FEDERAL COURT OF AUSTRALIA

DGB18 v Minister for Home Affairs [2019] FCA 1034

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by Judge Street on 13 November 2018 be set aside.

3.    The matter be remitted to the Federal Circuit Court of Australia to be reheard and determined by a judge other than Judge Street.

4.    There be no order as to costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The appellants in this matter are young children who, while born in Australia, are citizens of the People’s Republic of China. Through their mother, who is now their litigation guardian, they applied for, but were refused, protection visas under s 36 of the Migration Act 1958 (Cth). They unsuccessfully sought a review of the decision to refuse to grant their visas in the Administrative Appeals Tribunal and then sought judicial review of the Tribunal’s adverse decision in the Federal Circuit Court of Australia. That application was dismissed. This is the appellants’ appeal from the Circuit Court judgment.

The appellants’ protection claims

2    The appellants were infants at the time that their visa applications were lodged; one was less than one year old and the other was just over one year old. Their claims for protection were essentially advanced by their parents, primarily their mother. The appellants’ parents are both citizens of China who have previously applied for and been refused protection visas.

3    There were essentially three factual claims put forward in support of the contention that Australia owed the appellants’ protection obligations.

4    First, it was claimed that the appellants, or their parents, would be forced to pay a “social compensation fee” if they are required to return to China. It was said that such fees would be payable because the appellants’ parents were not married and their children were born out of wedlock. It was claimed that the appellants or their parents would be unable to pay the social compensation fees.

5    Second, it was claimed, on the appellants’ behalf, that they would not be able to obtain their household registration or “hukou” if returned to China. That was said to flow from the fact that they, or their parents, would be unable to pay the applicable social compensation fees which would be payable because they had violated family planning regulations in Fujian province. They asserted that as unregistered or “black” children they would be denied their basic human rights, in particular public education, social welfare support and health care.

6    Third, it was claimed that the appellants are, or will be when they grow up, “genuine Christians” who would “actively seek freedom of religious belief” if returned to China. As such, they would be subjected to persecution by the Chinese government.

7    A delegate of the first respondent, the Minister for Home Affairs, refused the appellants’ visa applications on 26 November 2015.

8    The appellants then sought a review of that decision in the Tribunal.

9    The appellants’ protection visa claims were essentially repeated in the Tribunal. The appellants’ mother gave evidence before the Tribunal, as did the appellants’ parents’ pastor at their Protestant church in Sydney. Two friends from that church also gave evidence before the Tribunal about the parents’ Christian faith and their attendance at church.

The Tribunal decision

10    What follows is a short summary of the key factual findings which are set out in the Tribunal’s Statement of Decision and Reasons dated 4 June 2018.

11    First, the appellants’ parents had attended a Protestant church in Sydney (Reasons at [55]).

12    Second, while the appellants’ parents had attended church in Australia for some time, they were nevertheless not “devout or committed Christians” (Reasons at [57]). Rather, they had “demonstrated a flexible approach to their claimed Christian practises and beliefs” and had been “quite pragmatic in their approach to religious practise” (Reasons at [56]). This finding appeared to be based solely on the fact that, despite having lived together for a period of more than eight years, the parents were not married and had therefore not “followed the teachings of the church on marriage” (see Reasons at [46]-[49]).

13    Third, if the parents returned to China now or in the foreseeable future, they will “either choose not to attend church or will attend a registered church or a small private gathering” (Reasons at [57]). This finding appears to have been based solely on the finding that the parents were not devout or committed Christians and were therefore said to be flexible or pragmatic in their Christian practises.

14    Fourth, the appellants themselves, who were three and four years old at the time of the Tribunal hearing, were too young to have their own religious beliefs. As a result, they “will not be spreading the gospels amongst members of the Chinese community in Fujian Province if they return to China now or in the foreseeable future” (Reasons at [42]).

15    Fifth, if the appellants and their parents choose to attend one of the “many registered Christian churches” or to practise their Christianity in “an informal setting in a private religious gathering”, that will not pose a risk to the children (Reasons at [56]). This finding appeared to be based on so-called “country information” concerning the practise of Christianity in China and in Fujian province in particular, where the appellants’ parents hailed from. The Tribunal summarised that country information as follows (Reasons at [43] and [53]):

The Tribunal discussed country information on the situations for Christians in Fujian Province. It noted information in the last reports prepared by the Department of Foreign Affairs on Fujian and China that; many millions of people practise Christianity in China, that state authorities in Fujian are fairly tolerant of Christian practise and that group Bible study in private homes takes place without difficulty. Further the Tribunal put it to the applicants’ mother that the children are too young to face any harm for reasons of their parents’ religious practises and there is no country information which suggests that the Chinese authorities would harm minor children for this reason.

…..

The Tribunal has considered the country information indicating that Christian religious practise is possible within state-sanctioned boundaries, that the state allows family and friends to hold small informal prayer meetings without official registration and that it is estimated that there are between 70-100 million members of unregistered Protestant Christian believers [sic] in China.

(Footnotes omitted.)

16    Sixth, the appellants’ parents “appear to have violated the current family planning regulations applicable in Fujian Province which is the place of their household registration (hukou)” because they had four children out of wedlock (Reasons at [58]). As a result, they may be required to pay a social compensation fee (Reasons at [77]).

17    Seventh, the Tribunal appears to have implicitly rejected the appellants’ mother’s claim that she and the appellants’ father would not have sufficient resources to pay the social compensation fee (see Reasons at [73], [76]-[77]), though it made no clear or explicit finding in that regard. Its express findings appear to have been limited to finding that the appellants’ parents had been able to support themselves in Australia for many years and would have the “added resource of family members” in China (Reasons at [76]). The Tribunal also found that “local officials have considerable flexibility in how they apply” social compensation fees and can “exempt fees or allow fees to be paid by instalments” (Reasons at [77]). Perhaps more significantly, the Tribunal noted that it was the appellants’ parents who would have to pay the fees, not the appellants themselves (Reasons at [78]).

18    Eighth, “on return to Fujian Province the [appellants’] parents would be able to apply for household registration for [the appellants] irrespective of the circumstances of their birth” and the appellants will then “have access to services in Fujian Province including health, education and transport” (Reasons at [72]). This finding was based on country information concerning household registration in China, in particular in Fujian province.

19    Ninth, the appellants’ parents intended to get married and therefore the appellants “will not face any social stigma as they will be the children of married parents on return to China” (Reasons at [81]).

20    On the basis of those factual findings, the Tribunal concluded that the appellants did not meet the “refugee criterion” in s 36(2)(a) of the Act because it was not satisfied that there was a real chance that the appellants would face harm for reasons of their membership of a particular social group of “out of plan” children, or children born out of wedlock, or children born to Christian parents, or on the basis of their religion, if they return to China now or in the foreseeable future (Reasons at [82]-[84]).

21    The Tribunal also concluded, again on the basis of the factual findings made by it, that the appellants did not meet the “complementary protection criterion” in s 36(2)(aa) of the Act because it was not satisfied that there was a real risk that the appellants would suffer significant harm as a consequence of them being removed from Australia to China (Reasons at [85] and [88]). The Tribunal did not accept that the appellants would face the death penalty, arbitrary deprivation of life, or torture, or be subject to cruel or inhuman treatment or punishment or degrading treatment as a result of the imposition on their parents of a social penalty fee (Reasons at [87]).

22    The Tribunal accordingly affirmed the delegate’s decision to refuse the grant of protection visas to the appellants.

23    It should finally be noted that the Tribunal referred in its reasons to the existence of a “non-disclosure certificate” pursuant to s 438(1) of the Act which was on the “Departmental file” received by the Tribunal. The Tribunal found, however, that the certificate was invalid. As a result, at the hearing the Tribunal outlined the contents of the documents covered by the certificate to the appellants’ mother. The Tribunal also found that the documents were immaterial to the review application. It is unnecessary to consider this issue further as it was not the subject of a ground of review in the Circuit Court or a ground of appeal in this Court. It suffices to say that the manner in which the Tribunal dealt with the certificate was consistent with authority and not in any sense erroneous.

Circuit Court proceedings and judgment

24    The appellants’ mother, on behalf of the appellants, commenced proceedings in the Circuit Court for relief in respect of the Tribunal’s decision pursuant to s 476 of the Act. The grounds of that application were long, discursive and not entirely easy to understand. They should nevertheless be set out in full. The grounds were as follows (as drafted):

1.    I…am the mother of [the appellants] who have applied for protection visas. As both [appellants’] are infants I have given evidence on their behalf at the hearing before the Tribunal. I do not believe that the Tribunal have carefully considered my children’s applications. I believe that the decision on my children’s case is absolutely incorrect.

2.    The Tribunal did not accept that I am a devout Christian due to my having children out of wedlock, despite the many other evidence. I have brought forward to prove that I am a devout Christian. Starting a family is a very circumstantial decision that is influenced by many different factors and is certainly not limited to my own religious beliefs. For the Tribunal to contest such a vague and subjective point whilst disregarding my 10 years of church participation is nothing short of a decision made out of bias.

3.    The Tribunal refuted the idea that it is dangerous for me to practise Christianity in China because they believe I can just attend Government churches. I absolutely cannot attend Government churches because they are corrupted by Government agendas. As someone who has matured as an individual and as a Christian under the guidance of western ideology of religious liberty. I have become incompatible with the restrictive Chinese religious systems. As per the DFAT country report, it is extremely dangerous to practise religion if it challenges the ideas of the Chinese communist party, but it is impossible for me not to challenge the ideas of the Chinese communist party because I have studied Christianity my entire life through the lens of religious liberty. For the Tribunal to suggest the possibility of attending government churches indicates neglecting this very important personal detail of my life and points to the bias they have shown in deciding my application.

4.    The Tribunal refuted the notion that my children would be harmed by the Government because they are too young to be religious or Christian and the Government would not find any troubles with them. The Tribunal did not mention my children being implicated by my harm from the Chinese Government due to my religion. My circumstances place my children in great jeopardy because they cannot survive without my nurture and care and I am afraid I will not be able to provide it to them because of my religious beliefs.

5.    The Tribunal suggests household registration (“hukou”) is not problem for my children because DFAT country report indicates is has been made more available in recent years. The Tribunal did not consider my circumstances would make me a target for the Chinese Government and they will undoubtedly use social registration to extort and bully me. The Chinese Government is notorious for people in positions of power to abuse their power and mistreat certain citizens whom they find looking. I will undoubtedly be one of their targets.

6.    I believe the Tribunal has shown a lot of basis in assessing my situation and circumstances. They have neglected a lot of my persoaln information and details in their reasoning. As a result my children have unfairly been deprived of their rights to be protected by Australian government under the UN Refugees Convention.

25    The judgment of the primary judge in the Circuit Court (Judgment) addressed, or purported to address, each of the four grounds of review, albeit in short and somewhat generic or formulaic terms.

26    As for ground one, the primary judge found that the Tribunal made “dispositive findings in respect of the [appellants’] claims that were open to the Tribunal”, that the Tribunal’s reasons reflected a “real and genuine engagement with the [appellants’] claims and evidence” and that the “disagreement with the adverse finding does not identify any jurisdictional error” (Judgment at [25]).

27    In relation to ground two, the primary judge rejected the appellants’ contention that the Tribunal’s finding that the appellants’ parents were not devout Christians showed that it was biased. His Honour reasoned that the Tribunal gave “logical and rational reasons in support of its findings” about the appellants’ parents’ Christianity and had “raised the issue of marriage” in that regard (Judgment at [28]). His Honour did not, however, identify what those reasons were or explain why they were logical and rational.

28    As for ground three, the primary judge rejected the appellants’ allegation of bias “for the reasons already given” (Judgment at [29]). That appeared to be a reference to the reasons given in the context of ground two, even though the grounds for bias in that ground appeared to be completely different. The primary judge had also, earlier in his reasons, rejected any suggestion of bias, though he did so in entirely generic and formulaic terms: the “Tribunal reasons reflect the Tribunal member having conducted the review with an open mind, reasonably capable of persuasion as to the merits” (Reasons at [20]).

29    The primary judge also accepted the Minister’s submission that ground three was an attempt to “cavil with the merits” and found that the “adverse findings by the Tribunal in relation to the children not being prevented from learning about Christian practise was open on the material before the Tribunal” (Judgment at [30]). That adverse finding was said to be based on “country information indicating Christian religious practises were possible within state-sanctioned boundaries” (Judgment at [30]).

30    As for the apparent suggestion, in ground three, that the Tribunal had not considered a specific statement contained in one of the country reports, his Honour found that it was “a matter for the Tribunal to determine what country information it accepted” (Judgment at [30]). His Honour went on to say that the “adverse findings by the Tribunal in relation to the children not being prevented from learning about Christian practise was open on the material before the Tribunal” (Judgment at [30]). If the “material before the Tribunal” which was said to support the Tribunal’s findings included the country information, as was no doubt the case, it is difficult to see how his Honour could have arrived at this conclusion in circumstances where the country information was not before the court.

31    The primary judge addressed grounds four and five together, apparently on the basis that they both related to the appellants’ mother’s claim that the appellants were in “jeopardy” because she would be “targeted by the Chinese government” which would “use social registration to extort or bully” her. The primary judge rejected grounds four and five on the basis that the Tribunal had found that there was no evidence that the appellants’ mother had a “bad record” in China and that in those circumstances “the findings as to the ability to obtain household registration were dispositive of the claim advanced on behalf of the [appellants]” (Judgment at [31]). As noted earlier, the Tribunal’s findings concerning the ability to obtain household registration in respect of the appellants was based entirely on the country information which was before the Tribunal. It is unclear how those findings were dispositive of the appellants’ mother’s claim that she would be specifically targeted by the Chinese government through the social registration process.

32    The primary judge characterised ground six as a “generalised allegation of bias” and rejected it on the basis of equally generalised assertions that the appellants, through their litigation guardian, had a “real and meaningful hearing before the Tribunal” and that the Tribunal had complied with its statutory obligations and the “requirements of procedural fairness” (Judgment at [33]). His Honour also found that ground six was in substance a “disagreement with the adverse findings and does not identify any jurisdictional error” (Judgment at [34]).

Appeal grounds and submissions

33    The appellants’ mother, as litigation guardian, was not legally represented. Her grounds of appeal were unfortunately not very illuminating. They were as follows (as drafted):

1.    The Federal Circuit Court has erred in law during its process of judgement, pertaining to my children’s case.

Particulars

i)    His Honour failed to fairly consider that the Administrative Appeals Tribunal (the Tribunal) has misstated or intentionally ignored the important evidence given by my witnesses at the Tribunal’s hearing.

2.    The Federal Circuit Court, during its process of judgement relevant to my children’s case, was conducted in a manner that a reasonable person may apprehend that His Honour failed to judge with an impartial, unprejudiced and unbiased mind.

Particulars

i)    His Honour failed to consider the cultural, environmental and political differences between Australia and China. In the same manner, His Honour failed to consider my children’s upraising in Australia under traditional Australian values and the incompatibility between these values and the Chinese society.

34    The appellants filed written submissions and oral submissions were made at the hearing by the appellants’ mother. While the submissions were not always easy to follow, in broad terms three main contentions or arguments were advanced.

35    The first contention related to the Tribunal’s finding that the appellants’ parents were not devout Christians and that their approach to the practise of their religion was “flexible” or “pragmatic”.

36    It was contended that the primary judge erred in not accepting the argument advanced on the appellants’ behalf that the Tribunal had not properly or carefully considered the evidence of the witnesses that were called in support of the appellants’ case. Those witnesses were the pastor of the appellants’ parents’ church and the two fellow churchgoers.

37    In general terms, the witnesses relied on by the appellants gave written and oral evidence to the effect that the appellants’ parents were committed Christians who had been attending church and participating in church activities in Australia for a number of years. It was submitted on the appellants’ behalf that in not accepting that the appellants’ parents were devout or committed Christians, the Tribunal must have ignored the evidence of those witnesses. It was submitted that, contrary to the primary judge’s apparent finding, the Tribunal either did not consider or effectively ignored the evidence of the pastor and the two fellow churchgoers. It was also submitted that if the Tribunal did not believe those witnesses, it was obliged to invite the appellants’ mother or the witnesses themselves to comment or respond to that “information”.

38    This contention, and the arguments advanced in support of it, broadly coincided with ground one of the appeal.

39    While the submissions advanced on the appellants’ behalf in relation to the first contention were couched in terms of the Tribunal ignoring or failing to consider certain evidence adduced by the appellants in arriving at the finding that the appellants’ parents were not devout Christians, the argument could equally be characterised as amounting to a contention that the Tribunal failed to give genuine or realistic consideration to the evidence, or that the Tribunal’s relevant finding was unreasonable, illogical or not supported by the evidence. That is how the Minister interpreted ground two of the review application in the Circuit Court (see [14] of the Minister’s written submissions in the Circuit Court). The argument on appeal could equally be characterised as being that the primary judge erred in finding to the contrary.

40    The Minister submitted that the “complaints” raised by the appellants in respect of the first contention had not been raised in the Circuit Court and accordingly leave was required for those arguments to be put in support of the appeal. It may perhaps be accepted that the argument that the Tribunal was required to invite the witnesses, or the appellants’ mother, to comment on the fact that it did not believe the witnesses was not squarely put in the Circuit Court. The question whether the appellants should be granted leave to raise that ground on appeal is addressed later in these reasons.

41    The grounds of review in the Circuit Court did, however, effectively challenge the Tribunal’s finding that the appellants’ parents were not devout Christians. It was also submitted, on the appellants’ behalf in the Circuit Court, that the Tribunal had not engaged with or had ignored the evidence adduced in support of the appellants’ case. That is apparent from [21] of the judgment of the primary judge. Leave was therefore not required for those arguments to be raised on appeal on the appellants’ behalf.

42    In any event, the Minister submitted that the Tribunal clearly considered the evidence of the witnesses called in the appellants’ case and that the primary judge was correct in so finding.

43    The second contention advanced on the appellants’ behalf was that the Tribunal had erred in its consideration of country information relating to the practise of Christianity in China.

44    As noted earlier, the Tribunal made a number of findings based on the country information. Those findings included that: many millions of people practise Christianity in China; state authorities in Fujian province are fairly tolerant of Christian practise and group Bible study in private homes takes place without difficulty; Christian religious practise is possible within state-sanctioned boundaries in China; the state allows family and friends to hold small informal prayer meetings without official registration; and that “it is estimated that there are between 70 to 100 million members of unregistered Protestant Christian believers in China” (Judgment at [9]). The findings based on the country information were important because they provided one of the main grounds for the Tribunal’s finding that the appellants’ parents’ practise of Christianity, should they return to China, would not pose a risk to the appellants.

45    It was contended in the submissions filed on the appellants’ behalf that the Tribunal erred in its treatment of the country information because it chose what parts of the country information it would rely on and ignored or disregarded other parts on its “own taste” or “on its own discretion”. The parts of the country information which the Tribunal was said to have chosen to rely on were those which supported the finding that Christianity could be safely practised in registered churches or in informal private gatherings. The parts of the country information which the Tribunal was said to have ignored or missed were those parts which suggested that religious practise was allowed in Fujian province “so long as such practises do not challenge the interests of authority of the Chinese Communist Party”.

46    This contention did not clearly fall within either of the two grounds of appeal. It was, however, expressly dealt with in the written submissions filed on the appellants’ behalf. The Minister’s submission in response to it was that the primary judge was correct to hold that the selection and weight of country information was a matter for the Tribunal, not the court.

47    The third contention was that the Tribunal had erred in concluding that the appellants could practise their Christianity should they be returned to China in a way which would not pose a risk to the appellants. It was submitted in that context that the appellants’ mother would not attend registered Christian churches in China because she would not accept the “Chinese Communist Party’s contaminated version of Christianity and the Chinese Communist Party knows it” (see appellants’ submissions at [3]). This was essentially a repetition of some of the assertions made in support of ground three in the review application in the Circuit Court. It was, in effect, submitted that the primary judge had erred in rejecting the contention that the Tribunal’s findings were the product of jurisdictional error because the Tribunal had ignored the claim that the appellants’ mother, and therefore the appellants, would not or could not safely practise their Christian faith by attending registered churches because those churches did not properly represent their faith.

48    This contention again did not clearly fall within either of the two grounds of appeal, though it was fairly clearly articulated in the written submissions filed on the appellants’ behalf.

49    The fourth contention, which is advanced in ground two of the notice of appeal, is that the manner in which the primary judge resolved the appellants’ case gave rise to an apprehension of bias. This proposition appeared to be based entirely on the terms of the judgment of the primary judge. No evidence was adduced in support of the contention of apprehended bias. Little was said about the allegation of apprehended bias in the written and oral submissions advanced on behalf of the appellants.

RESOLUTION OF ISSUES RAISED BY THE APPEAL

50    While the notice of appeal contained only two general grounds of appeal, consideration should nonetheless be given to each of the four contentions advanced by the appellants’ mother in the written and oral submissions. The appellants’ mother was unrepresented and can perhaps be excused for not having articulated the appeal grounds in a way which encapsulated all the arguments she wished to advance. The Minister was given a fair opportunity to respond to each of the contentions and was not prejudiced in any way.

The Tribunal’s finding that the appellants’ parents were not devout Christians

51    As summarised earlier, the first contention advanced on behalf of the appellants related to the Tribunal’s finding that the appellants’ parents were not devout or committed Christians and that their practise of Christianity was flexible and pragmatic. The main issue is whether the primary judge erred in not accepting the appellants’ contention that, in making that finding, the Tribunal ignored or failed to genuinely consider the evidence of witnesses called by the appellants, or that the finding was illogical or irrational.

52    The Tribunal’s reasons for finding that the appellants’ parents were not devout Christians were, on almost any view, somewhat flimsy and unpersuasive. The same can be said of the Tribunal’s finding that their practise of Christianity was flexible and pragmatic. It is not difficult to see why the appellants’ mother feels aggrieved by the Tribunal’s findings and reasoning in relation to this issue.

53    The written and oral evidence of the pastor of the church attended by the appellants and their parents was that the appellants’ parents had regularly attended the church since 2008, were baptised in 2010 and 2012 respectively and were very committed Christians. There is nothing in the Tribunal’s reasons to suggest that the Tribunal questioned the pastor about this aspect of his evidence. The reasons indicate only that the Tribunal put to the pastor that it was difficult to reconcile the appellants’ Christian beliefs with the fact that they were not married. His response was that he understood that there were problems with the “paternal grandmother” and that in Chinese culture it was important to obtain parental approval (Reasons at [49]). That response was consistent with the appellants’ mother’s evidence relating to why she and the appellants’ father were not married. Otherwise the Tribunal did not make any clear finding concerning the pastor’s evidence that the parents were committed Christians. The Tribunal did not find that the pastor’s evidence that the appellants’ parents were committed Christians was not reliable or credible.

54    The two fellow churchgoers who gave written evidence in the appellants’ case corroborated the pastor’s evidence that the appellants’ parents were committed Christians. One of them gave evidence that the appellants’ mother had taken part in church gatherings, meetings and services for over nine years. The other gave evidence that the appellants’ mother loved and worshipped God, had actively taken part in church services and had, with her husband, studied theology in the church. There is nothing in the Tribunal’s reasons to suggest that this evidence was tested or challenged by the Tribunal during the hearing. Nor did the Tribunal make any finding that the evidence of those two witnesses was not reliable or credible.

55    As was noted earlier, the Tribunal’s finding that the appellants’ parents were not devout or committed Christians was based solely on the fact that they were not married. So too was the Tribunal’s finding that they had a flexible or pragmatic approach to their Christian practises and beliefs. That finding led in turn to the finding that if the appellants and their parents return to China they will either choose not to attend church or will attend a “registered church or small private gathering”.

56    It is tolerably clear from the Tribunal’s reasons that the appellants’ mother was questioned about the fact that she and the appellants’ father were not married. It also appears that the Tribunal effectively put to her that this was a basis upon which it might be found that she was not a devout Christian. There is, however, nothing in the Tribunal’s reasons to suggest that the Tribunal in any way put to the appellants’ mother that her practise of Christianity was flexible and pragmatic, or that if returned to China she would either choose not to attend church, or would attend a registered church or small private gathering.

57    There is no doubt that the combined effect of the appellants’ first three or four grounds of review in the Circuit Court was to challenge the Tribunal’s findings that the appellants’ parents were not devout Christians, that they had adopted a flexible and pragmatic approach to their practise of Christianity, that if returned to China they would choose to either not attend church or to attend a registered church and that accordingly their practise of religion would not pose a risk to the appellants. While the grounds of review were couched in somewhat unclear and unhelpful terms, it would appear that the primary judge approached them on the basis that it was being contended on the appellants’ behalf that the Tribunal did not give genuine or realistic consideration to the evidence, or that the relevant findings were not open on the evidence.

58    The primary judge disposed of the first three grounds of review in short and somewhat cursory and generic terms. His Honour simply found that the Tribunal’s reasons showed that it had made “dispositive findings in respect of the [appellants’] claims that were open to the Tribunal” (Judgment at [25] concerning ground one) and gave “logical and rational reasons in support of its findings” (Judgment at [27] in relation to ground two). As for ground three, aside from rejecting the contention that the Tribunal was biased, the primary judge simply accepted the Minister’s submission that the ground “raises an attempt to cavil with the merits” (Judgment at [30]). The primary judge interpreted ground four as somehow relating to a claim that the appellants’ mother had a bad record or adverse profile and that this would impact on the appellants’ registration. His Honour simply noted, in that regard, that that the Tribunal had found that there was no evidence that the appellants’ mother had a bad record or adverse profile (Judgment at [31]).

59    His Honour also found, albeit in the context of the contention that the Tribunal was biased, that the “Tribunal’s reasons reflect a real and genuine engagement with the applicant’s claims and evidence” (Judgment at [21]). His Honour also implicitly rejected the contention that the Tribunal had “ignored the evidence of the past [sic] and other witnesses” (Judgment at [21]). In that regard, his Honour found that “the Tribunal’s reasons expressly referred to taking into account the [appellants’ mother’s] evidence and “referred to discussing issues with the pastor and referred to the evidence of the witnesses in the course of its reasons” (Judgment at [21]).

60    Upon just about any analysis, his Honour’s reasoning in relation to the contentions concerning the finding that the appellants’ parents were not devout Christians and had practised their religion flexibly or pragmatically really amounted to little more than a series of broad and general statements or conclusions. His Honour barely referred to the evidence that was before the Tribunal and did not analyse the Tribunal’s reasoning and findings by reference to that evidence.

61    Putting the somewhat questionable adequacy of the primary judge’s reasons to one side for the moment, the critical question is whether the Tribunal erred in a jurisdictional sense in finding, in effect, that if the appellants’ parents returned to China, they could and would practise their religion in a way which would not give rise to any chance that the appellants would be persecuted or any risk that the appellants would suffer significant harm.

62    While the Tribunal’s reasons concerning those findings are flimsy and somewhat unpersuasive, it cannot be concluded that the Tribunal simply ignored or failed to consider the evidence of the appellants’ mother, the pastor and the two fellow churchgoers concerning the appellants’ parents’ attendance at church and Christian faith. Nor can it be concluded that the Tribunal did not actively engage with the relevant evidence, or give it “proper, genuine and realistic” consideration: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [35]-[36] and the cases there cited. It would appear from the Tribunal’s reasons that it basically accepted all of the evidence concerning the appellants’ parents’ attendance at church for many years and their apparent commitment to the Christian faith, but nonetheless found that the fact that they were not married cast sufficient doubt on their level of commitment that it justified the findings that were made. In other words, the Tribunal genuinely considered the evidence of the appellants’ mother, the pastor and the two fellow churchgoers, but found that it was relevantly outweighed by the considerations which were said to arise from the fact that the parents remained unmarried in apparent conflict with the teachings of the church.

63    It follows that the primary judge did not err in rejecting the contention advanced on the appellants’ behalf that the Tribunal had misstated, or ignored, or not properly considered the evidence which was adduced in relation to the appellants’ parents’ practise of religion in Australia.

64    The question whether the Tribunal’s findings in relation to the appellants’ parents’ faith and religious practises were irrational or illogical is, however, a different and more difficult question.

65    An irrational or illogical finding, or irrational or illogical reasoning leading to a material finding may in certain circumstances lead to a finding of jurisdictional error: see most recently DAO16 v Minster for Immigration and Border Protection (2018) 258 FCR 175 at [30] and the cases there cited. Not every lapse in logic in the decision-making process will result in jurisdictional error; rather, it must be shown that the findings could not have been made, or the reasoning could not have been employed, by a reasonable or rational decision-maker: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]. A decision might be said to be illogical or irrational “if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn”: SZMDS at [135].

66    A high degree of caution must be exercised in arriving at such a finding in order to ensure that the Court does not embark impermissibly on merits review: see SZMDS at [38], [96], [130]; SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at [14]-[15]; DAO16 at [30(5)]. A decision will not be vitiated on the basis of illogical or irrational findings of fact or reasoning unless “extreme” illogicality or irrationality is shown: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148].

67    Once again, while the Tribunal’s findings concerning the appellants’ parents’ practise of their Christian faith could fairly be said to be unpersuasive and based on fairly flimsy reasoning, it cannot be concluded that the findings or reasoning involved extreme illogicality. There was no dispute that having children out of wedlock was against one of the important teachings of the Christian church attended by the appellants’ parents. It was equally not in dispute that the appellants’ parents had four children out of wedlock. While reasonable minds might perhaps differ on this point, it was at least open to the Tribunal to find that the appellants’ parents were therefore not committed or devout Christians: they had consciously conducted their lives in a way which was contrary to one of the important teachings of their church. While the appellants’ mother had explained that they had not married because of the objections of the appellants’ father’s parents, it was nonetheless open to the Tribunal to find that “if they were devout Christians it would expect that their Christian obligations would outweigh the objections of the [appellants’ father’s] parents” (Reasons at [47]).

68    It was also open to the Tribunal to reason that the appellants’ parents’ attitude to this part of their Christian obligations suggested that their practise of their Christian faith was, to that extent at least, “flexible” or “pragmatic”. It was flexible and pragmatic because they had consciously conducted themselves in a way which was contrary to one of the important teachings of the church. While the Tribunal could perhaps have expressed its reasoning in this regard in clearer terms, it cannot be said that it involves extreme illogicality, in the sense that no other reasonable decision-maker could have employed this or similar reasoning, or come to this or a similar finding.

69    The Tribunal’s finding that, because of the appellants’ parents’ flexible or pragmatic approach to their Christian religion, they would, if returned to China, either not attend church at all, or attend a registered church or small private gathering, is more problematic. On one view, at least, that is a non sequitur. It is at least questionable whether there is any logical connection between the evidence that the appellants’ parents did not strictly follow one aspect of the church’s teaching and the inference or conclusion that they therefore would, in the future in China, be prepared to either not go to church at all, or attend only churches registered by the Chinese government or informal gatherings. It is one thing to find that the appellants’ parents’ practise of religion was flexible or pragmatic in terms of them not strictly following all of the church’s teachings; it is another to say that their practise of religion was flexible or pragmatic in terms of what sort of church or gathering they would choose to attend to practise their religion.

70    Ultimately, however, I am not persuaded that this reasoning or finding involves the sort of extreme illogicality or irrationality which would constitute jurisdictional error on the part of the Tribunal. Logical or rational or reasonable minds might adopt different reasoning or might arrive at different findings arising from the fact that the appellants’ parents had adopted a flexible or pragmatic approach in terms of deciding which of the church’s teachings they would follow. It cannot, however, be said that no rational or reasonable decision-maker could have employed the reasoning, or arrived at the findings made by the Tribunal.

71    It was ultimately a matter for the appellants, through their mother as their litigation guardian, to persuade the Tribunal that, if they returned to China with their parents, they and their parents would practise their Christian faith in a way which would expose them to persecution by the authorities in China, or would expose them to the risk of serious harm. The Tribunal was not ultimately persuaded that that was the case. The Tribunal’s finding that the appellants were likely to practise their religion in China in a flexible or pragmatic way by attending registered churches or small private gatherings was no doubt an important part of the Tribunal’s reasons for finding that the appellants would not be exposed to persecution or harm in China on account of their religion, or the religion of their parents.

72    While the primary judge’s reasons comprised little more than a series of generic assertions or conclusions, his Honour was ultimately correct to conclude, in effect, that the Tribunal’s findings that the appellants’ parents were not devout or committed Christians and that their practise of Christianity was flexible or pragmatic were open on the evidence. It was implicit in his Honour’s reasoning that the findings were not irrational or illogical. His Honour was also correct to conclude that the Tribunal’s findings in that regard did not support a finding of bias on the part of the Tribunal, though once again his Honour’s reasons for so finding amount to little more than a bare statement of that conclusion.

73    The final issue to consider in relation to this aspect of the appellants’ case is the contention that the Tribunal was obliged to invite the appellants’ mother, or the witnesses, to comment or respond to the fact that their evidence may not be accepted.

74    There is considerable merit in the Minister’s submission that this argument was not raised in the Circuit Court and leave to raise it on appeal should be refused. It is, however, unnecessary to decide that procedural issue. That is because the argument is, in any event, devoid of merit. That is so for at least two reasons.

75    First, as already explained, the Tribunal did not reject the evidence of the witnesses. It simply gave more weight to the fact that the appellants’ parents were not married and that this was inconsistent with them being devout or committed Christians.

76    Second, and in any event, the Tribunal is not required to put a party or witness on notice that their evidence may not be accepted and invite them to comment on that fact. Procedural fairness generally requires an administrative decision-maker to put a person who might be affected by the decision on notice of “any adverse conclusion which has been arrived at which would not obviously be open on the known material”; but that does not extend to the disclosure of the decision-maker’s “mental processes or provisional views”: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29]. Nor is it necessary to disclose the decision-maker’s opinions, doubts or subjective appraisals: Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [413] (Kiefel J); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] (French CJ and Kiefel J).

77    It follows that the Tribunal was not obliged to put the appellants’ mother, or the witnesses, on notice that it may ultimately not accept parts of their evidence.

Findings based on the country information

78    As has already been noted, the Tribunal made a number of findings concerning the practise of Christianity in China based on its consideration of certain country information. Those findings were ultimately relevant and significant to the Tribunal’s finding that if the appellants and their parents return to China, the appellants’ parents’ practise of Christianity in China will not “pose a risk” to the appellants (Reasons at [57]).

79    It was contended on the appellants’ behalf that the Tribunal erred because it chose to rely on some parts of the country information and to ignore other parts. It was specifically contended that the Tribunal ignored part of a report which referred to the dangers of practicing religion in China if that practise challenged the interests or authority of the Chinese Communist party.

80    It is not entirely clear that this argument was raised in the Circuit Court. Ground three of the appellants’ review application in the Circuit Court included a number of different assertions and arguments. One of the assertions was that a “DFAT country report” stated that it is “extremely dangerous to practise religion if it challenges the ideas of the Chinese Communist party”. The main assertion or argument in review ground three, however, appeared to be that the Tribunal was biased because, in finding that the appellants’ mother could safely attend “Government churches”, the Tribunal neglected to have regard to the fact that the appellants’ mother’s personal circumstances and attitude to religion were such that she could not bring herself to attend such churches and that it was impossible for her not to challenge the ideas of the Chinese Communist party. The merits of that assertion, and the manner in which the primary judge dealt with it, is addressed later in the context of the third contention advanced in support of the appeal.

81    While the terms of ground three of the review application may not in terms have squarely raised the argument that is now sought to be put on the appellants’ behalf in relation to the country information, the primary judge nevertheless appears to have construed the ground in that way. His Honour not only rejected the argument in relation to bias, but also rejected the argument concerning the country information. His Honour found, in that context, that it “was a matter for the Tribunal to determine what country information it accepted” and that the “adverse findings by the Tribunal in relation to the [appellants] not being prevented from learning about Christian practise was open on the material before the Tribunal” (Judgment at [30]). The “adverse findings” adverted to by his Honour were in part reliant on the country information concerning the practise of Christianity in China.

82    There are a number of difficulties with the primary judge’s findings in relation to this aspect of ground three of the review grounds. The first is that, while that broad proposition that it was open to the Tribunal to determine what country information it accepted may be generally correct, his Honour failed to relate this general proposition to any particular argument that had been advanced on the appellants’ behalf. His Honour also did not specifically address the argument that the Tribunal had been selective in its treatment of the country information, and did not refer at all to the significance, if any, of the DFAT country report referred to in ground three.

83    The Tribunal’s selection of country information and the weight that is given to it is undoubtedly a matter for the Tribunal as part of its fact-finding function: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 at [11]. That, however, does not mean that the Tribunal’s findings based on the country information are completely shielded from judicial review. Like other findings of fact, findings based on country information can be challenged on the basis that they were not open on the material, or were illogical or irrational. In some circumstances, albeit fairly extreme ones, a Tribunal’s unreasonable selection or assessment of country information may provide the basis for findings of apprehended bias or legal unreasonableness. It was accordingly incumbent on the primary judge to engage with and consider the arguments that were apparently raised on the appellants’ behalf in relation to the country information.

84    Perhaps more significantly, the primary judge’s finding that the “adverse findings” which were based in part on the country information were “open on the material before the Tribunal” is problematic, to say the least (Judgment at [30]). It is common ground that the Court Book which was before the primary judge did not include any of the country information which was before the Tribunal. It is difficult to see, in those circumstances, how the primary judge could possibly have formed the view that the Tribunal’s findings were open on the material before it. It is equally difficult to see how the primary judge could have addressed the contention concerning the specific DFAT country report which was relied on by the appellants in circumstances where none of the country information that was before the Tribunal had been included in the Court Book.

85    It is not possible for the Court to determine, for the purposes of this appeal, whether the Tribunal did err jurisdictionally in the way it dealt with the country information, or in relation to the findings it made based on the country information. That is because, like the Court Book that was before the primary judge, the Appeal Book prepared for the purposes of this appeal did not contain any of the country information that was before the Tribunal. The appellant did provide the Court with a copy of one of the country reports which was before the Tribunal, a DFAT “Thematic Report” dated 16 December 2016 concerning Fujian province. That was the report which contained the statement referred to in ground three of the review grounds. It is not, however, possible to determine the issue concerning the Tribunal’s treatment of the country information on the basis of only one of the reports. Nor is it possible for the Court to determine whether, as contended on the appellants’ behalf, the DFAT country report relevantly undermined the Tribunal’s finding to the effect that the appellants’ parents, and therefore the appellants themselves, could or would be able to safely practise their Christian faith in China.

86    What can be said, however, is that the primary judge’s reasons in respect of this aspect of ground three of the review grounds were such that his Honour failed to genuinely consider or engage with the appellants’ grounds of review and contentions concerning the country information, including the DFAT country report specifically relied on by the appellants, and the issues raised by those review grounds and contentions. This issue is considered further in the context of the other contentions which were advanced on the appellants’ behalf in support of their appeal.

The Tribunal’s finding that the appellants’ parents would attend registered churches or small informal gatherings

87    The appellants contended before the primary judge that the Tribunal was wrong to conclude that the appellants’ mother could or would attend “Government churches” if she and the appellants were required to return to China, and wrong to conclude that she and the appellants’ father could practise their religion in China in a way that would not expose the appellants to the risk of persecution or serious harm. That was the general thrust of ground three of the appellants’ review grounds in the court below. While ground three was couched in terms which contended that the Tribunal’s findings in that regard showed that it was biased, it is tolerably clear that the appellants’ mother was also contending that the Tribunal’s findings concerning the appellants and their parents being able to safely attend government churches was not open to the Tribunal and that the Tribunal had ignored both the DFAT country report and the appellants’ mother’s claim that she could not attend “Government churches”.

88    The primary judge rejected ground three of the review grounds on two bases. The first was that “[f]or the reasons already given no case of bias is made out”. The second was that ground three was an attempt to “cavil with the merits” and the “adverse findings by the Tribunal in relation to the [appellants] not being prevented from learning about Christian practise was open on the material before the Tribunal” (Judgment at [30]). There are problems with the primary judge’s reasoning in relation to both of those findings.

89    The difficulty with the primary judge’s finding that no case of bias had been made out is that it is unsupported by any meaningful reasoning; his Honour does not engage at all with the contentions that had been advanced on the appellants’ behalf.

90    The primary judge’s reference (at Judgment [30]) to “the reasons already given” may be a reference to his reasoning in relation to the bias allegation in review ground two, though that reasoning related to the quite different contentions which his Honour perceived to be relevant to that ground. His Honour simply concluded, in the context of review ground two, that the “testing” by the Tribunal of the appellants’ mother’s evidence in relation to her religious beliefs was “not conduct by which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits” (Judgment at [28]). His Honour might also have been referring to his general finding earlier in his reasons that the Tribunal’s reasons “reflect the Tribunal member having conducted the review with an open mind” (Judgment at [20]). Either way, his Honour’s reasons did not address the quite separate and distinct allegation, which was at the heart of review ground three, that the Tribunal’s finding that she was able to attend Government churches ignored her contention that she “absolutely cannot attend Government churches because they are corrupted by Government agendas”.

91    The difficulty with the primary judge’s finding that the Tribunal’s relevant adverse findings were “open on the materials” is that his Honour did not have all of the relevant materials upon which the Tribunal relied. The Tribunal’s findings that the appellants “will not be prevented from learning about Christian practise” (Reasons at [57]) was based in part on its findings concerning the country information about the practise of Christianity in China. It was implicit in review ground three that the appellants were challenging the Tribunal’s findings in relation to the country information and were relying, in that context, on a particular DFAT country report. The primary judge did not have any of the country information before him. It is, in those circumstances, difficult to see how his Honour could possibly have found that the relevant findings by the Tribunal were open on the materials. No specific mention was made of the DFAT country report relied on by the appellants in support of review ground three.

92    The third difficulty with the primary judge’s findings and reasoning concerning review ground three is that his Honour does not engage at all with the appellants’ mother’s contention that she “absolutely cannot attend Government churches” and that it was impossible for her “not to challenge the ideas of the Chinese communist party” when practicing her religion.

93    It is not entirely clear whether the appellants’ mother gave oral evidence about those matters when she appeared before the Tribunal. There is nothing in the Tribunal’s reasons to suggest that she did. Equally, however, there is no indication in the Tribunal’s reasons that it asked the appellants’ mother whether she would, if returned to China, be prepared to attend only churches registered with the Chinese Government.

94    It does appear, however, that at earlier stages of the administrative decision-making process the appellants’ mother had specifically and clearly claimed that she could not attend government registered churches in China. The decision record of the delegate records that the appellants’ mother had told the delegate that she would not attend a “government church” in China because “the people were appointed by the government to preach first about the Communist party rather than in God” (p 9 of the delegate’s decision). She also said that she would not attend an informal religious gathering because the authorities would say that was an “evil cult” (see p 9 of the delegate’s decision). The delegate’s decision record was before the Tribunal. The Tribunal may therefore be taken to have been aware of the appellants’ mother’s claims about her inability or unwillingness to attend government churches in China.

95    A judge who fails to engage in an “active intellectual process” directed at a party’s evidence or arguments may be found to have constructively failed to exercise jurisdiction: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45] and the cases there cited; AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 at [23]-[24]; COZ16 v Minister for Immigration and Border Protection (2018) 259 FCR 1 at [32]-[46]; Goodwin v Commissioner of Police (NSW) [2012] NSWCA 379. Likewise, a failure of a judge to provide adequate reasons may constitute not only an error of law, but also a failure to exercise jurisdiction: COZI6 at [40] (citing Goodwin); CPF15 v Minister for Immigration and Border Protection [2018] FCA 330 at [15]-[20] and [32]; AXL16 at [20]-[30]; DAO16 at [46]-[48]; BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683 at [56]-[78]; BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [24].

96    It is impossible to avoid the conclusion that the primary judge failed to properly engage with the contentions and arguments in ground three of the appellants’ review grounds and failed to give adequate reasons which addressed those contentions and arguments. It was not sufficient for his Honour to simply recite a series of general conclusions or incantations in relation to this ground where those conclusions were “at such a high level of generality that the basis for the conclusion [was] not exposed”: DAO16 at [48]. Nor was it sufficient for his Honour to simply recite matters of general principle “without any attempt to tie the principles back to the particular facts and circumstances of the case”: BDS17 at [71]. The fact that the primary judge delivered his reasons ex tempore did not relieve him from the obligation to provide adequate reasons and does not mitigate the conclusion that he did not: AXL16 at [21]; BZD17 at [26].

97    It is also no answer that review ground three is expressed in somewhat unclear and unhelpful terms and that the appellants’ mother, who as the appellants’ litigation guardian appeared unrepresented before the primary judge, may not have articulated her arguments in relation to that ground in particularly clear terms. Nor does it matter that the appellants, through their mother, may have encountered significant difficulties making good some of the contentions and arguments apparently raised in review ground three. It may, for example, be readily accepted that it may have proved very difficult for the appellants to make good their contention that the Tribunal was biased, whether that contention involved actual or apprehended bias. It may equally be accepted that the fact, if it be a fact, that the Tribunal did not have regard to parts of the country information, or did not have regard to the appellants’ mother’s claim that she could not attend government churches, would not necessarily constitute jurisdictional error. It could not necessarily be concluded, on that basis, that the Tribunal’s findings were not open, or were illogical or irrational. The review ground and the arguments advanced in support of it nevertheless raised potential jurisdictional errors and, as such, it was “incumbent on the primary judge to properly consider whether or not those grounds were made out and to give reasons as an incident of the judicial process”: BZD17 at [24]. His Honour did not adequately do so.

98    It may be accepted that judges in the Circuit Court work in a busy high-volume jurisdiction. Many of the cases before them, particularly in review applications pursuant to s 476 of the Act, are commenced by unrepresented applicants who rely on poorly articulated and sometimes generic grounds of review and equally poorly articulated or reasoned submissions. The reasons given by Circuit Court judges exercising that jurisdiction must be considered in that context. It cannot be expected that they will in all cases include a lengthy and detailed factual and legal analysis of every argument advanced. Some arguments and grounds can properly be disposed of in short and summary terms. As has been said, however, the reasons must at least genuinely engage with and address the grounds and arguments that are advanced by an applicant. It is not sufficient to simply dismiss them with broad and generic conclusions or statements of principle that are not related back to the particular facts and circumstances of the case.

99    The appropriate course in these circumstances is to remit the matter to the Circuit Court for determination. In BZD17, the Full Court agreed with the reasoning of Perram J in AXL16 and AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 to the effect that there were a number of considerations which “tell strongly against this Court ordinarily determining substantive grounds of judicial review which the [Circuit Court] has failed to determine”: BZD17 at [30]; see also SZKLO v Minister for Immigration and Citizenship (2008) 247 ALR 582; [2008] FCA 735 at [21].

100    There is an additional consideration in this case which compels the conclusion that the appropriate order is to remit the matter to the Circuit Court. That consideration is that, like the primary judge, the Court does not have before it all the material necessary for the review ground to be determined. In particular, the Court does not have before it any of the country information which was before the Tribunal, other than one report which was specifically provided by the appellants. Nor is the Court able to ascertain whether, or to what extent, the appellants’ mother contended, in the Tribunal, that she was unable or unwilling to attend churches registered by the Chinese Government.

101    Differing views have been expressed in this Court as to whether the appropriate order in cases such as this is to remit the matter to the original primary judge whose reasons had been found to be wanting: see SZKLO at [38]-[43]; COZ16 at [60]; AXL16 at [27]. In light of the contention advanced on the appellants’ behalf that there was a reasonable apprehension that the primary judge was biased, the preferable course would be to remit this matter to the Circuit Court to be determined by a judge other than the primary judge.

The allegation of apprehended bias

102    The appellants’ second ground of appeal was that the primary judge conducted the case “in a manner that a reasonable person may apprehend that his Honour failed to judge with an impartial, unprejudiced and unbiased mind”. While this appeal ground referred to the primary judge’s conduct of the case, the arguments advanced on the appellants’ behalf were based essentially on the primary judge’s reasons.

103    The particulars of this appeal ground asserted that the primary judge had failed to consider the “cultural, environmental and political differences between Australia and China” and the appellants “upraising in Australia under traditional Australian values and the incompatibility between these values and the Chinese society”. While the particulars are not easy to comprehend, the general thrust of the arguments advanced in support of this appeal ground was that because the appellants had been brought up in Australia and had experienced religious freedom, they would never be able to accept the “contaminated version of Christianity” in China and the tight controls on religion that exist in China.

104    The case advanced on the appellants’ behalf appeared to be that there was an apprehension of bias because the primary judge failed to consider the arguments that were advanced in the context of review ground three; that the registered Christian churches in China are “corrupted by Government agendas” and that the appellants’ mother, and by implication the appellants themselves, were “incompatible with the restrictive Chinese religious systems” because they had been brought up in, and had practised Christianity in, Australia.

105    There is, for the reasons already given, some merit in the contention that the primary judge ignored or failed to consider the case advanced on behalf of the appellants that they would be unable or unwilling to accept the constrained or “contaminated” Christianity practised in registered churches in China. On one view, at least, the fact that the primary judge failed to address this aspect of the appellants’ case might support a finding of apprehended bias. So too would the general inadequacy of the primary judge’s reasons. A fair-minded observer or bystander might well reasonably apprehend that the judge might not have brought an impartial mind to the resolution of the case at hand if the judge’s reasons do not address all of the grounds and contentions advanced by an applicant, or purport to answer those grounds and arguments with broad and generic conclusions or statements of principle.

106    It is, however, unnecessary and perhaps undesirable to decide whether a fair-minded observer might have formed that apprehension in the circumstances of this case. That is because it has already been found that the matter must be remitted to the Circuit Court given that the primary judge failed to adequately engage with this aspect of the appellants’ case and failed to give adequate reasons. It is unnecessary to take the additional step and determine whether those circumstances alone support a finding of apprehended bias.

CONCLUSION AND ORDERS

107    The primary judge failed to consider and determine all of the contentions and issues raised on the appellants’ behalf in their review application, in particular the contentions and issues raised by review ground three. The primary judge also failed to give adequate reasons in relation to those contentions and issues. His Honour accordingly erred in law and constructively failed to exercise the Circuit Court’s jurisdiction enlivened by the review application. The appropriate order in such circumstances is for the appeal to be allowed and the appellants’ review application to be remitted to the Circuit Court to be determined by a judge of that court other than the primary judge.

108    The appellants were not at any stage legally represented. No submissions were advanced in relation to costs. In all the circumstances, I am not persuaded that it would be appropriate to make any costs order.

Associate:    

Dated:    2 July 2019