DPI20 v Minister for Immigration and Citizenship [2026] FedCFamC2G 395

1. This is an Application for judicial review of a decision of the Administrative Appeals Tribunal (as it was then) (the Tribunal) dated 6 July 2020, affirming a decision of a Delegate of the First Respondent (the Delegate) to refuse to grant the Applicants Protection (Subclass 866) visas (the Visa) pursuant to s 65 of the Migration Act 1958 (Cth) (the Act).
2. For the reasons set out below, the Application must be dismissed.

1. The First Applicant (the Applicant), a citizen of the People's Republic of China, arrived in Australia on 16 April 2018 as the holder of a Student Visa.
2. On 22 October 2018, the Applicant lodged an application for the Visa, claiming that she had become deeply integrated into a Christian Church in China from May 2014, and that on 15 July 2015, the local authorities demolished her Church and that some of the members of the Church came into conflict with the demolition workers and were subsequently injured.
3. On 22 February 2019, the Applicant gave birth to her son (the Second Applicant). The Second Applicant was included as a member of the Applicant's family unit for the Visa application.
4. On 28 June 2019, the Applicant attended an interview with the Delegate, where she stated that her family in China were adherents of the Taoist religion and believed that she was possessed by demons and accordingly subjected her to rituals. The Applicant claimed that she had nowhere to escape the Taoist spirits, so she hid in a Church. The Applicant further stated that, as Taoism and Christianity were separate religions, she felt safe whilst attending the Catholic Church.
5. On 2 July 2019, the Delegate refused to grant the Applicants' the Visa.
6. On 29 July 2019, the Applicant lodged an application for review of the Delegate's decision with the Tribunal.
7. On 30 June 2020, with the assistance of a Mandarin interpreter, the Applicant attended a Tribunal hearing by telephone.
8. On 6 July 2020, the Tribunal affirmed the Delegate's decision to refuse to grant the Applicants' the Visa.

1. At [1], the Tribunal set out the application for review.
2. At [2], the Tribunal set out the Applicant's statement accompanying her Visa application.
3. At [6] - [14], the Tribunal summarised the Applicant's oral evidence given at the hearing on 30 June 2020. In her oral, the Applicant claimed that she was 'Christian in her heart': [10]. The Tribunal put to the Applicant that she had previously given evidence that she became a Christian while at school, however she had not included this claim in her written statement: [10]. The Applicant agreed: [10].
4. The Applicant stated that she came to Australia because she depended on her Church, and after her Church was 'dismissed', she no longer had anyone she felt she could trust: [11]. The Applicant further stated that she met her partner online, and he told her that in Australia, people have their own beliefs, religions, and human rights: [11]. The Applicant claimed that this was why she believed she could escape and come to Australia: [11].
5. The Applicant stated that she did not do anything to practise her Christian faith: [12]. The Tribunal recorded that, when asked whether she knew anything about Jesus, the Applicant responded that she did not know anything and only knew that he could protect her. The Applicant said she was not a "qualified" Christian, but that Christianity gave her strength: [12].
6. The Applicant stated that, in her childhood, she "belonged to a ghost" that controlled her body: [13].
7. The Applicant said that if she were to return to China, her family would not harm her, but the harm from the ghost would continue: [14]. When asked about the ghost, the Applicant replied that in her local area, if people passed away, their ghosts would carry on and come for her body and control her. The Applicant agreed that the ghost was related to the Taoist religion, although she maintained that she herself was not a Taoist. The Tribunal put to the Applicant that it was difficult to understand that the ghost followed her through China but not to Australia. The Applicant stated that the hauntings may have only happened in China, that she found comfort in the Church because it was not associated with Taoism, and that Christianity gave her strength [14].
8. At [28], the Tribunal rejected the Applicant's claim to be Christian. It found that, given her detailed assertions in her written statement about being deeply involved in the Christian faith since at least 2014, she could reasonably be expected to have some basic knowledge of Christianity and to explain how she practises the beliefs she claims to hold.
9. The Tribunal did not accept that the Applicant believed in ghosts, given her failure to identify that belief in her initial application and her inability to explain why the ghost could control her only in China and not in Australia: [30].
10. The Tribunal noted that its overall impression of the Applicant's evidence was that she is not recalling events that have occurred, but rather had made up her evidence to cover up her non-existent knowledge and non-existent practice of Christianity: [31].
11. On the evidence before it, the Tribunal was not satisfied that the Applicant had suffered persecution in the past: [32].
12. The Tribunal accepted that the Applicant wanted her family to stay in Australia. Still, it was not satisfied that she faces a real chance of persecution in China for reasons of race, religion, nationality, social group membership, or political opinion in the foreseeable future: [33].
13. At [34] - [38], after finding that the Applicant did not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal considered the alternative criterion in s 36(2)(aa). It was not satisfied that Australia owed the Applicant protection obligations under s 36(2)(aa). There was also no basis to find that she met s 36(2) as a member of the same family unit as a person who satisfied s 36(2)(a) or (aa) and held a protection visa. Accordingly, the Tribunal found that the Applicant did not satisfy s 36(2). Accordingly, at [39], the Tribunal affirmed the decision not to grant the Applicants' the Visa.

1. The Applicants' advance Five Grounds of judicial review contained in an Originating Application filed with the Court on 31 July 2020. They are as follows (without altercation):
   1. AAT was wrong about the time of me becoming a Christian. I became a Chritian in 2014 but I was having problems with ghost since my high school. It was not inconsistent.
   2. AAT said I was having a disease as I heard from the interpreter. But it was not a disease it was a religious haunting related to Taoism and it was a real existed difference between Taoism and Christianity. AAT was wrong to ask me to explain how I was controlled by ghost. It is impossible to explain that. I was chosen by the Taoist to be a representative. But I didn't ask to be chosen and it was not safe for me.
   3. AAT said I lack Christian knowledge and didn't believe me. The lack of knowledge didn't stop me from being able to seek refugee in the church. As long as I am in the church I can feel the safety from the harm and bad influence of the unknown power. All I wanted is to be secluded from the bad power. The church is like a shield where I can rest my soul and I don't need to know a lot.
   4. I didn't actively take part in Christian activties such as baptism because I don't want take any risks that the bad power may harm me or my son. So I didn't want to antagalize the Taoist power and what I really wanted is just to stay away as far as possible and hopefully, I could be left alone.
   5. It is not a proper procedure when AAT didn't let me finish my evidence and asked me to hang up the phone first.

1. The First Applicant appeared before the Court unrepresented and was assisted by an interpreter. Prior to the Hearing commencing, the Court ensured that the Applicant was in possession of a copy of the relevant Court Book and that the Respondent's Written Submissions had been translated to her. The Court also ensured the Applicant had access to a pen and paper so she could take notes during the Hearing, should she wish to.
2. At the commencement of the Hearing, the Court explained that it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the Hearing would be undertaken.
3. Despite Court Orders, no Written Submissions or other material were provided to the Court by the Applicant in support of her case. The Applicant told the Court that the Hearing before the Tribunal was conducted by telephone, that the Tribunal did not believe her, and that she did not have time to finish what she wanted to say.
4. The Applicant stated that in China, when she was a child, she was sick, and that someone did something to her.
5. In relation to her son, the Applicant stated he has a food allergy. In Australia, there are clear food labels. Further, at school, they have a clear plan of what to do if her son has an allergic reaction, including access to an 'EpiPen'. She has concerns that this will not hold true in China.
6. When asked if she wanted to say anything further, the Applicant stated she had a lot to say, but that it would be useless if people did not believe her.
7. At the conclusion of the Respondent's Oral Submissions, the Applicant was asked if she wished to state anything in reply. She stated that strange things happened to her when she was young. She did not have a clear memory of what happened, except that she did not feel safe. She hid in the Church in her hometown because it made her feel safe. The Applicant reiterated that she did not believe in Christianity, but, other than that, she felt safe in a church, and this was enough.

1. The Applicant's grounds of judicial review are unparticularised.
2. Grounds One to Four rise no higher than an expression of dissatisfaction with, and an attempt to seek impermissible merits review by the Court of the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1 at [10]. Emphatic disagreement is insufficient to establish jurisdictional error: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [34].
3. The Tribunal's adverse credibility findings were open to it on the evidence before it and for the reasons it gave, including its observations about the changing nature of the Applicant's evidence and her omission of critical aspects of her later claims in her Visa application: [30] - [32]. Those matters were logically probative of credibility, and the Tribunal's engagement with them discloses no jurisdictional error: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146.
4. Further, where an applicant claims to adhere to a particular religion or set of beliefs, it is legitimate for the Tribunal to explore the applicant's knowledge of that religion for the purpose of assessing the genuineness of the claim: SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 at [46] - [49]. The Tribunal in this matter undertook such an inquiry into the Applicant's asserted religious beliefs: Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 at [38]; MZYFS v Minister for Immigration and Citizenship [2010] FCA 1325 per Kenny J. In circumstances where the Applicant stated that she did not do anything to practise Christianity and did not know anything about Jesus, it was open to the Tribunal to conclude that she was not a Christian: [26] - [28].
5. The Applicant's lack of knowledge of Christianity was only one of the matters relied upon by the Tribunal in reaching its conclusions. The Tribunal rejected the Applicant's claims on several bases, including the inconsistencies in her accounts and the omissions in her evidence: [30] - [32].
6. Ground Five alleges that the Tribunal did not provide the Applicant with a sufficient opportunity to give evidence, however no such error is apparent from the Tribunal's process or reasons. The Applicant was invited to attend a hearing before the Tribunal in accordance with s 425 of the Act, which she attended. Further, the Tribunal recorded at [22] that the hearing proceeded in an unobstructed manner and that the Applicant was given ample opportunity to present all the evidence she wished the Tribunal to consider.
7. The Applicant has not sought to explain, by way of particulars, or to establish through evidence the Tribunal's alleged failure to follow "proper procedure", nor how the Tribunal's conduct denied her a meaningful opportunity to give her evidence. In the absence of evidence to the contrary, the Court is entitled to proceed on the basis that the Tribunal's decision record accurately reflects the hearing before it: NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1.

1. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a Court conducting judicial review was described in this manner:

... an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451.
2. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at 348.
3. To grant the Visa, the Tribunal must be satisfied under s 5J of the Act that an applicant has a well‑founded fear of persecution for one or more of the following reasons: race, religion, nationality, membership of a particular social group, or political opinion: s 36(2)(a) of the Act. Alternatively, the Tribunal must be satisfied that an applicant will face a real risk of significant harm if returned, including the arbitrary deprivation of life, or being subjected to torture, or cruel or inhuman treatment: s 36(2)(aa) of the Act.
4. The Applicant claims that, if returned to China, she will be haunted by ghosts. The Applicant stated that she found protection in a local Church that was later demolished by authorities. Whilst the Applicant claims she is not a Christian, she stated that she is free from being haunted by ghosts when engaged in the Christian faith. Even if this is the case, such a fear is not a convention reason for the grant of the Visa.
5. I agree with the First Respondent's Submissions that Grounds One to Four are no more than an expression of vehement disagreement with the Tribunal's factual findings. They invite the Court to undertake impermissible merits review and do not articulate any jurisdictional error. Accordingly, Grounds One to Four have no merit.
6. Ground Five is a claim that the Applicant was denied the opportunity to finish her evidence. Such a claim requires some evidence, such as a transcript of the Tribunal hearing. In contrast to what the Applicant asserts, the Court notes the Tribunal's specific statement at [22] of the decision record that the hearing proceeded unobstructed and that the Applicant was given ample opportunity to submit all the evidence she wanted the Tribunal to consider.
7. As there is no evidence that the Tribunal restricted the Applicant's ability to give her evidence in a way that rendered the Tribunal hearing unfair or amounted to jurisdictional error, this contention cannot be sustained.
8. The Tribunal decision record sets out in some detail the Applicant's claims, including her evidence before the Tribunal. Nothing indicates that the Applicant was denied a fair hearing. Ground Five has no merit.
9. As the Applicant is unrepresented, the Court has perused the Court Book and other relevant material and is unable to detect any unarticulated jurisdictional error.

1. As none of the Grounds of judicial review have merit, the Application must be dismissed with costs.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.