GUQ24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1292

1. The applicant is a citizen of China who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate's decision. The applicant seeks judicial review of the Tribunal decision in the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
2. For the reasons explained below, I have found that the applicant has not established that the Tribunal made any jurisdictional error. The application for judicial review is therefore dismissed.

1. On 12 April 2018 the applicant applied for a protection visa. The applicant claimed that he joined the 'occupy central with peace and love assembly' in Hong Kong in 2011 and was caught by a local officer who put the applicant in jail without giving him a chance to explain, and that the local authority punished and punched the applicant. The applicant claimed that if he returned to China, he would be punched and put in jail.
2. On 4 September 2020 a delegate of the Minister refused to grant the applicant a protection visa.
3. The applicant applied to the Tribunal on 7 September 2020 for merits review of the delegate's decision.
4. On 6 February 2024 the Tribunal wrote to the applicant inviting him to attend a hearing before the Tribunal in Melbourne on 28 February 2024. The Tribunal indicated in the hearing invitation that it had considered the material before it but was unable to make a favourable decision on this information alone. On 16 February 2024 the applicant emailed the Tribunal attaching a response to the hearing invitation indicating he would take part in the hearing and requesting an interview over the phone as he did not speak English and did not know how to come to Melbourne.
5. On 17 May 2024 the Tribunal sent a further invitation to attend a hearing before the Tribunal on 19 June 2024 in Perth, again indicating that it was not able to make a favourable decision on the information provided.
6. On 11 June 2024 the applicant provided to the Tribunal a response to the hearing invitation. In the response, the applicant indicated that he would not participate in the hearing and that he consented to the Tribunal making a decision on the papers.
7. The Tribunal wrote to the applicant on 12 June 2024 stating again that it was unable to make a favourable decision on the information provided alone. The Tribunal provided the applicant an opportunity to submit further evidence or submissions supporting his claim for protection by 26 June 2024.
8. On 21 June 2024 the applicant provided a written statement to the Tribunal. The applicant in this statement claimed that he would be persecuted for his political views and set out some of his political views.
9. On 7 August 2024 the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.

1. The Tribunal summarised the applicant's claims and set out the procedural history of the matter. The Tribunal considered the submission the applicant provided to it on 21 June 2024 and expressed the view that apart from the applicant's claim that he had been persecuted for his political views, the submission did not provide any further details or evidence about the harm the applicant claimed to have suffered in China, or about the harm he expected to experience if he returned to China. The applicant referred to the National Security Ordnance, but did not explain how this related to his claims.
2. The Tribunal noted that the applicant claimed to have been involved in the 'occupy central with peace and love assembly' in Hong Kong in 2011, when in fact this movement occurred in 2014.
3. The Tribunal found the applicant had provided insufficient information regarding his claims for protection, namely his fear that he will be persecuted by Chinese authorities because of his participation in the 'occupy central with peace and love assembly'. There was not sufficient detail in the applicant's written evidence regarding the nature, extent and level of his involvement in the political activity or his subsequent treatment by authorities. There was no explanation of how the applicant came to be in Hong Kong, or how the applicant managed to obtain a passport and leave China lawfully if he was a person subject to persecution by the authorities.
4. The Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Nor was the Tribunal satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there was a real risk he would suffer significant harm. Consequently, the Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Migration Act.

1. The applicant filed an application for judicial review on 3 September 2024. The application was made within 35 days of the Tribunal decision as required by s 477(1) of the Migration Act.
2. The applicant raises two grounds in his application:
   1. The first respondent and second respondent disregarded my plight, where l faced persecution from the Chinese authorities for my support of Hong Kong. Hong Kong, a once democratic city, has been stripped of its rights, forcing me to seek asylum. The CCP, with its deceptive facade, presents a friendly image to the world while concealing its true, oppressive nature. China, under its one-party dictatorship, falsely labels itself as a 'democratic country'.
   2. On 12 June 2024, the second respondent wrote to me and asked me to update my claims for protection. I provided evidence to support my case. I detailed my political views on the harm I expected to experience if I returned to China. I referred to the National Security Ordnance, passed by the Hong Kong Legislative Council on 19 March 2024, as completely depriving the city of its remaining fundamental freedoms and as a body that imposes heavy penalties on peaceful speech and civil society initiatives, expands police power, and weakens due process rights.
3. Pursuant to an Order made by a Registrar of this Court on 6 November 2024, the applicant was required to file and serve 28 days before the hearing written submissions, any amended application with proper particulars of the grounds of application and any additional evidence on which the applicant seeks to rely. The applicant did not file any documents in accordance with this Order. The Minister filed submissions ahead of the hearing, as required by the Registrar's Order.
4. The evidence before the Court comprises:

(a) an affidavit of the applicant filed with his judicial review application annexing a copy of the Tribunal decision;

(b) the court book filed on behalf of the Minister on 14 November 2024; and

(c) an affidavit of service of Aneesha Satyendra filed on behalf of the Minister on 25 July 2025.

The role of the Court in judicial review proceedings

1. The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant's complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
2. The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
   1. Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. ...
   2. Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. ... 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.
3. Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].

1. Ground 1 is best understood as an assertion that the delegate and the Tribunal disregarded the persecution the applicant faced from the Chinese authorities on account of his support for Hong Kong.
2. To the extent that the ground relates to the delegate's decision, it is beyond the jurisdiction of this Court. That is because the delegate's decision was reviewable under Part 7 of the Migration Act and is therefore a 'primary decision' within the meaning of s 476(4)(a) of the Migration Act. This Court does not have jurisdiction to review primary decisions: see s 476(2)(a) of the Migration Act.
3. In his oral submissions relevant to this ground, the applicant submitted that the Tribunal did not take into account his situation, including the danger and the unfair treatment from Hong Kong.

The applicant's claims and the approach of the Tribunal

1. The applicant claimed in his protection visa application that he joined the 'occupy central with peace and love assembly' in Hong Kong in 2011, was caught by a local officer and put in jail without being given a chance to explain. He claimed that he would be punched and put in jail if he returns to China. The Tribunal accurately summarised the applicant's claims in his protection visa application at [13] of its reasons.
2. The applicant provided a submission to the Tribunal in June 2024, and this submission contained more information about the applicant's political views and his views of the situation in China and Hong Kong. The Tribunal summarised this submission at [23] of its reasons. The submission and the Tribunal's approach to the submission are addressed in greater detail in ground 2 below.
3. The applicant's written claims in his protection visa application and in his submission to the Tribunal were the only articulation of the applicant's claims before the Tribunal, in circumstances where the applicant was not invited to attend an interview before an officer of the Department and declined the invitation to attend a hearing before the Tribunal.
4. The Tribunal also had regard to country information published by the Department of Foreign Affairs and Trade, in particular in relation to persecution on the grounds of political opinion and entry and exit procedures from China, and noted that the 'occupy central with peace and love assembly' that the applicant claimed to have attended in Hong Kong in 2011 actually occurred in 2014.
5. The Tribunal found that there was not sufficient detail in the applicant's claims and evidence to enable it to be satisfied that the applicant met the requirements for the grant of a protection visa.

Did the Tribunal fail to consider the applicant's claims to face persecution on account of his support for Hong Kong?

1. I accept the Minister's submission that the Tribunal considered the applicant's claims and evidence in this matter, finding that it was not sufficiently detailed to enable it to be satisfied of the applicant's claims. The Tribunal did not fail to consider the applicant's claim to face danger in China as a result of his support for Hong Kong, but rather found that the applicant had not provided enough information and evidence for the Tribunal to find that he would face the requisite risk of harm if he were to return to China.
2. As submitted by the Minister, the Tribunal was not required to uncritically accept the claims advanced by the applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451. It was open to the Tribunal to accept, reject or give weight to evidence as it considered appropriate: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]. Having regard to the Tribunal's reasons in the present case, I have not identified any unreasonableness in the Tribunal's approach to the evidence. The decision made by the Tribunal was open to it on the evidence before it and was not illogical or irrational in the sense described in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130], [131], [135].
3. I also accept the Minister's submission that, to the extent that this ground repeats factual matters, it invites the Court to engage in impermissible merits review and does not establish jurisdictional error in the Tribunal decision.
4. Ground 1 is not established.

1. Ground 2 reads as a statement of factual matters and does not expressly assert any error in the Tribunal decision. In circumstances where the applicant is self-represented, I will treat it as an assertion that the Tribunal failed to consider the matters raised in the applicant's statement provided to the Tribunal on 21 June 2024.
2. This approach is consistent with the applicant's oral submissions. The applicant submitted at the hearing before the Court that the Tribunal asked him to update his information in June 2024 and he already submitted the relevant documents and evidence to support his application. He submitted that he described in detail his political opinion and the dangerous situation and harm he will face if he returns to China. The applicant submitted that he also provided information about the situation in Hong Kong and submitted relevant legal information, including about how freedom has been snatched in Hong Kong. The applicant submitted that the Tribunal did not take those matters into account.

The applicant's submission to the Tribunal and the Tribunal's consideration of that submission

1. The applicant said in his submission to the Tribunal (reproduced without alteration):

I was persecuted for my political views and had to leave my hometown and seek asylum, but I have no regrets. Today, Hong Kong has lost its democracy and freedom. The CCP deceived Hong Kong people and the world with lies. Sometimes, it looks friendly to the world and hides its evil face inside. Australia is a democratic country, and China, a one-party dictatorship, also calls itself a "democratic country". I hope that the people of Australia will be vigilant against communist countries.

Since its birth, the CCP has used lies and violence as its primary means of establishing the party and governing the country. From tampering with history to creating political myths, the CCP has always manipulated people's minds through systematic lies. Its so-called "Liberation War" is a civil war, and its so-called "founding of New China" is just the beginning of a dictatorship. To consolidate its regime, the CCP launched a series of political movements in the early days of the "founding of the country", inciting and using some extreme people to launch social movements such as the "suppression of counter-revolutionaries", "land reform", and "three antis and five antis", brutally suppressing dissidents and causing the deaths of a large number of innocent people.

The CCP not only carried out violent suppression in material terms but also carried out comprehensive destruction at the spiritual and cultural levels. In the 1960s, through movements such as the Cultural Revolution, the CCP destroyed traditional culture, attacked intellectuals, and destroyed people's spiritual world. During the Cultural Revolution, the CCP encouraged the "Red Guards" to wantonly destroy cultural relics and persecute intellectuals and cultural celebrities, causing the entire society to fall into extreme fanaticism and disorder.

In the late 1950s, in terms of economy, the CCP's "Great Leap Forward" policy led to a three-year famine, and tens of millions of people died of hunger. Since the 1980s, the CCP has carried out economic plunder through power-for-money transactions and crony capitalism, causing a widening gap between the rich and the poor and severe social injustice. In addition, in the process of pursuing economic development, the CCP has disregarded environmental protection, resulting in severe environmental pollution and ecological damage, leaving endless disasters for future generations.

The CCP's persecution of human rights has always been everywhere. From the bloody suppression of the June 4th Tiananmen Incident to the brutal persecution of Falun Gong practitioners, the CCP's actions are full of violence and blood. In addition, the CCP's long-term ideological indoctrination and moral manipulation have led to the deterioration of the social atmosphere and moral degradation.

Internationally, the CCP exports its authoritarian model through economic means and military expansion, threatening global democracy and freedom and threatening regional peace and stability. The Hong Kong Legislative Council, which the Chinese government controls, passed the "National Security Ordinance" on 19 March 2024, completely depriving the city of its remaining fundamental freedoms. The Ordinance imposes heavy penalties on peaceful speech and civil society initiatives, expands police power, and weakens due process rights. Because the provisions apply to Hong Kong residents and companies anywhere in the world, this law silences local and global dissidents in Hong Kong.

While visiting Chinese Premier Li Qiang attended a press conference in Canberra, several Chinese diplomats deliberately used their bodies to block the Australian Sky News reporter Lei Cheng. On the other hand, the Chinese Coast Guard took aggressive action against Filipino personnel who were carrying out a supply mission in Ayungin Shoal in the South China Sea, resulting in Filipino's seven soldiers injured, one of whom had a broken finger, and their weapons were also taken away.

Please do not believe a single word from the Chinese government. I do not think even the punctuation marks in what the CCP says.

1. The Tribunal addressed this submission at [23] of its reasons, where it said:

... On 21 June 2024, the applicant replied with a letter containing claims and submissions. Apart from the applicant's claim that he had been persecuted for his political views, the letter did not provide any further details or evidence about the harm the applicant claimed to have suffered in China, or about the harm he expected to experience if he returned to China. The applicant referred to the National Security Ordnance, passed by the Hong Kong Legislative Council on 19 March 2024, as 'completely depriving the city of its remaining fundamental freedoms' and as a body which 'imposes heavy penalties on peaceful speech and civil society initiatives, expands police power, and weakens due process rights', but did not explain how this related to the applicant's claims.

1. The Tribunal addressed at [27] of its reasons the applicant's responsibility to establish his claims:

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason 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 remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

1. The Tribunal then said at [28] of its reasons:

The applicant has provided insufficient information regarding his claims for protection, namely his fear that he will be persecuted by the Chinese authorities because of his participation in the 'occupy central with peace and love assembly'. There is not sufficient detail in the applicant's written evidence regarding the nature, extent and level of his involvement in the political activity or his subsequent treatment by authorities. There is no explanation of how the applicant, who claims to have lived his whole life in [place redacted], came to be in Hong Kong, or how the applicant managed to obtain a passport and leave China lawfully if he was a person subject to persecution by the authorities.

Did the Tribunal fail to consider the matters raised in the applicant's submission?

1. I do not accept that the Tribunal failed to consider the matters raised in the applicant's submission. The Tribunal was not required to address the matters in the applicant's submission line by line: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]. The Tribunal was required to 'read, identify, understand and evaluate' the applicant's submission: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24]. There is nothing in the Tribunal's reasons to suggest that it failed to do this.
2. As can be seen from the extracts above, the Tribunal, in considering the applicant's submission:

(a) expressly referred to the submission provided by the applicant;

(b) identified that the submission referred to the applicant's claim to have been persecuted for his political views, but failed to provide any further details or evidence about the harm the applicant claimed to have suffered in China, or the harm he expected to experience if returned to China;

(c) referred to the applicant's views about the National Security Ordnance, passed by the Hong Kong Legislative Council on 19 March 2024, but noted that the applicant had not explained how that related to his claims;

(d) after noting that it was the applicant's responsibility to provide sufficient information to establish his claims, found that the applicant had not provided sufficient information about his claims for protection to satisfy the Tribunal that the applicant met the relevant criteria for a protection visa; and

(e) specifically noted that the applicant had not provided sufficient detail of the nature, extent and level of his involvement in political activity or his subsequent treatment by authorities, failed to explain how he came to be in Hong Kong, or how he obtained a passport if he was a person subject to persecution by the authorities.

1. I accept the Minister's submission that the Tribunal's findings and its approach to the consideration of the applicant's statement were open to it.
2. The Minister further submitted that the ground merely expresses disagreement with the Tribunal decision and invites the Court to engage in impermissible merits review. To the extent that the ground does invite the Court to engage in impermissible merits review, as explained above, it is beyond the jurisdiction of the Court.
3. Ground 2 is not established.

An additional matter raised in the applicant's reply submissions

1. In his reply submissions, the applicant further raised that if he returns to China, he will lose his source of income and there is no way that he can earn a living, and this was not taken into consideration by the Tribunal.
2. The Tribunal was required to consider the claims expressly articulated by the applicant and any claims which were not expressly articulated but which clearly emerged from the materials before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [60].
3. The applicant did not advance any claim before the Tribunal that he would lose his source of income and be unable to earn a living in China, and no such claim clearly emerged on the materials before the Tribunal.
4. There is therefore no jurisdictional error arising from the Tribunal not addressing this issue.

1. Given that the applicant has not established that the Tribunal made a jurisdictional error, his application for judicial review must be dismissed.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant's matter was before it for review.