EFJ19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 658

Note: The form of the order is subject to the entry in the Court's records.

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

1. Before the Court is an application seeking judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 28 September 2019. By this decision, the Tribunal affirmed a decision made by a delegate (delegate) of the first respondent (Minister) on 24 January 2017 to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa).
2. The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
3. For the following reasons, the application is dismissed.

1. The Minister helpfully summarised the background to the matter in their written submissions filed on 12 March 2025, which I primarily adopt.
2. The applicant, a male national of the People's Republic of China (China), made a protection visa application on 17 June 2016. He claimed to fear harm in China due to his complaints against a government official in his home province following a land acquisition dispute. Included with his protection visa application was a written personal statement dated 15 June 2016 (written statement) in which the applicant raised the following claims: [1]

(a) The applicant was detained in prison by police for one day following an argument with his local government head officer about land acquisition compensation.

(b) The applicant was forced to sign a document by which he agreed to 1100 yuan per acre in compensation for the government's acquisition of his parent's land in order to be released from detention.

(c) Following his release from detention, the applicant went to the local government head officer's house and fought with him. The applicant then left China.

(d) After the applicant returned to Australia, police and the local government head officer attended the applicant's parent's home in China where they threatened to torture the applicant to death if they found him.

1. On 30 December 2016, the applicant was requested to attend an interview with a delegate of the Minister on 23 January 2017 to discuss his protection visa application.[2] The applicant did not attend the interview.[3]
2. On 24 January 2017, the delegate refused to grant the applicant a protection visa. The delegate found, in circumstances where the applicant did not attend the scheduled interview on 23 January 2017, there was insufficient evidence to satisfy them that the applicant had met the criteria in s 36(2) of the Act for the grant of a protection visa.[4] The delegate formed the view that the applicant would not face a real chance of serious harm or real risk of significant harm upon his return to China and was thereby not a person in respect of whom Australia has protection obligations.[5]

1. On 14 February 2017, the applicant applied to the Tribunal for a review of the delegate's decision.[6]
2. On 29 August 2019, the Tribunal invited the applicant to attend a hearing, scheduled to take place on 26 September 2019 at 8:30 am (NSW time).[7] On 3 September 2019, the applicant wrote to the Tribunal advising that he would be unable to attend the hearing and requested that it be postponed.[8] On 4 September 2019, the Tribunal wrote to the applicant informing him that his request for postponement had been denied due to a lack of evidence. However, the Tribunal advised that it may be able to conduct a video hearing at the scheduled time and date for the applicant to attend in Queensland.[9]
3. On 12 September 2019, the applicant emailed the Tribunal stating that he would like to attend the hearing in Queensland.[10] On 13 September 2019, the Tribunal emailed the applicant advising him that the hearing would take place on 26 September 2019 at 11:00 am in Brisbane.[11] A new hearing invitation was also sent to the applicant on 13 September 2019.[12]
4. On 26 September 2019, the applicant attended a hearing before the Tribunal. Communication between the applicant and the Tribunal at the hearing was facilitated by an interpreter in the Mandarin and English languages accredited by the National Accreditation Authority for Translators and Interpreters.[13]
5. On 28 September 2019, the Tribunal affirmed the delegate's decision not to refuse to grant the applicant a protection visa.[14]

1. The Tribunal identified the criteria for a protection visa set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth), and that an applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c).
2. The Tribunal summarised the applicant's claims raised before the Department (at [9] - [11]) and the applicant's evidence at hearing (at [13] - [19]).
3. In considering the applicant's claims, the Tribunal:

(a) noted its concern about significant inconsistencies between the applicant's written claims and oral testimony before the Tribunal. It identified various inconsistencies in relation to the applicant's claims, including his particular claims in relation to:

(i) having been detained and forced to sign a statement;

(ii) the nature of the offer of compensation made in relation to the land;

(iii) the current ownership of the land; and

(iv) the applicant's departure from China.[15]

(b) recorded its discussion with the applicant regarding the country information indicating the applicant's legal departure from China suggested that he was not of adverse interest to the Chinese government at the time of departure. Accordingly, the Tribunal found the applicant's claim that he was able to escape China before he was listed for arrest to be 'vague and unpersuasive'.[16]

(c) noted the applicant's extensive immigration history since first arriving in Australia in 2011 as the holder of a student visa and expressed concern about the applicant's delay in applying for a protection visa. The Tribunal further observed that the applicant only applied for a protection visa once he had exhausted all other immigration avenues to remain in Australia with his wife and newborn child.[17]

(d) found the applicant's claim that he did not attend the interview with the Departmental delegate because he had to deal with stomach issues and further claim that he did not know how to reschedule the interview to be 'unpersuasive'.[18]

(e) did not accept that the applicant was ever detained, arrested, or threated by authorities in China. In doing so, the Tribunal found that the applicant is not of adverse interest to 'Chinese authorities, local village officials or anyone else in China'.[19]

(f) concluded that the applicant was not a credible witness, and that the applicant's claims were not credible.[20]

1. Having considered the evidence before it, the Tribunal was not satisfied that:

(a) the applicant would face a real chance or serious harm or significant harm from Chinese authorities, village officials or any other persons or group for any of the reasons claimed.

(b) the applicant had a well-founded fear of persecution if he returned to China.

(c) there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia the applicant would be subjected to a real risk of significant harm.[21]

1. Accordingly, the Tribunal concluded that the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act. Furthermore, based upon its findings in relation to risk of harm to be faced by the applicant in China, the Tribunal concluded that the applicant was not entitled to complementary protection pursuant to s 36(2)(aa) of the Act. Therefore, the Tribunal affirmed the decision under review not to grant the applicant a protection visa.

36 Protection visas

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

Note: See also Subdivision AL.

(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

(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa; or

(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa.

(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.

(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

5H Meaning of refugee

(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a) in a case where the person has a nationality - is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b) in a case where the person does not have a nationality - is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note: For the meaning of well-founded fear of persecution, see section 5J.

5J Meaning of well-founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c) the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a) conflict with a characteristic that is fundamental to the person's identity or conscience; or

(b) conceal an innate or immutable characteristic of the person; or

(c) without limiting paragraph (a) or (b), require the person to do any of the following:

(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii) conceal his or her true race, ethnicity, nationality or country of origin;

(iii) alter his or her political beliefs or conceal his or her true political beliefs;

(iv) conceal a physical, psychological or intellectual disability;

(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b) the persecution must involve serious harm to the person; and

(c) the persecution must involve systematic and discriminatory conduct.

(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a) a threat to the person's life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill-treatment of the person;

(d) significant economic hardship that threatens the person's capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

(6) In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (l)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.

5(1) Interpretation

...

cruel or inhuman treatment or punishment means an act or omission by which:

(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c) that is not inconsistent with Article 7 of the Covenant; or (d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or

(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a) for the purpose of obtaining from the person or from a third person information or a confession; or

(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c) for the purpose of intimidating or coercing the person or a third person; or

(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or (e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b) if the non-citizen has no country of nationality-a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

1. The applicant commenced proceedings by way of an originating application filed on 28 October 2019 in which the following two grounds of review were raised (reproduced below without alteration):
   1. The Tribunal is concerned that the reason why I applied for a protection visa is because I wish to remain in Australia with my family. This is not true. The purpose I applied for this visa is because I will be persecution if I return to my country.
   2. The inconsistency between the written claims and oral testimony to the tribunal is because I try to forget what I suffered from the past.
2. The Minister filed written submissions in this matter on 12 March 2025.
3. At the hearing before this Court on 27 March 2025, the applicant was given the opportunity to respond to the Minister's submissions. The applicant did not avail himself of that opportunity.

1. At hearing, when given an opportunity to further particularise and expand upon this ground the applicant suggested the Tribunal misunderstood him when it received his evidence. In order to assist the applicant with the articulation of this ground, I drew his attention to paragraph [8] of the Tribunal's decision where the Tribunal had summarised his immigration history. Asked if he had any issue with what the Tribunal had written, the applicant confirmed he did not. The applicant was also taken to [15] of the Tribunal's decision which detailed his family circumstances in Australia including his wife's permanent visa application. Asked if he had any issue with what the Tribunal had written in that regard, the applicant again confirmed he did not.
2. The Minister submits the applicant's contentions, as developed at the hearing, do not identify jurisdictional error on the Tribunal's part in that the applicant failed to identify where in the Tribunal's reasons an interpretation error has occurred or where the Tribunal Member has misunderstood him. The Minister further submits that the Tribunal was justified in its finding at [28] of its decision in relation to the applicant's motivations for remaining in Australia and, in particular, the Tribunal's consideration of the applicant's immigration history and his family circumstances in Australia. The Minister maintains that by ground one the applicant has been unable to point to any error on the Tribunal's part and does no more than seek to agitate the merits of the Tribunal's decision and invite the Court to engage in impermissible merits review.
3. In my view, the Tribunal's reasons were logical and based upon findings that were open to it on the available material. I agree with the Minister's submission and find that the applicant's ground is misconceived and does not give rise to jurisdictional error.

1. The applicant was given an opportunity to further particularise and expand upon this ground at the hearing before this Court. The applicant stated that he had nothing further to add.
2. The Minister submits that this ground is an attempt to explain the inconsistencies and deficiencies in the applicant's evidence and arguments presented before the Tribunal and does not allege jurisdictional error. Consistent with his duties as a model litigant, the Minister took the Court through the Tribunal's findings in relation to a number of inconsistencies and deficiencies in the applicant's evidence and argued that the Tribunal did not err in its assessment of these matters and more broadly as part of its overall credibility assessment. By way of example, the Minister identified three concerns the Tribunal had with the applicant's evidence relating to:

(a) his detention in China and the statement he was forced to sign in order to facilitate his release from detention;

(b) the amount of compensation payable for the land in dispute; and

(c) the consequences arising out of the dispute.

1. I now turn to examine the Tribunal's consideration of each of those concerns and whether the Tribunal erred in the making of its adverse credibility findings.

Detention and forced signing of statement to facilitate release from detention

1. The applicant raised the following claims in his written statement:

AFTER POLICE CAME, THEY CHARGED US IN THE NAME OF THREATEN THE SAFETY OF OTHERS. I WAS DETAINED IN THE PRISON FOR 1 DAY AND I WAS FORCED TO SIGN THE DOCUMENT THAT SAY I AGREE THE COMPENSATION FOR LAND ACQUISITION. IF I DO NOT SIGN THIS DOCUMENT THEY WILL NOT LET ME GO. SO I SIGNED IT.

1. In its decision at [24], the Tribunal records the following concern:[22]

The Tribunal is concerned that the applicant gave evidence to the Tribunal that he had never been detained or arrested in China whereas his written claims assert he was detained in prison

...

the applicant also told the Tribunal he was never forced to sign any documentation in relation to the compensation for the land.

1. Having been pressed at hearing about this inconsistency in his evidence, the Tribunal recorded the applicant's explanation in the following terms:[23]

He had no idea what to say he was four or five years ago and although he might have forgotten the details what happened was true.

1. The Minister submits, and I agree, the Tribunal's rejection of that explanation was open to it for the reasons it gave, namely that the inconsistency was 'significant' and that it was not 'plausible that the applicant would forgot [sic] being detained in prison for a day or being forced to sign documentation'. The Tribunal's reasons in support of this particular adverse credibility finding do not disclose an approach indicative of the Tribunal having failed to appreciate the particular nature of the fact-finding task, or to perform it reasonably or fairly: see AVQ15 v Minister for Immigration and Border Protection (2018) 216 FCR 83 at [28].

1. The applicant also raised the following claim in his written statement (reproduced below without alteration):

IN DECEMBER 2014, MY PARENTS WERE TOLD THAT OUR LOCAL GOVERNMENT WILL BUILD NEW HIGH WAY AND OUR LAND NEED TO BE ACQUISTED BY GOVERNMENT, THE COMPENSATION FOR THE LAND IS 1100 YUAN PER ACRE. IN JANUARY 2015, MY PARENTS AND OTHER LAND OWNERS HEARD THAT THE COMPENSATION FOR LANDS THAT FROM OUR PROVINCE GOVERNMENT IS ACTUALLY 3500 YUAN PER ACRE, WHICH MEANS OUR LOCAL GOVERNMENT PUT 2400 YUAN PER ACRE COMPENSATIONS INTO THEIR OWN POCKET

1. In its decision at [23], the Tribunal records the following observation about the applicant's knowledge displayed at hearing in relation to the quantum of compensation offered for the disputed land:

The applicant told the Tribunal he did not know how much compensation was offered to his parents for the land.

1. In response to the Tribunal's questioning, the Tribunal recorded its concern that 'the applicant displayed no knowledge' of the amount offered to his parents for the land. Having been pressed by the Tribunal at hearing about the inconsistency in his knowledge or account of this particular matter, the Tribunal recorded the applicant's explanation as follows:[24]

...it was a long time ago and he definitely forgot some details.

1. The Minister submits, and I agree, the Tribunal's concern about the applicant's lack of knowledge about the compensation offered to his parents for the land and the discrepancy between the rate of compensation offered by the provincial government and the local officials is significant. The compensation amount was central to the applicant's narrative and it was open to the Tribunal to form the view that a failure to recall this central aspect of the narrative, without sufficient explanation, formed a legitimate basis for its adverse credibility finding. Again, the reasons do not disclose an approach indicative of the Tribunal having failed to appreciate the particular nature of the fact-finding task when dealing with a failure to recall such a significant matter, or to perform that task reasonably or fairly: see ASB17 v Minister for Home Affairs (2019) 266 FCR 271 at [43]-[45].

1. In its decision, the Tribunal expressed concern that 'other aspects of the applicant's claim were also problematic'.[25] One of these problems was the implausibility of the applicant's claim about the existence of a dispute over the land in circumstances where the applicant gave oral evidence at the Tribunal hearing that his parents still owned the land in question. The Tribunal recorded its treatment and consideration of that particular claim in the following terms at [25] of its decision:[26]

When the Tribunal put to the applicant that the fact his parents were still in possession of the land over four years after the dispute about the compensation might lead the tribunal to conclude that his parents still owned the land and to doubt his claims that the government had acquired the land or offered inadequate compensation for it, the applicant did not want to comment on the Tribunal's concerns.

1. Again, the Minister submits, and I agree, the Tribunal's concern about the applicant's lack of knowledge about the consequences arising out of the dispute was significant. The Tribunal's concern did not relate to a peripheral matter. Further, the absence of explanation addressing the Tribunal's concern leads me to conclude the adverse credibility finding made was open on the material and reached in a manner that neither illogical nor irrational: see Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 1126; (1988) 86 FCR 547; Minister for Immigration & Multicultural Affairs; Ex parte Durairalasingham [2000] HCA 1; (2000) 74 ALJR 405 at 423.

Conclusion in relation to adverse credibility findings

1. Having read the Tribunal's reasons as a whole, I am of the view that adverse credibility findings made by the Tribunal were open to it on the material and the reasons proffered in support of those findings do not disclose jurisdictional error on the Tribunal's part. In reaching those findings, the Tribunal had proper regard to the evidence before it, identified inconsistencies and other deficiencies in that evidence, gave the applicant an opportunity to address its credibility concerns in relation to those matters and sufficiently considered the applicant's responses before drawing its conclusions on credibility. Given the limited material before it, which primarily comprised the written statement and the applicant's oral testimony at the Tribunal hearing, it was reasonable for the Tribunal to regard these inconsistencies and deficiencies as significant and the Tribunal was entitled to make the credibility findings it ultimately made.

1. For the above reasons, the application is dismissed.
2. I heard the parties in relation to costs and note that the Minister sought costs to be paid by the applicant fixed in the sum of $8,371.30. I find that costs should follow the event and that this amount is reasonable in the circumstances given the work undertaken by the Minister in this case including, but not limited to, preparation of the Court Book, drafting of written submissions as well as preparation for and appearance at the hearing. I will so order that the Minister's costs be paid by the applicant fixed in the sum of $8,371.30.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[17] CB 112 [22], CB 114 [27] to [28].