Federal Court of Australia

BXK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 278

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The first appellant is to pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an appeal from a decision of the then Federal Circuit Court of Australia (FCC), made on 28 February 2020, dismissing the appellants’ application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, made on 11 April 2017: BXK17 & Anor v Minister for Immigration & Anor [2020] FCCA 448 (the FCC decision). By its decision, the Tribunal affirmed a decision made on 20 May 2015 by a delegate of the first respondent, then known as the Minister for Immigration and Border Protection (the protection visa decision). In turn, the Minister’s delegate had declined to grant the appellants Protection (Class XA) (Subclass 866) visas (the protection visa[s]) under s 36 of the Migration Act 1958 (Cth) and cl 866.221 of Sch 2 to the Migration Regulations 1994 (Cth). The delegate was not satisfied, under the refugee protection criterion (s 36(2)(a) of the Act), that the second appellant was a person in respect of whom Australia has protection obligations under the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (Refugee Convention) as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). Nor was the delegate satisfied, with respect to the first and second appellants, that there was a real risk that the appellants would suffer significant harm as a necessary and foreseeable consequence of their removal from Australia, for the purposes of the complementary protection criterion (s 36(2)(aa) of the Act).

2    For the reasons set out below, the appeal should be dismissed.

2.    BACKGROUND

2.1    The appellants’ claims to fear harm

3    The appellants, a mother and her minor son and second child (the second appellant), are citizens of China. The first appellant (to whom I will refer to respectfully as “Ms BXK”) arrived in Australia on 21 October 2008 as the holder of a student (Subclass 571) visa. She first applied for a protection visa on 8 September 2009, which was refused by a delegate of the Minister, with the decision affirmed by the then Refugee Review Tribunal (the RRT). Four years later, on 11 September 2013, Ms BXK applied again for a protection visa (the protection visa application). She made this application following a decision of the Full Federal Court holding that s 48A of the Act did not prohibit an applicant, whose application for a protection visa based on the Refugee Convention had previously been refused, from making a subsequent application for a protection visa by reference to the complementary protection criterion: SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235. This meant, however, that Ms BXK’s claims could only be considered under the complementary protection criterion: that is, whether those claims gave rise to a real risk that she will suffer significant harm.

4    In support of her protection visa application, Ms BXK made the following claims.

(a)    She was given documents by a friend, (“YY”), which showed corruption by officials and hospital staff in China. YY told Ms BXK that he was in danger and had been chased by members of a “Black society” hired by the corrupt persons or their associates.

(b)    Ms BXK accompanied YY to Beijing to provide the documents to the central government. YY did not return and Ms BXK has not seen him since. Ms BXK subsequently sent the documents to the Supreme People’s Court.

(c)    After Ms BXK left for Australia, “ruffians” visited her home in China and harassed her family. They alleged that Ms BXK had a close association with YY and that he had left important documents with her. They asked Ms BXK’s family to hand over the documents and smashed furniture in her home but did not find anything. The family reported the incident to authorities but there was no response and they eventually left the province.

(d)    Due to these documents and her apparent collusion with YY, Ms BXK fears a real risk of harm should she return to China.

(Appeal Book (AB) at 17-20 and 99-100.)

5    On 3 July 2014, Ms BXK attended an interview with a delegate of the Minister, assisted by a Mandarin interpreter and accompanied by her registered migration agent (AB at 101). During this interview, Ms BXK made additional claims to fear harm on the grounds of her pregnancy and having had two children before she was married, and due to her Christian religious beliefs.

6    In 2014, Ms BXK gave birth in Australia to the second appellant. On 24 November 2014, Ms BXK, by her migration agent, wrote to the Department requesting that the second appellant be included in her protection visa application as a second applicant, and enclosed documents including a protection visa application on his behalf, undated letters from Chinese family friends and associates, and undated photographs of damaged property.

7    The claims made on behalf of the second appellant were that, if he were returned to China:

... my parents will be forced to pay a fine (social compensation fee) for me. However, my parents are subjected to financial hardship, and they are absolutely unable to pay the fine. Consequently, I will not be eligible to obtain my household register, and I will become an unregistered child (a.k.a. “black child”).

…

If I have to go to China, I will become a “black child” without my household register, and the PRC authorities will never ever protect me in that country.

(AB at 59-60.)

8    As a consequence of becoming a “black child” in China, the second appellant was said to fear that “[his] basic human rights will be threatened seriously; and that [he] will be unable to survive in that country”, he would be “harmed or mistreated by the PRC authorities”, and “the PRC authorities will never ever protect [him] in that country” (AB at 59-61).

9    On 20 May 2015, the delegate refused both protection visa applications.

2.2    The decision of the Tribunal

10    On 3 June 2015, the appellants applied to the (then) RRT for merits review of the protection visa decision. Following the RRT’s amalgamation with the Tribunal on 1 July 2015, the appellants’ applications automatically became applications to the Tribunal.

11    On 31 October 2016, the appellants submitted various documents to the Tribunal: namely, a statutory declaration from Ms BXK stating that she maintained all of her claims, a letter from a pastor at Ms BXK’s Catholic church, a letter of support from a friend who also attended the church, and photographs to demonstrate her attendance at the church.

12    On 8 November 2016, Ms BXK attended a hearing before the Tribunal. The hearing was conducted with the assistance of a Mandarin interpreter and the appellants were represented by their registered migration agent who made oral submissions at the end of the hearing (Tribunal’s reasons (TR) at [9]-[10]).

13    On 11 April 2017, the Tribunal affirmed the protection visa decision.

14    The Tribunal’s reasons for refusing to grant the appellants protection visas were helpfully summarised in respondent’s submissions as follows (at [16]-[22]):

The Tribunal did not accept the first appellant’s account of events relating to her anti-corruption activities in China (AB 200, [110]-[111]). Nor did it accept that she would have left her family to go on a trip with YY to Beijing, and found her explanation that they posed as a married couple to escape detection was implausible as there was no plausible reason why having a companion would make any difference to the corrupt authorities’ efforts to find YY (AB 200-201, [118]-[119]).

The Tribunal also did not accept that, if the hospital staff and pharmaceutical companies had acted illegally, they would have set it out in unenforceable written documents as claimed by the first appellant. As the first appellant was unable to give any detail about the nature of the material that she and YY had taken to Beijing and why it would be damaging, the Tribunal found her evidence was contrived and the material did not exist (AB 201, [121]).

The Tribunal then considered photographs submitted in support of the claim that the first appellant’s home was damaged by thugs in 2008 but did not accept that a roof, which was caved in with tiles blown off, had been caused by deliberate actions or that the interior photographs were consistent with a home that had been abandoned for 6 years and found the photographs were “contrived”. In respect of the handwritten letters of neighbours and friends, the Tribunal noted their evidence had not been tested and, having regard to the other factors that suggested the first appellant’s claims were “contrived”, gave them no weight (AB 201-202, [123]-[124]).

The Tribunal did not accept that the first appellant had been given poor advice on the claims she could make in her first protection visa application and that, even if she was, it did not explain her failure to previously raise her claims regarding the corruption in the hospital. The Tribunal noted the first appellant’s first Protection visa application was based on her religious beliefs but such claims were only mentioned in connection with her current application at the delegate’s interview and Tribunal hearing. Given her vague evidence, the Tribunal did not accept that the first appellant was a Christian adherent in China or that she attended church or gatherings for any substantial period (AB 202-204 [127]-[145]).

The Tribunal accepted that [the] first appellant had commenced attending a Catholic church in Australia but found her failure to attend classes, take part in holy communion and to arrange a church marriage indicated she did not have a genuine commitment to the adoption of Catholic practices and beliefs (AB 205, [146]-[148]). The Tribunal did not accept that the first appellant would attempt to find and attend an underground church in China or her explanation for why she would not attend a registered church as it was not consistent with her conduct since she had commenced attending church in Australia in 2011 (AB 205-206, [149]).

In relation to family planning regulations in China, the Tribunal found, on the basis of country information regarding changes in policy and law, that the second appellant would be entitled to household registration and corresponding rights and obligations as a Chinese citizen. Further, the Tribunal found the first appellant and her husband would not have to pay a social compensation fee in respect of the second appellant if they returned to China. The Tribunal also considered the first appellant‘s attendance at church in Australia but found, also on the basis of country information, that this would not put her at any risk (AB 208-209, [164]-[171]).

The Tribunal noted it had rejected the second appellant’s claims regarding social compensation and household registration and found there were no other claims made or which clearly arose from the material before it. For those reasons, the Tribunal was not satisfied that the appellants met the criteria for the grant of Protection visas and accordingly affirmed the delegate’s refusal decision (AB 210, [174]-[179]).

(Emphasis in original.)

2.3    The decision of the FCC on judicial review

15    On 3 May 2018, the appellants applied for judicial review of the Tribunal’s decision in the FCC (the judicial review application). Ms BXK appeared in person before the primary judge assisted by an interpreter in the Mandarin language and made oral submissions in the hearing. The judicial review application contained three grounds of review:

1.    I believe the process behind the decision by the Tribunal in regards to my case was unfair and biased.

2.    The Tribunal acknowledges submissions of evidence and indicates they understand the relevance of these submissions to the credibility of my claims. However, the Tribunal has also indicated they have made subjective assertions in regards to these pieces of evidence and these assertions make up part of their reasons for their decision. Specifically, I am referring to the Tribunal’s dismissal of the photos and the letters I submitted based on the fact the contents of those submissions did not met the assumptions the Tribunal had made about what the content should have been. [Whilst I] respect the Tribunal’s power to judge the contents of my evidence, it is unfair to base a decision off their subjective understanding of certain pieces of information. Without allowing me to respond to or comment on these assertions, perhaps, with further clarity the Tribunal’s judgement of the contents to these submissions would have changed. In other words, I have unfairly been deprived of my basic right to present my evidence.

3.    The Tribunal has denied my claims of experiencing difficulties with China’s family plan regulations based on DFAT country information report that the [provincial] government has loosened its policies on ‘Family Plan’[.] I do not agree the DFAT country information the Tribunal holds is valid because the part of the information that is relevant to claims is directly taken from the Chinese government. The Chinese communist party is notorious for uploading false country information. There are many instances exhibiting Chinese government agencies failing to uphold their own regulations and laws. Although they may have announced changes to the “Family plan policies”, the power to issue family plan penalties and distributing “hukou” still resides with the government. Consequently, it is still an area which corrupted officials are able to extort families that are experiencing difficulties. Hence, I do not agree Chinese country information is trustworthy to support the Tribunal’s decision.

(AB at 217-218.)

16    The primary judge dismissed the application for judicial review for reasons which I consider in the course of considering each of the grounds of appeal.

3.    DISPOSITION OF THE APPEAL

3.1    Introduction

17    On 12 March 2020, the appellants appealed to this Court from the FCC decision on the following grounds:

1.    His Honour, the Federal Circuit Court, must have errors of law when he decided my appeal application.

Particulars

i)    I personally attended the hearing before the Federal Circuit Court. I found, from the beginning to the end, that His Honour had heavily bias against me. His Honour had never ever attempted to take any genuine steps to fairly consider my appeal application but was apparently partial to the Department and the Tribunal. This is absolutely unfair!

ii)    As a matter of fact, I openly expressed my dissatisfaction at the hearing before the court. Unfortunately, His Honour just simply said that I could seek further review if I was dissatisfactory with his judgement.

2.    The Federal Circuit Court erred on law, because His Honour failed to fairly consider significant mistake of the Administrative Appeals Tribunal.

Particulars

i)    The Administrative Appeals Tribunal (the Tribunal) failed to consider my review application for a Protection visa according to the law. Significantly, the Tribunal ignore the important documentary evidence, which were the letters that I had provided to support my claims, before it.

ii)    The Tribunal failed to consider, independently and impartially, my evidences as a genuine Roman Catholics. Particularly, the Tribunal repeatedly suggested or made implications that I have no intentions of attending an underground church if I go back to China; and

iii)    The Tribunal failed to consider that the significant changes of the religious situation has significantly changed since XI Jinping became the top leader of the Chinese authorities.

(Errors in the original.)

18    Ms BXK appeared in person at the hearing of the appeal and made oral submissions, assisted by a certified interpreter in the Mandarin language. In addition, Ms BXK filed post-hearing submissions on 22 October 2022 pursuant to orders made at the conclusion of the hearing on 17 October 2022. The Minister filed supplementary submissions in reply on 31 October 2022, also in accordance with those orders.

19    For the reasons that follow, none the grounds of appeal are established and the appeal must be dismissed.

3.2    General principles

20    In order to succeed on appeal, an appellant must show that an appealable error has been made by the primary judge: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [29]-[34] (Gageler J, Edelman J agreeing with those paragraphs at [153]). As I recently explained in AJX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 16 at [13]-[14], with respect to the role of the (then) FCC on judicial review and this Court on appeal from a decision of the FCC:

[T]he jurisdiction of the Federal Circuit Court was limited to deciding whether the Tribunal’s decision was made lawfully under the Migration Act 1958 (Cth), that is, whether the Tribunal’s decision was invalid by reason of a jurisdictional error. This Court on appeal must decide whether the Federal Circuit Court wrongly held that there was no jurisdictional error. The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the appellant’s protection visa application was required to be assessed under the Migration Act, or if it failed to hear and determine his application for review in accordance with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 (the Court).

However, the Federal Circuit Court did not have jurisdiction to grant the appellant a visa, to decide whether he satisfied the criteria for the grant of a protection visa, or to make findings on the credibility of the appellant’s claims: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J) and [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). The question of whether or not the Federal Circuit Court (or this Court on appeal) agreed with the Tribunal’s decision is not, therefore, a basis for finding that the Tribunal’s decision was invalid. Nor is it relevant that the appellant strongly disagrees with critical findings by the Tribunal.

3.3    Ground 1: whether apprehended or actual bias on the part of the primary judge established

21    Ground 1 appears to allege that the primary judge was actually biased as opposed to demonstrating apprehended bias. However, as the nature of the allegations is not entirely clear, I consider both possible allegations.

22    Insofar as ground 1 alleges that the primary judge was actually biased, Ms BXK must establish that the primary judge approached the matter with a mind that was not open to persuasion. In other words, she must establish that the primary judge was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72] (Gleeson CJ and Gummow J). Bearing in mind the seriousness of an allegation of actual or apprehended bias, any such claim must be “distinctly made and clearly proved”: Jia Legeng at [69] (Gleeson CJ and Gummow J) and [127] (Kirby J).

23    The test for determining whether a decision maker is disqualified by reason of apprehended bias is also well-settled, namely, “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31] (Gummow A-CJ, Hayne, Crennan and Bell JJ); see also Charisteas v Charisteas [2021] HCA 29; (2021) 95 ALJR 824 at [11] (the Court). As such, the test is an objective one: Wilson at [32]-[33] (Gummow A-CJ, Hayne, Crennan and Bell JJ); Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [7]-[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

24    This test requires consideration of two limbs:

(1)    identification of what it is said might lead a judge to decide a case otherwise than on its legal and factual merits; and

(2)    articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.

(Ebner at [8]; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [21] (Kiefel, Bell, Keane and Nettle JJ).)

25    In applying the test for apprehended bias, it is also important to emphasise that the fair-minded lay observer “is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision”: Isbester at [23] (Kiefel, Bell, Keane and Nettle JJ).

26    Turning to ground 1 itself, the only specific particular provided in support of the allegation of actual or apprehended bias is that the primary judge said that Ms BXK could seek further review if she was dissatisfied with his Honour’s decision. However, far from establishing alleged bias, that statement is an entirely correct statement of the law. It was open to the appellants to appeal the primary judge’s decision is they were dissatisfied with it, as they have in fact done. As such, any statement by the primary judge to the effect that the appellants could seek further review of his Honour’s decision cannot establish actual or apprehended bias.

27    Otherwise, the allegations of actual or apprehended bias do not rise above a bare assertion that the primary judge “never ever attempted to take any genuine steps to fairly consider my appeal application but was apparently partial to the Department and the Tribunal”. In other words, the appellants have failed to plead actual bias with any specificity or, applying the first limb of the test for apprehended bias, to identify what it is said might have led the primary judge to decide the application for judicial review otherwise than on its merits.

28    Furthermore, there is no evidence—such as a transcript of the hearing before the primary judge—suggesting that the primary judge may have failed to take any genuine steps to fairly consider Ms BXK’s appeal. To the contrary, at [21] of his Honour’s reasons, the primary judge explains that he invited and received oral submissions from Ms BXK and found that she was “a powerful advocate in support of her case. She is articulate and had clearly thought about the Tribunal’s decision and the parts of it with which she disagrees”. In the following paragraphs at [22]-[25], [30]-[33] and [38], the primary judge then set out each of Ms BXK’s submissions in detail. Those reasons demonstrate that his Honour carefully considered each submission before ultimately finding that they were without sufficient merit. As such, it is plain that the primary judge gave the appellant an opportunity to put her case and his Honour’s comprehensive reasons establish that he approached the matter with a mind open to persuasion. There is therefore nothing in the evidence to suggest that the primary judge was actuated by actual bias against the appellants or that a fair-minded lay observer might reasonably apprehend that the primary judge had a mind closed to persuasion: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27]-[28] (the Court).

3.4    Ground 2, particular 1: whether adequate consideration of documentary evidence by the Tribunal

29    By ground 2, Ms BXK alleges that the primary judge erred by failing to consider a “significant mistake” by the Tribunal. By the first particular, Ms BXK alleges that the Tribunal ignored “important documentary evidence”, being:

(1)    two translated letters from China, one said to be from YY’s family member attesting to his imprisonment and one from a neighbour stating that Ms BXK’s family home had been destroyed and that the relevant evidence could not be found; and

(2)    the two letters attesting to Ms BXK’s involvement in a Catholic Chinese community in Australia.

30    In her post-hearing submissions dated 22 October 2022, Ms BXK further claimed, relevantly to particular 1:

2.    This is submitted that His Honour failed to consider the Tribunal’s jurisdictional mistake, as the Tribunal ignored or failed to consider the most important documentary evidence in my case.

Particulars

2.1    Regarding to the photos and letters from my family in China, I may accept that it was open to the Tribunal to assess the credit of the applicant, and then, in the light of that assessment, consider what weight should be given to the witness statement. I may also accept that the Tribunal is not required to specifically tell the applicant that their credibility is in issue.

2.2    However, my case is unique and exceptional. The Tribunal has mistakenly claimed that I am not a credible witness. However, the photos and the letters from my family reinforce my evidence and prove my credibility. The Tribunal should and must give the evidence a fair amount of consideration before making their decision about my character.

2.3    As His Honour did not adequately consider the errors in law committed by the Tribunal as described above, I believe His Honour has also erred in law.

(Errors in the original.)

31    Before the primary judge, the appellants submitted that it was unfair for the Tribunal to base its decision on its “subjective understanding of certain pieces of information”, without providing them with an opportunity to respond to or comment on information that would be the reason, or a part of the reason, for affirming the decision under review (as required by s 424A of the Migration Act), namely the photographs and letters submitted by Ms BXK. The appellants therefore contended that they had been deprived of their “basic right” to present evidence (ground 2 of the application for judicial review).

32    First, however, the primary judge correctly held at [34] that no obligation arose under s 424A of the Migration Act to give particulars of the information in question, given that:

(1)    nothing in the photographs or letters constituted information which of itself undermined the appellant’s claims (SZTNL v Minister for Immigration and Border Protection [2015] FCA 463; (2015) 231 FCR 204 at [52]-[53] (Griffiths J)); and, in any event

(2)    the information fell within the express exceptions in subs 424A(3) to the obligation to give particulars in s 424A(1) of the Migration Act because the information was given by the appellant herself.

33    Secondly, as primary judge held, it is well established that a decision-maker (such as the Tribunal) is not required to expose her or his thought processes or provisional views for comment before making their decision: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591 (the Court). It follows that the decision-maker is not required to specifically advise a visa applicant that their credibility is in issue. In any event, the primary judge correctly found that in this case the appellant was clearly put on notice from the delegate’s decision and the Tribunal’s questioning that her credibility was in issue.

34    Thirdly, the Tribunal found that it would not place any weight on the letters supporting the applicant’s anti-corruption claims on the basis of its adverse assessment of the appellant’s credibility and its view that “the authors of the letters have not been tested” (presumably by questioning in the Tribunal) and that the evidence indicated that they were written by neighbours and friends at Ms BXK’s request (TR at [123]-[124]). That line of reasoning does not disclose any illogicality or other error. As the primary judge held at [36], it was open to the Tribunal to assess the appellant’s credit and then consider what weight it might give to the letters in light of that assessment: see e.g. by analogy Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [33] (North and Lander JJ).

35    The letters attesting to Ms BXK’s involvement in the Chinese Catholic community were also expressly considered by the Tribunal. It accepted that she had commenced attendance at a Catholic church in Sydney sometime after 2011, having regard to a letter from her pastor and from a friend, as well as photographs showing her attending some events at a Catholic church (TR at [146]). However, having regard, among other things, to the Tribunal’s assessment of Ms BXK’s level of understanding of the Catholic faith and participation in Mass, the Tribunal did not accept that she had a genuine commitment to the Catholic religion and therefore that she would attend an underground church if she returned to China (TR at [149]). That line of reasoning is reasonable and open to the Tribunal. The fact that Ms BXK disagrees strongly with that finding does not of itself demonstrate error. Furthermore, her contention that her photos and letters “reinforce” and “prove” her credibility rises no higher than inviting the Court to take a different view of her credibility and uphold her claims. For the reasons earlier given, neither this Court nor the Court below has jurisdiction to assess the merits of her claims.

36    Particular 1 of ground 2 of the notice of appeal must therefore be dismissed.

37    In the course of oral submissions in the hearing before me, Ms BXK also appeared to allege that the Tribunal was under some duty to inquire. Her complaint was that the Tribunal did not “conduct a thorough investigation” of the photos and letters before arriving at its findings. I note, first, that this contention was not raised before the primary judge and therefore leave is required to advance this ground on appeal. However, in any event, that argument is without any merit.

38    In this regard, the High Court explained in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [24]-[25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) that the Tribunal’s duty imposed by the Migration Act “is to review” and any failure to inquire does not, without more, constitute a failure giving rise to jurisdictional error. However, their Honours (at [25]) left open the possibility that:

… a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

39    However, no failure to make an obvious inquiry about a critical fact has been established. Aside from other difficulties: first, the appellant did not request the Tribunal to contact the authors of the letters; and secondly, there is nothing on the record indicating that any further inquiry by the Tribunal as to the authenticity of the photographs or the truthfulness of the statements made in the letters from China would yield a useful result (see SZIAI at [26] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) by analogy).

3.5    Ground 2, particular 2: whether the Tribunal exhibited apprehended bias in relation to Ms BXK’s religious beliefs

40    By particular 2 the appellants allege that the Tribunal failed to impartially consider Ms BXK’s evidence that she was a genuine Roman Catholic and “suggested or made implications that [Ms BXK has] no intentions of attending an underground church if [she goes] back to China”. It is apparent from Ms BXK’s oral submissions that this particular was intended to raise the question of whether the primary judge erred in failing to find apprehended bias in the Tribunal’s decision which (it will be recalled) was a ground of the appellants’ application for judicial review. In her post-hearing submissions, Ms BXK also accepted the statement by Judge Smith in Hu v Minister for Immigration & Border Protection [2017] FCCA 1785 at [18] that:

The allegation of a reasonable apprehension of bias cannot be made out simply on the basis of the findings. Not only does such an approach risk confusion with an allegation of actual bias, but it also ignores the fact that the Tribunal’s reasons are necessarily made at the conclusion of a process of review. Such a process includes the consideration of the papers before the Tribunal, then an oral hearing and then consideration of all of the evidence together.

(Emphasis added.)

41    However, Ms BXK submitted that a reasonable apprehension of bias is apparent from the primary judge’s error in failing to hold that the Tribunal failed to consider all of the evidence given by her in support of her application for a protection visa. More specifically, she submitted that:

Significantly, although my husband and I did not attend knowledge classes in relation to the marriage at a Catholic church, it never ever means that we are not devout Catholics. At least, we have provided the letter of support from Fr. Paul McGee, Chaplain Pastor, St Dominic’s Catholic Church of Western Sydney Catholic Chinese Community, and the letter of support from Jinzhang Chen, the secretary of Western Sydney Catholic Chinese Community, as well as a lot of photos in relation to our church activities in Australia.

This is no doubt that there is a reasonable apprehension of bias in the Tribunal's decision.

42    In other words, Ms BXK submits that there is a reasonable apprehension of bias in the Tribunal’s decision because it failed to consider the letters and photographs relied upon by Ms BXK in support of her claim to fear harm by reason of her Catholic religion. However, as I have earlier explained, the Tribunal did expressly have regard to that evidence in its reasons (TR at [146]). It was for other reasons, and on the basis of other material, that the Tribunal did not accept that Ms BXK had a genuine commitment to the Catholic religion (TR at [147]-[149]). Further, as the primary judge held, those reasons provided a logical basis for the Tribunal’s finding that it was not satisfied the applicant was a committed adherent of the Catholic faith. Ms BXK’s allegation of apprehended bias on this ground, therefore, again rises no higher than strong disagreement with the Tribunal’s findings and ultimately amounts to no more than an invitation to this Court to engage in impermissible merits review. Accordingly, this ground of appeal must also be dismissed.

3.6    Ground 2, particular 3: whether error in the Tribunal’s consideration of country information

43    Particular 3 asserts that the Tribunal “failed to consider” that “the religious situation has significantly changed” in China since Xi Jinping became the country’s leader. This particular ground challenges the primary judge’s dismissal of ground 3 of the application for judicial review, which alleged that the country information relied on by the Tribunal with respect to China’s family planning regulations was untrustworthy.

44    The primary judge also correctly dismissed this ground. First, the appellants did not place any country information as to changes in China’s religious situation before the Tribunal to the effect alleged. As the primary judge held, there was nothing to suggest that there was any relevant contradictory country information before the Tribunal which it failed to consider. Secondly, in circumstances where the Tribunal rejected the appellant’s claim to be a genuine adherent of the Catholic faith, and did not find that she would attend an underground church if she were returned to China (at [149]), any failure by the Tribunal to consider country information to the effect alleged would not be material. Thirdly, as the primary judge correctly held (at [38]) “it is well established that the choice of country information and the weight to be afforded to it is a factual matter for the Tribunal to decide”: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] (the Court).

4.    CONCLUSION

45    It follows for these reasons that the appeal must be dismissed and an order should be made for the appellant to pay the Minister’s costs as agreed or assessed.

Associate:

Dated: 29 March 2023