EZP19 v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1500

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EZP19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1500

File number(s): MLG 4435 of 2019
Judgment of: JUDGE FARY
Date of judgment: 23 September 2025
Catchwords: MIGRATION – application for Protection (Class XA) (Subclass 866) visa – Administrative Review Tribunal not satisfied that applicant is a person to whom Australia owes protection obligations as outlined in s 36(a) or (aa) –delegate’s decision to refuse the grant of the visa affirmed – whether Tribunal failed to take into account relevant considerations – no jurisdictional error established – application dismissed.
Legislation:

Australian Constitution s 75(v)

Migration Act 1958 (Cth) ss 5H, 5J, 47(1), 65(1), 36(2), 424A, 424AA, 438, 474, 476, 477

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) Sch 2 Pt 3 Div 1 r 25.14

Migration Regulations 1994 (Cth)

United Nations Convention on the Rights of the Child (1989) Art 3(1)  
Cases cited:

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

EVA17 v Minister for Immigration and Border Protection (2018) 262 FCR 304

Ismail v Minister for Immigration (2024) 417 ALR 36

Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235

Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362

Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12

MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1

MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1

Nathanson v Minister for Home Affairs (2022) 276 CLR 80

Oshlack v Richmond River Council (1998) 193 CLR 72

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294

SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129

SZEDA v Minister for Immigration and Citizenship [2008] FCA 1496

SZEDA v Minister for Immigration and Citizenship [2008] FMCA 754

SZHQG v Minister for Immigration & Anor [2006] FMCA 1275

SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415

SZQGE v Minister for Immigration and Citizenship [2011] FCA 1018

SZRKY v Minister for Immigration and Citizenship (2012) 132 ALD 525

Wang v Minister for Immigration and Multicultural Affairs (2000)…

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AGLC
EZP19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1500
Case
[2025] FedCFamC2G 1500
Decision Date

CaseChat Overview and Summary

The case of EZP19 v Minister for Immigration and Citizenship revolves around the applicants, citizens of China, who applied for a Protection (Class XA) (Subclass 866) visa. The applicants, who arrived in Australia on Tourist (Subclass 600) visas, sought the visa on the basis of religious persecution and the desire for religious freedom. The Administrative Review Tribunal, however, was not satisfied that the applicants were owed protection obligations by Australia, leading to the affirmation of the delegate's decision to refuse the visa. The applicants contested this decision, arguing that the Tribunal failed to consider relevant information and made errors in its assessment of their credibility and claims.

The primary legal issue was whether the Tribunal made a jurisdictional error by not considering relevant information or by improperly assessing the credibility of the applicants. The applicants argued that the Tribunal did not adequately address the Department of Foreign Affairs and Trade (DFAT) country information and failed to properly consider their claims of religious persecution and fear for their safety upon return to China. The applicants also contended that the Tribunal erred in assessing their credibility and understanding of their religious beliefs.

The Court found that the Tribunal had not made a jurisdictional error. The Court noted that the Tribunal had considered the DFAT country information and put its gist to the applicants, allowing them to respond. The Court further held that the Tribunal's assessment of the applicants' credibility and understanding of their religious beliefs was within its jurisdiction and discretion. The Court concluded that the Tribunal had properly considered all relevant information and did not err in its assessment of the applicants' claims.

As a result of the Court's decision, the application for judicial review was dismissed. The Court affirmed the decision of the Tribunal to refuse the grant of the Protection (Subclass 866) visa to the applicants.

Orders

Orders of the court

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Background

Background to the litigation

The issue in dispute is whether the Tribunal made a jurisdictional error in determining that it was not satisfied that 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.BACKGROUND The Applicants are citizens of China. The second applicant is the husband of the first applicant (second applicant).[2][2] Court Book (CB) 2. On 31 May 2015, the Applicants arrived in Australia as the holders of Tourist (Subclass 600) visas.[3] [3] CB 149-150. On 3 August 2015, the Applicant applied for the Visa, the subject of these proceedings.[4] The second applicant was included as a dependent.[5] The Applicant applied for the Visa on the basis that:[6] (a)she was born into a Christian family but was an atheist until 2011. There was an incident in 2011 involving her neighbour which led the Applicant to begin to follow Christianity; (b)in late 2012, her father and siblings in China were arrested for attending a religious gathering; (c)she met the second applicant at a religious gathering. She became pregnant in 2014 and was pressured by authorities to abort the child. However, she went into hiding and gave birth to her daughter; (d)while celebrating her daughter’s first birthday, authorities came into her home and arrested everyone present. She was held by authorities for one day and subjected to anti-religious brainwashing. She was later released. However, her father, mother and the second applicant were detained for longer periods; (e)she decided to seek religious freedom in Australia; and (f)she got married in or around 2015 at her home, which the police visited to ensure a religious gathering was not being held. The Applicants decided to come to Australia two days later. [4] CB 1-65. [5] CB 1-65. [6] CB 36-37. On 6 July 2016, a Delegate of the Minister invited the Applicant to attend an interview on 18 July 2016 in relation to her Visa application.[7][7] CB 82-92. On 18 July 2016, the Applicant attended the interview and made claims consistent with those contained in her Visa application.[8][8] CB 101-104. On 22 July 2016, a Delegate of the Minister refused to grant the Applicants the Visa (Delegate’s Decision) on the basis that the Applicant was not a person in respect of whom Australia has protection obligations.[9][9] CB 93-113. On 19 August 2016, the Applicants applied to the Tribunal for review (Review Application).[10] [10] CB 114-115. On 22 August 2016, the Tribunal acknowledged receipt of the Review Application.[11][11] CB 116-119. On 15 September 2016, the Applicants submitted a ‘Change of Address and Passport Details’ form to the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (Department).[12][12] CB 126-127. On 16 September 2016, the Tribunal requested that the Applicants provide copies of their updated certified passport biodata pages.[13][13] CB 128. On 22 September 2016, the Tribunal confirmed receipt of the Applicants updated passport biodata details.[14][14] CB 129-130.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 3 December 2019, the Tribunal provided written reasons, by way of email to the Applicants.[23][23] CB 177-192. TRIBUNAL’S DECISION The Tribunal’s Decision is at 180 to 192 of the Court Book. The Tribunal first outlined the relevant law and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [3] to [8]. The Tribunal found that the non-disclosure certificate attached to the Applicants’ file was invalid.[24] The Tribunal did not accept that the relevant materials invoked any public interest immunity. [25][24] CB 182 [12]; ss 438(3) and (4) of the Migration Act. [25] CB 182 [12]. Applicant’s claims The Tribunal noted that the Applicant appeared to know “very little” about Christianity despite claiming to fear harm on return due to her Christian faith.[26] The Tribunal raised concerns about the inconsistent nature of the Applicant’s claims which contradicted DFAT country information.[27] [26] CB 185-187 [37]-[46]. [27] CB 184-185 [31]. The Tribunal found that the Applicant’s evidence regarding attendance at church in Australia was “confused, unconvincing and at odds with evidence provided by the second applicant”.[28] The Tribunal noted that the Applicant had failed to provide any supporting evidence of attendance at church, despite claiming to do so on a regular basis.[29][28] CB 186 [43]. [29] CB 186 [44]. The Tribunal did not accept that the Applicant was a genuine or committed Christian.[30] The Tribunal did not accept that someone attending religious gatherings on a regular basis since 2011 would know so little about their faith.[31] On the evidence before it, the Tribunal found that the Applicant was not a truthful or credible witness.[32][30] CB 186 [40]. [31] CB 186 [41]. [32] CB 186 [40]-[42]. The Tribunal rejected the Applicant’s claim that she feared the second applicant’s life was at risk upon return due to issues with the second applicant’s father.[33] The Tribunal found that this claim had been “concocted to enhance the applicant’s chances of obtaining protection”.[34] [33] CB 186 [44]. [34] CB 186-187 [45]. The Tribunal did not accept that the Applicant was part of any religious group in China.[35] The Tribunal did not accept that she or any other family member was ever detained for participating in religious gatherings,[36] or that she would participate in any religious activities on return. [35] CB 187 [46]. [36] CB 187 [46]. Second applicant’s claims The Tribunal summarised the second applicant’s written claims in his Visa application,[37] and noted he did not give evidence at the Department interview on 18 July 2016.[38] The Tribunal considered the second applicant’s oral evidence at the hearing.[39] [37] CB 187 [47][38] CB 187 [47]. [39] CB 187-190 [49]-[65]. The Tribunal did not accept that the second applicant’s father was murdered by criminals in February 2019, and that the second applicant’s life would be at risk upon return.[40] The Tribunal did not accept that the second applicant was a genuine or committed Christian given his lack of knowledge and understanding of the faith.[41] The Tribunal found that the second applicant was not a truthful or credible witness.[42] [40] CB 191-192 [72]-[75].[41] CB 190 [67]-[69]. [42] CB 190 [66].

Ratio Decidendi

Legal Principle Established

The criteria that the Applicant was required to satisfy for the grant of a Protection visa (Subclass 866) are set out in Part 866 to Schedule 2 of the Regulations.CONSIDERATION Ground 1 Ground 1 is that: The Tribunal failed to disclose the country information.ParticularsParagraph 31 of the decision record Paragraph 31 of the Tribunal’s Decision provides:I advised the applicant that advice from DFAT indicated Fujian authorities were not greatly concerned about people who participated in small gatherings held in private and that only leaders of certain groups or people who proselytized or engaged in other public activities were likely to face problems at that time.1 She said that someone had reported her group and the applicant said that her father had been the leader of the group and he had been involved in evangelising. I observed that this was at odds with her earlier evidence that nobody in the group had been involved in any activities apart from attending gatherings. She maintained that her claims were true.[Footnote 1 was: See DFAT Thematic Report Fujian Province, China 16 December 2016 p. 9] This extract demonstrates that the Tribunal put the gist of the information concerning the advice from DFAT to the Applicant, and the Tribunal considered the Applicant’s response to it. Section 424AA of the Migration Act provides:1. If an applicant is appearing before the Tribunal because of an invitation under section 425:a. the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; andb. if the Tribunal does so—the Tribunal must:i. ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; andii. orally invite the applicant to comment on or respond to the information; andiii. advise the applicant that he or she may seek additional time to comment on or respond to the information; andiv. if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.2. A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F). Section 424A of the Migration provides:1. Subject to subsections (2A) and (3), the Tribunal must:a. give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; andb. ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; andc. invite the applicant to comment on or respond to it.2. The information and invitation must be given to the applicant:a. except where paragraph (b) applies—by one of the methods specified in section 441A; orb. if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.2A.The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.3. This section does not apply to information:a. that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; orb. that the applicant gave for the purpose of the application for review; orba.that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; orc. that is non‑disclosable information.4. A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).