AFJ21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1767

(a) the subject of substantial clearly articulated argument, relying on established facts; or

(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).

• These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

(Emphasis added.)

• As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

(a) such a finding is not to be made lightly (NABE at [68]);

(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c) to clearly emerge from the materials, the claim must be based on "established facts" (SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

1. While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
2. Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on "established facts". At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must "emerge clearly from the materials before the Tribunal and should arise from established facts". I agree with the primary judge's approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d) while there is no precise standard to determining whether an unarticulated claim has been "squarely raised" or "clearly emerges" from the materials "a court will be more willing to draw the line in favour of an unrepresented party": Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; (2008) 49 AAR 77 per Flick J (at [21]); and

(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant's claims are presented over time.

1. The question of whether a decision maker has meaningfully considered the merits of a particular case, such that their consideration was 'proper, genuine and realistic' and that they engaged in 'an active intellectual process' when making their decision, was recently examined by this Court in CDD23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 276. The following summary of the relevant legal principles in relation to the determination of that question is largely derived from his Honour Judge Gerrard's helpful and thorough survey of the relevant case law.
2. It has long been established that the consideration of a representation or submission requires an 'active intellectual process': see Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 (Tickner) at [39]. In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; FCAFC 107 (Carrascalao), Griffiths, White and Bromwich JJ at [36]-[46], the Full Court confirmed the principle that a failure to actively engage with the material before it, giving it proper genuine and realistic consideration, constitutes jurisdictional error. At [47], their Honours articulated 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.

1. However, their Honours noted that a finding by the Court that a decision-maker has not engaged in an active intellectual process is not to be made lightly and must be supported by clear evidence: see Carrascalao at [48]. The Court must be watchful that it does not slide into impermissible merits review: see Carrascalao at [32].
2. In Tickner, Kiefel J (as her Honour then was) at [40] said the following about what is required by consideration:

It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them.

1. In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582; HCA 17 at [24]-[27] per Kiefel CJ, Keane, Gordon and Steward JJ, with Gageler J agreeing, the High Court said (footnotes omitted):

24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.

25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

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.

1. In Singh v Minister for Home Affairs (2019) 267 FCR 200; FCAFC 3, Reeves, O'Callaghan and Thawley JJ at [34] held that a Tribunal, whose task is to review, may commit jurisdictional error by failing to engage in an active intellectual process or give proper, genuine and realistic consideration to:
   • a 'substantial, clearly articulated argument relying upon established facts': see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
   • 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': see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
   • a matter 'that is an essential integer to an applicant's claim or that would be dispositive of the review': see ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.
2. Their Honours at [37] provided further guidance in relation to the adjudication of whether a decision maker has failed to engage in an active intellectual process:

(1) First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.

(2) Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:

(a) the reasons should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error": Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];

(b) it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and

(c) a conclusion that the decision-maker has not engaged in an active intellectual process "will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof": Carrascalao at [48].

1. The Tribunal's statutory obligation to give reasons for oral decisions, as detailed in s 430D of the Act, requires the Tribunal to, among other things, describe the reasons for the decision, describe the findings on any material question of fact and refer to the evidence or any other material on which the findings of fact were based.
2. Non-compliance with s 430(1) of the Act, which is the equivalent provision in relation to the Tribunal's written statement of decision (other than an oral decision), does not, of itself, establish jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 58 ALD 609; HCA 1 per McHugh J at [70]. However, non-compliance, such as a failure to refer to evidence or other material on which the decision is based, may evidence jurisdictional error; for example, a constructive failure to exercise a review function: Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362; FCAFC 108 per Kenny J at [98]. In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; FCAFC 114, the Full Court (Kenny, Griffiths and Mortimer JJ) stated (at [49] and [50]):

The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made ... Representing as it does what the Tribunal itself considered important and material, what is present - and what is absent - from the reasons may in a given case enable a Court on review to find jurisdictional error ...

1. It is uncontroversial to state that fact-finding is the province of the Tribunal, and not the Court. Facts must be found, by way of the acceptance or rejection of claims, in order for the Tribunal to then proceed towards the determination of whether a criterion within s 36 of the Act has been met. It is the Tribunal's carriage of that fact-finding task which is of concern to the Court.
2. It follows that when assessing whether legal unreasonableness has been made out, regard must be had to the Tribunal's reasons but without an eye keenly attuned to the perception of error. In so doing, reasons must be read with an appreciation of their formulation taking into account the process by, and context within, which information has been made available to the Tribunal and the manner in which that information is ultimately considered by the Tribunal.
3. It is inappropriate for the Court to insert itself into a quasi-fact-finding role to establish whether an approach taken by a Tribunal was reasonable in the circumstances. Rather, when examining a statement of reasons for the presence of legal unreasonableness - which may have manifested where the Tribunal has improperly relied upon inconsistencies in the applicant's narrative, improperly found a narrative to be implausible or reasoned by way of making an unwarranted assumption in relation to the narrative - the Tribunal's process of reasoning is to be assessed with appropriate deference towards the Tribunal's scope of decisional freedom.
4. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; HCA 16, Crennan and Bell JJ explained the high threshold to be met for any allegation of illogicality or irrationality in the following terms at [130]:

In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case.

1. Their Honours further explained at [131] that:

...the test for illogicality or irrationality must be to ask whether logical or rational or 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 a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

1. In BUX17 v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FCA 1510, Raper J at [18] further articulated the need for an applicant to overcome a high bar when asserting a decision is illogical or irrational, and thereby legally unreasonable, in the following terms:

A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, or if the decision was simply not open on the evidence or there is no logical connection between the decision and the inferences or conclusions drawn: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135] per Crennan and Bell JJ. Where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally or factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92] per Wigney J.

1. The applicant contends the Tribunal misinterpreted or misapplied the law by incorrectly applying s 5J(6) of the Act to its analysis of the complementary protection criterion. In determining whether an applicant has a 'well-founded fear of persecution', s 5J(6) provides the decision-maker disregard any conduct of the applicant in Australia unless the decision-maker is satisfied the conduct is otherwise than for the purpose of strengthening the applicant's protection claim. The applicant observes the Tribunal accepted his identity as a Christian and accepted his attendance from 2014 at the Bread of Life Church,[33] but found that his engagement with the church was to strengthen his claim as a refugee.[34] The applicant contends that the Tribunal erred by applying this same reasoning to analysis of both the refugee criterion under s 36(2)(a) and the complementary protection criterion under s 36(2)(aa) of the Act. As consideration of s 5J(6) is only applicable to determining the refugee criterion, the applicant suggests the Tribunal misinterpreted or misapplied the law.
2. The Minister argues the Tribunal's specific reference[35] to the s 5J(6) test falling within the refugee criterion consideration highlights its awareness of how this test is to be applied: SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 [57]. The Minster maintains the applicant's reliance on SZRLB v Minister for Immigration [2014] FCCA 2851 at [42]- [47], where jurisdictional error was established when the Tribunal failed to distinguish between the two criterion, does not align with the facts in this case. The Minister further provides the applicant's conduct in Australia was subsumed in the broader finding of fact that the applicant wished to remain in Australia because of his better economic and social circumstances and this was where the 'same reasons' were applied.[36]
3. On a fair reading of the Tribunal's reasons, the Tribunal was prepared to accept the applicant as a person who identified as a Christian and had undertaken certain activities in Australia by way of his 'engagement' as a member of the Bread of Life Church. Those activities included his semi-regular attendance at church (which it found had waned in recent years), his attendance at the informal church-related gatherings with other attendees and his work as a volunteer receptionist for the church. However, the Tribunal clearly expressed its doubts about the genuineness of his motivation to undertake those activities. That doubt was evinced in its finding at [19] that it was 'not even confident that if [the applicant] were to return to China that he would continue as a follower of the Bread of Life Church upon his return'. It was also evinced at [20] where the Tribunal described the applicant's motivation to remain in Australia as not having arisen out of a genuine commitment to his faith demonstrated by way of a genuine pursuit of faith-based activities in Australia, but rather simply because the applicant has established himself a 'better economic and social life in Australia'.
4. I agree with the Minister that the Tribunal's broad finding of fact at [20] was ultimately a rejection of the underlying premise of the applicant's protection claim that was informed by the matters observed in [19] of its reasons. While I observe the Tribunal's conclusory paragraphs did not distinguish exactly which of the reasons set out in the preceding paragraphs it relied upon to find that the applicant had not met the refugee criterion and the complementary protection criterion, I regard its reference to the 'same reasons' as being an infelicitous reference to the preceding reasons as a whole rather than a suggestion that the Tribunal failed to have regard to the applicant's albeit limited faith-based activities in Australia as part of its assessment of the complementary protection criterion. Indeed, taking into account the accepted facts and available country information before it, I find the following reasoning at [19] indicative of the basis upon which the Tribunal found the applicant did not meet the complementary protection criterion:

I expect that if he were to return to China now he would not be noticed at all upon his arrival by the authorities in terms of being a known follower of the Christian faith. There is no evidence before me that he has a profile at all as a Christian or as a high profile Christian seeking to convert others to Christianity. I am not even confident that if he were to return to China that he would continue as a follower of the Bread of Life church upon his return to China.

1. Accordingly, jurisdictional error does not arise on this basis.

1. The applicant submits the Tribunal failed to offer an opportunity to give evidence and present arguments, contrary to the requirement under s 425 of the Act. Those failures allegedly stem from a failure to put to new issues to the applicant, particularly that:

(a) it doubted the applicant would continue to follow the Bread of Life Church in China; and

(b) his attendances at the Bread of Life Church in Australia were for the sole purpose of strengthening his refugee claim.

1. The applicant suggests these constitute new 'issues arising in relation to the decision under review' and were new to the enquiry given the Tribunal's acceptance of the applicant's Christianity and church attendance, in contrast to the delegate's finding on this point.
2. The Minister submits that despite the delegate's rejection of the applicant's Christian faith, the delegate did raise with the applicant the ability to practise his faith at a registered church in China and further flagged the deficiency of the applicant's knowledge of Christianity against his claim to be a Christian. Therefore, the applicant would have been aware these elements would be issues on review. More broadly, the delegate's rejection of the applicant's claim to be a Christan made it apparent that everything the applicant had submitted in support of his application was in issue. The Minister further submitted that these two matters were not 'issues' but expressions indicating its application of its own reasoning process to the claims made and therefore there was no denial of procedural fairness as it was not obliged to reveal its own thought process to the applicant to satisfy s 425 of the Act: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; HCA 26.
3. I am persuaded by the Minister's submissions in relation to this ground. The applicant improperly seeks to elevate or characterise these two matters as issues in the sense described by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; HCA 63. I regard each of these two matters to be expressions of the Tribunal's thought process rather than a decisive issue the Tribunal ought to have raised with the applicant for the provision of further argument or evidence pursuant to s 425 of the Act. Based upon the broad rejection of the applicant's claims by the delegate, it was made clear to the applicant that the determinative question before the Tribunal was whether the applicant was a genuine and committed Christian. That assessment would then give rise to its consideration whether the applicant would then face a real chance of serious harm upon, or in the reasonably foreseeable future following, his return to China or a real chance of significant harm as a necessary and foreseeable consequence of such return. The applicant was given sufficient opportunity to give evidence and make submissions about that determinative question, the result of which gave rise to the Tribunal's assessment of the applicant against the relevant criteria. It follows that the two matters raised by the applicant in this ground are characterisations of the Tribunal's thought processes towards the determination of that question. Accordingly, this ground does not disclose jurisdictional error on the Tribunal's part.

1. The applicant further submits that the Tribunal failed to consider two distinct integers of his claim to fear harm in China. The first is a claim he would be unable to work in China, the way that he does in Australia, because of his health issues (the work health claim). The applicant contends this integer is at least relevant to an assessment of the complementary protection criterion. The second is a claim that the applicant would face harm in China as he wished to publicly, freely and openly worship and preach in China (the proselytisation claim). I now turn to consider the Tribunal's treatment of each of these matters.

1. The Minister drew my attention to the Tribunal's observation regarding the impact that working daily in China would have on the applicant's lower back condition.[37] The Minister contends the claim was considered, having been encompassed within the Tribunal's concluding finding concerning the applicant's genuine motivation for lodging the protection claim.[38] Regardless, the Minister identifies that the claim fails to enliven Australia's protection obligations as it does not correspond to any of the five grounds of persecution prescribed within s 5J(1)(a) of the Act - race, religion, nationality, membership of a political social group or political opinion. The Minister further submits that the claim fails to engage the complementary protection criterion as the type of harm which the applicant claims will arise does not fall within the types of harm specified in s 36(2A) of the Act nor would it be intentionally inflicted by state actors or others the state is unable to control: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362; HCA 34.
2. In my view, the work health claim did clearly emerge from the material before the Department. The complaint about the applicant's health and economic concerns arose at interview with the delegate but was rejected by the delegate due to the lack of substantiation of the applicant's medical condition, the absence of credibility surrounding the claim given other evidence which pointed towards the applicant's ability to find employment, and the absence of country information suggesting the applicant would be denied access to the necessary health services if required. At hearing before the Tribunal, the applicant did not advance the claim beyond stating that his lower back condition rendered him incapable of working seven days a week and that he preferred to remain in Australia where he could work three or four days a week so that he could spend the remainder of his week going to church. Based upon the applicant's failure to agitate the delegate's rejection of the claim in any meaningful way, and his evidence at hearing which did not advance the originally put claim beyond a vague complaint about potential concerns about limited employability in China, it is my view the Tribunal was not required to address this claim any further than in the manner it did. It was therefore open to the Tribunal to consider this claim and reject it by way of reaching its ultimate finding that the applicant's economic life in Australia was better than that available to him in China.[39]
3. While I agree with the Minister that it could not be inferred from the work health claim that the Tribunal was in a position to construe that claim as giving rise to a degree of harm that amounted to a form of economic harm within the meaning of ss 5J(5)(d) to 5J(5)(f) of the Act or significant harm that would be intentionally inflicted, it is not apparent from the Tribunal's reasons this was the approach it had taken. Similarly, it cannot be inferred from the reasons that the Tribunal addressed the work health claim on the basis that it did not require further explicit consideration because it could not amount to persecution for any one or more of the five reasons specified within s 5J(1)(a) of the Act. That said, I do not resile from the conclusions I have reached above in relation to the Tribunal's adequate treatment of this claim.

1. The Minister points to the Tribunal's ultimate finding[40] and chain of reasoning[41] as adequate consideration of the applicant's desire to preach in China. The Minister suggests that, given the limited evidence presented by the applicant in support of this claim, a formal finding may not have been necessary.
2. The Tribunal referred to the relevant DFAT country information report showing that individuals who promote Christianity in China may be at risk of harm. That country information clearly indicates a significant difference between practising one's faith and preaching in a public setting in China, particularly in terms of the degree of risk of harm attached to those pursuits.
3. Turning to the Tribunal's reasons, the claim is not specifically adverted to or rejected. Rather, the claim was more broadly rejected by way of the finding that the Tribunal was of the view there was no evidence before it that the applicant had a profile 'as a high-profile Christian seeking to convert others to Christianity'.[42]
4. The first question is whether there is a claim squarely arising on the materials the applicant intended to publicly worship and proselytise in China. My review of the evidentiary record reveals a few references to the claim. The Tribunal transcript contains only one mention during the hearing of the applicant's intention to preach his beliefs,[43] and there are three references in the representative's written submissions regarding the applicant's desire to promote the denomination in China.[44] Taken together, this constitutes a weak submission at best with insufficient established facts for a claim to clearly emerge.
5. Nevertheless, even if I were to find the claim had arisen from the materials, I am of the view that the Tribunal gave proper, genuine and realistic consideration to that claim. This is evinced by its reasoning at [19] and [20] of its reasons. The claim was put by way of the four references to it in the hearing and an accompanying written submission. The content of the claim raised by the applicant was unremarkable with no elaboration as to why he was motivated to proselytise and what it meant to his faith. At hearing, the applicant simply stated that he would like to preach but it was not possible to do so in his home area. He did not articulate any awareness or understanding of the harm he might face or what that proselytising would entail. Further, the applicant's representative himself specified that the applicant does not possess profound knowledge of the Christian religion despite being intrigued by the mission of the church. Therefore, the degree of engagement the Tribunal gave to this claim was sufficient in the circumstances of its presentation.
6. As to whether the Tribunal provided adequate reasons for its ultimate finding of the applicant's true motivation to remain in Australia, it is evident that the Tribunal was aware of the risk associate with proselytising Christianity in China. In my view, it was sufficient for the Tribunal to reject the claim within its broader assessment of the applicant's overall profile.
7. Accordingly, jurisdictional error does not arise in relation to the matters raised in ground 4.

1. By ground 5, the applicant asserts the Tribunal's decision is legally unreasonable. In essence, the applicant takes issue with the Tribunal's application of country information to the accepted findings of fact concerning the applicant's identification as a Christian and profile as an adherent to the Christian faith. The applicant contends that aspects of the DFAT report were either misunderstood, mischaracterised or ignored. In the applicant's view, this amounted to the Tribunal failing to have proper regard to the country information when assessing the applicant's claims. Specifically, the Tribunal's finding that millions of Christians practice in China did not show proper regard to the DFAT report.[45] At hearing, Mr Dobbie drew my attention to various statements within the DFAT report which, he argued, were not properly considered. These can be summarised as follows:

(a) China does not recognise worshippers who engage in religious activities outside of state sanctioned organisations.[46]

(b) The 2018 Regulations on Religious Affairs (RRA) gives state registered religious organisations rights to proselytise within (but not outside) registered places of worship and in private settings (but not in public).[47]

(c) Historically, those involved with unregistered churches could be charged with fraud. However, under the RRA, it is now considered a crime to organise people for the purpose of religion (with a particular focus on the organisers).[48]

(d) Regulations prohibiting proselytising are generally enforced across Chinese cities. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups).[49]

(e) In recent years, there has been an increase in state control of both registered and unregistered churches, including harassment and imprisonment of Christian pastors and priests.[50]

(f) In May 2019, media and Christian advocacy groups reported the government launched a new campaign called Return to Zero in April 2019, aimed at eradicating underground house churches and ensuring only state sanctioned and heavily restricted Three-Self Patriotic Movement churches remained functional.[51]

1. The Minister submits that the substance of the country information relied upon, and in particular paragraphs [3.76]-[3.83] of the DFAT report made clear the real chance or real risk of harm may well arise in circumstances where a person had a profile with the Chinese authorities, practised in an unregistered church, or proselytised beliefs of an unregistered church. Further, the Minister argued that despite the Tribunal accepting that the applicant was a Christian, its reasoning at [19] makes plain that it was aware of the substance of the country information in question, but that it was not satisfied that any of the risk factors identified in that country information would apply to the applicant. Taking into account my reasons above in relation to the proselytisation claim raised within ground 4, there is force in the Minister's submissions.
2. Furthermore, the Minister does not accept the applicant's contention that the Tribunal, by implication, expected the applicant to conduct himself in a particular way by joining a registered church in China and not proselytising. Instead, the Minister submits the Tribunal was simply not satisfied the applicant would conduct himself in a way that, in accordance with the available country information, would likely attract the adverse attention of the Chinese authorities. I agree with the Minister's construction of the Tribunal's reasons in this regard and am persuaded by the Minister's submissions. Put simply, it was for the applicant to satisfy the Tribunal of his claims and the Tribunal's reasons clearly disclose that it was not so satisfied. On this basis, jurisdictional error does not arise.

1. As jurisdictional error has not been made out in relation to any of the advanced grounds, the application before this Court is dismissed.
2. Finally, as a consequence of:

(a) changes to Ministerial portfolio arrangements, the name of the first respondent is to be amended to 'Minister for Immigration and Citizenship'; and

(b) the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to 'Administrative Review Tribunal'.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[2] CB 121, [32], [34], [36]; 183, [4].

[43] Transcript pp 20-21, answer to q125.

[44] CB 186, II. Personal Circumstances; 187, A. Internal Relocation - s36(2B)(a); C. Personal Risk - s36(2B)c.

[46] Affidavit of Joseph Sukkar on 3 July 2025, p31 [3.29]-[3.32].

[47] Affidavit of Joseph Sukkar on 3 July 2025, p33 [3.41].

[48] Affidavit of Joseph Sukkar on 3 July 2025, p33 [3.43].

[49] Affidavit of Joseph Sukkar on 3 July 2025, p34 [3.47]-[3.49].

[50] Affidavit of Joseph Sukkar on 3 July 2025, p38 [3.78].

[51] Affidavit of Joseph Sukkar on 3 July 2025, p40 [3.88].