CGE19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1125

CGE19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1125 | Case summary | Zoe

[5]

The first applicant is a citizen of China (Court Book (CB) 73). She first arrived in Australia on 14 April 2007 as the holder of a Student (TU-571) visa. She then departed Australia on 28 December 2008 and returned on 31 January 2009. She was granted a further Student (TU- 572) visa on 7 October 2009 whilst onshore, which ceased on 18 October 2010 (CB 151). She remained in Australia unlawfully until she lodged her protection visa application in 2015 (CB 151).
The second applicant is the child of the first applicant. She was born in Australia on 5 August 2015 (CB 100).
On 6 March 2015, the first applicant applied to the Department of Immigration and Border Protection (Department) for the Protection visa (CB 1-131). The first applicant claimed to fear returning to China on the basis of her faith, Yiguando (also known as I-Kuan-Tao or Tien Dao). She also claimed to fear returning to China because she had a child in Australia, because she would not register a marriage in China and because her family would not accept her (CB 79- 81).
The first applicant attended an interview with the delegate on 14 January 2016. On 22 July 2016, the delegate refused to grant the applicants the Protection visas (CB 150 -168). The delegate was not satisfied that the applicants were persons in respect of whom Australia has protection obligations in accordance with s 36(2)(a) and (aa) of the Act or as a member of the same family unit (ss 36(2)(b) and 36(2)(c) of the Act) (CB 150).
On 18 August 2016, the applicants applied to the Tribunal seeking review of the delegate's decision (CB 169-170). On 19 August 2016, the Tribunal acknowledged the application for review and invited the applicants to provide any material or written arguments for it to consider (CB 172-173).
On 24 October 2018, the Tribunal invited the applicants to provide additional evidence (CB 175). The applicants submitted supporting statements and photographs (CB 176 - 192).
On 14 May 2019, the first applicant attended a hearing before the Tribunal to give evidence and present arguments, assisted by a Mandarin interpreter (CB 200-203).
On 22 May 2019, the Tribunal affirmed the decision under review (CB 217).

[16]

The verdict of the Refugee Review Tribunal on my application on 22 May, 20l9 is apparently against the principle of procedural justice by neglecting the following-facts:

About my explanation to the religious situation in China:

I couldn't agree with the information provided by tribunal, in regards to the Yiguandao no longer appeared on the list of banned religious/cults (40). l don't think tribunal has well considered my explanation described in the hearing that the country information couldn't explain the fact why there were no public temples of Yiguandao if it is legal and recognized by law. Furthermore, there are no more Yiguandao publications in China too. Apparently, tribunal's explanation is contradictory and failed in persuasiveness and proof.

I couldn't agree with Tribunal's information which indicated that the attitude of the Chinese government to Yiguandao has changed and Yiguandao is no longer considered to be an evil cult. There was no clear indication of the prevalence of Yiguaudao in China or in Fujian province (51), The reason for that is this information is against the fact at least in my case because I am a good witness for Yiguandao practice and a practitioner in altar. It is fact that the house alter in rural area are have to be carried on undergrounded and still going on.

In spite of Yiguandao leaders from Taiwan were invited to visit China, including some scholars exchange between two sides~ it doesn't necessary mean that Yiguandao has been legalized in mainland China. It is up to the politic need by the Chinese Communist regime, instead of a true·religious freedom. It is more like a political game rather than a religious freedom.

Tribunal overlooked the evidence and statement provided by my witness temple Ailan Xue dated 10 Jan 2016, in which my religious practice and commitment in promotion of the virtue and benefit of the religion I am after (68).

Tribunal failed to consider my personal understanding of my religion and made reckless judgment in conclusion. I am a convert in practice and action instead of doctrine and dogmatic preaching (69)

Tribunal gave less weight to the fact that my family currently practiced Yiguandao in China with house alter (76)._

It is unfair for me to be suspected due to lack of evidence that my family had come to the attention of the authorities or were persecuted for such practice as I have never been asked to provide such kind of document or anything in writing in support my claim

Tribunal's conclusion that there is a no real chance the I will suffer serious harm because of my religion my parent's religion or the religion of any other relative in China, if I retune to China (80). Tribunal failed to make good finding in China's current state policy, legislative structure especially the religious reality. Tribunal's conclusion is superficial or partial or biased. It is unpersuasive and hasty rather than comprehensive and considerable.

Tribunal and its country information provided ignored the changing situation especially after 2018 the fact that the Chinese communist regime under the dictatorship of president Xi Jinping who strengthen the crackdown of the spread of religions including Yiguandao.

The Tribunal has rashly and unreasonably turned down my explanation. It neither required me to provide more evidence or further investigation, nor did it respect the: facts of the persecution indicated in my statement and its negative effects on me

Tribunal failed to take good care of all the reference and documents as evidence provided to illustrate my faith and temple practice in Australia and conclude with bias.

Throughout the hearing, tribunal neither investigates nor enquires about the reference given by my temple group and religious fellowship about my faith and practice on daily base or demand further evidence from me about any pending issues in relation to my faith. I don't think it is a prudent and considerable hearing procedure in farness. My faith, the most important element was ignored in hearing and hearing decision tum out to be reckless, lack of justice and against facts. I am shock and helpless in such decision in which I fell into innocent and vulnerable position. Tribunal's decision is ungrounded misunderstanding or prejudiced misjudgments. My temple fellowship also unsatisfied with the outcome of tribunal and wishes to be off assistant in my further appeal. Tribunal's decision made me vulnerable and stressful.

[19]

On 27 June 2019, Registrar Cho of this court made procedural orders. These included an order for the applicants to file and serve any affidavit containing additional evidence to be relied upon and any amended application giving complete particulars by 22 August 2019. An order was made appointing the first applicant as litigation guardian over the second applicant, given that the second applicant is a minor.
On 26 February 2025, Registrar Roberts of this court made further timetabling orders for filing and service of documents at least 28 days before the hearing.
On 6 June 2025, I made orders in Chambers that the applicants must file and serve any amended application, affidavit evidence to be relied upon and written outline of submissions by 21 July 2025.
On 19 August 2025, the first applicant appeared before this Court as a litigant in person. The Court was assisted by a Mandarin interpreter. The first applicant confirmed that she could understand the interpreter and that she had received copies of the Court Book and the Minister's written submissions.
At the hearing before me, I noted that the applicants' judicial review application only sought relief by way of an order 'quashing the Tribunal's decision'. It did not seek 'a writ of mandamus'. As such, this Court's jurisdiction was not properly invoked. I explained this issue to the first applicant and on her application, made an order amending the application for judicial review to include a request for a writ of mandamus without the need for formal notification (Tp 4.28-47).
The following documents were before this Court - the application for judicial review and the supporting affidavit of the applicant filed 6 June 2025 (read at the hearing), a Court Book (numbering 232 pages and marked as Exhibit 1R) filed 17 July 2019 and written submissions of the Minister filed on 4 August 2025.
As the first applicant was a litigant in person, I provided an overview of the processes of the Court. I also explained that the issue before the Court was whether the Tribunal had fallen into material jurisdictional error, and not a review of the merits: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272. I outlined some of the common categories of jurisdictional error.

[31]

The first applicant contended in her application that the country information relied on by the Tribunal which indicates that Yiguandao no longer appears on a list of banned religious/cults, was wrong. She claimed that the Tribunal did not consider her 'explanation described at hearing' that there were no legal Yiguandao temples or Yiguandao publications in China.
She also contended that she did not agree with the country sources referred to by the Tribunal which indicated that the attitude of the Chinese government to Yiguandao had changed. She said she was witness to the fact that Yiguandao was not prevalent in China and people had to practise underground.
In this ground, the first applicant is challenging the country information referred to by the Tribunal in the Tribunal Decision and claiming that her evidence was not considered.
At the hearing before me, the first applicant was invited to further particularise or make submissions in relation to these claims. She said that she relied on the written submissions (Tp 8.10-15). She reiterated that she had concerns about the country sources. She said that although some reports indicated that the Chinese government had improved its attitude towards Yiguandao, at the local level there was surveillance and harassment. She said that there were reports on the media from 2018 that some Yiguandao practitioners were listed on a monitoring list or were subject to a crackdown. She said that she had provided information to the Tribunal that crackdowns exist on a local level, but the Tribunal 'ignored' this information. She also said that she understood that the Tribunal has the authority to decide how to use country information, but her view that its power was not exercised legally and reasonably. She claimed that the Tribunal did not assess the actual situation after 2018, only relying on DFAT reports which were 'issued much earlier than that' (Tp 12.42-13.34).
To the extent that this is a claim that the Tribunal failed to consider the first applicant's evidence, I note that in the Tribunal Decision there are references to the first applicant's evidence as follows:
- At [13] - [14], the Tribunal summarised the first applicant's claims and identified the documents that were before it.
- At [17] and [48], the Tribunal recorded that the first applicant gave oral evidence at the hearing and provided copies of photographs, books and birth certificates to the Tribunal.
- At [24], the Tribunal referred to the first applicant's claim that the Chinese authorities had declared the religion Yiguandao an illegal religion and that it was a target of the government and they were cracking down on it.
- At [40], of the Tribunal recorded that it discussed the country information with the first applicant and in particular that Yiguandao no longer appeared on the list of banned religions/cults.
- At [41], the Tribunal records the first applicant's evidence that she believed that Yiguandao was banned as there were no temples, and other people had told her to go to Taiwan instead of China to study.
- At [41]-[42], of the Tribunal Decision, the Tribunal recorded that after discussing further country information with the first applicant, she said words to the effect that she did not accept the independent country information, and they were 'strict in China'. She said that her grandmother had told her to practice in Australia, and she had heard someone was arrested.
- At [48], the Tribunal recorded that the first applicant said that she did not accept the independent country information.
- At [75], the Tribunal referred to the first applicant's evidence that she knew of instances where others had been detained. The Tribunal said at [75] that:

[33]

It is clear from these references in the Tribunal Decision that the first applicant's evidence was taken into consideration by the Tribunal.
The first applicant is also claiming in the grounds for review that the Tribunal relied on incorrect country information or did not refer to more recent information than the DFAT Report in 2017.
The Minister submitted in written submissions that there was no information or claim before the Tribunal that since 2018 there had been a crackdown in China on the spread of religion including Yiguandao ([39] of the Minister's Written Submissions). At the hearing before me, the first applicant was asked if she could point to the relevant evidence in the Court Book or Tribunal Decision (Tp 10.4-7). She said that she relied on her written submissions.
I note that the Tribunal referred to country information it sourced in [49] - [55] of the Tribunal Decision. At [49] the Tribunal observed that it was required to take into consideration the DFAT Country Information Report (pursuant to Ministerial Direction No 56 made under s499 of the Act). The Tribunal then referred to the most recent DFAT Report (2017), which it noted it took into consideration. At [51] - [55], the Tribunal also referred to 'more recent country information' from various sources. The Tribunal noted that this country information was discussed with the applicant at hearing (TD [55]).
I note further that the first applicant made submissions to the Tribunal about the situation for Yiguandao practitioners in China. At [13], the Tribunal recorded the first applicant's evidence and documents. The Tribunal referred to the first applicant's evidence that authorities in China were persecuting practitioners and things are different in China (TD [75]). The Tribunal also recorded her evidence that the Chinese authorities had declared the religion illegal and were cracking down on it (TD [24]). There is however nothing in the Court Book or Tribunal Decision which demonstrates that the first applicant referred to specific independent sources or provided country information for the Tribunal to consider.
In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (MZYTS) the court outlined the Tribunal's task on review and the role of country sources (under then s 414 of the Act) The court observed at [32] to [35] that the Tribunal's role is to:

[42]

In this ground, the first applicant contends that the Tribunal overlooked the Statutory Declaration of 'Ailan Xue' (Xue Declaration) dated 10 January 2016.
At the hearing before me, the first applicant was invited to further particularise or make submissions in relation to these claims. She said that she did not want to provide any further information (Tp 8.23-40).
As submitted by the Minister, the Tribunal referred to the Xue Declaration at [8] and [13] of the Tribunal Decision ([22] and [25] of the Minister's Written Submissions). The Tribunal recorded information from the Xue Declaration that the first applicant was a member of the Jiru Buddhist Temple, that Ms Xue got to know her in April 2015 when the first applicant attended the Temple for three days (TD [38] and [68]) and that Ms Xue thought the first applicant was a 'dedicated Buddhist'. The Tribunal also noted that Ms Xue claimed that the first applicant would face persecution if she returned to China. At [72], the Tribunal accepted that the first applicant had attended the Temple.
It is clear from these references in the Tribunal Decision that the Tribunal did not 'overlook' the evidence of Ms Xue and in fact accepted that the first applicant had attended the Temple on the basis of Ms Xue's evidence.
The first applicant also claimed at bullet point 11 of the attachment to the application that the Tribunal 'failed to take good care of all the reference and documents provided to illustrate my faith and temple practice in Australia'. She was asked if there were specific documents that she felt that the Tribunal had not referenced (Tp 9.31-33). She did not provide particulars of references and documents that she claimed the Tribunal had missed. I am not satisfied that other material was not considered. Her evidence about her faith and practice in Australia was referred to at [34] and [66] - [72] of the Tribunal Decision, including photographs of her attending group sessions, temple and the altar (TD [17]).
The weight to be given to the evidence of Ms Xue and other evidence of the first applicant, was a matter for the Tribunal. This is discussed later in these reasons at [97] to [103].
There is no jurisdictional error arising from a failure to consider evidence about the first applicant's practice and faith in Australia. The issue of bias is addressed later in these reasons.

[46]

In this ground, the first applicant may be alleging that the Tribunal failed to consider her evidence about the way she practised or did not consider an integer of her claim - that she would face harm as a convert in practice and action instead of 'doctrine and dogmatic preaching'.
At the hearing before me, she was invited to further particularise or make submissions in relation to these claims. She said that she relied on her written submissions (Tp 8.31-40).
It was submitted by the Minister that the Tribunal had regard to the first applicant's evidence about her belief's (TD [63] - [68]), including consideration of Ms Xue's Statutory Declaration. I accept this submission. I have found above that the first applicant's evidence was considered.
I am also satisfied that the Tribunal considered the relevant integers of the claim.
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Hely JJ, an integer was explained as a factual matter, that if accepted may form the basis of a finding that an applicant is owed protection obligations.
I am satisfied that the Tribunal explored what the first applicant knew about her religion and had regard to her beliefs (TD [63]-[66]) in considering whether she met the criteria for the visa.
At [73], the Tribunal noted that 'the Tribunal will consider if she or the second applicant could have a well-founded fear of persecution due to the applicant's claimed interest and participation in Yiguandao'. In [63], the Tribunal referred to the first applicant's evidence that she wanted to return to China to 'teach' and at [47] that she wanted to spread the word. The Tribunal found at [80] that 'considered overall the Tribunal is not satisfied that there is a real chance the applicants will suffer serious harm because of the first applicant's religion, her parent's religion, or the religion of any other relative in China, if she goes to China'. This finding was made on the basis of country sources set out in preceding paragraphs. I am satisfied that the Tribunal considered the integer that the first applicant would suffer harm in China due to her practise of Yiguandao including her wish to convert others.
The first applicant may also be contending in this ground that the Tribunal's decision was illogical or irrational as the Tribunal made a decision on the way she practised based on doctrine rather than the personal way she practised her faith. In [63], the Tribunal noted that she wanted to return to China to 'teach' and at [47] that she wants to spread the word. At [69], the Tribunal said that she gave 'generalised and vague' responses when discussing her beliefs. The Tribunal recorded that she said that she was attending lessons and studying the religion (TD [70]). The Tribunal recorded evidence of her initiation and that she attended the temple (TD [38]). Noting that at [69] she did not give a convincing account of the religion's core beliefs, the Tribunal did not accept she was at the level of a teacher or leader (TD [70]). These conclusions were open to the Tribunal on the evidence. To the extent that the first applicant is claiming that the findings of the Tribunal were generally legally unreasonable, this is considered later in the judgment.
To the extent that the first applicant is claiming that it was unreasonable to rely on the questioning of her faith, the Minister has submitted in written submissions that the first applicant has not provided to the Court evidence of questioning at the Tribunal hearing. It was submitted therefore that the complaints raised about the Tribunal hearing could not be sustained: EPY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 502 (EPY18) per Judge Given at [52]. I accept this. There is no evidence before me of questioning that was not a legitimate exploration of the applicant's knowledge of the religion in order to assess whether her claims were genuine: SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 per French, Lander and Besanko JJ at [47]; WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 129 at [47].
At the hearing before me, the first applicant said that she could still be charged a social compensation fee in relation to her child born out of wedlock if she returned to China and this was not considered by the Tribunal (Tp 13.7-9).She also claimed that her family members would pose significant mental and physical pressure on her, forcing her to change her religious belief and her 'marriage decision' (Tp 13.9-11).
The issue of the social compensation fee was considered comprehensively by the Tribunal at [78] - [79] of the Tribunal Decision, including reference to the first applicant's evidence.
The issue of her family members was discussed at [77] of the Tribunal Decision as follows:

[58]

At the hearing before me, the first applicant was invited to further particularise or make submissions in relation to these claims. She said that she did not want to add further information (Tp 9.26-10.2).
She did say at the hearing before me that the Tribunal did not conduct an obvious inquiry into the fact that China has become more religious since 2018. She said that that she 'relied on the cases of SZIAI and SZWVW'. She claimed that the Tribunal relied on reports from much earlier than 2018 (Tp 13.16-20).
The Minister submitted that the Tribunal had not demonstrated that there had been failure to make inquiries about a critical fact which could be easily ascertained and which would lead to jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCATrans 165; (2009) 259 ALR 429 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [25]. [18] - [25]. The Minister clarified that although the applicant had referred to the case of 'SZWVW', she may have meant the case of Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 (SZNVW) (Tp 15.5-8), which was referenced at paragraph 43 of the First Respondent's Written Submissions. This was a case concerning an invitation to a hearing and is not authority for the proposition that the Minister should have made inquiries in a case such as this one
As to the allegation that the Tribunal should have investigated further, it is for an applicant to make their own case: s 5AAA Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 (VCAK). 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 (Li) at [82].
There is no general duty on the Tribunal to make enquiries about the applicant's claims. The Tribunal was not required to make further investigations about the first applicant's temple or faith - it was for the applicant to adduce this evidence. In VCAK, Crennan J held (at [27]) that the Tribunal's power to get information that it considers relevant is permissive and not mandatory. In the case before me, although the first applicant was asked questions about her faith and practice, it was for the first applicant to provide evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [76]. This includes providing information on country sources: NAHI per Gray, Tamberlin and Lander JJ at [11] to [13].
There is no jurisdictional error resulting from the Tribunal failing to make further enquiries.

[61]

As the first applicant was a litigant in person, at the hearing before me I outlined the tests of actual and apprehended bias at law (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia Legeng) and SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 (SZRUI). I explained that in order to prove bias she would need to demonstrate some conduct by the Tribunal. She was asked if she wished to seek leave to adjourn to adduce evidence such as a transcript (Tp 10.25-42) and I also noted that there may be costs implications (Tp 10.44-47).
The first applicant said at the hearing before me that she did not wish to seek leave to adjourn (Tp 11.1-5). She was asked if she could provide particulars about her claims of bias as demonstrated in the Court Book or Tribunal Decision (Tp 10.1-7). The interpreter assisted in reading relevant paragraphs of the Tribunal Decision to her.
The first applicant said that she felt that the Tribunal Member did not 'care about the documents' she had submitted (Tp 10.9-10). She said that she offered to explain matters further to the Tribunal, but the Tribunal Member said it was not necessary. She claimed that the Tribunal Member 'prejudged her and did not consider her religious belief' (Tp 12.29-32).
The Minister contended that the first applicant had not provided any evidence in respect of the conduct of the Tribunal hearing and in the absence of such evidence, the complaints raised could not adequately be sustained: EPY18 per Judge Given at [52]. It was submitted that that in the absence of evidence, there was no basis for an allegation of bias in the decision ([31] of the Minister's Written Submissions).
I accept that the first applicant has not articulated with sufficient precision or clarity the allegation of apprehended bias and has not provided evidence of it. Allegations of bias must be 'distinctly made and clearly proved': Jia Legeng at [69]. It is not sufficient simply to refer to the Tribunal Member 'prejudging' her.
The first applicant has not demonstrated that the Tribunal was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng at [71]-[72]. In the Tribunal Decision, the Tribunal set out the statutory task, identified the evidence and provided structured reasons based on the considerations set out in the statute.
As referred to earlier in these reasons, the Tribunal considered the applicant's evidence and accepted that she had practised Yiguandao since 2015 (TD [72]). However, the Tribunal was not satisfied based on independent country sources that there was a real chance of serious harm or a real risk of significant harm (TD [80] and [85]). These were findings based on country sources. No actual bias has been demonstrated.
The first applicant has not demonstrated that the Tribunal conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant's case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32]. As addressed earlier in these reasons, the Tribunal referred to the evidence, reflected on it and reached conclusions. There is nothing to indicate that she did not bring an impartial mind to the matter.
The Tribunal Decision does not reflect the first applicant's claim that the Tribunal Member did not 'care about the documents' she had submitted. At [13], the Tribunal set out the documents provided to the Department. At (TD [17] and [48]), the Tribunal recorded that the first applicant provided copies of photographs, books and birth certificates to the Tribunal. The Tribunal also referred to the Xue Declaration at [13] and [68] of the Tribunal Decision, noting information from the Xue Declaration that the first applicant was a member of the Jiru Buddhist Temple, that Ms Xue got to know her in April 2015 when the first applicant attended the Temple for three days, and that Ms Xue thought the first applicant was a 'dedicated Buddhist'. The Tribunal also noted that Ms Xue claimed that the first applicant would face persecution if she returned to China.
At [72], the Tribunal accepted that the first applicant had attended the Temple (and referred at [68] to the temple initiation card, photographs and Mx Xue's statement). The documents the first applicant provided were considered by the Tribunal. The weight given to those documents was a matter for the Tribunal, as discussed earlier at [72] in this judgment, and does not demonstrate bias.
The first applicant also claimed at the hearing before me that she 'offered to explain matters further to the Tribunal', but the Tribunal Member said it was not necessary (Tp 10.14-17). She claimed that the Tribunal Member 'prejudged her and did not consider her religious belief' (Tp 12.29- 32). I have examined the Tribunal Decision and there is nothing to suggest that the first applicant was refused an opportunity to provide evidence, or that there was any prejudgment on the part of the Tribunal Member. At [48] of the Tribunal Decision, the Tribunal recorded that the Member asked the applicant if there was anything further she wanted to add. The Tribunal recorded that she showed the Tribunal some books and said she was taking courses and working on her learning. She also indicated that she did not accept the independent information. It is clear from [48] of the Tribunal Decision that the first applicant was provided with an opportunity to adduce further evidence at the conclusion of the hearing.
Another basis for demonstration of apprehended bias may include a denial of procedural fairness. At the hearing before me, the first applicant contended that she had 'no time to prepare' and did not feel like the procedure was fair (Tp 14.1-4). She referred to 'Article 355 and Article 359' of the Migration Act which require fairness and response to inquiries. She also referred to the data breach in 2023. She said that the data breach impacted her personal safety. She also claimed that she was asked by the Tribunal if another member could sit in on the hearing and she felt she had to consent (Tp 14.6-12).
I am satisfied that the first applicant had time to prepare for the Tribunal hearing, and the procedures were fair. She applied for review with the Tribunal on 18 August 2016 (CB 169- 170) and the hearing was held on 14 May 2019 (CB 200-203), so she had almost three years to prepare. She was also provided with opportunities to provide evidence. On 19 August 2016, the Tribunal acknowledged the application for review and invited the applicants to provide any material or written arguments for it to consider (CB 172-173). On 24 October 2018, the Tribunal again invited the applicants to provide additional evidence. The applicants submitted supporting statements and photographs (CB 176 - 192). On 14 May 2019, the first applicant attended a hearing before the Tribunal to give evidence and present arguments assisted by a Mandarin interpreter (CB 200-203) and was invited to provide oral and documentary evidence.
As to her references to Article 355 and Article 359', the first applicant may have been referring to the provisions relating to invitations to provide evidence. If she is referring to invitations to comment on adverse information, I note that at [31] of the Tribunal Decision, the Tribunal recorded that it put inconsistencies in her evidence to her at the hearing. The Tribunal also asked her why she had not put in a protection application earlier given the history she had outlined (TD [39]). The Tribunal also put the country information to the applicant (TD [40]).
I am satisfied that there was no denial of procedural fairness in this case.
The data breach referred to by the first applicant took place in 2023. As the Tribunal made its decision in 2019, it was not relevant to the Tribunal Decision.
It was contended by the Minister that there was no evidence that the first applicant did not consent to another Member sitting in at the Tribunal of her own free will, but even if she did feel pressure to consent, it was not clear what jurisdictional error was demonstrated (Tp 16.1- 6).
The first applicant has not elaborated on how the presence of this additional Member led to procedural unfairness. It may be that the first applicant is claiming that the hearing was procedurally unfair in that she felt intimidated by having an additional Tribunal Member in the hearing room as an observer and this impacted on the presentation of her evidence.
I do not accept that the presence of an additional Tribunal Member as an observer would significantly impact on the ability of the first applicant to present evidence. I accept that the process of a Tribunal hearing by its nature may be intimidating for an applicant who speaks a different language and is unfamiliar with the law and Tribunal processes. In my view the presence of another Tribunal Member would only marginally, if at all, add to any anxiety an applicant may experience. When considered alongside the fact that the first applicant was asked if she minded having the extra Member attend, I do not accept that jurisdictional error arose out of the attendance of another Tribunal Member in the hearing as an observer.
There has been no actual or apprehended bias demonstrated.
No jurisdictional error is disclosed due to bias or procedural unfairness.

At a glance

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Judgment (74 paragraphs)

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Cases Cited (34)