GWO24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1357

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. The applicant raises two grounds in his judicial review application, which both assert that the Tribunal did not consider his claims for protection.
3. For the reasons explained below, the applicant has not established that the Tribunal made a jurisdictional error. His application to this Court is therefore dismissed.

1. On 20 May 2019 the applicant applied for a protection visa. The applicant's claims for protection were set out in his protection visa application and in an accompanying statement. In summary, the applicant claimed he had been persecuted by police and local authorities as a labour activist for protecting his rights. The applicant claimed to have protected his rights and interests in relation to poor quality construction of workers' accommodation.
2. On 6 November 2020 a delegate of the Minister refused to grant the applicant a protection visa.
3. The applicant applied to the Tribunal for merits review of the delegate's decision on 19 November 2020.
4. On 18 July 2024 the Tribunal wrote to the applicant inviting him to attend a hearing before the Tribunal on 8 August 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.
5. On 4 August 2024 the applicant provided to the Tribunal a response to the hearing invitation. In this response, the applicant indicated that he would not participate in the hearing and consented to the Tribunal making a decision on the papers. The Tribunal then cancelled the hearing.
6. On 6 August 2024 the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa. The Tribunal did not accept that the applicant engaged Australia's protection obligations under the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa) of the Migration Act. The Tribunal was not satisfied of the key factual aspects of the applicant's claims, because of the lack of detail in his claims and the lack of evidence to establish the relevant facts. Where relevant, the critical reasoning of the Tribunal is addressed in the consideration of the applicant's grounds later in this judgment.

1. The applicant raises two grounds in his application:
   1. The Department and Tribunal did not consider the fact that the Chinese Government persecuted me for safeguarding my rights and interests. Although the DFAT [Department of Foreign Affairs and Trade] country information regarding the strict regulation of entry and exit requirements to China, and I could apply for a passport, the Department and Tribunal ignored my claim that the agent had to bribe an official to obtain my passport. The Chinese central authorities were not monitoring me, which did not change the situation, as I was of adverse interest to the local authorities before departing China in 2017.
   2. The Department and Tribunal should have recognized that my adherence to Christian practice at the Grace Church in China made me a target of the authorities even before I arrived in Australia. As a member of an unregistered Christian Grace Church in China, my religious beliefs have made me a victim of persecution by the Chinese authorities. The authorities will continue to act against me if I return to China due to my religious practice. This is a grave violation of my rights, and I seek the recognition and support to ensure my safety.
2. I explained to the applicant at the hearing that I would consider the two grounds insofar as they relate to the Tribunal decision. I explained to the applicant that the Court does not have the power to review the decision made by the Minister's delegate (or 'the Department', as it is referred to in the grounds). This is because the delegate's decision could be reviewed by the Tribunal under Part 7 of the Migration Act and is therefore a 'primary decision' as defined by s 476(4)(a) of the Migration Act. This Court does not have jurisdiction to review primary decisions: s 476(2)(a) of the Migration Act.
3. The applicant filed with his application an affidavit that repeats some of his claims for protection and annexes a copy of the Tribunal decision. The affidavit was read without objection, although I place no weight on it insofar as it repeats the applicant's claims for protection. This Court does not have the jurisdiction to consider for itself whether the applicant meets the requirements for the grant of a protection visa and I therefore do not consider whether any of the applicant's claims for protection are established.
4. The only other evidence before the Court is the court book filed on behalf of the Minister on 5 November 2024.

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].

Ground 1: Did the Tribunal fail to consider the applicant's claims?

1. By ground 1, the applicant expressly asserts that the Tribunal failed to consider his claims that:

(a) he was persecuted by the Chinese government for safeguarding his rights and interests; and

(b) an agent had to bribe an official to obtain the applicant's passport.

1. The final sentence of ground 1 is a statement that the Chinese central authorities were not monitoring the applicant, which did not change the situation for him, as he was of adverse interest to the local authorities before departing China in 2017. It is unclear whether the applicant is asserting that this was something the Tribunal was required to, but did not, consider. I explained to the applicant at the hearing that the error he asserted by that sentence was not clear, but he did not make any submission explaining this part of his ground. I will treat this aspect of the applicant's ground as an assertion that the Tribunal was required to, but did not, consider the matters raised in the final sentence of ground 1. This is contextually consistent with the other issues raised by the applicant in ground 1.

The Tribunal considered the applicant's claim that he had been persecuted in China for safeguarding his rights and interests

1. The applicant claimed in his protection visa application and accompanying statement that some of his colleagues were illegally detained because they tried to protect their rights. The applicant claimed that he and another labour activist were illegally summoned by the police and that they were persecuted by the government for safeguarding their rights and interests. Based on the applicant's statement, it appears that the rights and interests they were trying to protect related to the quality of the construction of workers' housing.
2. As submitted by the Minister, the Tribunal was not required to uncritically accept the applicant's claims for protection and it did not accept these claims. In this case, the Tribunal considered the relevant claims of the applicant and did not accept those claims because of a lack of detail. In this regard, the Tribunal said at [17]-[22] of its reasons:
   1. The Tribunal has considered the applicant's claims to have left China because he (and other labour activists) had come to the adverse attention of the authorities there in 2018 after requesting quality inspection of apartments he and others had invested in. He claims this resulted in him being summoned by the police, having police visit him, and being threatened by the police and government. Further he claims a labour activist he was summoned with - [name redacted] - was illegally arrested and detained. The applicant feared the same fate, and/or being kidnapped, and therefore left China.
   2. The Tribunal finds the applicant's claims in these respects as set out in his application form and statement general and lacking in detail and context. For example whilst claiming he was summoned by police (along with [name redacted]) in November 2018 he fails to indicate whether he actually attended the police station, what occurred after, and how he was able to leave the country several months later. Further he claims police visited his house several times but gives no indication over what period this occurred.
   3. Additionally the applicant claimed to have been a state-owned enterprise employee and paid 100,000 yuan to raise funds to build apartments but provides no further details or context such as the location of the apartments or the nature of the alleged problems with the quality of the apartments.
   4. Given this lack of detail and context in relation to key events there is insufficient evidence before the Tribunal to establish the relevant facts of the applicant's case.
   5. For these reasons the Tribunal does not accept the applicant invested in apartments in the past in China. It follows that it does not accept he requested the government engage an independent third party to test the quality of the apartments and was threatened and warned by police and the authorities as a result. It does not accept he was summoned by police along with labour rights activist [name redacted] in November 2018, or that some time later [name redacted] was illegally detained by the Chinese authorities. Nor does the Tribunal accept the applicant's claims that after requesting union assistance in this matter the union employed police to drive them away.
   6. Given these findings the Tribunal is not satisfied the applicant faces a real chance of serious harm from the authorities, including the police or anyone else on return to China because he requested the authorities engage a third party to test the quality of apartments he had invested in, or because of his association with labour activists or for any other reason. His fears of persecution for these reasons are not well-founded.
3. Based on the same reasoning, the Tribunal did not accept the applicant's claims that he would face a real risk of significant harm in China.
4. It can be seen from the extracts above that the Tribunal considered the applicant's claims that he had been persecuted for protecting his rights and interests. I accept the Minister's submissions that the Tribunal's findings were open to it.

The Tribunal was not required to consider whether an agent bribed an official to obtain the applicant's passport

1. The Tribunal was only required to consider the claims expressly articulated by the applicant and those which, while not expressly articulated, clearly emerged on the material before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [60].
2. The only articulation of the applicant's protection claims that was before the Tribunal was that set out in his protection visa application and the accompanying statement. The applicant did not expressly claim anywhere in these documents that an agent bribed a government official to enable the applicant to obtain a passport. No claim to this effect emerged squarely from the material before the Tribunal. Rather, the applicant claimed in his protection visa application that he legally applied for his passport from the authorities.
3. The Tribunal therefore was not required to consider whether an agent bribed an official to obtain the applicant's passport. I accept the Minister's submission to this effect.

The Tribunal was not required to consider whether the applicant was of adverse interest to the local Chinese authorities prior to 2017

1. The applicant's statement that he was of interest to the local authorities prior to 2017 is confusing. The events that the applicant claimed caused him to seek protection took place, on the applicant's case, in 2018. The applicant did not claim in his protection visa application or in his statement that he was of adverse interest to the local authorities prior to the alleged events of 2018 or explain why this would be the case.
2. In the absence of any claim that the applicant faced adverse interest from the local authorities prior to 2017, the Tribunal was not required to consider such a claim.
3. It is possible that the date referred to in the final sentence of ground 1 is an error. The applicant may simply be asserting that the Tribunal failed to consider his claim that he was of adverse interest to the local authorities in China. If this is what the applicant intended to say, it does not establish jurisdictional error. The Tribunal's consideration of the applicant's claims at [17]-[22] of its reasons, and its summary of the applicant's claims for protection at [13] of its reasons, demonstrate that it understood that the applicant's claims related to the police and local authorities. The Tribunal assessed the applicant's claims on this basis.

Ground 2: Was the Tribunal required to consider whether the applicant would be persecuted because of his Christianity?

1. The applicant asserts by this ground that the Tribunal should have recognised that he was persecuted by the Chinese authorities because of his practice of Christianity and his religious beliefs. The applicant explained at the hearing before the Court that he believed in Christianity before coming to Australia and that this was why he was discriminated against by the local authorities.
2. In his protection visa application, the applicant recorded his religion as 'Christian'. However, he did not claim anywhere in his application or in his statement that he had experienced any past harm on account of his religious practice or beliefs. He also did not claim that he would face any risk of harm in the future because of his religion. The applicant has not established that any unarticulated claim based on his religion clearly emerged from the materials before the Tribunal.
3. The Tribunal was therefore not required to consider whether the applicant had faced past persecution on account of his religious practice or beliefs, or whether he faced a real chance of serious harm or a real risk of significant harm because of his religion in the reasonably foreseeable future.
4. Ground 2 is not established.

1. Given I have found that the Tribunal did not make a jurisdictional error, I dismiss the applicant's judicial review application.

I certify that the preceding thirty-four (34) 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.