn from church records.

12    The delegate stated that although the appellant produced a letter of support from the Local Church in Sydney stating that the appellant had regularly attended meetings since 2009, Brother Poh (one of two people who signed the letter of support from the Local Church in Sydney) indicated in a phone conversation that he did not know the appellant and that the date on the letter was derived from church records.

13    The delegate found it implausible that someone active in the Local Church, a relatively small and intimate community, would not have a number of people willing to vouch for her rather than relying on church records of the date that she registered or that she would not have become known to leaders of the church over five and a half years.

14    On the basis of the above, the delegate found that the appellant had not engaged in conduct in Australia otherwise than for the purpose of strengthening her claim to be a refugee within the meaning of the Refugee Convention, and therefore disregarded the appellant’s conduct in respect of the Local Church in Australia for the purposes of assessing whether the appellant was owed protection obligations by Australia.

15    The delegate also did not accept that the appellant applied for protection because she had a genuine fear of returning to China.

16    The delegate asked the appellant for the reason for the delay in making her application for a protection visa. She told the delegate that she did not want to apply for a protection visa as she believed that God had saved her from detention and brought her to Australia. She stated that suffering for God was a glorious thing. However, she had decided that she was not strong enough to suffer any more after Mr X was arrested on 9 February 2014.

17    The delegate found it implausible that the appellant had delayed applying for a protection visa for six years because she wished to suffer for God, but that after Mr X’s arrest that particular barrier no longer applied.

18    The delegate also noted that departmental records showed the appellant’s husband had applied for protection and his case went to judicial review on 5 March 2014 but was unsuccessful. The delegate found that because the appellant lodged her own application on 18 March 2014, it was more likely that the appellant applied for protection because it was expedient for her to do so after her husband’s case was finalised rather than because of her concern for her welfare if she were to return to China.

19    The factual findings above led to the delegate not being satisfied that:

(1)    the appellant had a real chance of being persecuted for a Convention reason and therefore also not being satisfied that the appellant had a well-founded fear of persecution;

(2)    there were substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia, there was a real risk that the non-citizen will suffer significant harm in their home region.

The Tribunal’s decision

20    The Tribunal accepted that the appellant held a strong devotion and commitment to the Local Church and accepted that, if she returned to China, she would attend gatherings of the Local Church: T[50]. It accepted she was an adherent of the Local Church in Australia: T[51].

21    The Tribunal accepted the appellant’s faith commenced in China in the setting of her family: T[52]. It accepted that the appellant’s parents had been involved in the Local Church and had attended gatherings and that her father was co-ordinating a gathering in Anhui: T[53]. The Tribunal said at T[52] to T[53]:

52.    On the basis of the applicant’s description of her baptism and general knowledge of Local Church background in China, the Tribunal accepts the applicant’s faith commenced in China in the setting of her family. The Tribunal accepts that in China, the applicant, as a girl, she participated in, and supported her mother in Local Church gatherings and activities. However the Tribunal notes that the applicant has not suggested that she was involved in proselytising in China. The Tribunal has also considered the applicant’s statements supported by documentation from church members about the nature of her church activities in Australia. On this evidence the Tribunal accepts that the applicant has been active in discussing her faith and encouraging others to share her faith within the church and her social and domestic circle in Australia, such as her current housemate and her husband. On the evidence before it, the Tribunal does not consider that the applicant has been involved in proselytising more broadly in Australia. The Tribunal does not accept that she would proselytise to a greater extent than she currently does if she returned to China, now or in the reasonably foreseeable future.

53.     Based on the oral evidence of the applicant, the Tribunal accepts that the applicant’s parents have been involved in the Local Church and have attended gatherings. The Tribunal accepts as plausible that the applicant’s father is coordinating a gathering in Anhui.

22    The Tribunal’s conclusions and reasoning at T[54] is of particular importance to the appeal. The Tribunal rejected the appellant’s claims as to the events which occurred in December 2007 on the basis that it considered the appellant not to be a credible witness. It is necessary to set out the whole paragraph:

The Tribunal has considered the applicant’s claim to fear harm from the Chinese authorities because she and her mother were arrested and detained in Fuzhou in December 2007 because the PSB wanted information about the Local Church evangelist, [Mr X] and were aware of their involvement in the Local Church. The Tribunal does not accept these claims because the Tribunal is not satisfied that the applicant is a credible witness in this regard for the following reasons:

•    The claim that the applicant and her mother, along with [Ms H] and 10 other church members were arrested in December 2007, is inconsistent with reports contained in independent sources, which report no incidents of arrests or harassment of Local Church members or unregistered Christians in Fijian [sic] province in 2007. For example, China Aid’s Annual Report of Chinese Government Persecution of Christians House churches within Mainland China for 2007 contains tables setting out incidents of claimed persecution of Christians in China, providing details of 788 cases of persecution and the detention of 693 persons across China tabulated by region and municipality. There were 17 cases of physical abuse in the persecution (beating, torture and psychological abuse). That report does not suggest that any of those incidents occurred in Fujian province, nor that any person was detained or arrested in that province during 2007. Nor does the United States Department of State International Religious Freedom Report for 2007 make any mention of such events occurring.

•    The applicant’s claims are also inconsistent with information from 2009, a similar period, that the local government in Fujian is fairly tolerant of unregistered believers as it is rare that one reads of cases of persecution of Christians in the province.

•    The applicant has provided no evidence of any kind of her own arrest or of her mother’s claimed detention for 3 months.

•    At the Tribunal hearing, the applicant explained why she applied to study in Australia, i.e. she wanted to come to study and to work. The applicant explained that when she was 17 years old, an agent (organised through the school) came to the school handing out fliers advertising study in Australia. He said that if you need to make money in Australia conditions were good and it was easy to get a job and also you can learn English. The agent advised that it was good to go to Australia when doing Year 11 because it enabled you to graduate with a high school certificate and then do university in Australia. The applicant stated she decided to do this and the agent made all the arrangements and they just paid him. The applicant commenced making visa enquiries in July 2007, five months before the claimed arrest. In this discussion, the applicant did not state that she came to Australia for any reason other than to study and she did not mention any concerns related to the practice of her faith, such as concern that she had to gather in secret for services and prayer. The Tribunal drew the conclusion that the practice of her religion was not a concern at the time she made her visa application and that on the evidence of the applicant her planned travel to Australia was not motivated by fears of harm due to her religion.

•    The Tribunal has considered that the applicant arrived in Australia in April 2008 and that she started going to church in February 2009, i.e. a period of almost one year after her arrival. On the basis of the supporting documentation from the co-ordinators of the Local Church in Auburn, Sydney, the Tribunal accepts that the applicant attended the Local Church in Auburn from February 2009 until her move to Melbourne in 2014. In response to enquiries that there was a long delay between her arrival in Australia and her attendance at Church, the applicant stated that she did not join with others on arrival but she prayed at home every day. She stated that she learned about the church from a workmate who said there was a Chinese church and when she went there she found it was a Local Church. The applicant stated that she still feels guilty that it took her so long to connect with her Church, but that at the time she was focused on herself only. When she first came to Australia she relied heavily on the Lord, but she had problems with work and on the money side so she concentrated on looking for a job. The Tribunal finds it difficult to accept that the given the level of personal commitment to the Local Church that led her to be detained, questioned and tortured in China, as claimed by the applicant, she would not quickly seek to establish connections with the Local Church in Sydney, information about which is readily available. The Tribunal finds the applicant’s behaviour in this respect is inconsistent with her claim she was an active member of the Local Church such that she was arrested and detained by the PSB.

•    In considering the applicant’s claim to fear harm from the authorities in China due to her religious beliefs and because she was arrested and detained in connection with those beliefs, the Tribunal has considered that the applicant did not raise any claim to need protection until 18 March 2014, more than six years after her arrival in Australia, and four years after her visa was cancelled through all of which time she remained in Australia illegally. When the Tribunal indicated that it considered that if the applicant had concerns about her need for protection, she would have put these forward at the earlier possible time, the applicant stated that she did not raise this matter earlier because she made up her mind when God took her to Australia and showed His love for her by letting her come to Australia, that she would not be greedy and ask for more. She could not persuade herself to take advantage of the Lord. She was scared but put aside her natural fear and believed that she was meant to suffer for her God. She passed everything to the Lord believing “that if you suffer for God your gift will be bigger.” The applicant indicated that she made her application for protection when [Mr X], the evangelist from Anhui, was arrested in February 2014. The Tribunal has considered this response, but as discussed with the applicant at the hearing, the Tribunal is not satisfied that it accounts for the absence of the applicant’s actions to seeking protection. The Tribunal would expect that had the applicant feared harm from the authorities on return to China, she would have applied for protection at the earliest possible time. The Tribunal also finds it illogical that the applicant would later be motivated to lodge a protection visa application so long after her arrival on the event of the [Mr X]’s claimed arrest. The Tribunal would expect that she put forward her claims at an earlier time. These considerations cause the Tribunal to have further doubt as to the credibility of the applicant’s claims to be in need of protection because she was arrested and detained in connection with her religion.

23    These conclusion led the Tribunal to conclude at T[55]:

Given these significant concerns about the applicant’s credibility, the Tribunal does not accept that the applicant was arrested, along with 10 others including her mother, and detained by the authorities for 11 days in December 2007. The Tribunal does not accept that the applicant was questioned, slapped or tortured by the PSB. The Tribunal does not accept that the applicant was released after 11 days because her father bribed officials. It follows that the Tribunal does not accept that after her mother’s release, the PSB went often to the applicant’s parent’s place. The Tribunal does not accept that the applicant’s father bribed officials to enable the applicant to depart China. The Tribunal does not accept that the applicant is of any adverse interest to the Chinese authorities because of her religious beliefs or her activities connected with them in China. The Tribunals [sic] does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm from the Chinese authorities on the basis that she has an adverse profile with the authorities because she was arrested and detained in 2007 because of her religious activity.

24    In relation to the appellant’s risk of harm arising from her Local Church activities in Australia, her activities in China in the past, and her likely involvement in China should she return, the Tribunal said (footnotes omitted):

58.    The Tribunal has accepted that the applicant has a genuine belief in the teachings of the Local Church and will continue participation on return to China. The applicant claims she fears that once she returns to China, she will not be able practice her religion in freedom and serve the Lord as she does now. The Tribunal has considered whether the applicant faces a real chance of serious harm or a real risk of serious harm on this basis. On the basis of country information, the Tribunal accepts that Local Church membership is officially banned in China as an “evil cult”. In making it findings, the Tribunal has also taken into account DFAT’s March 2015 report and the information contained therein and put to the applicant, inter alia it is stated that believers in unregistered Protestant Christian organisations, number approximate [sic] 70 to 100 million and that home churches can be found across China. Gatherings of 30 to 40 people are generally tolerated, although DFAT are aware of cases where gathering of fewer peoples have attracted negative attention by the authorities. Whilst DFAT assess that members of unregistered church movements could be mistreated by authorities, they do not refer to any such incidents occurring to members of the Local Church or other unregistered groups in Fujian province.

59.    As put to the applicant at the hearing, in its Annual Report published in April 2015, China Aid includes a diagram of the total number of people detained by Province, however Fujian province is not included in the diagram. The Tribunal acknowledged that despite a relatively liberal approach to religious practice in Fujian, a range of organisations that report on China, such as Amnesty Information and Human Rights Watch, in 2015, indicate that there have been occasional crackdowns [on] churches which are regarded as unlawful, but none reported in Fujian, and these actions have not extended to the Local Churches. China Aid reported that since the inception of Chairman Xi Jinping’s Administration, the scope, depth, and intensity of persecution against religious practitioners increased. However, whilst DFAT assess that members of unregistered church movements could be mistreated by authorities, they do not refer to any such incidents occurring to members of the Local Church or other unregistered groups in Fujian province.

60.     In response, the applicant stated that because the origin of the Local Church is in Fuzhou and they have the largest number of followers – a huge number – the Local Church attracts the most serious oppression. She stated that the Local Church is still regarded as heretical and that religious freedom is reserved for the Three Self Patriotic (TSP) movement and approved government groups. The Local Church is purely a religious group and they do not want to be involved in any government power. The Tribunal has taken the applicant’s comments into account, but considering the independent country information as whole and the applicant’s individual circumstances, the Tribunal does not accept that the applicant will be arrested or harmed because of her Local Church activities. The Tribunal does not accept that there is a real chance that the applicant would be seriously harmed or a real risk that she would face significant harm from the Chinese authorities because of her participation in Local Church activities if she returns to China, now or in the foreseeable future.

61.     The applicant claimed that her father, now living in Anhui, has taken over the role of coordinator of their Local Church from [Mr X], since his arrest in 2014. The Tribunal has considered whether the applicant faces a real chance of serious harm or a real risk of significant harm on this basis. The Tribunal considered that the applicant’s evidence in relation to her parents was not logical because she stated that her mother no longer participates in Local Church gatherings because she fears arrest and the Tribunal considers it would be logical in that situation that the applicant’s father would have a similar fear. The Tribunal also notes that this claim was not made in the applicant’s application despite this being lodged after [Mr X]’s arrest. Given the Tribunal’s concerns about the overall credibility of the applicant, the Tribunal [has] doubts about the veracity of this claim. The Tribunal does not accept that the applicant’s father has taken a higher level involvement in his Local Church since 2014. The Tribunal is willing to accept that the applicant’s father is an adherent of the Local Church. In its consideration, the Tribunal noted DFAT Country Advice, put to the applicant, that there was no information to indicate that children of adherents to Local Church members had been subject to harassment, ill treatment in China, and the applicant’s response that her claims were on the basis of her own church membership, not just as a child of her parents. On the basis of the country information and the applicant’s individual situation, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm from the Chinese authorities because her father is an adherent of the Local Church in Anhui.

62.     The Tribunal has also considered the applicant’s claim that she will be arrested because she will attract heightened interest from the authorities because they are concerned that people who return from overseas will take advantage of the society. In making findings, the Tribunal has taken into account advice from the US State Department that house churches face more risks when they forge links with other unregistered groups or co-religionists overseas. The Tribunal has considered the applicant’s profile in the Local Church i.e. that of an adherent and regular participant, is [not] of significance such that she will be regarded as having the capability to forge links with other unregistered groups or co-religionists overseas. On this basis, the Tribunal does not consider that her overseas connections will raise her profile such that her links with the Local Church in Australia will be of any adverse interest to the Chinese authorities. The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm from the Chinese authorities on this basis.

25    In relation to T[62], I infer that the word “not” was unintentionally omitted from the third sentence of that paragraph. It is clear from the second and fourth sentences that the Tribunal considered the appellant’s profile in the Local Church was not of significance such that she would be perceived as having the capability to forge links with other unregistered groups or “co-religionists” overseas, thereby attracting the adverse interest of the Chinese authorities.

federal circuit court

26    The grounds of judicial review set out in the appellant’s application to the Federal Circuit Court dated 20 April 2016 were as follows (without correction):

1.     I believe that the Tribunal’s hearing just goes through certain formality and that the Tribunal has apparently made it’s decision before the hearing, and that the Tribunal has never ever provided me a genuine opportunity to give my evidence or present my arguments.

2.     I believe that I am unfairly deprived of the basic rights of being protected by the Australian government due to the Tribunal member’s incorrect and unfair decision on my review application.

3.     I am a major activist of the Local Church (a.k.a. “shouters”) both in China and Australia. The Local Church is regarded as “Evil Cult” by the Chinese government. If I go back to China, I must become a victim of persecution.

27    The Federal Circuit Court recorded that the appellant did not file any written submissions but in oral submissions clarified that her challenge was based on the grounds of bias: J[14]. The Federal Circuit Court set out the tests for actual bias and apprehended bias at J[15]:

The test for actual bias is that a decision-maker’s mind has been so committed to a particular result that it is incapable of being persuaded by any contrary evidence or argument [citing Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J]. The test for apprehended bias, in the context of an administrative decision-maker, is that a hypothetical, fair minded, lay observer, properly informed as to the nature of the proceedings, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision [citing Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 179 ALR 425 at [28] per Gleeson CJ, Gaudron and Gummow JJ].

28    The Federal Circuit Court recorded the appellant’s submissions as to why she contended the Tribunal was biased. In summary, they were that the Tribunal:

(1)    gave weight to the fact that she did not attend church after arriving in Australia until February 2009: J[16];

(2)    relied on the fact that she did not apply for a protection visa for six years after arriving in Australia, and four years after her visa was cancelled: J[17];

(3)    incorrectly classified her church as an unregistered organisation, when it was a cult which was banned in China: J[18];

(4)    did not accept that the appellant’s father was a senior official in the church: J[19];

(5)    decided that her decision to travel to Australia was not motivated by fear: J[20].

29    The Federal Circuit Court concluded that each finding of fact was one which was open to the Tribunal and that findings of fact and the weight to be afforded to them were matters for the Tribunal, not for the Federal Circuit Court: J[16] to J[22].

30    The Federal Circuit Court recorded that it considered that the appellant’s reasons for her delay in attending church when she arrived in Australia were plausible, but that such as assessment was not for the Federal Circuit Court: J[21].

31    The Federal Circuit Court concluded that the Tribunal’s decision was not affected by jurisdictional error.

the APPEAL

32    The appellant was unrepresented before the Federal Circuit Court and this Court. Her grounds of appeal were:

1.     The Federal Circuit Court erred in law when it rejected ground 1 of the Application before it.

Particulars

(i)    I do not have a genuine opportunity to give my evidence and particularly present my arguments against the issue in relation to my application.

2.     The Federal Circuit Court erred in law when, despite the Application, it failed to consider that I have unfairly been deprived of the right of being protected by the Australian government.

Particulars

(i)     I am a major activist of the Local Church (a.k.a. “Shouters”) both in China and in Australia. The Local Church is regarded as “Evil Cult” by the Chinese government. If I go back to China, I must become a victim of persecution.

3.     The Federal Circuit Court erred in law as there is apprehended bias on the decision in relation to my application for a Protection visa.

33    The essence of ground 1 is an assertion that the appellant was not provided with a genuine opportunity to give evidence or present her arguments. This was tied to ground 3, involving an assertion of bias in the sense that the Tribunal had allegedly made up its mind before the hearing and was merely going through the formality of providing a hearing.

34    Although the particulars to ground 1 are cast in terms of a denial of procedural fairness and ground 3 is cast in terms of apprehended bias, the appellant made oral submissions at the hearing which made it clear that the underlying complaint concerned the credibility finding and reasoning of the Tribunal, particularly at T[54]. This is consistent with the way in which the matter appears to have proceeded in the Federal Circuit Court. The appellant contended, on appeal, that the findings which the Tribunal made and the reasoning process it employed demonstrated that the Tribunal did not approach the matter with an open mind. Her oral submissions also made it clear that her complaint included that the findings and reasoning were not rational or logical.

35    The ultimate import of the appellant’s argument was that, on close analysis, the reasoning of the Tribunal at T[54] demonstrated that the Tribunal did not engage sufficiently with the evidence, material and claims before it, or the issues which those matters raised for evaluation, for the Tribunal to be regarded as having discharged the function of “review” entrusted to it. This is consistent with the first part of ground 1 of the application for judicial review: “I believe that the Tribunal’s hearing just goes through certain formality”.

36    Ground 2 is in the nature of a contention as to the result which the appellant contends ought to have flowed as a matter of merit. It does not identify an error on the part of the Federal Circuit Court or a jurisdictional error on the part of the Tribunal.

37    The statutory scheme provided for in Pt 7 of the Migration Act 1958 (Cth) requires the Tribunal to conduct a “review” where a valid application is made to it: s 414(1). Here, the application was to review the decision of the delegate to refuse a protection visa. A “review” of the kind contemplated by the statute must in fact be carried out; a failure to carry out a “review” of the kind contemplated amounts to a constructive failure to exercise jurisdiction. A “review” contemplates a consideration and evaluation of the evidence and material before the Tribunal and of the arguments and issues which arise: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [45]; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431.

38    At least in the circumstances of the present case, where both the “refugee criterion” and the “complementary protection criterion” were in issue, the Tribunal’s task on a “review” of a decision not to grant a protection visa includes determining whether it is satisfied that the criteria in ss 36(2)(a) and (aa) are satisfied: s 65(1); MZYTS at [32].

39    Central to the Tribunal’s decision to affirm the delegate’s decision not to grant a protection visa was its rejection of the claim made by the appellant of the events said to have occurred in December 2007. If it had believed the appellant in respect of those events, the Tribunal may have found that it was satisfied of one or other or both of the criteria in ss 36(2)(a) and (aa) to which s 65(1) directed its attention. Central to its rejection of the appellant’s claim as to the occurrence of the events in December 2007 was the Tribunal’s conclusion that the appellant was not a credible witness.

40    In DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30] (citations omitted), the Full Court of this Court (Kenny, Kerr and Perry JJ) stated:

(1)    While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review. The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae. In each case it is necessary to analyse in detail what the decision-maker has decided.

(2)    Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis. …

41    As Lee J further observed in CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 at [15]:

In the light of these principles, references to a litany of cases which each turn on their own facts is not a useful exercise. It suffices to note that unwarranted assumptions or factual errors made by a Tribunal, regarding matters which are then relevant to the formation of a view on credibility, can demonstrate error. Equally, error may be found where a process of reasoning is undertaken by material reference to a false premise, which then causes a person’s credibility to be assessed as wanting. See, for example, SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at 126 [37]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 648-649 [132]-[133].

42    There are cases in which an adverse credibility finding is supported by alternative findings of fact each independently capable of supporting the adverse finding, or strands of reasoning which are independent of, and untainted by, findings or reasoning affected by error. However, a conclusion that a person has been dishonest on a particular issue might affect, consciously or subconsciously, a decision-maker’s assessment of credibility overall or in relation to other specific issues. Where such a conclusion is erroneous, it may taint the assessment of credibility on those other issues or the overall assessment of credibility.

43    In SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [45], Lee J observed:

To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 23 [81]:

…decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.

44    In the present case, the Tribunal reached the conclusion that the appellant was not a credible witness for the reasons set out in six bullet points at T[54], extracted at [22] above. The Minister submitted that the first and last bullet points were the most important, and that the fourth was not significant.

45    In summary, the Tribunal’s reasons for concluding the appellant was not credible were:

(1)    The appellant’s claims were “inconsistent” with reports contained in two items of country information which “report no incidents of arrests or harassment of Local Church members or unregistered Christians in Fijian [sic] province in 2007”.

(2)    Her claims were also “inconsistent” with one item of country information from 2009 that the local government was fairly tolerant of unregistered believers.

(3)    The appellant had “provided no evidence of any kind” of her or her mother’s arrest.

(4)    The appellant commenced making plans to travel to Australia in July 2007, five months before the claimed arrest in December 2007. The appellant, when questioned at hearing about why she applied to study in Australia, did not state that she came to Australia for any reason other than to study and did not, during that discussion, mention any concerns related to the practice of her faith.

(5)    The appellant did not start going to church in Australia until February 2009, a period of “almost one year” after her arrival in April 2008. The Tribunal considered this behaviour to be “inconsistent” with her claim that her active membership of the Local Church caused her arrest and detention in December 2007 in China.

(6)    The appellant did not raise any claim for protection until 18 March 2014, more than six years after her arrival in Australia, and four years after her visa was cancelled, and she had elected instead to remain in Australia unlawfully.

46    It is necessary to examine each of these reasons, which in combination led to a conclusion that the appellant was not a credible witness and to reject the claim that the events in December 2007 occurred.

First Bullet Point

47    The first reason for disbelieving the appellant was that:

The claim that the applicant and her mother, along with [Ms H] and 10 other church members were arrested in December 2007, is inconsistent with reports contained in independent sources, which report no incidents of arrests or harassment of Local Church members or unregistered Christians in Fijian province in 2007. …

48    The fact that country information does not contain a report of a specific incident (or incidents of a particular kind) does not necessarily mean that the country information is “inconsistent” with, in the sense of actually contradicting, the occurrence of the incident (or incidents of that kind). The lack of a report of an incident may mean that the country information does not support or corroborate the claim and is therefore “inconsistent” in that more limited sense. The lack of support or corroboration might legitimately be used in a process of reasoning which culminates in a conclusion that the claimed event did not in fact occur. It might be concluded, for example, that the country information would have mentioned the incident or similar incidents if such incidents had truly occurred. A finding that country information would have mentioned the incident or incidents of that kind if they had in fact occurred might be based on any number of reasons, perhaps – for example – because of the quality and content of the country information.

49    The difference between evidence which positively contradicts an applicant’s claim and evidence which fails to support the claim is significant. An adverse credibility finding might be more easily reached where a claim is positively contradicted by reliable evidence. However, different considerations arise where all that exists is a lack of support. That is particularly so where:

    there is no finding that the material would be expected to have supported the claims if they had in fact occurred; or

    the material is expressly qualified as likely to be incomplete.

50    Such assessments, and what weight to attribute to the evidence, are matters for the decision-maker, here the Tribunal. However, such assessments are a part of the statutory function of “review” and a review of the kind contemplated must in fact be carried out for the jurisdiction to be exercised.

51    The question of what country information to prefer and what weight to give country information is a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], [13] (Gray, Tamberlin and Lander JJ); VQAB v Minister for Immigration [2004] FCAFC 104 at [26], [32] (Beaumont, Weinberg and Crennan JJ); VWFW v Minister for Immigration [2006] FCAFC 29 at [63] (Lander J; Gray and Kiefel JJ agreeing). However, that does not mean that conclusions said to be based on country information are immune from judicial review. Just as credibility findings may be based on reasoning which discloses jurisdictional error, so too the manner in which a Tribunal deals with country information may disclose jurisdictional error.

52    It is necessary to read the reasons for decision in a practical common-sense manner, without hunting for error, and taking into account the particular administrative and statutory context in which the decision is made: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2; Stojic v Deputy Commissioner of Taxation [2018] FCA 483 at [104]. The better reading of the reasons expressed by the Tribunal in the first bullet point of T[54] is that it found that the two items of country information it relied upon were “inconsistent” with, in the sense of actually contradicting, what the appellant claimed, on the basis that the country information “report[ed] no incidents of arrests or harassment” in Fujian Province.

53    The Tribunal was dealing with the issue of whether to believe the appellant or conclude that she was lying. The Tribunal did not simply reason that her claims were not supported by the two pieces of country information it referred to. Nor did it reason or state that her claims, or similar claims, would have been mentioned in the country information if they had truly occurred.

54    After the hearing of the appeal, the Court enquired whether it could review the country information which was found by the Tribunal to be “inconsistent” with the appellant’s claims in the manner identified by the Tribunal. There was no objection to that course and three items of relevant country information were provided. The first two items were referred to in the first bullet point to T[54]; the third item was referred to in the second bullet point and is discussed below.

55    As will be seen:

    the first item of country information did not report that there had been no incidents of arrests or harassment in Fujian; rather, it did not contain a report of any incident in Fujian and contained an express qualification that the information which had been received to prepare the report was only a part of all the persecution cases and may even represent a very small fraction of them; and

    the second item of country information did contain reports of harassment, or at the least possible harassment, in Fujian Province in 2007.

56    The first item of country information was the Annual Report of Persecution by the Government on Christian House Churches within Mainland China, January 2007 – December 2007, issued by the China Aid Association USA and dated February 2008 (CAA report). The parties were asked whether it was correct that this piece of country information was “inconsistent” with the appellant’s claims. The Minister responded:

The China Aid Association report concerning the period January-December 2007 “gives a detailed account of the persecution (in China) in 2007”, and states that “in 2007, the known religious cases in which house churches were persecuted by the government covered 18 provinces and one municipality” with 788 people persecuted and 693 people arrested and detained. Fujian was not amongst the provinces and municipality where the persecutions and arrests were reported to have occurred. This ‘nil return’ for Fujian is, on its face, inconsistent with the account given by the applicant of the active persecution of the house church she was a member of in Fujian.

57    The difficulty with this submission is that the Tribunal’s reasoning in the first sentence of the first bullet point of T[54] was that the CAA report was “inconsistent” with the appellant’s claim on the basis that it was one of two items of country information which “report[ed] no incidents of arrest or harassment of Local Church members or unregistered Christians in Fijian [sic] in 2007”. The CAA report did not report that there had been no incidents in Fujian. It did not contradict the appellant’s claims in the way identified by the Tribunal.

58    Further, the CAA report was expressly qualified as likely to be incomplete. It included the following in “Part 1: Summary”:

… [D]ue to the blockade of information by the Chinese government, especially the effective blockade and monitoring of the Internet last year [2007], it has become more difficult for people to pass the news of persecution to people outside of China. Others fail to report cases of persecution for fear of retaliation by the government. Another reason is people in remote regions have no idea that they can seek help from sources outside of China. Therefore, the information received by CAA is only a part of all the persecution cases and may even represent a very small fraction. However, the information represented in this report covers a majority of provinces and municipalities in China and involves many types of persecution all of which are sufficient to reflect the overall situation and the degree of persecution on house churches in the past year.

59    The CAA report identified 788 people having been persecuted and 693 people having been arrested and detained. Fujian was not amongst the provinces (or municipalities) in which such an incident was reported to have occurred.

60    After referring to the incidents which the report did identify, the Tribunal stated: “[the] report does not suggest that any of those incidents occurred in Fujian province, nor that any person was detained or arrested in that province during 2007”. That statement is correct. In reaching an adverse credibility finding, there would be nothing objectionable about employing reasoning which included reliance upon the fact that a claim or claims were not supported by country information. That might be a factor of particular weight if it were also found that the claim or similar claims would have been contained in the country information if they had in fact occurred. Here, as mentioned, the country information made it clear that “the information received by CAA [was] only a part of all the persecution cases and may even represent a very small fraction”. In any event, the Tribunal did not in fact reason in this way.

61    It is relevant to note that the CAA report did refer to several incidents of arrest and harassment in Anhui Province, although not (it would seem) to the specific events which the appellant had claimed occurred. As set out at subparagraphs (7) to (10) of paragraph [2] above, the events which the appellant claimed had occurred to her in Fujian in December 2007 were intimately connected to the arrest in Anhui Province of the five or six people who had earlier stayed with the appellant’s family in Fujian Province. The Tribunal did not mention that the country information supported the fact of arrests and harassment in Anhui Province in 2007. This might be regarded as relevant to the appellant’s claims, particularly in circumstances where the report made it clear that it did not contain an identification of all incidents which had occurred.

62    The second item of country information said by the Tribunal to be “inconsistent” with the appellant’s claim to have been arrested in December 2007 on the basis that the independent country information “report[ed] no incidents of arrests or harassment of Local Church members or unregistered Christians in Fijian [sic] in 2007” was the International Religious Freedom Report 2007 prepared by the US Department of State.

63    In relation to this item of country information, the Tribunal stated that it did not “make any mention of such events [arrests or harassment] occurring”. The Minister also submitted that this report did not mention incidents of arrests or harassment of Local Church members or unregistered Christians in Fujian in 2007.

64    However, the report included the following (emphasis added):

Restrictions on Religious Freedom

During the period covered by this report, the Government’s respect for religious freedom remained poor, especially for members of unregistered religious groups and groups the Government designated as “cults” …

Officials in many locations pressured unregistered religious groups, including house churches, to affiliate with one of the PRAs and register with government religious affairs authorities. Officials in some areas organized registration campaigns collecting the names, addresses, and sometimes the fingerprints of church leaders and worshippers. Some local authorities continued to harass religious groups that did not register by arresting and interrogating unregistered church leaders. In other regions government supervision of religious activity was less stringent and registered and unregistered churches coexisted openly. Despite the efforts at control in some areas, official sources, religious professionals, and members of both officially sanctioned and unregistered places of worship reported that the number of religious adherents in the country continued to grow.

Police sometimes closed unregistered places of worship, including Catholic churches and Protestant house churches with significant memberships, properties, financial resources, and networks. The Government closed churches in Zhejiang, Jilin, and Fujian Provinces during the reporting period. In some cases local officials destroyed the properties of unregistered religious groups. SARA [State Administration of Religious Affairs] considers unregistered churches to be illegal, although SARA has stated that prayer meetings and Bible study groups held among friends and family in private homes are legal and do not require registration. In some areas unregistered house churches with hundreds of members met openly with the knowledge of local authorities. In other areas house church meetings of more than a handful of family members and friends were proscribed. House churches could encounter greater difficulties when their membership grew, when they arranged for the regular use of facilities for the specific purpose of conducting religious activities, or when they forged links with other unregistered groups or with coreligionists overseas. Urban house churches were generally limited to meetings of a few dozen members or less, while meetings of unregistered Protestants in small cities and rural areas could number in the hundreds. It was also difficult for registered groups to register new places of worship, such as churches and mosques, even in areas with growing religious populations.

65    This item of country information did not “report no incidents of arrests or harassment of Local Church members or unregistered Christians” in Fujian in 2007. Further, it gave an account of events which had or may have occurred in Fujian in 2007, which it would be open to characterise as “harassment”, specifically the following two sentences contained in the extract above:

The Government closed churches in Zhejiang, Jilin, and Fujian Provinces during the reporting period [namely 2007]. In some cases local officials destroyed the properties of unregistered religious groups.

66    The Tribunal’s reasoning contained in the first sentence of the first bullet point, which was critical to its conclusion that the appellant was to be disbelieved, was wrong. Contrary to the Tribunal’s conclusion, the two pieces of country information it relied upon were not “inconsistent” with the claims made on the basis that they “report[ed] no incidents of arrests or harassment of Local Church members or unregistered Christians” in Fujian in 2007.

67    If the Tribunal’s reasons in relation to the first bullet point are to be understood as constituting only a finding that the items of country information did not support the appellant’s claims on the basis that they did not contain a report of any incidents of arrest or harassment in Fujian (contrary to the terms of the first sentence), then:

(1)    that conclusion overlooks that the second item of country information did refer to incidents, or at the least potential incidents, of harassment in Fujian in 2007;

(2)    the Tribunal did not appear to turn its mind to whether the items of country information would be expected to have reported the claimed incident, or incidents of the kind, which was a matter of particular relevance given the express qualification in the CAA report;

(3)    the Tribunal appears to have conducted its evaluation of the appellant’s credibility on the basis that a lack of support for the claim in the country information was equivalent to a direct contradiction, or without considering that question. The Tribunal’s evaluation of the appellant’s credibility was the issue on which the Tribunal’s acceptance or rejection of the events in December 2007 turned. The single most important matter upon which the appellant’s claims for protection turned was whether those events occurred.

68    It has been recognised that:

(1)    a fundamental misunderstanding of the evidence which is sufficiently serious and material to the decision on review may give rise to jurisdictional error: SZSMR v Minister for Immigration and Border Protection [2015] FCA 655 at [56] (Gleeson J); Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 at [71]-[72] (Griffiths and Moshinsky JJ); and

(2)    a critical or dispositive finding of fact which is unsupported by probative material may be characterised as involving reasoning which is irrational or illogical such as to give rise to jurisdictional error in the way contemplated by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130].

69    However, when regard is also had to the reasons in the remaining bullet points of T[54] (addressed below), the jurisdictional error in this matter is perhaps better described as a constructive failure to exercise jurisdiction by failing to conduct the “review” contemplated by the Act – cf: MZYTS at [31]. This arises from the combination of failings revealed in the way in which the Tribunal dealt with credibility in T[54]. These failings included a failure to engage:

    sufficiently with the material before it; and

    in a sufficient evaluative process directed at the evidence and material before it and the issues arising from the material,

such that it could be said that there was a “review” of the kind which Pt 7 both authorised and required be carried out. A “review” requires a sufficient consciousness of the content of the material before the Tribunal relevant to the states of satisfaction the Tribunal is required to reach (here, by reason of s 65(1) and ss 36(2)(a) and (aa)), or the matters it is required to decide, and that it evaluate that material and the relevant issues in a way which provides, as a matter of substance (WAEE at [45]), a genuine review: MZYTS at [38].

Second Bullet Point

70    The Tribunal’s second reason for disbelieving the appellant was:

The applicant’s claims are also inconsistent with information from 2009, a similar period, that the local government in Fujian is fairly tolerant of unregistered believers as it is rare that one reads of cases of persecution of Christians in the province.

71    This bullet point referred to a third item of country information, namely the OMF International report, The Protestant Church in Fujian Province, dated 1 January 2009. This short report included:

In general, local government in Fujian seems fairly tolerant of unregistered believers as it is rare that one reads of cases of persecution of house-church Christians in this province.

72    It was not suggested by either party that this item of country information played a significant role in the Tribunal’s reasoning. It was certainly not treated by the Tribunal as an independent basis for disbelieving the appellant.

73    Compared to the two lengthy and detailed items of country information referred to earlier, this item was general and summary in nature, comprising only two pages. It did not purport to document specific incidents in the way, for example, that the CAA Report did. The report contained one short paragraph addressing specific church charity activities in 2008, but otherwise simply provided a historical overview of the Protestant Church in Fujian from the time of the first missionaries.

74    This item of country information did not positively contradict the appellant’s claims, albeit it did not corroborate that they had occurred. It was “inconsistent” in the sense that what the appellant had described as occurring to her would not ordinarily be described as “fairly tolerant” behaviour. In its terms, however, the report confirmed that persecution occurred in Fujian, albeit “it is rare that one reads of cases of persecution of house-church Christians in this province”.

75    It must be inferred that the Tribunal considered the appellant’s claims were not one of the rare cases of persecution to which this item of country information referred. However, when the Tribunal’s treatment of the three items of country information is considered as a whole, I am not satisfied that it engaged in a sufficient evaluation of that material or why that material provided a basis for disbelieving the appellant. That is not to say that the country information as a whole could not have supported the credibility findings. Rather:

    the mischaracterisation of the effect of the first and second items as reporting no incidents in Fujian, rather than not reporting any incidents in Fujian;

    the fact that the reasoning treated the first two items of country information as positively inconsistent with the appellant’s claims in the sense of contradicting them, rather than not corroborating them;

    the failure to consider the qualification in the first item that it probably did not report all incidents and might only have reported a very small fraction of them;

    the failure to advert to the potential corroboration of part of the appellant’s claims in the first item (which referred to incidents in Anhui Province);

    the probable mischaracterisation of the content of the second item which did report incidents, or at the least potential incidents, of harassment in Fujian in 2007; and

    the failure to consider what weight could be given to the third item in light of its summary nature,

lead to the conclusion that the Tribunal did not engage sufficiently with the issue of whether the country information provided a basis, together with the third to sixth bullet points, for finding that the appellant was not credible.

Third Bullet Point

76    The third reason for disbelieving the appellant was:

The applicant has provided no evidence of any kind of her own arrest or of her mother’s claimed detention for 3 months.

77    This statement is incorrect. The appellant did provide evidence of her arrest and of her mother’s arrest in the form of her written claims and evidence and her oral evidence at the hearing. That evidence was carefully set out by her in quite some detail. The Tribunal referred to the appellant’s claims and evidence. It did not state that what she had said was inherently implausible or internally inconsistent, or suffered from some other perceived defect.

78    Rather, the Tribunal said there was “no evidence of any kind” in relation to her and her mother’s arrests. This suggests the Tribunal approached the matter on the erroneous basis that what the appellant said could not constitute evidence. The Tribunal cannot be understood as meaning it concluded that anything the appellant said should be disbelieved unless corroborated. The reasons do not state that the Tribunal made such a conclusion and there is no finding of dishonesty or other identified reason which might provide a basis for such a line of reasoning.

79    Perhaps the Tribunal should be understood as meaning simply that the appellant did not provide any corroboration of her evidence through documentary means or evidence from witnesses other than herself. However, if that is what the Tribunal meant, not only should it have said that, but it would have been preferable to identify what evidence it considered should have been obtained and why the absence of such evidence reflected adversely on the appellant’s credibility. Absent a consideration of such matters, it is difficult meaningfully to evaluate the weight which should be given to a lack of corroboration. It is one thing not to produce documentary evidence where such evidence is likely to exist and is likely either to be in the appellant’s possession or be easily obtainable by her. It would be quite another thing to reach a conclusion that a person is lying because she failed to produce a document that she would not be expected to have. Similar considerations apply if the failure was considered to be one constituted by not calling a witness.

80    If the Tribunal intended to say that it disbelieved the appellant because of the absence of corroborative evidence, it is difficult to identify whether such a conclusion was affected by jurisdictional error because the Tribunal failed to state that it so concluded or to give any reason for reaching such a conclusion.

Fourth Bullet Point

81    The Tribunal noted that the appellant had commenced making plans to travel to Australia in July 2007, five months before the claimed arrest in December 2007. The appellant, during this particular “discussion” at the hearing, did not state that she came to Australia for any reason other than to study and did not mention any concerns related to the practice of her faith. This was found to reflect adversely on her credibility. The Tribunal stated:

At the Tribunal hearing, the applicant explained why she applied to study in Australia, i.e. she wanted to come to study and to work. The applicant explained that when she was 17 years old, an agent (organised through the school) came to the school handing out fliers advertising study in Australia. He said that if you need to make money in Australia conditions were good and it was easy to get a job and also you can learn English. The agent advised that it was good to go to Australia when doing Year 11 because it enabled you to graduate with a high school certificate and then do university in Australia. The applicant stated she decided to do this and the agent made all the arrangements and they just paid him. The applicant commenced making visa enquiries in July 2007, five months before the claimed arrest. In this discussion, the applicant did not state that she came to Australia for any reason other than to study and she did not mention any concerns related to the practice of her faith, such as concern that she had to gather in secret for services and prayer. The Tribunal drew the conclusion that the practice of her religion was not a concern at the time she made her visa application and that on the evidence of the applicant her planned travel to Australia was not motivated by fears of harm due to her religion.

82    The Tribunal’s conclusion, expressed in the final sentence, was that “the practice of her religion was not a concern at the time she made her [student] visa application [September 2007] and that on the evidence of the applicant her planned travel to Australia was not motivated by fears of harm due to her religion”.

83    The appellant explained that she had decided in around July 2007 to seek to go to Australia to study and applied for her student visa in September 2007. This was before the events which she claimed occurred in December 2007. She did not mention, in this “discussion”, a concern with the practice of her religion. Her planned travel to Australia was motivated, it would seem, predominantly by a desire to study here. Her plans commenced in July 2007.

84    In this regard, the Federal Circuit Court stated at J[20]:

The applicant said that the Tribunal’s bias was demonstrated by its decision that her travel to Australia was not motivated by fear. The applicant claimed that she applied for her student visa in July 2007 and was then arrested in October 2007 [sic – December 2007]. She said that there was no inconsistency between proceeding to implement her plan to study in Australia after she had been arrested. However, it seems to me that it was reasonably open to the Tribunal to rely on the fact that, when asked why she came to Australia to study, she did not mention anything about any religious difficulties in China.

85    It was open to the Tribunal to assess, and draw inferences from, the way in which the evidence was given and the course of the evidence. That is necessarily a part of conducting the “review” required by Pt 7 of the Act. A failure to mention a specific event in response to a particular question can obviously be significant. The significance of, or the weight to be attributed to, the failure is a matter for the Tribunal. However, its conclusions are not immune from judicial review. The reasons might, for example, show jurisdictional error on the basis of irrationality or legal unreasonableness.

86    It is not difficult to see that a different decision-maker might have concluded that the appellant’s evidence and her candid identification of the fact that she had already planned to come to Australia to study before the events of December 2007 reflected well on the appellant’s credibility. However, the fact that a different decision-maker may have come to a different conclusion does not show jurisdictional error on the basis of irrationality. For jurisdictional error to be established on the ground the decision was irrational, it must be a decision to which no rational or logical decision-maker could have arrived on the same evidence: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] (Crennan and Bell JJ).

87    It is to be recalled that, at T[54], the Tribunal was setting out its reasons for rejecting that the events of December 2007 had occurred. The Tribunal’s ultimate conclusion in this bullet point was contained in the final two sentences:

… In this discussion, the applicant did not state that she came to Australia [in April 2008] for any reason other than to study and she did not mention any concerns related to the practice of her faith, such as concern that she had to gather in secret for services and prayer. The Tribunal drew the conclusion that the practice of her religion was not a concern at the time she made her visa application [in September 2007] and that on the evidence of the applicant her planned travel to Australia was not motivated by fears of harm due to her religion.

88    The Tribunal did not explain how the facts (as it found them to be) – that the appellant did not have a fear at the time of her student visa application (in September 2007) or her planned travel to Australia (from July 2007) – led it to consider that the appellant should be disbelieved about the events in December 2007. The appellant’s evidence that she came to Australia to study was an unexceptional and apparently truthful response.

89    The reasons do not adequately explain why:

(1)    the appellant should have been expected to have stated – in this particular “discussion” which the Tribunal saw as focussed on her plans from 2007 to come to Australia to study – that she had fears related to the practice of her faith;

(2)    the appellant’s failure to mention those fears in this particular “discussion” (the fears otherwise being the subject of detailed claims and evidence) was a matter suggesting that the appellant was not a credible witness; or

(3)    the failure to mention those fears in this particular discussion suggested that the events of December 2007 did not occur.

90    The Tribunal had to form a view about whether the events in December 2007 occurred as this was an essential element of the claims for protection which turned on ss 36(a) and (aa) of the Act. The facts identified above called for a real evaluation of why the appellant should have mentioned fears related to the practice of her faith at the particular point identified by the Tribunal before using that failure to reject her evidence that the events in December 2007 occurred.

91    I am not satisfied, having regard to the reasons expressed by the Tribunal (in particular in the third bullet point and this bullet point), that such an evaluation occurred.

92    Expressions such as “real evaluation”, like “proper, genuine and realistic consideration”, can, if taken out of context, encourage a “slide” into impermissible merits review: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [30]; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [32] (Full Court). The ultimate concern is with the identification of jurisdictional error, namely the Tribunal not performing the function entrusted to it or failing to perform (in a manner going to jurisdiction) its function in the way contemplated by the statutory scheme. Whilst such expressions have their difficulties, a court should intervene where it is satisfied that the manner in which the review was conducted was such that the applicant did not receive the review which the Tribunal was required to carry out.

Fifth Bullet Point

93    The fifth matter which, in combination with the other matters, led the Tribunal to disbelieve the appellant about the events in December 2007 was the length of time it took before the appellant started going to a Local Church in Australia, namely a period of “almost a year” (about 10 months).

94    Of this, the Federal Circuit Court stated at J[21]:

The applicant’s explanation for not attending a Local Church immediately after arriving in Australia does seem plausible to me. However, such assessments are not my decision. I do not consider that the Tribunal’s finding in that regard was so unreasonable that it is indicative of bias.

95    I agree with the Federal Circuit Court that the Tribunal’s finding is not “so unreasonable that it is indicative of bias”. Nor is it such that it otherwise establishes jurisdictional error.

96    However, the Tribunal’s findings in the fifth bullet point do not independently support the adverse credibility finding at T[54] or the conclusion that the events of December 2007 did not occur.

Sixth Bullet Point

97    The sixth and final matter which caused the Tribunal to consider the appellant not to be credible and for it to reject that the events in December 2007 occurred was the fact that the appellant did not apply for a protection visa until 18 March 2014, some six years after she arrived in Australia.

98    The Tribunal stated:

… The applicant indicated that she made her application for protection when [Mr X], the evangelist from Anhui, was arrested in February 2014. The Tribunal has considered this response, but as discussed with the applicant at the hearing, the Tribunal is not satisfied that it accounts for the absence of the applicant’s actions to seeking protection. The Tribunal would expect that had the applicant feared harm from the authorities on return to China, she would have applied for protection at the earliest possible time. The Tribunal also finds it illogical that the applicant would later be motivated to lodge a protection visa application so long after her arrival on the event of the [Mr X]’s claimed arrest. The Tribunal would expect that she put forward her claims at an earlier time. These considerations cause the Tribunal to have further doubt as to the credibility of the applicant’s claims to be in need of protection because she was arrested and detained in connection with her religion.

99    The Minister noted, by reference to the decision of Heerey J in Selvadurai v the Minister of Immigration and Ethnic Affairs (1994) 34 ALD 347 at 349, that delay in making an application is a relevant fact to take into account. So much may be accepted. It may also be accepted that it is a matter for the Tribunal to determine the weight to give to the fact of delay. The extent to which delay is probative depends on the factual circumstances of each case.

100    The reason for the delay was a legitimate matter to take into account and the assessment of the reason for the delay was a matter for the Tribunal. The appellant had been living in Australia illegally after her student visa expired. As was revealed by the delegate’s decision (see paragraph [18] above), she might have delayed applying because of her husband’s application. The Tribunal did not refer to or apparently consider this explanation. The appellant may have delayed applying because she considered it safer to seek to remain in Australia illegally than make an application and draw her presence to the attention of the authorities and risk detention and deportation. The Tribunal did not apparently consider this possibility.

101    The appellant stated that she applied for her protection visa in March 2014 once she learned of Mr X’s arrest in February 2014. The Tribunal found it “illogical that the applicant would later be motivated to lodge a protection visa application so long after her arrival on the event of the [Mr X]’s claimed arrest” [sic]. It did not explain why it found that “illogical”. All the Tribunal stated was that it would have expected her to put forward her claims at an earlier time. It reached that conclusion without engaging with the aforementioned facts, which were obvious on the material, and without explaining why they were not material to the logic of her claim.

Conclusion

102    For the reasons identified above, the Tribunal failed to exercise, or complete the exercise of, its jurisdiction by failing to conduct the “review” which the Act contemplated.

103    The appeal should be allowed and in place of the orders made by the Federal Circuit Court there should be an order quashing the decision of the Tribunal and remitting the matter to it for determination according to law.

Associate:

Dated:    29 January 2019