EMA24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 599

1. The applicant in this matter seeks judicial review of a decision of the then Administrative Appeals Tribunal (the "Tribunal") dated 25 June 2024. By that decision, the Tribunal affirmed a decision made by a delegate of the first respondent (the "Minister") refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (the "visa").
2. That application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the "Act"). To obtain relief from this Court, the applicant must show jurisdictional error in the Tribunal's decision.
3. For the reasons that follow, this Court has determined that no such error has been established. On that basis, the application is dismissed.

Recent amendments to the Migration Act 1958 (Cth)

1. The Act was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the "ART") (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the "Consequential Act")).
2. This judgment relates to a decision of the then Tribunal. That decision is dated 25 June 2024 and thus predates those amendments. Unless otherwise stated, any reference to the Act in this judgment is a reference to the Act as was in force at the date of the Tribunal's decision (or as at the date of any relevant matter referenced in this judgment).
3. At the time the applicant sought judicial review of the Tribunal's decision in this Court (on 3 July 2024), the Tribunal was listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceedings pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
4. In the circumstances, the Court made an order (at the hearing of this matter on 24 March 2025) substituting the ART as the second respondent in this proceeding and will proceed to review the decision of the Tribunal.

1. The applicant in this matter is a citizen of the Peoples Republic of China (Court Book ("CB") 23-26 & 45).
2. On 13 October 2019, the applicant lodged an application for the visa (CB 23-44). The statement accompanying that visa application relevantly provided as follows (CB 46-47):

.... Because I was suffered the persecutions and harassment from the creditor, I have no choice but came to Australia to seek for protection. Following is my statement; I hope that Australian government can protect me.

I was born at [place of birth omitted]. My parents and I are honest farmers, and we do not have many farmlands, so I went out to find a job to feed myself after I graduated from the vocational college in 2005.

I worked in a heavy manufacturing company to operate the CMC machine, but the wage there is not very high. I can only get 3,500 RMB per month and I worked there for many years. Because many friends are doing their own business, I talked with my parents and I decided to do the clothing business.

The cost for opening a new store was almost 200,000 RMB, our family only have 100,000 RMB saving at that moment. In March 2018, one of my friends introduced a private loan company and it is easy to get the loans from them than the state-owned bank. And I borrowed 100,000 RMB loans from the company; I thought I can pay off the interests and loans because I am always working very hard. However, many people are becoming purchase from the website but not buy from the store, my business is decreasing month by month and I cannot pay the interests on time.

Later, the creditor warned that if cannot pay back the loans and interests, I will be punished, but I have no money to pay it. In September 2018, some 46 gangsters from the loan company came to beat me, I called the police, but it did not help. Then, these guys always monitored and harnessed me and my family.

In April 2019, I applied the Australian visa. I arrived at Australia in ... August 2019. Later, my parents told me that the loan company is still seeking for me and they will jail me if they see me; I cannot go back to China. Please consider my application and protect me.

1. The Minister's delegate (who assessed the applicant's visa application) summarised the applicant's protection claims as follows (CB 67]):

(a) the applicant borrowed money to finance a business;

(b) he could not repay that money;

(c) some gangsters from the loan company came to beat him;

(d) the applicant called the police but it did not help;

(e) the loan company is still looking for him;

(f) the gangsters monitored and harassed him; and

(g) if the applicant returns to China he will be jailed.

1. On 30 March 2020, the delegate refused to grant the applicant the visa (CB 66-72). Ultimately, the delegate determined that effective protection measures would be available to the applicant if he returned to China and, because of that, the applicant did not meet the refugee or complementary protection criteria (CB 71).
2. That same day (on 30 March 2020), the applicant lodged an application for review of the delegate's decision with the Tribunal (CB 73-74).
3. On 23 April 2024, the Tribunal asked the applicant to provide more information about his visa application by completing a "pre-hearing information form" (CB 90).
4. On 20 June 2024, the Tribunal invited the applicant to attend a hearing before it, scheduled to take place on 10 July 2024 (CB 91-103).
5. The applicant did not attend that hearing. The Tribunal explained (at [6] of its written reasons) that the applicant had declined the invitation to attend a hearing and consented to the Tribunal making its decision on the papers (CB 111).
6. On 25 June 2024, the Tribunal affirmed the delegate's decision refusing to grant the applicant the visa (CB 110-116).
7. On 3 July 2024, the applicant filed an application for judicial review in this Court (CB 1-8). The applicant also filed an affidavit in support of that visa application (CB 9-13).

1. The application for judicial review is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal's decision in some detail.
2. The Tribunal's decision in this matter is seven pages in length and spans 22 paragraphs (CB 110-116). The final three pages include extracts of relevant legislative provisions (CB 114-116).
3. The Tribunal began by explaining that the applicant, a citizen of China, arrived in Australia in August 2019, applied for the visa on 13 October 2019 and was refused that visa by a delegate of the Minister on 30 March 2020. That same day (also on 30 March 2020), the applicant applied to the Tribunal for review of the delegate's decision (at [1]-[4]).
4. The Tribunal continued:
   1. On 20 June 2024, the Tribunal sent the applicant an invitation to a hearing to provide evidence and make submissions in support of his application for review. The Tribunal sent the invitation to the email address provided by the applicant. The hearing invitation stated: 'We have considered the material before us, but we are unable to make a favourable decision on this information alone'.
   2. On 21 June 2024, the applicant responded to the email. He declined the invitation to the hearing and advised that he consents to the Tribunal making a decision without the benefit of oral evidence and submissions from him.
5. The Tribunal then outlined the legislative criteria for the grant of a protection visa, summarising the requirements of the refugee criterion outlined in s 36(2)(a) of the Act, the relevant definitional provisions detailed in ss 5H(1)(a)-(b), 5J(1), 5J(2)-(6) and 5K-LA of the Act and the complementary protection criterion set out in s 36(2)(aa) of the Act. The Tribunal also explained that, in assessing the applicant's protection claims and in accordance with Ministerial Direction No. 84 (made under s 499 of the Act), the Tribunal had had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department and country information assessments prepared by the Department of Foreign Affairs and Trade ("DFAT") expressly for protection status determination purposes. The Tribunal noted that it had had regard to the DFAT Country Information Report People's Republic of China published on 22 December 2021 (the "DFAT Report") (at [7]-[14]).
6. The Tribunal explained:
   1. The issue in this case is whether the applicant meets the refugee or complementary protection criterion. To determine if that is the case, the Tribunal considered whether the applicant:
      • has a well-founded fear of persecution because there is a real chance that he will suffer serious harm if he returns to China (refugee criterion); or
      • there is a real risk of significant harm if he were to be removed to China (complementary protection criterion).
7. The Tribunal noted that, in making this assessment, it had considered the applicant's visa application, an accompanying statement setting out his claims for protection and the reasons for decision of the delegate (at [14]).
8. In relation to the refugee criterion, the Tribunal summarised the applicant's claims as follows:
   1. In the statement accompanying his visa applicant, the applicant stated that he had decided to borrow money to set up a clothing business because, despite working for many years in a manufacturing company, he was receiving a low wage. He stated:

In March 2018, one of my friends introduced a private loan company and it is easy to get the loans from them than the state-owned bank. And I borrowed 100,000 RMB loans from the company; I thought I can pay off the interests and loans because I am always working very hard. However, many people are becoming purchase (sic) from the website but not buy from the store, my business is decreasing month by month and I cannot pay the interests on time.

Later, the creditor warned that if cannot pay back the loans and interests, I will be punished, but I have no money to pay it. In September 2018, some gangsters from the loan company came to beat me, I called the police, but it did not help. Then, these guys always monitored and harnessed (sic) me.

1. The Tribunal stressed that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is 'well-founded' or that it is for the reasons claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to 'significant harm'. It is for the applicant to provide evidence that satisfies the Tribunal that all the statutory elements are made out (at [16]).
2. The Tribunal then summarised the relevant country information, as follows:
   1. DFAT 'assesses that loan sharks are active in China'. However, in this case, the applicant has not provided enough detail of his claims to satisfy the Tribunal that he was subject to harassment, or any other kind of harm, from a creditor before leaving China because he had not paid a debt. He has not updated his claims by providing information about the outstanding balance of any debt and he has not detailed the nature of any harm he might suffer if he returned to China after approximately five years. In the Tribunal's view, there is insufficient detail in the applicant's written evidence to come to any conclusions about the nature of any harm the applicant fears on return to China, whether there is a real chance or risk of harm and whether any harm he fears amounts to serious or significant harm.
3. On the basis of the above, the Tribunal determined as follows:
   1. In that case, the Tribunal is not satisfied there is a real chance the applicant would experience serious harm in China. It follows it is not satisfied he has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. He is therefore not a person in respect of whom Australia has protection obligations because he is a refugee and he does not meet the refugee criteria in s 36(2)(a).
4. The Tribunal then assessed whether the applicant met the complementary protection criterion, determining as follows:
   1. For the same reasons, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk that the applicant would suffer significant harm. It follows he does not meet the complementary protection criterion in s 36(2)(aa).
5. On the basis of the above, the Tribunal affirmed that the delegate's decision refusing to grant the applicant the visa (at [20]-[22].

1. The application for judicial review (filed by the applicant on 3 July 2024) contains two grounds of review as follows (without alteration):
   1. The Tribunal's decision failed to properly evaluate whether I would face significant harm if returned to China under the complementary protection criteria. The assessment was cursory and did not take into account the full scope of potential harms, including the likelihood of torture, inhuman or degrading treatment, or punishment by private actors such as loan sharks, which could be exacerbated by the lack of state protection.
   2. My fear of persecution is grounded in the economic hardships and threats from loan sharks. The Tribunal did not sufficiently analyse the economic persecution I face, which includes threats to my life and safety due to my inability to repay debts. Economic persecution can be a valid basis for protection, especially when it leads to serious harm or deprivation of fundamental rights.
2. On 30 August 2024, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, additional evidence and written submissions. Unfortunately, no additional documents were filed by or on behalf of the applicant.
3. The applicant appeared before this Court (on 24 March 2025) without legal representation but with the assistance of a Mandarin interpreter. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister's written submissions. Mr Tom Lettenmaier of counsel appeared at the hearing on behalf of the Minister.
4. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 3 July 2024 (the applicant's affidavit being taken as read and in evidence at the hearing of this matter), a Court Book numbering 116 pages (marked as Exhibit 1 at the hearing of this matter) and written submissions filed on behalf of the Minister on 17 March 2025.
5. Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal "did wrong" in relation to his matter.
6. The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal's decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:

(a) where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 ("Craig") at 198;

(b) where the decision-maker ignores relevant material: Craig at 198;

(c) where the decision-maker relies on irrelevant material: Craig at 198;

(d) where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]- [208];

(e) where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];

(f) where the decision-maker shows actual or apprehended bias_: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship_ [2013] FCAFC 80 at [2]; and

(g) where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].

1. The Court also explained that it cannot undertake merits review of the Tribunal's decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa that he now seeks, even if the Court disagrees with the Tribunal's ultimate findings. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
2. Against this background, the applicant told the Court that the decision made by the Tribunal did not consider the harm and danger that he would face if he returned to his home country. The applicant stressed that the "gangsters" in his home country were still looking for him and, for that reason, he "cannot go back". The applicant said that he missed his family (and has two children back home) but he is still unable to return.
3. Noting that the applicant was unrepresented, the Court will interpret the applicant's grounds of review and oral submissions before this Court as widely as possible - as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 - and will itself review the Tribunal's decision for any possible jurisdictional error.

1. As outlined above, ground one provides as follows:
   1. The Tribunal's decision failed to properly evaluate whether I would face significant harm if returned to China under the complementary protection criteria. The assessment was cursory and did not take into account the full scope of potential harms, including the likelihood of torture, inhuman or degrading treatment, or punishment by private actors such as loan sharks, which could be exacerbated by the lack of state protection.
2. The Court will review ground one together with the applicant's oral submission to this Court that the Tribunal did not consider the harm and danger that he would face if he returned to his home country.
3. It appears that the applicant is concerned that the Tribunal's assessment of whether he was owed complementary protection (pursuant to s 36(2)(aa) of the Act) is lacking.
4. The Tribunal assessed whether the applicant was owed complementary protections as follows:
   1. For the same reasons, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk that the applicant would suffer significant harm. It follows he does not meet the complementary protection criterion in s 36(2)(aa).
5. Arguably, the Tribunal's assessment in this regard does appear to border on skeletal. However, context matters. The above paragraph needs to be read in light of the Tribunal's assessment of whether the applicant was owed protection as a refugee.
6. Relevantly, the Tribunal explained (and ultimately determined) as follows in this regard:
   1. DFAT 'assesses that loan sharks are active in China'. However, in this case, the applicant has not provided enough detail of his claims to satisfy the Tribunal that he was subject to harassment, or any other kind of harm, from a creditor before leaving China because he had not paid a debt. He has not updated his claims by providing information about the outstanding balance of any debt and he has not detailed the nature of any harm he might suffer if he returned to China after approximately five years. In the Tribunal's view, there is insufficient detail in the applicant's written evidence to come to any conclusions about the nature of any harm the applicant fears on return to China, whether there is a real chance or risk of harm and whether any harm he fears amounts to serious or significant harm.
   2. In that case, the Tribunal is not satisfied there is a real chance the applicant would experience serious harm in China. It follows it is not satisfied he has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. He is therefore not a person in respect of whom Australia has protection obligations because he is a refugee and he does not meet the refugee criteria in s 36(2)(a).
7. In effect, the Tribunal has determined (noting that the applicant chose not to attend a hearing before the Tribunal, relying instead on a limited statement) that that there was simply insufficient evidence before the Tribunal to satisfy the Tribunal that the applicant had, in fact, faced any harm in China or would face harm if he returned to China. The Tribunal accepted, on the basis of relevant country information, that loan shark activity was indeed an issue in China but, on the scant evidence provided by the applicant, the Tribunal could not determine whether the applicant had had any relationship whatsoever with loan sharks, whether any financial debt did, in fact, exist or what harm, if any, would arise if the applicant returned to China.
8. In light of those findings, the Tribunal's determination (at [19]) that "for the same reasons" the Tribunal was not satisfied that the applicant faced significant harm for the purpose of s 36(2)(aa) of the Act is, contextually, satisfactory.
9. It cannot be said here that the Tribunal failed to assess the applicant's protection claims. It did so on the very limited evidence before it and, in the circumstances, determined that the evidence did not substantiate the concerns raised.
10. No jurisdictional error arises in relation to ground one or the applicant's broader concerns that the Tribunal did not consider the harm and danger that the applicant would face if he returned to his home country.

1. Ground two states:
   1. My fear of persecution is grounded in the economic hardships and threats from loan sharks. The Tribunal did not sufficiently analyse the economic persecution I face, which includes threats to my life and safety due to my inability to repay debts. Economic persecution can be a valid basis for protection, especially when it leads to serious harm or deprivation of fundamental rights.
2. To the extent that the applicant's protection claims stress economic hardship, that hardship relates to what the applicant states is an interaction with loan sharks.
3. In light of what the Court has stated above in relation to ground one, it cannot be said here that the Tribunal failed to address the applicant's concerns about the threats to his life arising from his inability to pay outstanding debts. The Tribunal did assess that concern but concluded that there was simply insufficient evidence before the Tribunal to establish that the applicant had engaged with loan sharks and, accordingly, that any debt existed.
4. In the circumstances, it cannot be said that the Tribunal failed to engage with any concerns raise by the applicant. Rather, as stated by the Tribunal, "there [was] insufficient detail in the applicant's written evidence to come to any conclusions about the nature of any harm the applicant fear[ed] on return to China, whether there [was] a real chance or risk of harm and whether any harm he fear[ed] amount[ed] to serious or significant harm".
5. No jurisdictional error arises in relation to ground two.

1. Although not raised by the applicant before this Court, the Court notes that the Minister's written submissions state:
   1. On 21 June 2024, the applicant declined the invitation to hearing and consented to a decision being made on the papers (CB 104; CB 111 at [6]).
2. The Court notes the Minister's reference to CB 104. It appears that what the Minister wanted to reference was the applicant's response to the hearing invitation in which, it was argued, the applicant "ticked the box" that indicated that he would not attend the Tribunal hearing and was thereby consenting to the Tribunal proceeding to make its decision "on the papers" and without any further participation from the applicant.
3. Unfortunately, that is not what appears at CB 104. What appears at CB 104 is what looks to be an email to the Tribunal that, arguably, attached the applicant's response.
4. On 4 April 2025, my chambers wrote to the parties (via email) as follows:

His Honour is concerned that the Court Book prepared by the Minister in this matter is incomplete.

His Honour notes that the Minister's written submissions provide as follows (at [10]):

On 21 June 2024, the applicant declined the invitation to hearing and consented to a decision being made on the papers (CB 104; CB 111 at [6]).

The document included at CB 104 is what appears to be a "covering page" to an email sent by the applicant to the Tribunal. The material at CB 104 does not, however, include the attachment to that email.

His Honour asks that the Minister file a copy of the complete email (with the attachment that should have been included with the email that appears at CB 104) by close of business on 11 April 2025. An order in this regard has been made in Chambers today and a copy of that order is now attached for your attention.

The parties are requested to confirm receipt of this correspondence by reply email.

1. The Minister's representative responded (on 7 April 2025) as follows:

The attachment to the email dated 21 June 2024 was not included in the Court Book because the Tribunal could not locate it.

Accordingly, the Minister cannot comply with the Court's orders dated 4 April 2025.

The Minister's submission at [10] relied on the Tribunal's finding at [6] that the applicant had declined the hearing invitation: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [59] per Perram J.

1. The Court is somewhat perplexed that material filed by an applicant with the Tribunal in June 2024 "could not be located".
2. That aside, if, indeed, the Minister's submissions at [10] were to be read as relying on the Tribunal's finding at [6] that the applicant had declined the hearing invitation as per the reasoning in Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 ("SZNVW") at [59] per Perram J, then the Minister's submissions should have said so. They did not. Nor did counsel for the Minister note this oversight in oral submissions to the Court. Given the significance of the "missing document" (that should have been attached to the email found at CB 104) to the issues canvassed by the Tribunal, an oversight of this sort is most unfortunate. More is expected of those who stand in the shoes of a model litigant.
3. The Court is satisfied, however, that no jurisdictional error arises in this regard. The CB was tendered before this Court (as Exhibit 1) and the Tribunal's decision appears in the CB (at 110-116). The applicant also filed a copy of the Tribunal's decision with his affidavit (filed in this Court on 3 July 2024).
4. Relevantly, the Tribunal states:
   1. On 21 June 2024, the applicant responded to the email. He declined the invitation to the hearing and advised that he consents to the Tribunal making a decision without the benefit of oral evidence and submissions from him.
5. The Court notes the decision of Perram J in SZNVW as follows:
   1. Generally speaking, the factual findings of an administrative decision maker, such as the Tribunal, are "previous representations" to which the hearsay rule in s 59(1) of the Evidence Act applies therefore rendering them inadmissible in judicial proceedings to prove the truth of the fact found. Of course, the reasons of the Tribunal had the direct non-hearsay relevance of proving what it was that the Tribunal's reasons were which will almost invariably be a relevant issue in judicial review proceedings. Again, however, the effect of s 60(1) of the Evidence Act will be to render the Tribunal's reasons, once admitted to prove what its reasons were, as evidence of the truth of findings contained in those reasons unless a limiting order is made pursuant to s 136 Evidence Act.
6. On the basis of the above, the Court is satisfied that the applicant did, indeed, agree to forfeit his right to attend the Tribunal hearing and provide further evidence to the Tribunal.
7. No jurisdictional error arises in this regard.

1. The application for judicial review and supporting affidavit (both filed by the applicant on 3 July 2024) and oral submissions to the Court from the applicant have failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any error.
2. The application is, accordingly, dismissed.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.