BOH21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 615

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. This is an application for judicial review, made under s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) (now known as the Administrative Review Tribunal) dated 26 May 2021. The Tribunal reaffirmed the decision of a delegate of the First Respondent refusing to grant a Protection (subclass 866) visa (protection visa) under s 65 of the Act.

1. On 2 December 2012, the applicant, a citizen of China, arrived in Australia as the holder of a Student (Class TU) (Subclass 573) visa.
2. On 22 May 2014, the applicant's student visa was cancelled, and the applicant remained in Australia as an unlawful non-citizen from 23 May 2014 to 22 December 2015.
3. On 23 December 2015, the applicant applied for a protection visa, claiming a fear of harm from the local government due to his practice of Yi Kuan Tao.
4. On 11 May 2017, a delegate of the first respondent refused to grant the applicant a protection visa.
5. On 5 June 2017, the applicant lodged an application to the Tribunal for review of the delegate's decision.
6. On 21 April 2021, the Tribunal invited the applicant to attend a hearing on 6 May 2021.
7. On 26 April 2021, the applicant notified the Tribunal that he did not wish to attend the hearing and requested that it make a decision on the "existing paper information".
8. On 27 April 2021, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.

1. In its decision, the Tribunal recorded that it had written to the applicant on 21 April 2021, inviting him to give oral evidence and present arguments at a hearing as it was unable to make favourable decision on the material before it. It recorded that on 26 April 2021, the applicant responded and requested that the Tribunal proceed to make a decision on the 'existing paper information'.
2. The Tribunal accepted the applicant was a Chinese national. However, it found that the applicant's 'Baptism Card for Taoists' provided insufficient information about the applicant and that his statement in support of his application was vague and lacking in detail in significant respects.
3. The Tribunal referred to the gaps in the applicant's evidence and matters in relation to which the Tribunal had insufficient information.
4. The Tribunal was not satisfied:

(a) That the applicant had practised or currently practised Tao, or of the level of that religious practice;

(b) Of the context in which the applicant received his Baptism card;

(c) Of the applicant's connection to other Tao practitioners;

(d) That the applicant's family had practised or continued to practise Tao in China; and

(e) That the applicant would receive adverse attention from Chinese authorities due to his or his family's practice of Tao.

1. The Tribunal was not satisfied that the applicant was perceived to be a Tao practitioner in Australia. The Tribunal was not satisfied that he would be linked to the Tao community in China, or that he would be perceived to be a Tao practitioner by the police, local authorities, other agents or the general community in China.
2. The Tribunal identified that the applicant had not claimed to have suffered previous harm in China. It was not satisfied that the applicant had a genuine fear that the Chinese authorities had or would have an adverse interest in him due to his family's past or ongoing practices, or their links to the Tao community.
3. The Tribunal was not satisfied, for the purposes of s 5J(1) of the Act, that the applicant faced a real chance of serious harm or persecution, due to his religion or for any similar reason, if he were to return to China.
4. The Tribunal affirmed the decision not to grant the applicant a protection visa.

Judicial review application and procedural orders

1. On 26 May 2021, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision dated 27 April 2021. The application contains two grounds of review. They are as follows:
   1. The Tribunal commits a jurisdictional error since it ignores the relevant materials and considered the wrong issues.

The applicant claims are based on his parents and he are all Yi Kuan Tao practitioners. But the Tribunal fails to consider that the Yi Kuan Tao practitioners are being persecuted in China by the Chinese government, and made their conclusion without referring to any relevant information available from different sources.

1. The Tribunal commits a jurisdictional error since it has not any information about Yi Kun Tao and the persecution that its practitioners are suffering in China and makes an erroneous finding and reaches a wrong conclusion.

1. On 23 July 2024, a Registrar of this Court made an Order for the filing of any amended application, any affidavit evidence and written submissions by the applicant, and for the filing of any affidavit evidence and submissions by the first respondent. The applicant did not file any documents in accordance with the Order. The first respondent filed written submissions as required by the Order.
2. These proceedings were docketed to me on 2 April 2025.

1. The hearing of this matter took place on 15 April 2025. The applicant represented himself with the assistance of an interpreter in the Mandarin language. Ms Warren of Sparke Helmore Lawyers appeared for the first respondent. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the Court Book, and that the first respondent's written submissions had been translated to him.
2. At the commencement of the hearing, the Court first dealt with the issue of the applicant's application for an extension of time. I explained to the applicant that as he had filed his application on 26 May 2021, which was within the 35-day time limit under s 477(1) of the Act, there was no need for the Court to make an order extending time under s 477(2). Ms Warren agreed the applicant had filed his judicial review application within time and there was no need for the Court to make any order extending time. I explained to the applicant that in those circumstances the matter would proceed to a final hearing of his application.
3. I next explained to the applicant that its role in deciding the case was limited to considering whether or not the Tribunal had a committed a jurisdictional error. I described jurisdictional error as a serious legal error or mistake made by the Tribunal. I also explained the procedure by which the hearing would be undertaken. I then allowed an affidavit by the applicant and a Court Book which contained the Tribunal's decision and documents before the Tribunal to be admitted as evidence.
4. Finally, I invited the parties to make final oral submissions. The Applicant told the Court he did not want to make any oral submissions. Ms Warren made brief oral submissions on each of the grounds of review.

1. On 10 June 2021, the applicant filed an application for an extension of time to seek judicial review of the Tribunal's decision dated 27 April 2021.
2. The applicant had initially lodged his application for judicial review on 26 May 2021 and indicated his intention to apply for a fee exemption on the basis of financial hardship.
3. The applicant submitted that the reason that his application was filed out of time was because his application for a fee exemption was only approved on 4 June 2024.
4. The Commonwealth Courts Portal records the applicant's application as having been filed on 26 May 2021. As I discussed with the parties at the hearing, the Court accepts the application was filed on 26 May 2021, which is within the timeframe prescribed under s 477(1) of the Act, and an order for an extension of time is therefore not required in this matter.
5. In his written submissions the first respondent agrees the application was filed within time and that the applicant does not require an extension of time to seek judicial review.

1. It is well established that it is for the applicant to satisfy the Tribunal that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [187]. It is for the applicant to provide evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214 at [76]. The Tribunal is under no obligation to "afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence": Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [82].
2. On 26 April 2021, the applicant declined to attend a hearing at the Tribunal and requested that it make a decision on the 'existing paper information'. The Tribunal therefore proceeded to decide the review based on the material and evidence that was available to it.
3. The Tribunal recorded that the only evidence available to it was a Baptism Card for Taoists dated 17 December 2015 and a translated typed statement by the applicant contained in his protection visa application. The Tribunal noted that the baptism card, issued more than five years ago, had scant information about the applicant, and that the information in the applicant's typed statement was vague and lacking in detail in significant respects.
4. The Tribunal observed that the applicant's appearance at a hearing would have provided an opportunity for the Tribunal to address the various gaps in the evidence as well as to discuss what further information and details were available in order to have considered the applicant's claims. In particular, the Tribunal noted that it had insufficient evidence before it concerning, amongst other things, details of the claim that he and/or his parents were Yi Kuan Tao practitioners (Tao practitioners) in Australia and China, details of their claimed interactions with the Chinese authorities including their claimed detention and current information concerning the applicants fear of returning to China.
5. The Tribunal concluded that based on the limited available documents and information it was not able to be satisfied of any of the claims made by the applicant, including, amongst other things, whether he and/or his parents were Tao practitioners or had any connection with Tao practitioners, in China or, in the case of the applicant, in Australia. On this basis the Tribunal found it was not able to be satisfied that the applicant would be perceived in Australia to be a Tao practitioner or that he would be linked with the Yi Kuan Tao community or other practitioners.
6. The Court does not accept the applicant's contention that the Tribunal considered the "wrong issues". The Tribunal in its decision correctly identified the relevant legal criteria for the grant of a protection visa. Further, it correctly identified and considered the evidence available to it, which was limited, as described above, by reason of the applicant's decision not to attend a hearing before the Tribunal and address his claims.
7. The Court does not accept the applicant's contention that the Tribunal failed to consider "relevant information available from different sources" regarding the prosecution of Tao practitioners in China. The Tribunal carefully considered the applicant's claims that he and his parents were Tao practitioners and that his parents had been persecuted by Chinese authorities. The Tribunal was not satisfied on the evidence it had before it that these claims had been made out. Further, there is no general obligation on a Tribunal to investigate an individual applicant's claim: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12. The duty imposed on the Tribunal under the Act is a duty to review not a duty to inquire, the exception being an obvious enquiry about a critical fact which could have been easily ascertained by the Tribunal: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 459 39 at [25]. In the present case, the Tribunal was under no obligation to obtain information "from different sources" regarding the prosecution of Tao practitioners in China.
8. The Court does not accept the contention by the applicant that the Tribunal "ignored relevant materials". As described in detail above, the Tribunal expressly considered all of the evidence provided to it by the applicant, namely, the written statement from his protection visa application and the Baptism Card for Taoists. Further, the Tribunal also stated in its decision that it had taken into account the mandatory considerations in the Ministerial Direction No. 84 to the extent that it was relevant to the Tribunal's decision.
9. For these reasons ground 1 does not establish jurisdictional error.

1. At [20] of its decision the Tribunal found it was not satisfied the applicant was a Tao practitioner. This conclusion was based upon the evidence available to the Tribunal. The Tribunal was not under any obligation to make the applicant's case for him: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170. Rather, the Tribunal's role was to respond to the case advanced by the applicant: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263 at [58]- [60] per Black CJ, French and Selway JJ.
2. As the Tribunal was not satisfied that the applicant had made out his claim generally to be a Tao practitioner, the Tribunal did not need to go on and consider country information on the persecution of Tao practitioners in China.
3. I accept the first respondent's submission that the applicant was on notice that the Tribunal lacked sufficient evidence to be satisfied that the applicant met the criteria for a protection visa. Despite this, the applicant declined to attend a hearing and requested the Tribunal make its decision on the "existing paper information". The Tribunal's decision was the inevitable consequence of the applicant's non-attendance at the hearing: NAVX v Minister for Immigration & Multicultural Affairs [2004] FCAFC 287 at [5].
4. Ground 2 of the application does not establish jurisdictional error.
5. For the reasons outlined above, the applicant has not established that the Tribunal's decision is affected by a jurisdictional error, and no other jurisdictional error is apparent on the face of the decision record.
6. The application is dismissed.

1. The first respondent sought an order that the applicant pay the first respondent's costs in the amount of $6,500. I am also satisfied that the amount sought is fair and reasonable having regard to the nature of the matter. I will make an order in this amount.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.