Federal Court of Australia BNO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 888 Appeal from: BNP19 as Litigation Guardian for BNO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (SYG922/2019, Orders dated 17 October 2019) File number: NSD 1800 of 2019 Judgment of: NICHOLAS J Date of judgment: 28 July 2022 Legislation: Migration Act 1958 (Cth) s 36 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 26 Date of hearing: 28 July 2022 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr A Taverniti of Sparke Helmore Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS NSD 1800 of 2019 BETWEEN: BNO19 Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: NICHOLAS J DATE OF ORDER: 28 july 2022 THE COURT ORDERS THAT: 1. The appellant's mother identified as BNP19 in the Notice of Appeal from the Federal Circuit Court of Australia filed on 4 November 2019 be appointed the appellant's litigation guardian, which appointment is deemed to take effect from when the Notice of Appeal was filed. 2. The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs. 3. The appeal be dismissed. 4. The appellant's litigation guardian (BNP19) pay the first respondent's costs of the appeal fixed in the amount of $4,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from Transcript) NICHOLAS J: 1 Before the Court is an appeal filed on 4 November 2019, brought by the appellant's litigation guardian, her mother, from the judgment of the Federal Circuit Court of Australia delivered on 17 October 2019. The primary judge (Judge Street) dismissed the appellant's application for judicial review of a decision of the second respondent ("the Tribunal") dated 1 April 2019, affirming the decision of a delegate of the first respondent ("the Minister") to refuse to grant the appellant a protection visa under s 36 of the Migration Act 1958 (Cth). The delegate's decision was dated 12 November 2015. 2 The appellant is a minor born in Australia in October 2014 to Chinese parents. The appellant and her parents are citizens of China. The appellant's mother arrived in Australia in December 2007 on a student visa that ceased on 9 January 2008. The mother applied for another student visa on 9 January 2008 which ceased on 8 April 2009. She applied for a protection visa on 6 August 2013. The mother's application for a protection visa was refused and that decision was affirmed by the Refugee Review Tribunal. 3 On 21 October 2014 the appellant's mother lodged the appellant's application for a protection visa. The claims made in the appellant's protection visa application included that, if she was sent to China, she would be deprived of basic human rights because her mother was a Roman Catholic who had been baptised in 2005 and was involved in a secret youth group run by a nun of the underground church. The appellant's claims included that, in 2007, her mother had been arrested for praying with rosary beads and had been detained for 15 days during which time she had been abused. The claims also detailed the arrest of the mother's friends and associates and indicated that as a result of these associations, the mother had come to the attention of the Chinese authorities. It was further claimed that the appellant's grandparents and uncle had been implicated somehow in the mother's religious activities and that they were the subject of investigation by the Chinese authorities. 4 The mother appeared before the Tribunal on 17 October 2018 on behalf of the appellant with the assistance of a migration agent. At that time the appellant was approximately five years of age. The Tribunal heard evidence from the appellant's mother and also from Father McGee and the appellant's godmother. Father McGee stated that he believed that the appellant's mother was a genuine Catholic, because she attended Church regularly, and was familiar with its practices. The appellant's godmother also stated that she frequently saw the mother at Church. 5 The Tribunal questioned the appellant's mother as to why she had not had a Catholic marriage, and she stated (among other reasons) that her husband was not Catholic. According to the Tribunal, this was something the mother had not stated before the Refugee Review Tribunal previously. This was a matter that concerned the Tribunal as well as the fact that before the Refugee Review Tribunal, the appellant's mother had expressed an intention to get married in the Catholic Church, and some four years later, this had still not occurred. The Tribunal also questioned the appellant's mother at the hearing regarding the length of time she was in Australia prior to applying for a protection visa, her confirmation, the various events that she alleged occurred in China, including her arrest and how she could be implicated in her friends' arrests, and why she would be in danger if she returned to Fujian given that the country information indicated that it applied its religious regulations more liberally than other provinces in China. On 22 October 2018 the appellant's migration agent provided to the Tribunal links to a number of reports concerning human rights practices in China. 6 Following the hearing, the appellant was sent a letter dated 26 November 2018 raising these matters. She was given the opportunity to provide further information in relation to all these matters. The mother responded to this letter by providing a statutory declaration dated 30 November 2018. 7 The Tribunal concluded that the appellant's mother was not a credible witness. In its reasons, it referred to various inconsistencies in her claims and evidence, before both the Tribunal and the Refugee Review Tribunal, including in relation to her confirmation and her marriage. In relation to the matter of her confirmation, the Tribunal noted that she told it she had been confirmed, but that she had previously stated that she had not been confirmed. The Tribunal did not accept her explanation as to the inconsistency, nor did it accept her explanations concerning the fact that she had still not been married in the Catholic Church. 8 The Tribunal found that the mother's account of what happened to her in China, including her alleged arrest for possessing rosary beads and a Bible, were all fabricated to assist her application for a protection visa. It did not accept that the mother had converted to Roman Catholicism in China, or that she was a member of a secret underground church. Nor did it accept her claims regarding the arrest of her friends and associates. It is apparent that the Tribunal did not accept the mother's explanation for the time it took her to apply for a protection visa (some six years after she left China) and it considered that her delay in applying for a protection visa was inconsistent with her having left China out of fear that she would suffer harm on account of her religion. 9 The Tribunal accepted the mother had attended Catholic Church in Sydney, but that she had done so to strengthen her prospects of being granted a protection visa. The Tribunal did not accept that she had been attending that Church since 2008 as she claimed. It was not satisfied that she is a genuine Catholic or that she had any intention to practice the faith in the reasonable foreseeable future were she to return to China. The Tribunal considered the evidence of Father McGee, and the appellant's godmother, however, it is apparent from the Tribunal's reasons that it did not regard their evidence, when considered in light of the evidence as a whole, as sufficient to overcome its doubts as to the veracity of the mother's evidence. 10 The Tribunal did not accept that the appellant's or her mother's attendance at the Catholic Church in Sydney would be known to the Chinese authorities, and did not accept that the appellant or her mother would be at risk of harm if they returned to China. 11 In her application for judicial review filed on 12 April 2019, four grounds of review were relied on. All four grounds alleged that the Tribunal was biased. Amongst other things, the appellant asserted in this document that the Tribunal favoured certain country information that was harmful to the interests of the appellant and her mother, and disregarded other information that was helpful to the appellant's protection visa application. A complaint was also made as to the emphasis placed by the Tribunal on the mother's delay in applying for a protection visa, and also the finding that the appellant's mother's religious practice in Australia was engaged in to strengthen her claims for a protection visa for either herself or her daughter. All of these matters were relied on in support of what would appear to be an allegation of actual bias on the part of the Tribunal. 12 The appellant was not legally represented in the proceeding before the primary judge. The appellant's mother made submissions to the primary judge and sought to tender two documents, which were marked for identification. His Honour rejected the tender of the two documents, MFI-1 and MFI-2, and returned them to the appellant's mother. 13 In relation to these documents his Honour said in his reasons at [19]-[20]: 19. The two documents were marked MFI1 and MFI2 and returned to the litigation guardian and the tender was rejected on the grounds of being irrelevant. Material that was not before the Tribunal in relation to the claims is not admissible to establish jurisdictional error. Accordingly, the two documents sought to be tendered were not relevant and are not capable of establishing any relevant error by the Tribunal. From the bar table, the litigation guardian took issue with the Tribunal's adverse findings in relation to the practice by her and the child of the Catholic faith. 20. In that regard, the litigation guardian sought to advance submissions relying upon the change in law that was the subject of the document marked MFI1. As that document was not relevant to establishing any error, the applicant's submissions concerning that document are not capable of identifying any jurisdictional error. The applicant also suggested that the Tribunal did not give the applicant an opportunity to present her claims and evidence. No evidence has been adduced in support of that contention. The reasons of the Tribunal identifying what occurred at the hearing are inconsistent with that contention. I will say more about MFI-1 and MFI-2 shortly. At this stage, I merely note that his Honour rejected the tender of these documents on the basis that they were not before the Tribunal and were therefore irrelevant to the appellant's application for judicial review. 14 So far as the allegations of bias are concerned, the primary judge rejected these and concluded that the conduct relied upon by the appellant in support of them consisted of nothing more than the fact that the Tribunal had made findings adverse to the appellant which could not, in itself, constitute conduct which might lead a fair-minded lay observer to reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of her application on the merits. 15 As I have mentioned, the grounds of review relied upon by the appellant took issue with the Tribunal's evaluation of the country information, the mother's delay in filing her application for a protection visa, the evidence of Father McGee, and, more generally, the findings made by the Tribunal regarding the mother's religious practice and the motivation behind it. His Honour considered that none of the matters relied on could support a finding of bias and that no ground of jurisdictional error had been made out. 16 The appellant's Notice of Appeal identifies three grounds, each of which ultimately suggest that the primary judge failed to consider "crucial information". The crucial information is said in the Notice of Appeal to be a revision to the regulation on religious affairs which took effect in China on 1 February 2018. The Notice of Appeal suggests that this new regulation prohibits the appellant from practicing her religion in China and is direct evidence that if the appellant was sent to China, she would be subjected to persecution due to her religious beliefs. 17 There are two principal difficulties that arise in relation to the appellant's grounds of appeal. 18 First, it is not apparent how the information referred to in the Notice of Appeal could have had any bearing on the question whether the appellant's mother was a genuine Roman Catholic, whether she had any intention to practice that religion if she were to return to China, and whether the appellant was at risk of any harm in China on account of her mother's religion in circumstances where the Tribunal did not accept the mother was a genuine Roman Catholic. 19 Secondly, neither MFI-1 or MFI-2 is before the Court. I asked the appellant's mother whether she could produce them and I was told that she could not. The primary judge's reasons indicate that these documents were returned to the mother after the tender was rejected. I considered whether it was desirable to adjourn the hearing for a short time in order to allow the appellant to retrieve those documents. However, I did not see any point in delaying the hearing of the appeal because the Tribunal's reasons, and the other documentary information contained in the appeal book, including the appellant's migration agent's written communications with the Tribunal, indicate that the appellant did not provide the documents to the Tribunal or otherwise bring them to its attention. 20 At its highest, these documents contained country information which, assuming they were authentic, may have been open to the Tribunal to ascertain but which it was not obliged to ascertain. In the circumstances, I agree with the primary judge's finding that the documents, as they have been described, were not relevant to the appellant's application for judicial review. 21 It is well established that it is a matter for the Tribunal to determine what country information it will have regard to and what weight it will give to that country information. Of course, there are some cases in which jurisdictional error may arise if the Tribunal fails to consider some significant piece of country information relied on by an applicant in support of his or her claims. However, in the present case, there is no reason to think that the documents referred to in the appellant's notice of appeal were ever brought to the Tribunal's attention. 22 In oral submissions, the appellant's mother referred to what she claimed was the unfairness of the Tribunal's decision. She spoke about her and her daughter's continuing involvement in the Catholic Church and also referred to what were said to be recent developments in China and their significance for members of the Catholic Church. Although it is apparent that the appellant's mother strongly disagrees with the conclusions reached by the Tribunal, nothing that was said by the mother in support of the appeal provided any support for any of the appellant's grounds of appeal or any other basis for finding that the Tribunal's decision was affected by jurisdictional error. 23 It is not suggested in the Notice of Appeal that the primary judge ought to have found that the Tribunal's decision was legally unreasonable. Nevertheless, having considered the Tribunal's reasons, and the various inconsistencies in the evidence which it identified upon which it relies, the Tribunal's decision cannot be characterised as legally unreasonable in the sense that it was manifestly unjust, arbitrary or irrational, or lacking an intelligible justification. 24 In all the circumstances, I am satisfied that the primary judge's decision was correct, and that the appellant has failed to demonstrate any jurisdictional error on the part of the Tribunal or any legal error on the part of the primary judge. 25 In the result, the appellant's appeal will be dismissed. There will also be an order that the appellant's mother, the appellant's litigation guardian, pay the Minister's costs of the appeal. 26 Orders accordingly. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. Associate: Dated: 1 August 2022