//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2023] FCA 791
Federal Court of Australia
2023-07-14
Perram J
Original judgment source is linked above.
PERRAM J: 1 This appeal concerns a decision of the Migration & Refugee Division of the Administrative Appeals Tribunal ('Tribunal') which the Appellant claims should be set aside. The Federal Circuit Court of Australia refused to do so and the Appellant has appealed. For the reasons which follow, the appeal should be allowed with costs. 2 The Appellant arrived from China on 22 January 2015 on a tourist visa (more precisely, a subclass 600 visitor visa). On 2 March 2015 he sought the issue to him of a protection (subclass 866) visa. Under the Migration Act 1958 (Cth) ('the Act'), visa applications are determined by the Minister administering that Act: s 65. The Minister may delegate his powers under the Act (s 496) and, in practice, decisions on most visa applications are dealt with by the Minister's delegates. Whilst there are many requirements which must be met for the issue of a protection visa, a central requirement imposed by s 36(2)(a) is that the delegate should be satisfied that the applicant is a refugee or, in the alternative, that the applicant is a person in respect of whom Australia has protection obligations because there is a real risk the applicant will suffer significant harm if removed back to their country of origin: s 36(2)(aa). 3 The word 'refugee' is defined in s 5H(1)(a) to mean, relevantly, a person who is unable or unwilling to avail himself or herself of the protection of their country of nationality owing to a well-founded fear of persecution. 4 The basis of the Appellant's protection application was that he is a practising Roman Catholic and, in China, was a member of what is known as an underground Catholic Church. In China, the Catholic Church is organised in such a way that it is independent of the Holy See. However, there are Catholics in China who continue to recognise the authority of the Bishop of Rome and, without dwelling on the detail, it may be said that the People's Republic of China is not well-disposed towards persons of this kind or to the underground churches at which they come together to practise their faith. The Appellant's claim for refugee status therefore invoked s 5J(1) which provides, relevantly, that a person has a well-founded fear of persecution if they fear being persecuted for reasons of religion. 5 In his written application for the visa, the Appellant gave an account of the history of his Roman Catholicism. This included having been introduced to it by his wife in 1996. She was Roman Catholic and, in order to marry her, he had been baptised and confirmed in 1997. Thereafter, he gave a version of events which featured participation in the affairs of underground churches and correlative persecution at the hands of the police and the authorities. 6 The delegate who decided the Appellant's protection visa application found that the Appellant was not a witness of truth and may have either embellished or entirely fabricated his material claims. This resulted in a finding that the Appellant was not a committed adherent of the Catholic faith and that he was neither a refugee nor someone to whom Australia owed protection obligations. The delegate therefore refused his application for a protection visa. The Appellant next applied for a review of this decision before the Tribunal but it, too, did not accept that he was a refugee or a person to whom Australia owed protection obligations, affirming instead the delegate's initial decision. Judicial review proceedings brought by the Appellant in the Federal Circuit Court were, by order, dismissed and it is from that order that the present appeal has been taken. 7 The appeal must be allowed for the following reasons. 8 The Appellant gave an account of an incident on 1 May 2013 in which he said that he and his wife had attended a gathering of an underground church. The Tribunal recorded this account of this meeting and the attendance of the constabulary at [7] of its reasons in the following terms: On 1 May 2013 during a gathering, while they were studying the Bible police officers entered and confiscated the study catechism, bibles, rosary beads and saints pictures. They were taken to the police station. They were separated for interrogation. He did not argue with the police because he feared that his wife would be put in jail. He was beaten savagely. They made him sign documents and he was detained until 3 days later when a work colleague paid the fine. After his release he was fired. They then returned to their home town where he worked in a stone mill. 9 The Appellant provided the Tribunal with corroborating evidence of his account of the events of May 2013. That evidence consisted of a letter from a Mr Xue dated 20 January 2019. In that letter, Mr Xue stated that he had known the Appellant for more than ten years because they both worked in the wholesale seafood business in a particular town in China, that the Appellant and his wife were very devout Catholics and, importantly, that he remembered an incident in May 2013 where the Appellant and his wife had been taken away by police after attending a church meeting. 10 The reference was in these terms: To whom it may concern: My name is Xingfu Xue, an Australian PR, currently residing at [Redacted]. I came from China. I have know[n] [the Appellant] for more than ten years. Before I migrated to Australia in 2015, I used to work in a wholesale seafood business based in [Redacted] China since 2007. [The Appellant] also worked with another wholesale seafood business in the same town. We began to know each other since then. [The Appellant] and his wife are very devout Catholics. Both of them were always keen to spread God's Gospel. I can still remember that in May of 2013, around the Labour's Day holiday period, [the Appellant] and his wife were taken away by local police while they were attending religious activities with other church friends in [Redacted]. They received unfair treatments in the police station. [The Appellant] also lost his job consequently. In Sydney, he attends the Sunday Mass regularly in Flemington. I believe that he is a genuine and practicing Roman Catholic. Sincerely Yours, Xingfu Xue (Certain place names and addresses redacted) 11 It is arguable that the Tribunal did not accept the Appellant's account of the incident in May 2013 because he was unable to recall the questions he had been asked during his interrogation (at [73]): In the applicant's written statement provided with his visa application he claimed that he commenced his Catholic practice in May 1996 when he met his wife who is a devout Catholic. He claimed that she evangelised and persuaded his parents to become Catholics. He claimed that in May 2013 while studying the Bible, 4 police officers rushed into the gathering, confiscated the study catechism, bibles, rosary beads and saints' pictures. He claimed that he was taken to the police station interrogated and beaten. He also claimed that in July 2014 while attending a rosary prayer gathering a group of police burst in and took 16 attendees to the Public Security sub--Bureau where he was interrogated overnight for about one hour. However when the Tribunal asked the applicant about the questions asked during the interrogation his only response was that they asked him not to attend the underground church. The Tribunal gave the applicant another opportunity to describe the questions asked during the interrogation and he merely indicated that they had beaten him. The Tribunal finds the applicant's oral evidence regarding his claims to have been interrogated to be unpersuasive. It is of the view that if the applicant had been interrogated as described he would have remembered the questions asked. It notes that his written submission does not include the questions asked during that interrogation. The Tribunal has formed the view that the applicant was not able to recall the questions he was asked during the interrogation because the incident did not occur. It has formed the view that the applicant has manufactured this evidence. 12 One reading of [73] is that the last two sentences did not involve a rejection of the Appellant's claims in relation to his interrogation in May 2013 but instead those relating to his interrogation in July 2014. Another is that it did. In either case, as will be seen, there is a problem. It is convenient to assume in the first instance that [73] involved a rejection of the Appellant's claims in relation to the May 2013 events. 13 On that assumption, in reaching this conclusion the Tribunal did not advert to the fact that Mr Xue's reference provided corroborating evidence. If the Tribunal were to reach the same conclusion despite Mr Xue's corroborating evidence it would have been required to explain why it did not accept that his letter was reliable. There could have been but three such explanations: (a) Mr Xue's letter was not genuine; (b) the letter was genuine, but Mr Xue was not telling the truth; or (c) the letter was genuine and Mr Xue was giving an honest account but he was mistaken in thinking he had seen the Appellant and his wife taken away by the police in May 2013. 14 It is clear that (a) was not open to the Tribunal because it accepted at [72] that the letter showed that the Appellant had been attending St Dominic's Church at Flemington: On the basis of the letters of support from … Xingfu Xue the Tribunal accepts that the applicant has been attending St Dominic's Catholic Church in Flemington. 15 It is impossible to determine whether, in that light, it would have accepted Mr Xue's statement that he had seen the Appellant taken away by the police in May 2013. It did make a finding about another part of Mr Xue's letter where he had said that the Appellant and his wife were 'very devout Catholics' but this finding is obscure. The Tribunal felt that Mr Xue's statement could not 'overcome' the concerns that it had about the veracity of the Appellant as a witness. Those concerns arose from its view that the Appellant's knowledge of Catholic practice in China was vague. The precise manner in which the Tribunal (at [74]) expressed itself about this matter bears setting out: The Tribunal also notes that when asked about his Catholic practice in China, the applicant merely indicated that he belonged to the underground Catholic Church and that they read the rosary and Bible. The Tribunal had to prompt the applicant for further evidence about his Catholic practice in China and he indicated that he also worshipped the body of Christ on the cross. His evidence about bishops during this period was vague and unpersuasive. The Tribunal accepts that the applicant was able to name two bishops however it notes that he initially indicated that there was no bishop in Fujian. It has formed the view his oral evidence on the bishops was vague and unpersuasive. The Tribunal takes into account Mr Xue's assertions that the applicant and his wife were devout Catholics in China however it is not satisfied his evidence overcomes the Tribunal's concerns about the applicant's lack of evidence to support claims that he was a practising Roman Catholic for over 18 years before coming to Australia in 2015. Overall the Tribunal is of the view the applicant's oral evidence describing his Catholic practice in China is vague, limited and not indicative of a person who practised as an underground Catholic in China for over 18 years. 16 It is possible that the Tribunal was saying that it did not accept Mr Xue's statement as true because it did not accept the Appellant's evidence was true. If so, it reasoned that it was disbelieving a corroborating witness because it did not believe the evidence of the person whose account was being corroborated by that witness. 17 On the other hand, it is possible the Tribunal reasoned that Mr Xue was telling the truth but was mistaken in thinking that the Appellant and his wife were very devout Catholics. Since Mr Xue also said that he had known the Appellant for more than ten years after meeting while they were both still in China such a conclusion might have been difficult to reach on the evidence before the Tribunal. Having accepted that the letter was genuine and that Mr Xue was telling the truth, certainly to the extent that he said that the Appellant attended St Dominic's in Flemington, it is not clear how such a conclusion could be reached. 18 But that does not matter and it is not necessary to draw a conclusion about it. The Tribunal was bound to give the Appellant's claims about the May 2013 events proper, genuine and realistic consideration as a significant matter: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45]. I do not doubt that the Appellant's claims about the May 2013 events were a significant matter. They were an integer of his protection claims and, as such, were set out by the Tribunal at [7]. Further, whatever [73] means it includes the Appellant's evidence about the May 2013 events and shows that the Tribunal understood the Appellant to have advanced a case based on those events. Thus, the Tribunal was bound to give the May 2013 events proper, genuine and realistic consideration. The question which then arises is whether that obligation bound it to consider the terms of Mr Xue's letter and deal with them. Two issues arise. First, whether the Appellant advanced a case based on the letter; and second, whether the Tribunal had to consider it where it disbelieved the Appellant's evidence about the events of May 2013.
Was a case advanced? 19 The letter from Mr Xue was not before the delegate but it was provided to the Tribunal and there can be no doubt that the Tribunal was aware of it because it dealt with it at two paragraphs of its reasons, [72] and [74]. On the other hand, the Appellant did not put an argument to the Tribunal about the letter. Indeed, the letter was not mentioned during the hearing although the letter from Father McGee and the letter from Mr Zhang were mentioned by the Tribunal at T22. 20 The Tribunal's record shows that the Appellant did not make any written submissions to it. The only material provided by the Appellant to the Tribunal was Mr Xue's letter, his driver's licence and a letter from Mr Zhang, the President of the Western Sydney Catholic Chinese Community. 21 The Appellant was examined by the Tribunal about the events of May 2013 at T24.29-25.33 in these terms: THE INTERPRETER: They know I - I've been detained once because of - of the - the issue of my religious belief. MEMBER: And when was that? THE INTERPRETER: Where or when, sorry? MEMBER: When? THE INTERPRETER: That's on the 6th of July 2014. MEMBER: So you can remember that date very precisely, but you told - you actually said in the statement that you were detained twice, not once. So why today have you said, "I was detained once," but in the written submission you said you were detained twice? THE INTERPRETER: No. I didn't tell you I was only detained once. Another time I was detained in [Redacted] Province. MEMBER: And when you gave your evidence to the delegate, you actually got the dates wrong about your detention. You told - first you told the delegate that you were detained in 1999, I think you said. THE INTERPRETER: No, I didn't say 1999. MEMBER: Sorry, I've got to find the - did you give the delegate the wrong date and have to correct it? THE INTERPRETER: No. The - no, the date I - I didn't give the wrong date because when I was in - in - with - in the interview, I gave the - the - the date and I - I corrected that immediately. MEMBER: You said - sorry, you said 2011. You said you were detained - you were - you were first arrested in May 2011, and then she asked you, "2011?" and you said, "Sorry, I got that wrong. It was 2013." So but today you've been very precise about particular dates. You can say on a particular day this happened. THE INTERPRETER: I mentioned only 2011. I didn't say which date of the November. MEMBER: Okay. Well, what I heard you say earlier was, "I was arrested once," and I asked, "When was that?" and you said, "July - 6 July 2014." But your written submission was that you were arrested twice, and the other date was in May 2013. THE INTERPRETER: Because what I heard was that when I was arrested in Fujian, but it's - it's impossible for me to say only I was only detained - arrested once in - in - when I had put it twice in my written statement. MEMBER: So you were arrested twice? THE INTERPRETER: Yes. (Place names redacted) 22 At the end of the hearing the Appellant was asked if there was anything else he wanted to add: MEMBER: Is there anything else you want to tell me before I close the hearing? THE INTERPRETER: I want - I just want to say during the other hearing - two hearings perhaps my expression is - is a problem and I cannot - because of other - my - and because I was nervous the expression was vague and perhaps I can't - member cannot understand my - my answer. MEMBER: Is there anything you want to correct? THE INTERPRETER: No. MEMBER: No. Okay. All right. Well, thank you for coming along today. Thank you, Interpreter. 23 Despite this, as [7] and [73] clearly show, the Tribunal understood that the Appellant was putting a claim based on the May 2013 events. Further, as [72] and [74] show, the Tribunal was aware that the Appellant was relying on Mr Xue's letter. The Appellant was unrepresented before the Tribunal and the hearing was conducted through two different interpreters after the hearing had to be adjourned when the first interpreter gave up. The driving force in the hearing was the Tribunal and not the Appellant (which is not a criticism). Having read the transcript, I am satisfied that the Appellant sent the documents he thought to be relevant to the Tribunal as requested and presented himself before it to be examined. His case was based on the material before the delegate and the three additional documents he placed before the Tribunal. The Tribunal evidently accepted that the Appellant was advancing a case based on the letter because it dealt with part of that case at [72] and [74]. I accept therefore that the Appellant did advance a case that his evidence about the events of May 2013 was corroborated by the letter from Mr Xue.
Did the Tribunal have to deal with the letter where it had disbelieved the Appellant? 24 McHugh and Gummow JJ observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 ('S20/2002') at [49] that 'it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption'. Thus it may be accepted that there can be cases where it is not necessary for the Tribunal to consider corroborative evidence. It was Finkelstein J who observed in SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 at [23] that the application of that principle would 'be rare indeed', a comment applied by the Full Court in BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 ('BZD17') at [44]. On the other hand, the Full Court in Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; 184 FCR 485 ('SZNSP') concluded that a letter, not entirely dissimilar to the letter in this case, did not have to be considered by the Tribunal. The Court's reasons bear close consideration: When a decision maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant's claims have been fabricated, the decision maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant's account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision maker could determine to reject it out of hand. In this case, as we have said, the document which is said to be the corroborative evidence is a document written in the Chinese language which has been interpreted, no doubt faithfully, into the English language and purports to be a statement of Lu. The applicant, whom the RRT believed was not a credible witness, proffered it as Lu's statement, but there was no other evidence other than the applicant's say so that it was. There is nothing irrational about the RRT in those circumstances rejecting the document by giving it no weight. In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it. Consequently, the alternative argument relied upon by the appellants, outlined at [22] above, cannot be sustained. 25 The letter in this case stands in a different position. Because the Tribunal accepted the letter was genuine at [72] and, indeed, that at least in relation to the Appellant's attendance at St Dominic's, Mr Xue was telling the truth, it was not possible to reason in the way that the Court said was open in SZNSP. Rejection of the Appellant's evidence could not lead to the rejection of the value of the letter because the Tribunal had accepted that the letter was genuine and probative. 26 Thus I do not think that SZNSP relieved the Tribunal of the obligation to consider the letter. It may still be possible to apply the broader statement of principle in S20/2002. Having read the Tribunal's examination of the Appellant, it will suffice to say that, whatever the Tribunal's actual view of the Appellant's account of his Catholicism, a reasonable decision-maker could not have considered the well of the Appellant's credibility to be poisoned beyond redemption. I therefore do not accept that the principle in S20/2022 has any application in this case. This is not one of those 'rare' cases to which the Full Court was referring in BZD17. In short, the letter from Mr Xue corroborated the Appellant's account of the events of May 2013, the Tribunal accepted that the letter was genuine and probative and it could not disbelieve the Appellant's version of events without dealing with the implications of the letter. 27 It follows, on the assumption that [73] of the Tribunal's reasons is to be construed as rejecting the Appellant's claims about the events of May 2013, that the Tribunal failed to give this aspect of the Appellant's claim proper, genuine and realistic consideration by failing to deal with the implications of Mr Xue's letter. 28 If, however, [73] is to be read as not dealing with the events of May 2013 then the Tribunal has failed to deal with an integer of the Appellant's claims to it. The Tribunal recited the claims about the events of May 2013 at [7] and referred to this evidence at [73]. If [73] is not read as dealing with that claim, then what the Tribunal failed to do was to deal with a clearly articulated claim based squarely on his account of the events of May 2013 and corroborated by Mr Xue's letter. Such a failure involves a constructive failure to exercise jurisdiction and gives rise to a jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58]-[59] per Black CJ, French and Selway JJ; CDD15 v Minister for Immigration and Border Protection [2017] FCAFC 65; 250 FCR 587 at [18] per Perram, Robertson and Wigney JJ. 29 Thus, however [73] of the Tribunal's reasons is to be read, it demonstrates the existence of a jurisdictional error. The Tribunal either rejected the Appellant's claim about the May 2013 events but in doing so failed to give proper, genuine and realistic consideration to that claim by omitting to deal with the corroborating implications of Mr Xue's letter; or, it simply failed to deal with his claims in relation to the events of May 2013 altogether in which case there was a constructive failure to exercise jurisdiction. On balance, I would not read [73] as rejecting the Appellant's claims about the events of May 2013 but, as will be apparent, I do not think this really matters. 30 Ground 1 in the Court below was that the Tribunal had failed to consider the letters supporting his Catholicism. Whilst there is no doubt that the Tribunal did refer to Mr Xue's letter, it did not advert to its corroborating effect in relation to the events of May 2013. In the Court below this was overlooked as the Court's reasons at [19]-[23] demonstrate: 19. To the extent that Ground 1 asserts that the Tribunal failed to consider the applicant's supporting letters, such a complaint is not made out on the face of the Tribunal's decision record. Ground 1 is more in the nature of a disagreement with the Tribunal's finding that he was not a practicing Catholic in China. 20. The Tribunal found that the applicant had manufactured the evidence of being taken to the police station in May 2013 and beaten and having been interrogated over night for about an hour in July 2014. The Tribunal found the applicant's oral evidence unpersuasive and found the fact that the applicant was unable to recall the questions asked during the alleged interrogation was because the incident did not occur. 21. The Tribunal also referred to the applicant's evidence when asked about his Catholic practice in China to be merely that he belonged to the underground Catholic Church and that they read the Rosary and the Bible. 22. Ultimately, the Tribunal stated that even taking into account Mr Xue's assertions that the applicant and his wife were devout Catholics in China, it was not satisfied that this evidence overcame the Tribunal's concerns about the applicant's lack of evidence to support his claims to be a practicing Roman Catholic for over 18 years before coming to Australia in 2015. The Tribunal found the applicant's oral evidence describing the applicant's Catholic practice in China to be vague, limited and not indicative of a person who practiced as an underground Catholic in China for over 18 years. 23. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J). 31 It was true that the Tribunal had considered the letter but it was not correct that it had given proper, genuine or realistic consideration to its corroborating effect. I therefore accept that the learned judge in the Court below erred in this regard. 32 In fairness to her Honour, it can be difficult, in cases where a party is unrepresented and requires an interpreter, to identify errors of the present kind. Nevertheless, I think that the appeal must be allowed although I would accept that Ground 2 of the Notice of Appeal does not capture the current issue with perfect clarity. Since I am satisfied that the substance of this argument was raised in the Court below, and according some latitude about this having regard to the fact that the Appellant was unrepresented, I will direct that the notice of appeal be taken to include the following ground 3: The Tribunal failed to give proper, genuine or realistic consideration to the fact that the letter from Mr Xue corroborated the Appellant's version of the events of May 2013 or constructively failed to exercise its jurisdiction by not dealing with the Appellant's claim based on those events. 33 The remaining grounds of appeal need not be dealt with and in any event are somewhat discursive. In the interests of completeness, however, I would say this: in the Court below the Appellant argued that the Tribunal had failed to inform him of its concerns. The Court below correctly rejected this submission although it is clear that her Honour entertained, at least for some time, doubt about the Tribunal's examination of the Appellant in relation to his knowledge of bishops. The Tribunal's internal ruminations on the Appellant's inability to explicate Catholic dogma were not information to which s 424A(1) applied: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190. Thus, it was not necessary for them to be notified to the Appellant under that provision. 34 The final ground in the Court below was that the Tribunal was actually biased against the Appellant. Since it is not necessary, and would involve a serious finding against the Tribunal member, I would prefer to express no view. 35 I will make the following orders: (1) The appeal be allowed. (2) The First Respondent pay the Appellant's costs of the appeal as taxed or agreed. (3) The notice of appeal be deemed to include a ground 3 to the effect that 'The Tribunal failed to give proper, genuine or realistic consideration to the fact that the letter from Mr Xue corroborated the Appellant's version of the events of May 2013 or constructively failed to exercise its jurisdiction by not dealing with the Appellant's claim based on those events.' (4) The orders of the Federal Circuit Court made on 14 November 2019 be set aside and in lieu thereof the following orders be made: (1) The decision of the Administrative Appeals Tribunal dated 8 February 2019 be set aside. (2) The Administrative Appeals Tribunal, differently constituted, consider the Applicant's review application according to law. (3) The First Respondent pay the Applicant's costs as taxed or agreed. (5) The First Respondent's name be changed to the 'Minister for Immigration, Citizenship and Multicultural Affairs'. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.
ASG19
Minister for Immigration, Citizenship and Multicultural Affairs
(1994) 52 FCR 437
(1997) 191 CLR 559
(1985) 6 FCR 155