ASU18 & Anor v Minister for Immigration & Anor [2020] FCCA 2107

1. The Tribunal noted that the applicants initially confirmed that they would attend the Tribunal hearing. A short time later the applicants informed the Tribunal that they did not wish to attend the hearing and wanted the Tribunal to: "...decide his [their] case on the material already before it" ([19] at CB 142).
2. The Tribunal considered the applicants' claims to fear harm, and noted that if the applicants had chosen to attend the hearing, these claims would have been able to be explored "more fully" ([20] - [23] at CB 142).
3. The Tribunal was not satisfied that the applicants had a well-founded fear of persecution if they were to return to China, or that if they were removed from Australia to China, that there was a real risk that they would suffer significant harm, based on the evidence before it ([24] at CB 142).
4. The Tribunal set out the criteria for the grant of a protection visa with reference to s.36 of the Act and Schedule 2 to the Regulations ([4] - [7] at CB 140). It also noted Ministerial Direction No.56, made pursuant to s.499 of the Act, which required the Tribunal to take into account policy guidelines prepared by the department, in particular "PAM3 Refugee and humanitarian - Complementary Protection Guidelines" and "PAM3 Refugee and humanitarian - Refugee Law Guidelines", in addition to country information ([8] at CB 140 - CB 141).
5. The Tribunal considered the applicant's migration history ([9] at CB 141), and the applicant's claims as set out in his written submissions to the department ([10] at CB 141). It further considered the new claims raised in the applicant's interview before the delegate on 5 November 2015 ([11] - [16] at CB 141) and noted the delegate's finding that the applicant was not found to be a "credible witness" ([15] at CB 141).
6. The Tribunal noted that the applicant had provided a copy of the delegate's decision, a copy of Taoist baptism cards for himself and his wife dated 13 December 2014, and several photographs, with his application for review of the delegate's decision on 11 December 2015 ([17] at CB 141).
7. Based on the material before it, the Tribunal was not satisfied that the applicant feared serious or significant harm on return to China: "...because he resigned from the CCP in 2002" ([20] at CB 142), because he is a follower of Yi Guan Dao ([21] at CB 142), or because: "...he is or has been associated with Mormonism or Buddhism" ([22] at CB 142). Further, based on the evidence before it, the Tribunal was not satisfied that the applicant was a "genuine follower" of Yi Guan Dao ([21] at CB 142).
8. The Tribunal noted that the second applicant declined to attend the hearing, and therefore the Tribunal was unable to explore her claimed association with the Taoist faith. However, based on the evidence before it, it was not satisfied that she was a "genuine follower of Yi Guan Dao", and therefore was not satisfied that she faced a real chance of suffering serious or significant harm on return to China as a result of her faith ([23] at CB 142).
9. The Tribunal affirmed the delegate's decision not to grant the applicants protection visas ([26] at CB 143) as it was not satisfied that either of the applicants satisfied the criteria set out in s.36(2)(a) or (aa) of the Act, and it followed that they were also unable to satisfy the criteria set out in s.36(2)(b) or (c) of the Act ([25] at CB 143).

1. The application to the Court sets out three grounds of review and refers to four orders (the fourth order is labelled number "5") that the applicants seek, which are, essentially, additional complaints regarding the delegate's and the Tribunal's decisions.
2. The "Orders sought by the Applicant" are as follows:

"1, I don't think DIBP and AAT's decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of Yi Guan Tao(Tao) in China and Australia.

2, RRT failed to prudently consider my risk, especially my commitment of paralyzing if I return to origin.

3, AAT failed to consider my statements provided in supporting my claim.

5, AAT treat my case unfair and unreasonable and did not consider that I will be persecuted by the Chinese government due to my Yi Guan Tao (Tao) belief."

"1, I have been actively involved in the Tao's temple actives in Australia.

2, AAT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence

3, The tribunal's decision could give rise to an apprehension of bias in the mind of a reasonable observe"

[Errors in the Original.]

[Reference to the "RRT" is, in context, to be understood as a reference to the "AAT", or the Tribunal.]

1. The applicants first appeared before a Registrar of this Court on 12 March 2018 where orders were made, by consent, for the facilitation of the filing of documents. The applicants had the opportunity to file and serve an amended application by 14 June 2018. No amended application has been filed. The applicants and the first respondent were also given the opportunity to file and serve written submissions, and list of authorities, 14 days and 7 days, respectively, prior to the hearing. The first respondent filed written submissions on 16 July 2020. No further documents have been filed by the applicants.
2. The matter was set down for final hearing on 23 July 2020. Given current COVID-19 difficulties, the applicants' attendance was facilitated by telephone. An interpreter in the Mandarin language, who was present in Court, was provided to assist them.
3. The applicants confirmed that they had not filed any further documents beyond the filing of the application to the Court.
4. When asked to make submissions the applicant stated that he did not understand why the application for the visa had been refused. He stated that the claims he had made were sufficient to be granted the visa. I understood this was a reference to both the delegate's, and the Tribunal's, decisions.
5. The applicant also took issue with what he said was the delegate's finding that he delayed pursuing his religious activities after arriving in Australia.
6. The applicant also stated that (when understood in context) the delegate made reference to his being a believer "in the religion of Islam". He stated he had never "had that religion".
7. When asked to address the "orders sought", and the "grounds" of the application, the applicant said he had nothing further to add to item 1 of the "orders sought".
8. As to item 2, I asked the applicant to explain the reference to the word "paralyzing", which rendered item 2 meaningless. The applicant stated that what he meant was that he would be persecuted if he returned to China.
9. The setting out of "orders sought", and "grounds of application", as in this case, has been seen in similar structure in many other cases before this Court made by citizens of China. This includes the use of the word "paralyzing" at item 2 (see for example SZTMI & Ors v Minister for Immigration & Anor [2015] FCCA 228, SZUAE v Minister for Immigration & Anor [2014] FCCA 2107 and SZTIW & Ors v Minister for Immigration & Anor [2014] FCCA 1582).
10. For this reason I sought to confirm with the applicant that he had drafted the application to the Court as he initially claimed. He insisted that he had and said he thought he had not used this word. The applicant confirmed that he had a copy of his application before him. When, with the assistance of the interpreter, I read item 2 to him, he was unable to explain the use of the word "paralyzing". He added that he had joined Yi Guan Dao so as to be able to remain in Australia.
11. As set out above, item 3 seeks to complain that the Tribunal failed to consider his claim. When asked to make submissions on this the applicant sought to complain about the delegate's conduct, presumably at the interview. His complaint was that the delegate did not give him time to explain his case in detail, and that the delegate had "attitude".
12. While item 5 in its terms was directed to the Tribunal's decision, the submission before the Court was that he had told the delegate that he had left the CCP so that he could join Tao.
13. In relation to ground 1, the applicant submitted that his "wish" was to preach this religion in the future. It was not clear whether this was an intention of future conduct, or that he was complaining that the Tribunal did not consider this.
14. Ground 2 is a complaint about what the applicant said was the Tribunal's suspicion of the truthfulness of his claims. He said this was not "acceptable" to him.
15. Ground 3 asserts an apprehension of bias on the part of the Tribunal. The assertion before the Court was that the Tribunal "associated" his case with a "false claim" by asserting that he was a Falun Gong practitioner.
16. The second applicant stated that her husband had been in Australia for 19 years. It was not made clear how this related to the Tribunal's decision. I otherwise understood that she supported her husband's submissions.

1. A number of preliminary points need to be made before considering the orders sought, and grounds of the application.
2. One, the applicant has used various spellings to refer to his religion: "Yi Guan Dao", "Dao", "I-Kuan-Tao", "Yi Guan Tao", and "Tao". There is no doubt that the Tribunal correctly understood these to be references to the Yi Guan Dao, or as simply known, the Daoist, or Taoist, religion.
3. Two, the applicants' grounds, and the applicant's submissions, made various complaints about the delegate's decision. In the circumstances presented, this Court has no power to review the delegate's decision (s.476(2) and (4) of the Act). Not only was the delegate's decision reviewable, but it was reviewed by the Tribunal.
4. As the Minister submitted, the issue for the Court was whether the Tribunal's decision was affected by jurisdictional error. References, therefore, to the claimed deficiencies of, or complaints about, the delegate's decision, cannot assist in revealing jurisdictional error in the Tribunal's decision.
5. Three, notwithstanding this, I note, for the applicants' benefit, that the applicant stated that he did not understand why the delegate refused his application. A plain reading of the delegate's decision would make that clear. In any event, the reason is, as the delegate summarised (at CB 103):

"When his claims are considered as a whole I find that a clear pattern emerges. The applicant came to Australia in December 2001 to study, he was granted a series of student visas and then a Skilled (Provisional) visa which expired on 16 November 2012. He attempted to gain a further two visas: a second Skilled (Provisional) visa and a Medical Treatment visa. These were refused and he lost his appeals to the MRT and also an appeal the Minister. Only when all other avenues appeared closed did he apply for a protection visa. I find that he did so for the sole purpose of remaining in Australia and that, based on the evidence above, he has retrospectively formulated his claims to align with his earlier history."

1. Four, the applicant's oral submissions for the most part before the Court, in essence, were a restatement of some of the claims put before the delegate, and the Tribunal, and are the applicant's disagreement with, relevantly, findings made by the Tribunal.
2. On the evidence, the Tribunal's conclusion, and the findings that informed it, were all reasonably open to the Tribunal on what was before it, and for which it gave intelligible reasons. The applicant's submissions did not rise above a request for impermissible merits review, and do not reveal jurisdictional error in the Tribunal's decision.
3. Five, as set out above, on 19 December 2017 the applicants were invited to a hearing before the Tribunal pursuant to s.425 of the Act and scheduled for 29 January 2018. The applicants indicated that they would attend (CB 127 - CB 129). It was clear, in context, that the applicant spoke also for his wife.
4. On 19 January 2018 the Tribunal sent a reminder of the hearing date to the applicant by SMS (CB 130).
5. On 23 January 2018 the applicants notified the Tribunal that both were unable to attend the hearing because of "illness" (CB 131). The Tribunal advised them that if they sought a postponement of the hearing they would need to provide medical certificates (CB 132).
6. The applicants' response was (at CB 133):

"I have not gone to doctors yet and I do not request to postpone the hearing, I just want to advise the member to make the final decision based on my paper lodgement."

1. Plainly, the Tribunal did not refuse to adjourn the hearing. The Tribunal's advice that the applicants needed a medical certificate if they sought a postponement was reasonable in the circumstances. That the Tribunal proceeded to make a decision on the papers without conducting the hearing was simply in compliance with the applicants' notification to it. The Tribunal acted consistently with s.425(2)(b) of the Act.
2. Six, as is set out above, the applicants were critical of the Tribunal's conclusion that they did not satisfy the criteria for the grant of the visa. Yet the applicants were on notice as a result of the letter of invitation to the hearing that the Tribunal could not make a favourable decision on what was before it. The necessity for them to attend the hearing, if they wanted a favourable outcome, was made clear by the letter.
3. It would also have been clear following the delegate's decision that attendance at the hearing was critical to their chances of success. The failure to attend the hearing, or even to obtain medical certificates and seek a postponement as indicated by the Tribunal, had the "inevitable consequence" that the application for review would be unsuccessful (NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5]).
4. The applicants' complaints before the Court now must be seen in that light. For the applicants' understanding, I note, for example, that it is difficult to justify their making a claim of an apprehension of bias on the part of the Tribunal (see ground 3) when it was their own conduct, in the face of clear advice and notice, that led to the lack of success of the application.
5. As set out above, the applicants made a number of complaints in the application to the Court under the heading of "Orders sought by Applicant".
6. One, the complaint that the Tribunal failed to consider the applicants' claimed commitment to Tao must be rejected on the evidence before the Court. The Tribunal did consider the applicants' claims in this regard.
7. Its ultimate conclusion that the applicants were not genuine followers of Yi Guan Dao was reasonably open on what was before it, and for which the Tribunal gave an intelligible and cogent explanation ([21] and [23] at CB 142). In all, the "order" as stated is simply a disagreement with this conclusion, and in the circumstances, does not succeed.
8. As also set out above, before the Court the applicant complained that the delegate made a mistaken reference to his being a follower of Islam. This is not supported by the evidence before the Court. In any event, as set out above, any errors made by the delegate cannot assist to reveal jurisdictional error in the Tribunal's decision.
9. Two, "order" 2 is, in context, meaningless. Before the Court the applicant stated that what was meant here was that he would be persecuted if he returned to China. This also does not rise above a disagreement with the Tribunal's conclusion. There is no merit in this complaint.
10. As set out above, the applicant insisted that he had drafted the application to the Court. Although when given the opportunity to explain the use of the word "paralyzing" he made no reference to preaching or promoting Taoism in China, it may be what was meant by the use of this word was "proselytising".
11. However, even if this is the case, this does not reveal legal error in the Tribunal's decision. The Tribunal understood that the applicant had claimed before the delegate: "...that he and his wife had a strong desire to preach their religion" ([10] at CB 141).
12. The Tribunal, however, found that on the evidence before it, it could not be satisfied that the applicant: "...is a genuine follower of Yi Guan Dao" ([21] at CB 142). This was reasonably open to the Tribunal on what was before it and for the reasons it gave. Having made this finding that the applicant was not a Taoist, it was not necessary for the Tribunal to then specifically consider whether he would engage in proselytising this religion.
13. As to the second applicant, the Tribunal found that she also was not a genuine follower of Taoism. As the Tribunal explained, the second applicant did not attend the hearing, with the consequence that it was not: "...possible to explore her claimed association with that faith". In the circumstances it was not able to be satisfied that she was genuine in her Taoist claim on the evidence before it ([23] at CB 142). This also was reasonably open to the Tribunal on what was before it.
14. Three, no particulars are provided to "order" 3. In context, given what the applicant submitted before the Court, what appears to be meant here is that the Tribunal did not accept that what he had set out in writing in his protection visa application satisfied the criteria for the grant of the visa. Again this seeks impermissible merits review, and does not indicate jurisdictional error in the Tribunal's decision.
15. Four, "order" 5 and ground 2 of the application allege that the Tribunal's decision was unreasonable because it did not accept that the applicant would be persecuted because of his "Yi Guan Tao" belief, and because it: "...suspect of the truthfulness of my claims" [sic].
16. There is no doubt that legal reasonableness is an essential feature of lawful administrative decision making. (See Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [63], and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11).
17. However in the current case, what is said by the applicants to reveal unreasonableness is that the Tribunal did not agree with their claims to fear harm.
18. The Tribunal is not obliged to uncritically accept what an applicant puts to it (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 per Beaumont J at [21]). As the Minister submits, legal unreasonableness is not made out: "...simply because one conclusion has been preferred to another possible conclusion" (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [131]).
19. There is nothing in the evidence before the Court to indicate that the Tribunal failed to consider the credibility of the applicants' claims other than in accordance with principles made clear in relevant authorities (DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30], and AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 at [22]- [28] and [40]-[41]).
20. As set out above, the applicants were on notice of the need to attend the Tribunal hearing. Their election not to do so led to the circumstance that the Tribunal could only consider their claims on what was before it. Its findings were reasonably open on what was before it. No jurisdictional error is revealed in this regard.
21. Ground 1 of the application is a statement asserting that the applicant has been: "...actively involved in the Tao's temple [activities] in Australia". As the Minister submits (at [27] of his written submissions), this is no more than a restatement of one of the applicant's claims before the Tribunal. The Tribunal considered this aspect of the applicant's claims. Its relevant finding was reasonably open. No jurisdictional error is revealed here.
22. Ground 3 of the application asserts an apprehension of bias. The test for apprehended bias is now well settled. That is, that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an open mind to the proceedings (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425; (2001) 75 ALJR 982 at [27]- [28] per Gleeson CJ, Gaudron and Gummow JJ, MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100; (2016) 70 AAR 22, SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264, and see also more recently ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]- [36]).
23. Further, I note the formulation used by the Full Court in Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 125 ALD 481 at [37]:

"37. An administrative decision-maker will be found to have given rise to an apprehension of bias if a fair-minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision. The hypothetical lay person is an objective observer of the proceedings and will be assumed to be properly informed as to their nature, the matters in issue and the conduct complained of: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at 434-435 ([28]-[29]) per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 at 268-269 ([14]-[21]) per Allsop J, with whom Moore and Tamberlin JJ agreed."

1. Therefore in effect, the assertion in the current case may be understood as being that a fair minded, well-informed lay observer might reasonably apprehend that the Tribunal might not have brought an open mind to the proceedings, or had prejudged the proceedings, or was not open to persuasion.
2. Given that bias is an extremely serious charge to make against an administrative decision maker, the law requires that it must be distinctly made and clearly proved (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679 at [69] and [127]).
3. However, in the circumstances presented, this assertion is no more than an attempt on the part of the applicants to express disagreement with the Tribunal's conclusion that they did not meet the relevant criteria for the grant of the visa. No argument has been advanced to explain this ground. No legal error is revealed by ground 3.

1. None of the applicants' grounds, or complaints, reveal jurisdictional error in the Tribunal's decision. Nor can I otherwise see any such error. It is appropriate to dismiss the application. I will make that order.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Nicholls