ABM20 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1238
•8 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ABM20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1238
File number(s): SYG 35 of 2020 Judgment of: JUDGE CLEARY Date of judgment: 8 August 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa - whether Tribunal’s credibility findings were unreasonable – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) s 65, 476 Cases cited: Abebe v Commonwealth of Australia [1999] HCA 14
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
ETA067 v The Republic of Nauru (2018) 360 ALR 228
EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
1 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
2 NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
3 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Refugee Review Tribunal, Ex parte H (2001) 179 ALR 425
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Singh v Minister for Home Affairs (2019) 267 FCR 200
SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198
SZSHV v Minister for Immigration and Border Protection [2014] FCA 253
4 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Division: Division 2 General Federal Law Number of paragraphs: 93 Date of hearing: 29 July 2025 Place: Parramatta Applicants: In person Solicitor for the Respondents: Mr M. Smith of Australian Government Solicitor ORDERS
SYG 35 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABM20
First Applicant
ABN20
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
8 AUGUST 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The first and second applicant pay the first respondent’s costs fixed in the amount of $5,400.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CLEARY
INTRODUCTION
The applicants have filed an application for judicial review under s 476 of the Migration Act 1958 (Cth) (Act). The applicants seek constitutional writ relief against the respondents in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 17 December 2019 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the applicant a Protection (Subclass 866) visa (protection visa) under s 65 of the Act.
FACTUAL BACKGROUND
On 28 October 2007, the first applicant, a citizen of China, first arrived in Australia as the holder of a student visa. On 24 August 2014, the second applicant, the first applicant’s husband, arrived in Australia has a holder of a visitor visa.
On 13 December 2015, the applicant married in Australia.
On 22 December 2015, both applicants lodged an application for protection visas on the basis they were Roman Catholics who feared harm if they were returned to China.
The first applicant claimed that she was from a Roman Catholic family, and that she was baptised in China and attended an underground church in China. The first applicant claimed that in 2010, while in Australia, she had shared information about the Pope with a member of her underground church in China, and that this was discovered by the security police. The first applicant claimed that in 2012, her parents were penalised for attending sermons given by foreign police and that in 2014 two other family members were arrested on the charge of spreading the gospel. After this, the first applicant’s church was accused of violating the patriotic church’s policy and illegally collaborating with foreign religious organisations and disturbing the social peace and order. Organisers of the church were investigated by police and sent to prison.
The second applicant claimed that he had converted to Catholicism against the wishes of his family. In support of this claim he submitted a baptism certificate dated 15 April 2017. He did not attend any underground church gatherings in China. Both applicants claimed to have attended Catholic church in Australia, and that they were married in a Catholic church in Australia in 2015. In support of these claims the applicants provided a marriage certificate.
On 19 August 2016, a delegate requested the first applicant attend an interview to discuss her visa application, which occurred on 8 September 2016.
On 16 September 2016, a delegate refused to grant the applicants protection visas.
On 12 October 2016, the applicants lodged an application for review of the delegate’s decision with the Tribunal.
On 15 July 2019, the Tribunal invited the applicants to appear at a hearing to give evidence and present arguments on 16 August 2019.
On 16 August 2019, the applicants appeared before the Tribunal with the assistance of a Mandarin interpreter.
On 17 December 2019, the Tribunal affirmed the decision under review not to grant the applicants protection visas.
TRIBUNAL’S DECISION
The Tribunal set out the relevant legal principles before setting out the first applicant’ evidence and claims. The Tribunal found aspects of the first applicant’s evidence to be vague, implausible, inconsistent and unconvincing. The Tribunal noted that she made several new claims during the hearing. It found that her conduct was not consistent with her claims. The Tribunal found aspects of the second applicant’s evidence to be vague, contradictory, implausible and unconvincing. The Tribunal found that both applicants were not credible or reliable witnesses for the following twelve reasons.
At [25]-[37] it found the first applicant’s claim to have attended an underground (rather than official) church was not consistent with the photos and baptismal certificate she had provided to the Tribunal.
At [38]-[41] it found the first applicant’s claims to have converted all of her former classmates to attending the underground Roman Catholic church were implausible, and her claims to have converted her friends in Australia were implausible and unsupported by evidence.
At [42]-[47] it found the first applicant’s oral evidence given to the Tribunal about her church activities during her visit to China in 2010 was inconsistent with her written application, including finding that in relation to her new claim she made at the Tribunal to have sent materials via the internet in China to friends the Tribunal found it was implausible that she would have advised friends to circulate information about the Pope on the internet and they not warn her that the Chinese authorities monitor the internet. It is also implausible that she would have put her friends at risk of harm by sending them material about the Pope that is not available in China.
At [48]-[53] it found the first applicant’s oral evidence about the harm her family members had been subjected to in China on account of their church activities was not consistent with her written application.
At [54]-[61] it found there were significant inconsistencies between the two applicants’ evidence, and within the second applicant’s evidence, about the second applicant’s religious beliefs in China, why he came to Australia, when he was introduced to Christianity and when he converted to Catholicism.
At [62]-[65] and [66]-[69] it found there were inconsistencies between the two applicants’ evidence, and between the oral and documentary evidence, about when the second applicant started attending church in Australia, whether he attended catechism classes and when he was baptised. The Tribunal put these concerns to the applicants for comment, to which the second applicant responded that sometimes their memories are not good. The Tribunal also expressed concern about the delay in the second applicant’s baptism.
At [70]-[74] it found the second applicant’s claimed evangelical activities were implausible.
Then, at [75]-[78] it found the first applicant’s delay in seeking protection from the time of her first arrival in Australia in 2007 raised concerns about her credibility and the veracity of her claims.
At [79] - [82] it found the first applicant’s Department of Education records, together with her evidence, suggest that she has been working unlawfully in Australia and was only seeking protection to extend her stay to continue working.
At [83] it found the second applicant’s delay in seeking protection and in being baptised were inconsistent with his claims.
At [84]-[88] it found the DFAT country information and information provided by the applicants indicates tolerance in the Fujian Province (the first applicant’s place of origin) of the practice of Christianity.
At [89] the Tribunal stated it had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicants’ credibility. The Tribunal has stated it also had regard to the DFAT Country Information Report on China and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Having considered all the claims, the Tribunal concluded at [92] that the applicants were not witnesses of truth and that they had fabricated their claims for the purposes of obtaining protection visas.
As to the first applicant, the Tribunal accepted that she is from a Catholic family, and she had been attending a church in Australia since November 2008.
However, the Tribunal was not satisfied that she, or any member of her family, was part of the underground Roman Catholic church in China. Instead, it considered that the first applicant and her family were members of the official Catholic church in China, and that the first applicant was baptised in that church. It therefore did not accept any of the claims which flowed from the first applicant’s claims to have attended an underground church. The Tribunal did not accept that the first applicant evangelised in China or Australia, or that she had sent information from Australia to a friend in China. The Tribunal did not accept the first applicant’s claims about the harm her family suffered in China.
As to the second applicant, the Tribunal did not accept that he came to Australia to pursue his faith or that he started attending church shortly after he arrived. The Tribunal found that he started attending mass in May 2016 and was baptised in April 2017. The Tribunal did not accept that the second applicant evangelised.
The Tribunal did not accept that the applicants were committed to evangelising or that they would attend an underground church if they returned to China.
The Tribunal found the applicants were not refugees, and that Australia did not owe protection obligations to the applicants, and that the applicants did meet the criteria for complementary protection. The Tribunal affirmed the delegate’s decision.
PROCEEDINGS IN THIS COURT
Judicial review application and procedural orders
On 7 January 2020, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 17 December 2019.
Under the headings ‘Final orders sought by the applicant/s’ and ‘Grounds of application, the applicant sets out 17 written dot points. The first respondent submits these 17 dot points contain only 4 discernible grounds of review. I agree. Those grounds, as I discern them, are as follows:
(1)The decision is unreasonable and not based on evidence, particularly with respect to the Tribunal’s findings about the first applicant’s credibility, religious commitment, and faith (dot points 1, 2, 3, and 6) (ground 1).
(2)The Tribunal failed to give “positive weight” to the documents provided, especially the first applicant’s baptism certificate, which reveals bias (dot point 4) (ground 2).
(3)The Tribunal failed to give full consideration to the applicants’ supporting documents, including those going to the first applicant’s Catholic family background and the “church testimony” (dot point 5) (ground 3).
(4)The Tribunal ignored the second applicant’s evidence about his commitment to his faith and evangelisation (dot point 7) (ground 4).
I also agree with the first respondent that the remaining dot points, dot points 9 to 17 merely reproduce parts of the first applicant’s statement provided as part of his application for a protection visa, in other words parts of his evidence he initially gave to the Department. This Court is not permitted to undertake merits review in applications under s 476 of the Act, so it cannot re-consider the merits of the claims made by the applicants in its protection visa application: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) at [17].
On 15 January 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application, 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 his written submissions as required by the Order.
On 11 June 2025, the proceedings were docketed to me and set down before me for final hearing on 29 July 2025.
Hearing on 29 July 2025
At the hearing of this matter on 29 July 2025, the applicants appeared unrepresented, assisted by a Mandarin interpreter. Mr M Smith from the Australian Government Solicitor appeared for the first respondent.
At the commencement of the hearing, I allowed the Court Book, which contained the Tribunal’s decision and other documents that were before the Tribunal, and the applicant’s affidavit in support of his application to be admitted as evidence.
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].
Accordingly, at the hearing I asked the applicants if they wanted to each make orally submissions separately. They said they did. I then asked them to, one at a time, make any submissions they wanted to make about why they each considered the Tribunal had made a jurisdictional error. I explained to them what jurisdictional error meant in broad terms and asked them if they could tell me what mistake the Tribunal made or why it “got it wrong”.
Each of the applicants made detailed oral submissions, essentially repeating many of the matters that were set out in the dot points contained in the application. The second applicant also made some submissions about a number of paragraphs in the Tribunal decision, which I will deal with below after I deal with the 4 grounds of review as identified by the Minister in his written submissions.
Mr Smith, in reply, submitted orally that to the extent that the matters referred to in oral submissions by the applicants were factual challenges to the merits of the Tribunal decision, this Court must not accept them. I agree with that submission for the reasons given by the Full Court in Djokovic at [17]. Mr Smith also gave a brief outline of the first respondent’s submissions in reply to the matters raised by the second applicant, which I will deal with below after the four grounds of review.
CONSIDERATION
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) 211 CLR 476 at [76].
In LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (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.
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].
In reviewing the Tribunal’s decision, the Court does not consider the merits of the Tribunal decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
Below I set out my consideration of the grounds of judicial review in this matter. For the reasons given below, none of the 4 grounds establish the Tribunal committed jurisdictional error.
Ground 1
The first ground (dot points 1, 2, 3 and 6) allege the Tribunal’s decision was unreasonable, not based on evidence, especially the findings about the applicants’ credibility, religious commitment and faith.
In ground 1 the applicants firstly challenge the credibility findings made by the Tribunal as being legally unreasonable.
Recently, in CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97 Needham J at [32] 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. In addition, her Honour held, 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: CQO23 at [33]; 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) 258 FCR 175, [30], and the cases cited at [30(3)]; SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J.
In the present case, the Tribunal’s adverse credibility findings against both applicants was based on twelve findings made by the Tribunal regarding significant inconsistencies in the applicants’ evidence. None of the inconsistency findings supporting the adverse credit findings rested on false premises, or were based on objectively minor matters of fact, nor did they otherwise lack an intelligible justification. I consider the findings relied upon to establish the adverse credibility findings were orthodox and open on the evidence.
All twelve reasons for the adverse credibility findings made by the Tribunal concerned very significant aspects of the evidence given by the applicants in support of their claims, not minor matters of fact (cf. CQO23).
The reasoning was very detailed and comprehensive. For example:
(a)At [35]-[37] the Tribunal found it had serious doubts about the first applicant attended an “underground Roman Catholic Church” in China based on oral evidence and photographs provided by the first applicant which showed the Church she attended in China did not look like an underground church, rather than an ordinary or official Church in China. The Tribunal also found, given the evidence, it was highly unlikely that the Chinese authorities would not be aware of its purpose if people were attending this building to pray two to three times a week as the first named applicant claimed she and her mother did.
(b)At [54]-[61] the Tribunal found there were significant inconsistencies between the two applicants’ oral evidence, and within the second applicant’s oral evidence, about the second applicant’s religious beliefs in China, why he came to Australia, when he was introduced to Christianity, and when he converted to Catholicism.
(c)At [66]-[69], the Tribunal found that there were inconsistencies between the documents and the evidence, for example, there was an inconsistency between when the second applicant told the Tribunal he began attending Church in Australia, in September 2014, and what he told Father McGee who provided a reference to the second applicant. He told Father McGee he started attending Church in May 2016. There was a further inconsistency in the documents provided, the second applicant told the Tribunal he was baptised in around May 2016, however his Certificate of Baptism and Confirmation indicates he was baptised on 15 April 2017.
(d)At [75]-[78], the Tribunal found the first applicant’s delay in applying for a protection visa affected her credibility and the veracity of her claims. The Tribunal found it the Tribunal would expect the first applicant to have sought immigration advice and applied for protection as soon as possible after her arrival in Australia on 28 October 2007, and to have ensured that she remained in Australia lawfully so as to avoid putting herself at risk of being deported to China. The first applicant first arrived in Australia on 28 October 2007 on a student visa. She returned to China on 12 June 2010 and came back to Australia on 12 July 2010. Her student visa expired on 15 March 2011, and she thereafter became an unlawful non-citizen for a period of 4 years and 9 months until she applied for a Protection visa on 23 December 2015. This was over 8 years after she first arrived in Australia.
(e)At [83], the Tribunal found the second applicant’s conduct was not consistent with his claims. His evidence to the Tribunal was that he came to Australia to pursue his faith. His evidence was that he first came to Australia on 24 August 2014 as the holder of a Visitor visa. His evidence was that he departed Australia on 23 October 2014 and voluntarily returned to China. He returned to Australia as the holder of a Visitor visa (which expired on February 2015) and he thereafter remained in Australia as an unlawful non-citizen. He did not apply for a Protection visa until 22 December 2015. During the period he was living here unlawfully, he could have been deported to China. His evidence was he did not get Baptised until 15 April 2017.
I consider there is no basis for concluding that the Tribunal’s adverse credibility finding was legally unreasonable because it was based on illogical or irrational findings or inferences of fact. As seen above, the adverse credibility findings were rationally made, based upon findings which each had a logical and rational evidentiary basis: cf. CQO23.
Next in ground 1, the applicants challenge the findings of the Tribunal about the first applicant’s religious commitment and faith. They assert there was no evidence to support these findings.
This contention misconstrues the Tribunal findings. The Tribunal did not conclude that the applicants had no Catholic faith, or that the first applicant’s religious commitment and faith was “unconvincing”. On the contrary the Tribunal accepted that the first applicant was a Catholic from several generations of Catholics and that she was a member of the official Catholic Church in China (see paragraphs [93]–[94]). However, it was not satisfied that the first applicant was a member of an underground Roman Catholic church in China (which was the claim) based on adverse credibility findings made against both applicants. This finding was reasonably open on the evidence and based on the factual findings.
I also find that the Tribunal’s findings that the applicants were not credible or reliable witnesses (at TD [24], [92]), as discussed above, and that the applicants are not committed to preaching the gospel or evangelising (at TD [100]), were reasonably open on the evidence and based on the factual findings.
Ground 1 does not establish the Tribunal committed jurisdictional error.
Ground 2
In this ground, dot point 4, the applicants assert the Tribunal failed to give “positive weight” to their documentary evidence.
The first respondent submits this ground should be rejected for two reasons: first, the weight of documentary evidence is a matter for the Tribunal as the fact finder under the statutory scheme of the Act; and second, the applicants have failed to prove any bias by the Tribunal.
I agree with the first respondent for the following reasons.
In Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] the Federal Court has held that the Tribunal is entitled to accept, reject or give such weight to the evidence submitted as it deems appropriate in the circumstance. Further, the degree of weight to be given to the evidence is a factual question for the decision maker alone: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33] and Abebe v Commonwealth of Australia [1999] HCA 14 at [197].
At paragraph [31] the Tribunal made the following finding about first applicant’s Baptism Certificate (Court Book page 91) (a critical document in the first applicant’s case):
…The Tribunal finds it implausible that an underground Roman Catholic Church where Catholics gathered in each other’s homes in secret to pray would be called the Hangcheng Church, have the same organizational structure as the official Roman Catholic Church and would issue formal Baptism Certificates thereby putting themselves at further risk of harm if discovered by the Chinese authorities. The Tribunal is of the view that the first named applicant’s Baptism Certificate tends to indicate that she attended an official Catholic Church in China.
The finding about this document was open to the Tribunal on the evidence before it. There was nothing illogical or irrational about this finding, based on the document itself, the evidence of the first applicant, and in the context of the credit findings made by the Tribunal.
Secondly, a claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. No transcript evidence has been put before the Court by the applicant. In the absence of evidence, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Further, the mere fact that the Tribunal makes adverse findings in respect of the applicants (as it has done in the present case) does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.
I have considered the two types of bias, actual bias and apprehended bias, and the well-established legal tests for each type under Australian law. I have carefully read the Tribunal’s decision.
As to actual bias, I consider that a fair reading of the Tribunal's decision does not disclose any prejudgment on the part of the Tribunal, in the sense that the Tribunal was "so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented": Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ and Gummow J. No part of the Tribunal decision was referred to by the applicants at the hearing supporting a submission that the Tribunal decision may have fallen into this category of bias.
As to apprehended bias, I also consider that a fair reading of the Tribunal's decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review: Re Refugee Review Tribunal, Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed. No part of the Tribunal decision was referred to by the applicants at the hearing supporting a submission that the Tribunal decision may have fallen into this category of bias.
For these reasons, ground 2 does not establish the Tribunal committed jurisdictional error.
Ground 3
In this ground, dot point 5, the applicants assert the Tribunal failed to “give consideration” to the applicants’ supporting documents, including those going to the first applicant’s Catholic family background and the “church testimony”.
As the applicants are not represented, I have read this ground as alleging the Tribunal failed to engage in an active intellectual process or has failed to give proper, genuine and realistic consideration to the applicants’ supporting documents, including those going to the first applicant’s Catholic family background and the “church testimony”.
The first respondent submits that ground 3 is factually incorrect and that the Tribunal gave consideration to the applicants’ supporting documents, and therefore the Tribunal properly considered these matters. I agree with he first respondent for the following reasons.
In Carrascalao v Minister for Immigration and Border Protection (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.
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) 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) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ).
In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1/2021) at [26]-[27] per Kiefel CJ, Keane, Gordon and Steward JJ, with Gageler J agreeing, the High Court held (omitting footnotes):
[26]Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. 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". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.
[27]None of the preceding analysis detracts from, or is inconsistent with, 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; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
Applying these principles, I consider, on a fair reading of its decision, the Tribunal in the present case engaged in an active intellectual process or gave proper, genuine and realistic consideration to the applicants’ supporting documents, including those going to the first applicant’s Catholic family background and the “church testimony”.
At paragraphs [27]-[33], the Tribunal referred to a number of the documents provided by the applicants, including those going to the first applicant’s Catholic family background, and the letter of support dated 20 October 2007 from the ‘Catholics (China) Changle Parish’ together with an English translation, which is what the applicants refer to in their application as the ‘church testimony for the purpose of finding a proper church in Australia’, Then, at paragraphs [34]-[36], the Tribunal engages in an a process of reasoning by reference to these documents which culminates in the finding in paragraph [37] that the Tribunal was not satisfied the first applicant was a member of an underground Roman Catholic Church in China. The finding in paragraph [37] was open on the evidence before the Tribunal.
Ground 3 does not establish the Tribunal committed jurisdictional error.
Ground 4
In this ground the applicants assert that Tribunal ignored the second applicant’s evidence about his commitment to his faith and evangelisation.
The first respondent submits that ground 4 is factually incorrect and that contrary to the applicant’s assertions, the Tribunal gave consideration to both the second applicant’s oral and documentary evidence about his faith and his evangelisation. I agree with this submission for the following reasons.
As required by Plaintiff M1/2021, The Tribunal engaged in an active intellectual process, or gave proper, genuine and realistic consideration to the oral and documentary evidence provided to the Tribunal by the second applicant in its decision as follows:
(a)at paragraphs [54] to [58], the Tribunal gave consideration to the second applicant’s evidence about when he came to Australia, his conversion to Catholicism and his practice as a Catholic in Australia;
(b)at paragraph [60], the Tribunal gave consideration to the second applicant’s evidence about when he came to learn about Catholicism;
(c)at paragraph [64], the Tribunal gave consideration to the second applicant's evidence as to when he tried to enrol in Catechism classes in 2015;
(d)at paragraph [66] the Tribunal gave consideration to documentary evidence about when the second applicant attended church; and
(e)at paragraphs [70]-[74] of its decision the Tribunal considered the evidence given by the second applicant where he claimed that he and the first applicant were committed to preaching (evangelising) the gospel and defending their freedom of faith on-line, through a website and on YouTube.
At paragraphs [70]-[74], outlined above, the Tribunal gave consideration to the second applicants evidence about his evangelization. It is clear from the decision of the Tribunal that the Tribunal “did not ignore” the second applicant’s evidence about his commitment to his faith and evangelisation. It was considered as part of its assessment of the credibility of the claims made.
Ground 4 does not establish the Tribunal committed jurisdictional error.
Matters raised orally by the applicants at the hearing on 29 July 2025
At the hearing on 29 July 2025 both the first and second applicants made oral submissions. They both read form prepared statements. The submissions of the first applicant essentially were complaints about the factual findings made by the Tribunal. For example the applicants sought to challenge factual findings that the first applicant was not a member of the underground Catholic Church, or that the second applicant was guided into the Catholic faith by the first applicant and asked the first applicant to take him to church soon after he arrived in Australia on 24 August 2014, or that applicants the applicants evangelised online and posted religious information or material online, or are committed to preaching the gospel and defending their religious freedom. As I explained to the applicants at the hearing this Court does not have jurisdiction to consider complaints about the factual merit of their claims.
The second applicant, as well as making submissions about the factual findings of the tribunal outlined above, also made oral submissions about error he had identified in a number of paragraphs contained in the Tribunal decision. He submitted as follows:
(a)The Tribunal did not adequately consider the photographs provided to the Tribunal by the applicants, in particular the second applicant referred to Paragraph [27] when he made this submission. The second applicant submitted that the tribunal failed to consider or properly understand the photos which are found at pages 139 to 147 of the Court Book. For example, the second applicant submitted that the Tribunal mistook the building in those photos for the Patriotic church which was a different church established by the Chinese government, to the underground Catholic Church in China.
(b)The Tribunal made an error in paragraph [71] when it asked the second applicant about websites on the Internet which he had posted information about his religious practice. The second applicant told the court he did not say ‘YouTube’ when he was asked this question, but rather he referred to a website based in China called ‘youku.com’.
(c)Finally, the second respondent objected to the use which the Tribunal made of independent country information in paragraph [84] of its decision about religious tolerance of religious practises, including information about religious tolerance of Christianity in the Fujian province.
In reply, Ms Smith on behalf the Minister submitted:
(a)As to the first oral submission, it was a complaint about the factual findings of the Tribunal, and the Court should reject such claims as this Court is not permitted to consider the merit of the decision.
(b)As to the second oral submission, there is no evidence before the Court (other than the decision itself) as to what was said by the second applicant at the Tribunal hearing regarding the name of the websites he used to post religious information. And, in any event, whether there had been a mishearing of the name of the website, this did not material effect the Tribunal’s decision.
(c)As to the third submission, the Tribunal was permitted to rely upon independent country information in making its decision.
Consideration of matters raised orally by applicants
None of submissions made by the second applicant establish the Tribunal committed jurisdictional error.
The first submission was a challenge to factual findings made about the content of photos. That argument does not disclose any jurisdictional error in the Tribunal’s decision.
The second submission is a complaint about what was said by the applicants at the hearing. There was no evidence before the Court (such as a transcript) about what was said at the hearing, and the best evidence in the absence of the transcript is the decision itself. As the High Court has said, courts are entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary: NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1. The second argument does not disclose any jurisdictional error in the Tribunal’s decision.
As to the third submission, it is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29. The third argument does not disclose any jurisdictional error in the Tribunal’s decision
DISPOSITION
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].
The application is dismissed.
COSTS
The first respondent has sought an order that the first and second applicant pay the first respondent’s costs in the amount of $5,400, which is less than scale amount under Schedule 2 to the Rules. The applicants did not object to the costs order sought by the first respondent. 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 ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 8 August 2025
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