DWZ18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 771

1. By an application filed in this Court on 27 July 2018 (Application), the Applicant seeks judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal), pursuant to s 477 of the Migration Act 1958 (Cth) (Migration Act).
2. On 27 June 2018 the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Protection (Class XA) (subclass 866) visa (Visa) (Tribunal's Decision).

1. The Applicant is a citizen of China. He arrived in Australia on 14 August 2013 as a holder of a visitor visa.

1. The Applicant applied for the Visa on 29 October 2013 (Visa Application). The Visa Application included his wife, step-daughter and daughter.
2. The Applicant claimed that he would be persecuted in China because of his involvement as a practitioner of the Falung Gong since 1999. Falun Gong was described in the Tribunal's Decision as a spiritual movement that blends aspects of Daoism, Buddhism and Qigong and was founded by Li Hongzhi in 1992.
3. The Applicant also claimed that that family planning officials demanded his wife undergo tubal ligation should he and his wife seek to register the child's birth.

Relevant Legislative Regime applying to the Visa

1. On 14 March 2025 I requested further submissions in writing from the Minister on the applicable statutory regime to be applied in light of amendments to the Migration Act after the Visa Application was made but before the decision of the Delegate on 4 December 2015 and the Tribunal's Decision. The Minister's representative filed Supplementary Submissions on 20 March 2025, no further or supplementary submissions were filed by the Applicant. These submissions have been of assistance to me in determining the legislation to be applied to the Visa Application.
2. By reason of the operation of the transitional provisions[1] of the Migration and Maritime Powers Legislation Amendments (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) namely that amendments made to the Migration Act by Parts 2 and 3 of the Schedule apply to protection visa applications made on or after the commencement of item 28, the following applied to the Visa:

(1) There is a class of visas to be known as protection visas.

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

1. The Migration Regulations 1994 (Cth) at the time of the Visa Application provided that to be granted the Visa:

866.21 - Criteria to be satisfied at time of application

866.211

(1) One of subclauses (2) or (5) is satisfied.

(2) The applicant:

(a) claims to be a person in respect of whom Australia has protection obligations under the Refugees Convention; and

(b) makes specific claims under the Refugees Convention.

(4) The applicant claims to be a person in respect of whom Australia has protection obligations because the applicant claims that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

866.22 - Criteria to be satisfied at time of decision

866.221

(1) One of subclauses (2) to (5) is satisfied.

(2) The Minister is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.

Note: See paragraph 36(2)(a) of the Act.

[...]

(4) The Minister is satisfied that:

(a) the applicant is not a person in respect of whom Australia has protection obligations under the Refugees Convention; and

(b) the applicant is a person in respect of whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.

Note: For paragraph (b), see paragraph 36(2)(aa) of the Act.

[...]

1. The 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol to the Status of Refugee (the Convention) defined Refugee in Article 1 and relevantly in Article 1A(2) was defined as:

As a result of events occurring before 1 January 1951 and owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

1. The phrase significant harm was defined in s 36(2A) of the Migration Act:

(2A) A non‑citizen will suffer significant harm if:

(a) the non‑citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non‑citizen; or

(c) the non‑citizen will be subjected to torture; or

(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non‑citizen will be subjected to degrading treatment or punishment.

1. In addition, Ministerial Direction No. 56 made under s 499 of the Migration Act required that PAM Refugee and Humanitarian - Complimentary Guidelines were to be taken into account.
2. Relevantly for the purpose of the Applicant's Visa Application s 91R(3) provided that conduct engaged in by the claimant in Australia must be disregarded in determining whether he or she has a well-founded fear of being persecuted for one or more of the Convention reasons unless the claimant satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be considered a refugee within the meaning of the Convention.

1. On 4 December 2015 the Delegate refused to grant the Applicant the Visa (Delegate's Decision). The Delegate was not satisfied that the Applicant's claims for protection associated with his practice of Falun Gong or the family planning issues were credible nor were they supported by the country information.

1. On 22 December 2015 the Applicant applied for review of the Delegate's Decision.
2. On 1 September 2016, a representative of the Applicant's then-wife notified the Tribunal that she had separated from the Applicant and requested the wife, step daughter and daughter be separated from the Visa Application and subsequent review application before the Tribunal.
3. On 13 February 2018 the Applicant was invited to attend a hearing on 15 March 2018 (Tribunal Hearing). The Tribunal Hearing proceeded and the Applicant appeared without representation and with the assistance of a Mandarin interpreter.

1. On 25 June 2018 the Tribunal affirmed the Delegate's Decision.
2. The Tribunal made its determination by reference to the criteria for a protection visa set out in section 36 of the Migration Act and considered whether the Applicant was a 'refugee' as required by s 36(2)(a). The Tribunal outlined the definition of 'refugee' as set out in Article 1 of the Convention. The Tribunal stated that "generally speaking" Australia has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention.
3. The Tribunal identified that there were two distinct basis for the Applicant's claim for the Visa; those associated family planning matters and those dealing with his alleged association with the Falun Gong.
4. The Applicant argued before the Tribunal that, following the birth of his biological daughter, the authorities informed him that the child could only be registered if the Applicant's wife agreed to have a tubular ligation within 45 days. The Applicant's wife refused to agree to the condition. After the Applicant paid a bribe to the relevant officials the child was eventually registered. The Tribunal described the Applicant's evidence as "confused".
5. The Tribunal noted that the Applicant and his wife had separated by the time of the Tribunal Hearing and questioned the Applicant as to what problems he feared he would face on his return to China as a result of past problems relating to family planning. The Applicant said that if he remarried and had another child he would not be able to obtain registration for that child. The Tribunal observed that the Applicant's fears were based on speculation and did not support a claim for protection. The Applicant also alleged that he had a bad reputation because of his involvement with the Falun Gong.
6. The Tribunal accepted that the Applicant had difficulties obtaining permits from the family planning authorities and that there had been a demand placed on his wife that she undergo a tubular ligation. The Tribunal rejected the proposition that the Applicant's wife continued to be of interest to the authorities after the bribe was paid and noted that the Applicant and his wife remained in China for over a year after the birth of the child. Further the Tribunal did not accept that any problems experienced by the Applicant with respect to the family planning authority were caused by an association with the Falun Gong.
7. Ultimately, on the family planning issue the Tribunal was not satisfied that there was a real chance that the Applicant would face serious harm on return to China for any reason relating to the birth of his daughter or the operation of China's family planning laws. The Tribunal was not satisfied that the Applicant would be denied the right to have further children in the future for any reason that might give rise to a claim for protection. Further the Tribunal was not satisfied that there is a real risk that he will experience real harm on return to China for any of the reasons in the Convention because of the birth of his daughter or the operation of China's family planning laws.
8. The Tribunal also rejected the Applicant's claim for complementary protection on the family planning ground.
9. The Tribunal did not accept that the Applicant provided an honest or accurate account of his involvement in the Falun Gong in China. The Applicant had inconsistently claimed that he practiced Falun Gong only in his heart from 2000, and yet also gave evidence that he continued to practise in private after 2000. The Applicant claimed that in 1999 he had been briefly detained and released with a warning for practising Falun Gong, that he had been fired from his job in 2000 for talking about Falun Gong and was warned to stop handing out brochures related to the Falun Gong. The Applicant agreed that he had not experienced any problems relating to the Falun Gong after 2000 and yet then submitted that the problems associated with losing his job occurred in 2002 or 2003. He later submitted that he handed out Falun Gong brochures from about 2000 until 2009. The Tribunal warned the Applicant that inconsistencies affected his credibility.
10. The Applicant failed to include all claims in his initial statement. When asked about this he told the Tribunal that he believed he could add additional information at his interview with the Delegate. The Tribunal found that the additional claims were concocted to enhance his claims for protection.
11. The Tribunal was not satisfied that the Applicant had practiced Falun Gong any time prior to leaving China nor did the Tribunal accept that the Applicant had any problems with the Chinese authorities or anyone else as a result of any association with the Falun Gong. The Tribunal opined that the Applicant's evidence was more than mere embellishment and that despite being warned about his credibility the Applicant continued to insist that his claims were true.
12. With respect to the Applicant's practise of Falun Gong in Australia, the Applicant provided a number of photographs of the Applicant practising Falun Gong and attending Falun Gong events in a period of less than three months after his arrival in Australia. The Tribunal noted that the Applicant gave evidence that he was aware of the possibility of applying for protection in Australia and intended to do so before leaving China. The Tribunal found that in the circumstance where it had found that the Applicant was not involved with the Falun Gong in China that his attendance at Falun Gong activities on arrival in Australia was purely to obtain evidence for his visa application.
13. The Applicant gave evidence that he was a member of an organisation called Australian Buddhism. The Tribunal was unable to find any evidence of the Australian Buddhism Association and observed that he had failed to mention the Falun Dafa Association of Australia despite alleging he had been involved in organising events run by it. The Tribunal found that pursuant to s 91R(3) of the Migration Act it should have no regard to the Applicant's participation in Falun Gong activities upon his arrival in Australia.
14. The Tribunal did not accept the Applicant's evidence that while acting as a guide to Chinese tourists he promoted Falun Gong. The Tribunal did not accept that his family had told people in his hometown including the police that he was applying for protection in Australia because he practiced Falun Gong or that the Applicant had approach the Chinese embassy a year before his passport was due for renewal and told the embassy that his reasons for staying in Australia was that he was a Falun Gong practitioner.
15. The Applicant was found by the Tribunal to not be a credible witness and that he willingly concocted claims. The Tribunal was not satisfied that the Applicant had any involvement with the Falun Gong since 2014 when he attended two cultural events organised by the Falun Dafa Association of Australia.
16. Ultimately with respect to the Falun Gong related claims the Tribunal found that as it did not accept that the Applicant practised or was a genuine follower of Falun Gong it was not satisfied that there is a real chance that he will face serious harm on return to China, that he will practise or attempt to practise Falun Gong if he returns to China, that he will be denied the right to practise or follow his chosen religion if he returns to China. The Tribunal was not satisfied that there was a real chance that the Applicant would suffer serious harm within the reasonably foreseeable future if he returned to China nor was it satisfied that there was a well-founded fear of persecution for any of the reasons contained in the Convention.
17. The Tribunal also rejected the Applicant's claim for complementary protection on the Falun Gong ground.

1. The Application was filed in this Court on 27 July 2018, within 35 days of the date of the Tribunal's Decision pursuant to s 477 of the Migration Act.
2. On 6 December 2024 Orders were made for the Applicant to file at least 28 days before the final hearing any amended application, written submissions and any further evidence on which he intended to rely. No material was filed in accordance with these Orders.
3. This matter was heard on 4 March 2025 (Hearing). The Applicant appeared as a litigant in person and was supported by a Mandarin interpreter. I inquired whether the interpreter and the Applicant understood each other. The interpreter confirmed that this was the case and the Applicant was ready to proceed. The Minister was represented by a Solicitor. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
4. The Applicant relied upon the following documents:

(a) The Application filed 27 July 2018; and

(b) The Affidavit of the Applicant affirmed on 21 July 2018.

(a) The Response filed on 26 September 2018;

(b) The Outline of Submissions filed on 18 February 2025;

(c) The List of Authorities filed on 3 March 2025;

(d) The Affidavit of Service of Gianluca Maiolo Rossi affirmed on 3 March 2025; and

(e) The Supplementary Submissions filed on 20 March 2025.

1. The Applicant relied on 10 grounds of review (Grounds of Review):
   1. The Tribunal erred in applying the legal test for who is owed protection obligations.
   2. The Tribunal erred in applying Section 36 of the Migration Act 1958.
   3. The Tribunal erred in applying the obligations and criterion set out in the Refugee Protocol and Refugee Convention.
   4. The Tribunal erred in determining the complementary protection criteria.
   5. The Tribunal failed to appreciate that the evidence and claims of protection disclosed a serious and appreciable risk of harm as the State Agency was forcing the Applicant's wife to undergo risky and not agreed to or without consent medical procedure of tubal ligation after birth of their daughter.
   6. The Tribunal failed to appreciate that the Applicant is Falun Gong and at further serious risk of political persecution due to his active involvement.
   7. The Tribunal has made errors of law.
   8. The Tribunal failed to engage with the evidence and claims advanced.
   9. The Tribunal failed to properly apply the relevant law and consider the evidence and claims made.
   10. The Tribunal displayed bias overall.

1. As a matter of convenience, I will deal with the Grounds of Review in the manner in which they have been grouped in the written submissions filed by the Minister.
2. I asked the Applicant to address me on the Grounds of Review as set out in his Application. I explained that he needed to point out an error in the Tribunal's Decision. I informed him that I was unable to review the merits of the claim nor was I able to grant him a visa. The primary submission of the Applicant was that the Tribunal was biased. The Applicant identified Ground 10 as the most important ground in his Application.
3. The Applicant said he did not understand the legal terms contained in his Application and that he had an organisation assist him to prepare the Application and that he could not remember the organisation's name.
4. The Applicant made global submissions that his wife and daughter had their protection visas approved, that the Tribunal underestimated the risks that he faces in China, that other Falun Gong practitioners had been granted visas, that all the evidence that he provided to the Tribunal was not recognised, if he goes back to China he will be at serious risk and that family relatives and police officers want to know why he is staying in Australia.

The Tribunal erred in applying the legal test for who is owed protection obligations.

The Tribunal erred in applying Section 36 of the Migration Act 1958.

The Tribunal erred in applying the obligations and criterion set out in the Refugee Convention.

The Tribunal erred in determining the complementary protection criteria.**

1. In the written submissions filed on behalf of the Minister it was contended that each of Ground 1, 2, 3, and 4 could be characterised as an allegation that the Tribunal had made an error in making its determination or that it had made an error in applying the relevant law. This characterisation of these grounds was not contested by the Applicant.
2. The Minister submitted that these grounds had not been particularised by the Applicant. It was submitted that in any event the Tribunal identified the law and applied the correct tests. It was further submitted that paragraphs [4] to [8] and [71] to [85] of the Tribunal's Decision evidences the identification and correct application of the law by the Tribunal. In oral submissions the Minister submitted that the law was comprehensively laid out and that there was no misapplication of the law on the face of the decision.
3. I have taken into account the Applicant's global submissions with respect to these grounds and in particular his assertions that the Tribunal underestimated the risk.
4. I agree with the submission of the Minister that the Tribunal's Decision evidences identification of the applicable law and its correct application to the facts. Grounds 1 to 4 must fail as no jurisdictional error has been identified.

The Tribunal failed to appreciate that the evidence and claims of protection disclosed a serious and appreciable risk of harm as the State Agency was forcing the Applicant's wife to undergo risky and not agreed to or without consent medical procedure of the tubal ligation after birth of their daughter.**

1. It is clear from the Tribunal's Decision that the Tribunal considered the risk of harm associated with the Family Planning Authority and noted that the risk of harm in fact related to the former wife and not to the Applicant himself. The Tribunal also noted that the harm perceived by the Applicant to himself was speculation. The Tribunal also found that the authorities in China would have little or no interest in the Applicant after the payment of the bribe.
2. The Minister submitted that the Tribunal comprehensively considered the Applicant's evidence in relation to this claim. I have also considered the Applicant's global submissions in respect to this ground. I agree with the submissions of the Minister that the Tribunal comprehensively considered the Applicant's evidence. I also agree with the submission of the Minister that what the Applicant seeks with respect to this ground for all intents and purposes is impermissible merits review.
3. No jurisdictional error has been identified by the Applicant. Ground 5 must be dismissed.

The Tribunal failed to appreciate that the Applicant is Falun Gong and at further serious risk of political persecution due to his active involvement.**

1. The Minister submitted that the conclusion reached by the Tribunal with respect to the Falun Gong claims was open to the Tribunal on the evidence before it.
2. I have also considered the global submissions made by the Applicant in so far as they pertain to this ground.
3. It is clear that the Applicant is dissatisfied with the findings made by the Tribunal regarding the Applicant not having a profile as a Falun Gong practitioner that would raise an adverse interest in him.
4. I agreed with the submissions of the Minister that the findings made by the Tribunal were open on the evidence before it. I also agree with the Minister's submissions that what the Applicant in reality seeks with respect to this ground is impermissible merits review. The Applicant has not identified a jurisdictional error. This ground must be dismissed.

The Tribunal failed to engage with the evidence and claims advanced.

The Tribunal failed to properly apply the relevant law and consider the evidence and claims made.**

1. The Applicant made submissions that other Falun Gong practitioners had received visas but did not identify a jurisdictional error in this regard as it related to his circumstances. The Tribunal assessed the evidence before it and applied the applicable law when arriving at its findings.
2. The Minister submitted that these grounds are no more than bare assertions that do not raise or identify jurisdictional error and therefore cannot succeed.
3. I agree that these grounds are bare assertions that do not give rise to a jurisdictional error. These grounds must be dismissed.

1. Jurisdictional error can be found where it can be established that a decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]. The test for apprehended bias is whether a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the relevant conduct, might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the questions to be decided: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27] to [28]. An allegation of actual bias must be "distinctly made and clearly proved": Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [127].
2. The Minister submitted that there is no evidence before me such as a transcript of the Tribunal Hearing to substantiate the very serious allegation of bias. There is no identification by the Applicant as to what constitutes the alleged bias other than he asserts other Falun Gong practitioners had been granted visas and he had not. Such an assertion does not give rise to a finding of bias. I agree with the Minister's submission that described the Applicant's complaint of bias as being no more than an expression of the Applicant's disagreement with the Tribunal's Decision.
3. The Tribunal comprehensively considered the evidence before it and reached conclusions available to it. The Applicant has been unable to identify a jurisdictional error. Ground 10 must be dismissed.

1. No jurisdictional error has been identified by the Applicant. I dismiss the Application.
2. The Minister sought costs fixed in the amount of $5,400.00, which is below the scale amount prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, the Applicant is to pay the Minister's costs in the sum of $5,400.00.
3. Orders will be made accordingly.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham.

[1] Migration and Maritime Ports Legislation Amendments (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), Schedule 5, Part 4, item 28.