CVU19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1859

1. The applicant seeks judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) dated 3 July 2019. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
2. This matter raises for determination whether the Tribunal failed to consider the applicant's case fairly and whether the Tribunal failed to ask the applicant to provide information in response to the s 424A invitation dated 16 April 2019.
3. For the reasons which follow, I find the applicant has not demonstrated jurisdictional error and I dismiss the application.

1. The applicant is a citizen of China. She arrived in Australia on 11 November 2014 on a student visa (Court Book (CB) 19).

1. On 17 March 2015, the applicant applied for the protection visa (CB 1 to 54). The applicant's claims were set out in her undated statement attached to her protection visa application (CB 36 and 37), which I find were fairly set out in the Tribunal's decision at [4] of its reasons as follows:
   1. She operated a clothing shop in her village. There was a plastic knitting plant 200 metres away from her home which was built in 2011, with more than 100 employees. Waste water from the plant was discharged and this caused pollution and affected crop yields. Surrounding villagers were often sick, and although the issue was reported repeatedly it was not resolved.
   2. In 2013, over 10 villagers went to the plant to complain about the issue. The boss of the plant, [JW], refused to talk with the villagers and shouted abuse at them. A villager, Gouliang Pan, blamed him for the problems and [JW] ordered him to be beaten. [JW] said "no matter where you lodge complaint against me, I will not be worried. I have backers to support me".
   3. In December 2013, five villagers and the applicant went to the township government. They asked the government to investigate the pollution caused by the plant. The government did not respond. They then went to the Environment Protection Administration of Zhao County to complain about the pollution. It sent people to investigate the plant but a report was not released.
   4. They then contacted Yanzhao Evening News and a journalist reported the pollution, although it did not have any effect. When they contacted him again, the journalist said that he could not report further due to pressure from the government.
   5. Due to their complaints, [JW] incited gangsters to retaliate against them. Some were threatened and beaten by strangers. Two rogues went to the applicant's shop to make trouble. One day a rogue beat her and made her shop messy. Rogues came to make trouble repeatedly and in February 2014, the applicant was forced to close her shop.
   6. In February 2014, Gaoling Pan, Jingyou Dong and the applicant petitioned to the Environment Protection Administration in Shijiazhuang. Because of their efforts [JW] colluded with the township officials and police and they detained them. On 9 April 2014, they were imprisoned at the police station for 10 days on the charge of disrupting social order. [JW] threatened to punish them if they continued to petition.
   7. The government openly assisted evil businessmen to oppress farmers and this made the applicant worried about her safety. Through an agent she paid 10,000 Yuan to get a passport and then an agent helped her to apply for a visa to Australia.

1. The applicant attended an interview with the delegate at which time she was asked a series of questions. On 26 May 2016, a delegate of the Minister refused the applicant's protection visa application (CB 59 to 71) on the basis that it had difficulty accepting many elements of the applicant's claims, finding them to be vague, often lacking in reason and not only differing from her written statement and oral testimony but also containing internal inconsistencies at the interview before the delegate (CB 68).

1. On 26 June 2016, the applicant applied to the Tribunal for review of the delegate's decision (application for review) (CB 72 and 73).
2. The Tribunal sent the following letters to the applicant at the email nominated on her application for review, inviting her to provide any evidence she wished to in support of her claim:

(a) On 29 June 2016, inviting the applicant to provide any material or written arguments in support of her application (CB 75 and 76).

(b) On 15 August 2018, informing the applicant that the file was being prepared for allocation to a tribunal member and inviting her to provide any additional evidence that was relevant to her application (CB 78).

1. On 21 March 2019, the Tribunal invited the applicant to attend a hearing in-person (CB 80 and 81). The Tribunal hearing record noted that the applicant attended the Tribunal hearing in-person on 11 April 2019 with the assistance of an interpreter in the English and Mandarin languages (CB 82 to 84). The hearing lasted two and a half hours.
2. On 16 April 2019, the Tribunal sent the applicant, at the email nominated on her application for review, an invitation to comment on or respond to information pursuant to s 424A of the Act (information letter) (CB 90 to 93). In the information letter, the Tribunal provided particulars of inconsistencies it perceived in the applicant's evidence as to her claims and invited the applicant to respond by 30 April 2019.

1. The Tribunal noted the applicant's claims as set out in the statement accompanying her protection visa application at [4] of its reasons, which are reproduced at [5] of this judgment. The Tribunal recorded that at the hearing, the applicant said she had other documents to support her claims, and the Tribunal noted that it invited the applicant to submit further documents supporting her claims on or before 18 April 2019 ([7] of its reasons).
2. The Tribunal stated that following the hearing it sent to the applicant on 16 April 2019 the information letter, which invited her to comment on certain information, but there was no response or further submissions from the applicant ([8] of its reasons).
3. The Tribunal did not accept the applicant's evidence and found there were several inconsistencies in her evidence between her written claims, her evidence to the delegate and her evidence at the Tribunal hearing ([17] of its reasons). I adopt the Minister's summary at [12] of the Minister's written submissions dated 28 July 2025 of the Tribunal's findings as to the applicant's inconsistencies as follows (amended as appropriate):

(a) The first confrontation with JW, the factory manager: Due to the "vagaries of the applicant's evidence and her inability to answer questions directly put to her at hearing", the Tribunal doubted that she was describing events that actually occurred ([19] of its reasons). This doubt was further cemented by the applicant's inconsistent claim to the Tribunal that JW had initially listened to her and the villagers' complaints. Additionally, the applicant omitted the claims that her father and other villagers were beaten, and that her father was hospitalised, in her evidence to the Tribunal ([20] of its reasons). The applicant's evidence to the Tribunal did not include any event, similar to this claim, involving harm to her father or villagers.

(b) New claim, being the fight on a road and hospitalisation in April: The Tribunal was concerned that a new event, involving a physical fight on a road with security guards from the plant, and the applicant being hospitalised for a month with severe physical injuries, was not mentioned in the applicant's written claims. The Tribunal considered that if the applicant had experienced harm to the extent claimed she would have provided information about this with her initial claims. The Tribunal concluded that the omission showed the applicant was not truthful about the events ([21] of its reasons). The Tribunal engaged with the applicant's suggestion that she had in fact told the delegate about this incident, inviting her to comment on the delegate's decision record that she had instead claimed to have sustained such injuries in JW's office at the plant. However, the applicant maintained that the road incident and the office incident were two separate events. The Tribunal did not find this explanation satisfactory, nor did it accept her explanation that she could not remember the timing of the events because there were many fights ([22] of its reasons).

(c) Imprisonment at police station: The Tribunal found that the applicant omitted from her initial evidence at the hearing her claim that she and two other villagers were imprisoned at the police station. When questioned about this omission, the applicant responded that the Tribunal had not asked her questions about her detention, and she thought she was required to only answer questions put to her. The Tribunal did not accept this explanation, noting that the applicant was asked "open questions". The Tribunal considered this a "significant omission" from her original claims and found it further demonstrated the "unreliability" of the applicant's claims ([23] of its reasons).

(d) "Hooligans" coming to the applicant's shop: The Tribunal found that the applicant's evidence on this topic shifted during questioning. The Tribunal found that the applicant's confirmation at the hearing that her shop was in her house undermined her claim before the delegate, being she had closed it because the landlord would not renew the lease. The shifting nature of the applicant's evidence, and inconsistencies with previous statements, led the Tribunal to conclude that her claims were not reliable ([24] of its reasons).

(e) Complaints to the Environmental Protection Administration (EPA): The Tribunal found the applicant's evidence on this subject to be vague, and noted the applicant was unable to provide "contextual details" in relation to these events, including the timing of when and where she made the complaints. The Tribunal was accordingly not satisfied that they occurred ([25] of its reasons).

(f) Complaints made to newspaper about the plant: The Tribunal found the applicant's evidence at the hearing on this topic to be inconsistent with that given during her departmental interview in respect of her role in making reports to the newspaper, having spoken to a journalist and the response of the newspaper. The Tribunal found this further demonstrated that the applicant was not a witness of truth and her claims to fear harm in China were not credible ([26] of its reasons).

(g) JW's warnings to the applicant: The Tribunal found inconsistencies between the applicant's evidence to the delegate about her claim that JW warned her that her life would be in peril if she returned to China, and the information given to the Tribunal that since having departed China, JW caused people to attend her family's house, threaten her father, and damage their property. This was inconsistent with earlier claims to the delegate that she did not know whether anyone else had been threatened and JW had warned her "not to let him see her" ([27] of its reasons).

(h) Closure and ongoing operation of the plant: The Tribunal noted that at the hearing the applicant said that the plant managed by JW had closed down in 2016, but this would have meant it was closed when she was interviewed by the delegate. The Tribunal found that the applicant appeared to "adapt her evidence on the run, in order to address the issues raised by the Tribunal". The Tribunal found this inconsistent evidence "reflected poorly" on the applicant's credibility ([28] of its reasons).

(i) Ongoing interest of JW in the applicant: The Tribunal noted the applicant's claims at the hearing that she was blamed for the plant closure and viewed as the leader of three family groups that were involved in complaining to the EPA and newspaper. The Tribunal found that the applicant appeared to be exaggerating her profile to assist her claims for protection and was not satisfied the applicant had established a credible reason why JW would have any ongoing interest in her ([29] of its reasons).

1. The applicant's application accepted for filing on 22 July 2019 contained the following grounds for judicial review (as per original):

There exist jurisdictional errors.

1. The Tribunal did not consider my case fairly and refused to consider claims favourable to me.
2. The Tribunal did not ask me to provide evidence in support of my claim.
3. The Tribunal considered irrelevant or unimportant matters to reach conclusion.
4. Tribunal did not consider whether the delegate disclosed relevant information to me.

1. The applicant appeared at the hearing before me as a litigant in person, assisted by an interpreter in the English and Mandarin languages. Ms Cate Cloudsdale appeared for the Minister. Mindful of the Court's duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 at [37]), I explained to the applicant the role of the Court in undertaking judicial review. I ensured the applicant was in possession of all relevant documents, namely the Court Book, application and supporting affidavit accepted for filing on 22 July 2019 and the Minister's written submissions dated 28 July 2025. The applicant did not provide written submissions.
2. The applicant relied on her affidavit accepted for filing on 22 July 2019, which was accepted as submissions. The applicant asserted the following matters (as per original):
   1. I asked the government to investigate pollution caused by plastic knitting plant.
   2. I was retaliated and detained by police.
   3. The government openly assisted evil businessman to oppress farmers, which made me worry about my safety.
   4. I am frightened to return China to be harmed.

Ground 1 - Whether Tribunal did not consider the applicant's case fairly and refused to consider claims favourable to the applicant

1. The applicant submitted before me that the Tribunal did not consider her case fairly because:

(1) the Tribunal repeatedly asked her various questions during the Tribunal hearing, and this resulted in her being confused; and

(2) the applicant contended she was asked questions about her claims that went back many years ago and the Tribunal's questions jumped around in time.

1. The first point to note is that the Tribunal is not required to accept the applicant's claims uncritically and it is open to the Tribunal to ask questions of the applicant to test the credibility of her evidence: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 (Black CJ, Beaumont and Whitlam JJ) at [278] and [279].
2. The Tribunal's reasons disclose that it acted reasonably in that the Tribunal expressly noted in assessing the applicant's evidence, it considered the time that had elapsed since the applicant departed China and that the hearing process might have been stressful for the applicant ([30] of its reasons). Therefore, the Tribunal considered the potential for the applicant to be suffering from some confusion or lapse of memory due to the passage of time, which discloses that although the Tribunal was testing the applicant's evidence it was attempting to do so fairly and with a mind attuned to such matters as it noted.
3. Further, I am of the view that the Tribunal fairly gave the applicant the opportunity to comment on or respond to the Tribunal's concerns as to possible inconsistencies in her evidence both during and after the hearing as follows:

(a) During the hearing, the Tribunal raised with the applicant the reliability of her claims, particularly due to her inability to remember dates, sequences of events and critical matters raised in her written claims ([30] of its reasons). The applicant responded that "if she had wanted to make up her claims she would have ensured she had the date and sequence clear". However, the Tribunal was not persuaded by that response.

(b) After the hearing, the Tribunal sent the applicant the information letter in which it set out in great detail the particulars of the information whereby the Tribunal might consider the applicant had given inconsistent evidence as to aspects of her claim (CB 90 to 93). The information letter invited the applicant to comment on or respond to its contents. The applicant chose not to respond to the information letter.

1. To the extent that the applicant alleged that she was confused at the hearing, the information letter set out in writing the Tribunal's extensive concerns it had with the applicant's evidence at the hearing, and provided the applicant with an opportunity to respond to the concerns or explain the perceived inconsistencies. As noted above, the applicant did not respond to the information letter.
2. In relation to the applicant's contention that the Tribunal refused to consider claims favourable to her, I find that allegation is unfounded as the Tribunal fairly set out and considered the applicant's claims from [16] to [31] of its reasons, but ultimately gave its findings as to the applicant's credibility as set out at [13] of this judgment, which led the Tribunal not to accept the applicant's claims. I find there is no jurisdictional error disclosed in the way the Tribunal conducted the hearing or approached its analysis of the applicant's claims.
3. For these reasons, ground 1 does not disclose jurisdictional error.

Ground 2 - Tribunal did not ask applicant to provide evidence in support of her claim

1. The applicant contended that she received the information letter dated 16 April 2019 from the Tribunal, being the invitation to comment on or respond to information letter (CB 90 to 93), however she could not read the letter. The applicant stated that she had a lawyer at that time but he was unwell and therefore did not attend to her case or respond to her inquiries.
2. There is no issue that the applicant was sent the information letter from the Tribunal dated 16 April 2019 and that this was sent to the email address provided by the applicant. I note that s 494C(5) of the Act provides if the Minister gives a document to a person by one of the methods in s 494B(5) of the Act, the person is taken to have received the documents at the end of the day the document was transmitted. Relevantly for this matter, s 494B(5)(b) of the Act provides the methods by which the Minister gives documents to a person for the purposes of s 494C of the Act, which includes transmission by email address provided to the Minister by a person for the purposes of receiving documents.
3. In relation to the applicant's absent lawyer at the Tribunal hearing due to illness, I note there is no inherent right to legal representation. Further, and more importantly, there is no evidence before me that the applicant sought an adjournment from the Tribunal due to her lawyer being unwell.
4. For these reasons, ground 2 does not disclose jurisdictional error.

Ground 3 - Tribunal considered irrelevant and unimportant matters to reach conclusion

1. The applicant argued before me that the Tribunal considered irrelevant or unimportant matters to reach its decision. Despite being asked by me as to what the irrelevant or unimportant matters were, the applicant was unable to expand on this ground further.
2. It is a matter for the applicant to raise details as to the ground and raise the grievances she had with the decision of the Tribunal. Ground 3, in absence of details as to the irrelevant or unimportant matters that the applicant alleged the Tribunal took into account, does not reveal jurisdictional error in the decision of the Tribunal.
3. For these reasons, ground 3 does not disclose jurisdictional error.

Ground 4 - Tribunal did not consider whether the delegate disclosed relevant information to the applicant

1. The applicant contended the Tribunal failed to consider that the delegate did not disclose relevant information to the applicant. The applicant did not identify what information she alleged the delegate failed to disclose.
2. Without further particulars, this ground does not reveal jurisdictional error on the part of the Tribunal. Further, the Tribunal's role is to conduct a review of the material afresh on the merits of the protection visa application. In other words, the Tribunal is required to conduct the hearing de novo, and does not need to consider what the delegate did or did not do, and any failure the delegate may have engaged in: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [140] to [142].
3. The Tribunal reviewed the applicant's claims and, due to significant concerns, found them not credible ([33] of its reasons).
4. For these reasons, ground 4 does not disclose jurisdictional error.

1. Given the applicant was self-represented, I reviewed the reasons of the Tribunal to determine whether there was any self-evident jurisdictional error (BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J at [11]). I have not identified any such jurisdictional error.

1. As no jurisdictional error has been disclosed, the application must be dismissed.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.