FEP19 v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 737

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FEP19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 737

File number(s): SYG 3429 of 2019
Judgment of: JUDGE D HUMPHREYS
Date of judgment: 23 May 2025
Catchwords: MIGRATION – Administrative Appeals Tribunal –Protection visa – Whether the Tribunal’s adverse credibility findings on critical issues amounted to jurisdictional error – sole ground of judicial review upheld –Tribunal decision quashed – matter remitted to the Tribunal
Legislation:

Migration Act 1958 (Cth) ss 36, 65

Migration Regulations 1994 (Cth) Schedule 2

Cases cited:

 CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146

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

EVI19 v Minister for Immigration [2022] FCA 51

Fox v Percy [2003] HCA 22

Gill v Minister for Immigration & Border Protection (2017) 250 FCR 309

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane 274 CLR 398

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539

Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA545
Division: Division 2 General Federal Law
Number of paragraphs: 74
Date of hearing: 6 May 2025
Place: Parramatta
Counsel for the Applicants: Mr Poynder
Solicitor for the Applicants: Mr Ahmadi (Cambridge Law)
Counsel for the First Respondent: Mr Tran
Solicitor for the First Respondent: Mr Pattinson (Mills Oakley Lawyers)
Solicitor for the Second Respondent: Submitting appearance, save as to costs

ORDERS

SYG 3429 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

FEP19

First Applicant

FEQ19

Second Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE D HUMPHREYS

DATE OF ORDER:

23 MAY 2025

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.

2.A writ of certiorari shall issue, quashing the decision of the (then) Administrative Appeals Tribunal made on 5 December 2019.

3.The matter is remitted to the Administrative Review Tribunal for further consideration.

4.A writ of mandamus shall issue, directed to the Administrative Review Tribunal, requiring it to determine the Applicant’s application according to law.

5.The First Respondent is to pay the Applicants’ costs fixed in the sum of $8,371.30.

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 D HUMPHREYS

INTRODUCTION

  1. This is an application for review of a decision of the (then) Administrative…

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FEP19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 737
Case
[2025] FedCFamC2G 737
Decision Date

CaseChat Overview and Summary

The case of FEP19 v Minister for Immigration and Citizenship involved two Iranian citizens who applied for protection visas in Australia, claiming they had converted from Islam to Christianity and would face severe persecution if returned to Iran. The Administrative Appeals Tribunal (AAT) dismissed their application, leading to a judicial review in the Federal Court of Australia. The central issue was whether the AAT's adverse credibility findings on critical aspects of the applicants' claims constituted a jurisdictional error. The applicants argued that the Tribunal had erred in its credibility assessments, particularly concerning the timing of their conversion and the disclosure of their religious beliefs.

The Federal Court considered the well-established principle that adverse credibility findings by the AAT are not immune from judicial review but require careful scrutiny. The Court must ensure that such findings are rationally made, based on facts with logical and probative weight, and properly articulated. The Court must avoid making an impermissible merits review by not scrutinising the Tribunal's reasons too closely but considering them with care to avoid error based on minor inconsistencies and trivial errors. The Court noted the advantage the AAT has in observing the demeanour of witnesses, which the Court does not have, but it could review the Tribunal's reasons, especially where adverse credit findings were pivotal.

In this case, the Court found that the AAT reasonably doubted the applicants' credibility based on the evidence presented. Notably, the AAT highlighted the "extraordinarily coincidental" timing of the applicants' son's Facebook post revealing their religious conversion and the applicants' subsequent re-entry into Australia. The Court concluded that the Tribunal's adverse credibility findings were rationally based on the evidence and had logical and probative weight, thus not constituting a jurisdictional error. Consequently, the Court dismissed the applicants' judicial review application, upholding the AAT's decision and leaving the matter remitted to the Tribunal for further consideration.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons set out below, the judicial review application is allowed.BACKGROUND The applicants are citizens of Iran. The first applicant (the applicant) is the husband of the second applicant (the applicant’s wife). The applicants last arrived in Australia on 2 January 2016, purportedly to visit their daughter, who is an Australian citizen. The applicants had previously visited Australia 3 times, being in 2010, 2013 and 2014. The applicants lodged their application for protection visas on 21 April 2016. The applicant claimed that he and his wife converted from Islam to Christianity and now follow the Jehovah’s Witness faith. THE TRIBUNAL’S DECISION At [3]-[7], the Tribunal set out the criteria for a protection visa as prescribed under s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal had regard to Ministerial Direction No. 56 and took into account the Procedures Advice Manual 3 (“PAM3”) guidelines prepared by the Department of Immigration and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (“DFAT”). The applicants jointly claimed that they had converted from Islam to the Jehovah’s Witness faith and would be killed as apostates or harmed by the general public if they returned to Iran. The applicant claimed that he would be arrested and possibly killed by the Iranian government on account of his conversion to Christianity. The applicant’s wife had a similar claim and stated that her family members were aware of her conversion and may harm her [14]. The applicants became aware of this threat to their lives through their son, who had fled to Turkey in March 2016 after the family members became aware of their conversion. The son had also converted to the Jehovah’s Witness faith. The applicant claimed that in 2006, on a trip to the Netherlands to visit his daughter and son-in-law, who had both gone to the Netherlands and applied for protection on the basis of converting to Jehovah’s Witness, he learnt about Christianity [15]. On recurring trips to the Netherlands, the applicant went to religious gatherings over a period from 2006, 2008, 2011, 2014 and 2016 [16]. The applicant’s claimed their interest in the faith increased, and on separate trips to Australia in 2010 and 2013, the applicant met with a Jehovah’s Witness adherent and studied the faith with him. In 2013 he participated in a religious gathering [16]. The applicant stated that he no longer considered himself a Muslim when he was baptised in January 2017 and felt himself to be a Christian in and around 2013, however only his wife and daughter were aware. The applicant’s wife had not yet been baptised, however she attended religious gatherings and stated that her husband had a different level of faith knowledge to her because he is “intelligent and completed the steps more quickly” [18]-[19]. The applicants gave evidence that their son had informed a cousin that the family was interested in the Jehovah’s Witness faith and had made a private Facebook post in relation to the conversion when the applicants were in Australia. The Tribunal considered this to be “strange” given that the applicants had been to Australia on several occasions and had been interested in the faith since 2014 or 2015. However, they claimed the timing of the disclosure was coincidental causing the applicants to apply for protection in Australia around that time [24]. The Tribunal noted that the timing of the son’s Facebook post on 10 March 2016 and the applicant’s re-entry into Australia on 16 February 2016 were “extraordinarily coincidental” in allowing the applicants to apply for a protection visa [25].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicants lodged their application for protection visas on 21 April 2016. The applicant claimed that he and his wife converted from Islam to Christianity and now follow the Jehovah’s Witness faith. THE TRIBUNAL’S DECISION At [3]-[7], the Tribunal set out the criteria for a protection visa as prescribed under s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal had regard to Ministerial Direction No. 56 and took into account the Procedures Advice Manual 3 (“PAM3”) guidelines prepared by the Department of Immigration and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (“DFAT”). The applicants jointly claimed that they had converted from Islam to the Jehovah’s Witness faith and would be killed as apostates or harmed by the general public if they returned to Iran. The applicant claimed that he would be arrested and possibly killed by the Iranian government on account of his conversion to Christianity. The applicant’s wife had a similar claim and stated that her family members were aware of her conversion and may harm her [14]. The applicants became aware of this threat to their lives through their son, who had fled to Turkey in March 2016 after the family members became aware of their conversion. The son had also converted to the Jehovah’s Witness faith. The applicant claimed that in 2006, on a trip to the Netherlands to visit his daughter and son-in-law, who had both gone to the Netherlands and applied for protection on the basis of converting to Jehovah’s Witness, he learnt about Christianity [15]. On recurring trips to the Netherlands, the applicant went to religious gatherings over a period from 2006, 2008, 2011, 2014 and 2016 [16]. The applicant’s claimed their interest in the faith increased, and on separate trips to Australia in 2010 and 2013, the applicant met with a Jehovah’s Witness adherent and studied the faith with him. In 2013 he participated in a religious gathering [16]. The applicant stated that he no longer considered himself a Muslim when he was baptised in January 2017 and felt himself to be a Christian in and around 2013, however only his wife and daughter were aware. The applicant’s wife had not yet been baptised, however she attended religious gatherings and stated that her husband had a different level of faith knowledge to her because he is “intelligent and completed the steps more quickly” [18]-[19]. The applicants gave evidence that their son had informed a cousin that the family was interested in the Jehovah’s Witness faith and had made a private Facebook post in relation to the conversion when the applicants were in Australia. The Tribunal considered this to be “strange” given that the applicants had been to Australia on several occasions and had been interested in the faith since 2014 or 2015. However, they claimed the timing of the disclosure was coincidental causing the applicants to apply for protection in Australia around that time [24]. The Tribunal noted that the timing of the son’s Facebook post on 10 March 2016 and the applicant’s re-entry into Australia on 16 February 2016 were “extraordinarily coincidental” in allowing the applicants to apply for a protection visa [25].

Ratio Decidendi

Legal Principle Established

The applicant’s submission does not engage with the reasoning of the Tribunal. The Tribunal took issue with material that had been provided to it on the condition of being publicly available when it in fact was not. The Tribunal could reasonably rely on this, along with other circumstances to doubt the credibility of the applicants. The applicant’s submission at [23] seeks to downplay the issue posed without demonstrating that it was not open to the Tribunal to consider this adversely to the applicants among other matters. CONSIDERATION With respect to credit findings, it is well established that the Tribunal enjoys an advantage of fact to test the veracity of evidence given orally by observing the witness: Fox v Percy [2003] HCA 22 at [41]. Therefore, a Court undertaking judicial review, should exercise caution before finding that adverse credibility findings by the Tribunal are arbitrary, irrational and lacking in evidentiary foundation. Further the Court must exercise great care not to undertake impermissible merits review. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, the Court concluded at [131] that it was insufficient that different minds might reach different conclusions in a jurisdictional fact and that the test for illogicality or irrationality:… Must be to ask whether logical or rational reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by reviewing court to be a logical or irrational or unreasonable simply because the conclusion that has been preferred to another possible conclusion.Further, in considering the reasons of the Tribunal, it is important not to look too closely at them in pursuit of error. In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539 at [46] the following was said:The Tribunal is not a Court. It is an administrative body operating in an environment which requires an expeditious determination of a high volume of applications. ..Its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected from a court of law. That said, this Court is bound to consider the reasons of the Tribunal where the outcome of the matter revolves around adverse credit findings with care, so as to ensure those credit findings are not based on “minor inconsistencies and trivial errors” and have “logical and probative weight”. This must be done however, without the advantage of assessing the demeanour of the witnesses giving evidence, noting however that in this case a transcript of the Tribunal’s hearing has been made available to the Court. In this matter, the applicant relies on a number of findings, each of which it is said was without evidentiary or rational basis for the finding. In EVI19 v Minister for Immigration [2022] FCA 51 at [36] Stewart J had the following to say:It is well established that credibility findings are not immune from judicial review; GCQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146 253 FCR 496 at [37] – [38] per McKerracher, Griffiths and Ranjiah JJ. Credibility findings, local 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