EOY19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1256

1. The Tribunal began its decision by identifying the issue for consideration in the review, namely whether the applicant met the refugee criterion, and if not, whether she was entitled to complementary protection. The Tribunal attached a summary of the relevant law as an attachment to its decision.
2. After setting out, and extensively considering, the claims made by the applicant, the Tribunal then turned to its assessment of those claims.
3. The Tribunal had difficulty identifying a clear chronology of the applicant's living arrangements, marriages, employment and the incidents linked to her protection claims.
4. The Tribunal found the applicant's claims in relation to her account of converting to Christianity to be vague, unconvincing and untruthful.
5. The Tribunal accepted that the applicant felt that her parents cared less for her than her brothers, and accepted that, after separating and divorcing from her first husband, the applicant returned to the family home as a last resort, and there was dissatisfaction and resentment on both sides of the family, however, found the applicant had not claimed, and there was no real chance of, her family members inflicting serious harm if she returned to China.
6. The Tribunal did not accept that these experiences involved serious harm amounting to persecution, or significant harm.
7. In relation to her claim based on domestic violence suffered in China from her first husband, the Tribunal was not satisfied that the applicant's belief that her "ex-husband" (first husband) badly abused her extended beyond his infidelity and the psychological impact this had on the applicant. The Tribunal accepted that the applicant's first marriage broke down; that she suffered emotionally during that period; and that she and her first have little contact with each other. The Tribunal found that the applicant and her first husband have no further contact with each other. The Tribunal found that the applicant did not suffer any serious harm amounting to persecution, or any significant harm, by her first husband, or that there was a real chance she would suffer serious harm from him in the future.
8. As to her claim of domestic violence relating to her second husband (current, at the time of the Tribunal decision), the Tribunal was not satisfied, on the basis of a single reported comment from her husband conveyed via the applicant's sister-in-law, that the applicant's husband voiced any real intention to kill or harm her if she sees her again. Rather, it found on the totality of the evidence that neither had any current interest in the relationship with each other.
9. The Tribunal accepted that the applicant's second husband was abusive towards her when she returned to the family home in Nanjing after employment in Shanghai. However, the Tribunal was not satisfied, on the basis of a single reported comment from her husband which was conveyed by the applicant's sister-in-law, that the applicant's husband voiced any real intent to harm or kill the applicant if he sees her again.
10. The Tribunal found that neither the applicant nor her second husband had any current interest in, or relationship with, each other and that there was no real chance the applicant would face serious harm from her second husband.
11. As to her claim based on her indebtedness to friends and family in China, the Tribunal accepted that, if the applicant has borrowed money, her friends and relatives will expect her to repay those amounts owed. However, the Tribunal concluded that no creditors have threatened the applicant in relation to the debts and it did not find that, on the evidence, any person intended to persecute or significantly harm the applicant if she failed to repay her debts.
12. As to her claim based on her Christian faith, the Tribunal found the applicant's claims relating to Christianity were unpersuasive and lacked in substance, given the extent of her stay in Australia of over 6 years and the opportunities she would have had to learn more about Christianity if she was genuinely interested. The Tribunal did not accept that the applicant has any genuine interest in or commitment to Christianity.
13. The Tribunal did not accept the applicant's claim that she met a Christian 'sister' on the street at a time when the applicant was under great stress; that she went with the sister to a church; that she found comfort in the sister's moral support and religious teachings; or that the sister was imprisoned. The Tribunal also did not accept that the police told the applicant that her activities were anti-government, or that they forbade her from continuing to do missionary work. The Tribunal did not accept these exchanges had occurred, or that the local police or other authorities regard the applicant as being a Christian, or in any sense involved in 'anti-government' activities.
14. The Tribunal affirmed the decision under review not to grant the applicant the visa, as it found the applicant did not satisfy s 36(2)(a) or s 36(2)(aa) of the Act.

Judicial review application and procedural orders

1. On 19 November 2019, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision dated 23 October 2019. The application contains three grounds of review, or one ground of review with three particulars. They are (as written):

Jurisdictional errors are established.

1. Tribunal doubted my credibility of my claim, such as my debts, without sound evidence.
2. Tribunal did not put its doubt to me and requested me to provide evidence before making adverse decision against me.
3. Tribunal did not properly consider my harm due to domestic violence and did not properly apply law to me.

1. On 15 January 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application with proper particulars, written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent filed their written submissions as required by the Order.
2. On 11 June 2025, the proceedings were docketed to me and set down before me for final hearing on 31 July 2025.

1. At the hearing of this matter on 31 July 2025, the applicant appeared unrepresented, assisted by a Mandarin interpreter. Ms R Huang for the Australian Government Solicitor appeared for the first respondent.
2. After allowing the applicant's affidavit in support of her application, and the Court Book to be admitted as evidence, I invited the parties to make final oral submissions. As the applicant was legally unrepresented, the Court has a duty to take appropriate steps to ensure that the applicant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial: Gounder v Mansfield as trustee of the bankrupt estate of Gounder [2025] FCA 856 per Hill J and SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing).
3. The Federal Court has held that the appropriate procedure in cases such as the present where the applicant seeks relief in respect of a decision concerning an application for a protection visa, and is appearing on his own behalf, is to give the applicant an opportunity to explain orally what he meant by each of their ground of review as they appear in their application to this Court: see DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (DQQ17) at [9].
4. Accordingly, I took the applicant through each of the three grounds of review in her application and asked her if she wanted to make any submission about them, and to tell the Court why she considered the Tribunal's decision was wrong.
5. The applicant made brief submissions on each ground, which I summarise below under the consideration of each of her 3 grounds of review. Likewise, Ms Huang made short submissions in response, which I also summarise below, where necessary.

1. To obtain the relief sought the applicant must prove that the Tribunal's decision is vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [76].
2. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [2] - [3] (LPDT) the High Court explained that:

Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

1. To constitute jurisdictional error, in most cases, the error must be material, in the sense that it could have realistically deprived the first applicant of the opportunity of a successful outcome: LPDT at [32].
2. In reviewing the Tribunal's decision, the Court does not review the merits of the Tribunal decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
3. Below the Court sets out its consideration of the grounds of judicial review in this matter. For the reasons given below, none of the grounds identify the Tribunal committed jurisdictional error.

1. The application, as filed, contained a technical deficiency. In the application, as filed, the applicant only sought an order for a writ of mandamus and did not seek an order that the decision of the Tribunal be quashed (also referred to as an order for certiorari). As the applicant is unrepresented, it is open to the Court, with the Applicant's consent, to amend the application at the hearing, so it seeks the appropriate relief: see AYH19 v Minister for Home Affairs & Anor [2019] FCCA 585 at [20] and Sharma v Minister for Immigration & Anor [2018] FCCA 2152 at [13] and more recently, CZL18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1301 at [29].
2. At the hearing on 31 July 2025, both the applicant and the first respondent consented to the application being amended to correct the deficiency. An order will be made amending the application so that it correctly seeks both a quashing order (an order for certiorari) and mandamus against both respondents.

1. In ground 1 the applicant asserts the "Tribunal doubted my credibility of my claim, such as my debts, without sound evidence". I interpret this as a challenge made to the Tribunal's credit finding in paragraphs [48] to [56] regarding her claim that she fears harm from her husband, family and friends from a failure by her to repay loans to them (indebtedness claim).
2. As pleaded, the ground is an unparticularised assertion challenging a credit finding by the Tribunal and does not contain an arguable ground of judicial review. It will rarely be appropriate to dismiss a ground of review in a migration case for lack of particularisation, where, as here, the applicant is represented, without giving the applicant an opportunity to explain what he or she meant by the ground: DQQ17 at [8] - [11].
3. Thus, as I outlined above, at the hearing I asked the applicant to explain orally what she meant by ground 1. The applicant submitted on ground 1 that her complaint was that she was not asked by the Tribunal to provide evidence in support of her claim based on her indebtedness to family and friends in China.
4. In response Ms Huang submitted orally there was no obligation on the Tribunal to assist the applicant to obtain evidence in support of her case, the onus was on the applicant to prove she was a refugee.
5. The first respondent also submitted, in written submission, there is nothing wrong with the credit findings made by the Tribunal with respect to the applicant, including in relation her indebtedness claim. The first respondent submitted that in the absence of any evidence from the applicant that her creditors were chasing repayment of the debts, it was open to the Tribunal to proceed to find that there was no real chance of any of her creditors inflicting serious harm on the applicant.
6. In making that submission the first respondent relied upon the often-cited statement of McHugh J that credibility findings are findings of fact par excellence: Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67].
7. I agree with Ms Huang's submission that the Tribunal had no obligation to assist the applicant to obtain evidence to prove her case in the Tribunal. For the following reason.
8. In Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ:

The proceedings before the [Tribunal] are inquisitorial and the [Tribunal] is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well­ founded fear of persecution for a Convention reason. The [Tribunal] must then decide whether that claim is made out.

1. It is well established that it was for the applicant to provide her evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214 at [76]. The Tribunal is under no obligation to "afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence": Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [82].
2. I also agree with the first respondent that there was nothing objectionable about the credit findings made in relation to the applicant's indebtedness claim, for the reasons that follow.
3. Courts have held that adverse credibility findings are amenable to judicial review where the findings can be shown to be legally unreasonable, such as by being based on illogical or irrational findings or inferences of fact: BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [50] per Yates, Wheelahan and O'Bryan JJ.
4. Credibility findings, like all findings, must be rationally made and based upon facts having logical and probative weight, and be articulated properly; minor inconsistencies and trivial errors do not constitute a valid ground upon which an adverse credibility finding may be made: see most recently CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97. See also for discussion of principles relating to the assessment of credibility findings by the Tribunal in EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 at [36] per Stewart J; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175, [30], and the cases cited at [30(3)]; and SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J.
5. In the present case, the Tribunal assessed the applicant's evidence regarding the indebtedness claim, namely two handwritten lists. One list containing twenty items (which appear to be names of friends and colleagues in China) and figures, totalling RMB 126,0003. The other list containing dates between 2 December 2016 and 5 February 2017, the names of creditors, and sums totalling AUD $43,000. The total in these two lists was approximately RMB 335,000. At paragraph [51] the Tribunal set out three reasons why it found that it would place little evidentiary weight on the two lists as evidence of the applicant's indebtedness.
6. The Tribunal found at paragraph [54], after reviewing the applicant's post-hearing submission, that the applicant's evidence about the amount of debt, the exact purpose and the application of the funds to have been vague, unsubstantiated and unreliable.
7. It then found at paragraph [55] that the applicant conflated her husband's abuse and the loans she had taken out recently in China and Australia, and found that while it accepts that, if the applicant has borrowed money, her friends and relatives will expect her to repay them, it did not find on the available evidence that any such persons intended to persecute or significantly harm her if she did fail to repay them.
8. Applying the principles discussed above, the finding regarding the applicant's credibility at paragraph [54] (her evidence about the amount of debt being vague, unsubstantiated and unreliable) was rationally made and based upon facts having logical and probative weight, namely an analysis of the two handwritten lists. No error of the kind identified in the authorities regarding judicial review of credit findings was made by the Tribunal.
9. Ground 1 does not establish the Tribunal committed jurisdictional error.

1. In ground 2, the applicant asserts that the Tribunal committed jurisdictional error by "not putting its doubt to me, and failing to request that I provide evidence before making adverse decision against me". As the applicant is unrepresented, I have taken this ground to mean that the Tribunal erred by failing to put possible adverse credit findings to the applicant in advance of its decision so she could address them by further evidence.
2. Out of fairness, I also asked the applicant what she meant by this ground at the hearing before me. She told the Court the Tribunal did not ask her to provide evidence in support of her claims. She said she had evidence including a police report and hospital records which she could have provided to the Tribunal in support of her claims, if she had been asked.
3. Ms Huang, again submitted orally as she did on ground 1, that the Tribunal had no obligation to assist the applicant to obtain evidence to prove her case in the Tribunal. For the reasons I have already outlined above in ground 1, I agree with that submission.
4. The first respondent also submitted in its written submissions that there was no obligation under the Act on the Tribunal to put its doubts to the applicant about her evidence prior to making its decision. I also agree with this submission for the following reason.
5. The Tribunal is not obliged tell an applicant, in advance of the decision, that he or she is lying, or that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events, even if such a finding is central to the ultimate decision. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47] - [48] the High Court held:
   1. ...It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial, and the Tribunal is not, and is not to adopt the position of, a contradictor.

...

1. ...Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

1. Applying SZBEL, ground 2 does not establish the Tribunal committed jurisdictional error.

1. In this ground the applicant submits the Tribunal did not properly consider the applicant's claimed harm due to domestic violence and did not properly apply the law. As the applicant is unrepresented, I have read this ground as alleging that the Tribunal failed to engage in an active intellectual process or has failed to give proper, genuine and realistic consideration to the applicant's claimed harm due to domestic violence.
2. Out of fairness, I also asked the applicant what she meant by this ground at the hearing before me. The applicant told the Court she did not want to leave Australia and go back to China. She also re-iterated the evidence she gave to the Tribunal about the threats made to her by her second husband, via her sister-in-law.
3. Ms Huang submitted orally in response that the Court was not permitted to consider the applicant's claim regarding domestic violence threats from her second husband, as that went to the merits of the Tribunal decision. I agree, for the reasons given by the Full Court in Djokovic.
4. The first respondent also submitted in its written submissions that the Tribunal gave the applicant's claimed harm due to domestic violence claim proper, genuine and realistic consideration. I agree with that submission for the following reasons.
5. In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao), Griffiths, White and Bromwich JJ (at [47]) held that in determining whether a decision-maker has engaged in an active intellectual process, the Court must conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case.
6. In Singh v Minister for Home Affairs (2019) 267 FCR 200, Reeves, O'Callaghan and Thawley JJ (at [34]) held that a Tribunal may commit jurisdictional error by failing to engage in an active intellectual process or by failing to give proper, genuine and realistic consideration to:

(a) A "substantial, clearly articulated argument relying upon established facts" (citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed);

(b) A claim "raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review" (citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ); or

(c) A matter "that is an essential integer to an applicant's claim or that would be dispositive of the review" (citing ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ).

1. In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1/2021) Kiefel CJ, Keane, Gordon and Steward JJ, with Gageler J agreeing, the High Court held at [26] that labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. Their Honours held these formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised". As their Honours held at [27] in Plaintiff M1/2021, none of these expressions should derogate from the established principle that, for example, if review of a decision‑maker's reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
2. Applying these principles, I consider, on a fair reading of its decision, the Tribunal engaged in an active intellectual process or gave proper, genuine and realistic consideration to the applicant's claimed harm by the applicant. At paragraphs [33], [39] and [77], the Tribunal expressly considered the applicant's claim that her ex-husband badly abused her during their marriage, and at paragraphs [41]-[47], [73]-[75], it considered the claim that her current husband also abused her when she returned to the family home in Nanjing after working in Shanghai.
3. The Tribunal also considered the applicant's claim that her sister-in-law had told her that the applicant's husband would kill her if he saw her again. The Tribunal accepted that the applicant suffered difficulties with her ex-husband and that this affected her mental health, but did not find that the applicant had suffered any significant harm at the hands of her ex-husband, or that she would suffer harm from him in the future. The Tribunal also accepted at paragraphs [46]-[47] that the applicant had been abused by her current husband in the past, but found that the applicant's current husband had not voiced any real intent to harm or kill her, especially considering the applicant does not know where her current husband is located.
4. It was open on the evidence to the Tribunal to make these findings.
5. Ground 3 does not establish the Tribunal committed jurisdictional error.

1. For the reasons outlined above, the applicant has not established that the Tribunal's decision is affected by jurisdictional error. Nor have I discerned any jurisdictional error from my own review of the decision, noting the Court's obligations as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58], [77], [100], [112], [113] and [114].
2. The application is dismissed.

1. The first respondent has sought an order that the applicant pay the first respondent's costs in the amount of $5,400. The amount sought is less than scale amount under Schedule 2 to the Rules. The amount sought is fair and reasonable given the nature of these types of matters. I will make an order in this amount.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.