ANP21 v Minister for Immigration and Citizenship [2026] FedCFamC2G 134

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. On 2 March 2021, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 8 February 2021. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a protection (subclass 866) visa under s 65 of the Act.
2. For the reasons that follow, the application to this Court is dismissed.

1. In February 2016, the applicant, a citizen of South Africa, arrived in Australia on a visitor visa. The applicant had previously visited Australia twice, in 2012 and 2013 and returned to South Africa after each visit.
2. In April 2016, the applicant lodged an application for a protection visa, claiming to fear a risk of persecution if he returned to South Africa on the basis of his conversion from Islam to Christianity.
3. On 8 June 2017, a delegate of the first respondent, after interviewing the applicant in May 2017, made a decision refusing to grant the visa.
4. On 26 June 2017, the applicant applied to the Tribunal for review of the delegate's decision.
5. On 9 November 2020, the Tribunal invited the applicant to appear at a hearing on 26 November 2020, which was then postponed to 1 February 2021, to give evidence and present arguments.
6. On 1 February 2021, the applicant and his representative appeared at the hearing before the Tribunal by video link.
7. On 8 February 2021, the Tribunal made a decision affirming the delegate's decision not to grant the applicant the visa.

1. The Tribunal reached its decision because it was not satisfied the applicant had a well-founded fear of persecution (CB 289 at [80]). In reaching its decision, the Tribunal had significant concerns about the applicant's credibility and rejected most of the applicant's claims. The Tribunal's findings included the following:

(a) the Tribunal was "not satisfied that the many claimed difficulties faced by the applicant or other health issues would explain the stark inconsistencies in evidence as to when the applicant converted" from Islam to Christianity (at [64]);

(b) the "lack of supporting independent evidence to indicate a risk to the applicant based on his conversion buttress[ed] more direct credibility concerns" (at [74]);

(c) the Tribunal's "credibility concerns [were] multitudinous", "the Tribunal [was] not satisfied that the applicant is a credible truthful witness", and was "not satisfied as to key substantive claims by the applicant", other than his conversion from Islam to Christianity at some point (at [76]); and

(d) the Tribunal was "not satisfied that the applicant or his family have suffered any degree of serious or significant harm as a result of either the applicant's or the family's conversion from Islam to Christianity", and was "not satisfied as to any of the claimed specific incidents of harm claimed in the interview, the hearing or in his written claims" (at [77]).

1. The Tribunal at [81]-[82] concluded that it was not satisfied the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or 36(2)(aa) of the Act.
2. The Tribunal therefore affirmed the delegate's decision not to grant the applicant the visa.

Judicial review application and steps up to hearing on 28 January 2026

1. On 2 March 2021, the applicant lodged in this Court an application for judicial review of the Tribunal's decision (Application) which contained the following grounds (as written):

Ground One

The Administrative Appeals Tribunal (the "Tribunal'') erred by failing to consider properly consider the real risk of serious harm to the Applicant in South Africa should he be returned to South Africa. The Tribunal's error is evident in its failure to consider (i) the extent to which the Applicant's renunciation of Islam would of itself give rise to a real risk of harm, particularly from his family members and local Islamic community in South Africa; and (ii) whether the reason the Applicant kept his conversion to Christianity secret was because he feared persecution.

Particulars

a) The Tribunal accepted that the Applicant had converted from Islam to Christianity. [Paragraph 76].

b) The Applicant claimed that prior to his conversion to Christianity, he was a Muslim, that his family is a descendant of the Prophet Mohammad, he read the Al-Quaran, attended mosques, had duties such as reading prayers during Fridays and Ramadan periods and he had travelled throughout South Africa in a religious capacity. [Paragraph 42 (17-18)]

c) After becoming a Christian, he stopped attending Friday prayers at the local mosque and kept his conversion to Christianity as a secret. [Paragraph 42 (18)]

d) He was accused of betraying Islam and was told that he had committed the worst kind of crime and it was more serious than murder. [Paragraph 42 (25)]

Ground Two

The Tribunal made its decision without considering all the integers of the Applicant's claims leading to a failure to complete the exercise of jurisdiction embarked on. The Tribunal failed to perform its tasks as required by law, thereby falling into error.

Particulars

a) The Applicant claimed that prior to his conversion to Christianity, he was a Muslim, his family is a descendant of the Prophet Mohammad, he read the Al-Quaran, attended mosques, had duties such as reading prayers during Fridays and Ramadan periods and he had travelled throughout South Africa in a religious capacity. [Paragraph 42 (17-18)]

Ground Three

The Tribunal made an error in fact finding on the way to its ultimate decision, leading to jurisdictional error: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174. The Tribunal erroneously conflated a factual finding that there was no relevant information about the attitude of Muslims towards former Muslims who have converted to Christianity in South Africa, with a conclusion that there was no evidence of any instance or widespread occurrence of individuals facing harm due to religious conversions in South Africa.

Particulars

a) The Tribunal noted that there is no DFAT country information report for South Africa [Paragraph 10]

b) The Tribunal noted that it made a request of the Country of Origin Information Services Section ("COISS") of the Department seeking information concerning the attitude of Muslims towards Muslims who have converted to Christianity in South Africa. COISS's response was "No specific information was found about the attitude of Muslims tours from the Muslims who have converted to Christianity". [Paragraph 53]

1. The footer on the first page of the Application contains the phrase "Direct Access Brief" which suggests the Application was prepared by a barrister on a direct access basis. The applicant confirmed during the hearing on 28 January 2026 that he retained and paid a lawyer in the proceeding, presumably to prepare the Application.
2. Following a period of inactivity, on 11 July 2025 a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing a written submission, any amended application and any additional evidence on which the applicant sought to rely.
3. On 5 December 2025, the parties were notified by the registry of the Court that the matter was listed for hearing on 28 January 2026.
4. On 13 January 2026, the first respondent filed a written submission (RS).
5. The applicant did not file a written submission or any other documents prior to the hearing.

1. At the hearing in this Court on 28 January 2026, in circumstances where the applicant had returned to South Africa, the parties appeared by video link. The applicant appeared unrepresented and Isabella Celata from HWL Ebsworth Lawyers appeared for the first respondent.
2. At the commencement of the hearing, I discussed with the applicant the documents in the proceedings to which he had access. In relation to relevant documents:

(a) In July 2021, the first respondent filed and served a Court Book, which contained the Tribunal's decision and documents before the Tribunal. The applicant stated that he had received the Court Book, but he did not have access to a copy during the hearing.

(b) The applicant stated that he had access to the Tribunal's decision through his mobile phone but, while using his phone to attend the hearing by video link, he could not simultaneously access the Tribunal's decision.

(c) The applicant did not have access to the Application during the hearing.

(d) The applicant stated that he had received an email from the first respondent's solicitor attaching the first respondent's written submission, but he did not have access to the submission during the hearing.

1. My associate displayed the Tribunal's decision on the video link platform. The applicant confirmed he could see the Tribunal's decision on the screen. I then explained to the applicant the structure of the Tribunal's decision and directed his attention to the principal adverse findings made against him. The applicant stated that he recalled the Tribunal's decision and the adverse findings. I then explained to the applicant that the Court's role was limited to determining whether there is a jurisdictional error, which I described as a significant mistake or error, in the Tribunal's decision. I told the applicant that, to win the case, there were two matters he must address as follows:

(a) First, he must persuade the Court there is a significant error or mistake in the Tribunal's decision.

(b) Second, because the applicant had returned to South Africa and did not have a visa which permitted him to return to Australia, the first respondent contended that, even if there was a jurisdictional error in the Tribunal's decision, it was futile to grant the applicant relief. I invited the applicant to respond to this contention.

1. I offered the applicant a 15-minute break to read the Tribunal's decision, since he told me he could access the Tribunal's decision through his mobile phone. The applicant replied that he did not want a break.
2. Ms Celata tendered a copy of the Court Book (CB).
3. I invited the applicant to make closing oral submissions. The applicant said many things not relevant to whether there was a jurisdictional error in the Tribunal's decision, for example that:

(a) he suffered severe trauma due to his case;

(b) he was forced to join Al-Qaeda;

(c) the reason he returned to South Africa was to renew his passport;

(d) there is a 200,000 Rand reward on his head;

(e) he constantly lives in fear because of his religion; and

(f) his daughter was raped because he chose to be a Christian.

The applicant also said a few times that the Tribunal "overlooked" something.

1. I reminded the applicant that, to win the case, he must persuade the Court there is an error or mistake in the Tribunal's decision. I invited the applicant, with reference to the Tribunal's 84 paragraph written reasons for decision, to identify an error or mistake in the decision. I also asked the applicant to clarify what he says the Tribunal "overlooked". The applicant replied that the Tribunal overlooked why the applicant became Christian and why his life was in danger.
2. I invited the applicant to respond to the first respondent's contention concerning futility. The applicant accepted that he does not have a right to return to Australia. He stated that his lawyer told him to apply for a visitor visa to attend the hearing today. I explained that, since the hearing is today, the applicant can no longer apply for a visitor visa to attend the hearing.
3. Ms Celata, in her oral submissions, principally relied on the first respondent's written submission filed in January 2026. In relation to the first respondent's submission concerning futility, I asked Ms Celata whether it was impossible for the applicant to obtain a visitor visa to return to Australia and, if it was not impossible, whether relief could be refused on the ground of futility. Ms Celata replied that, since the applicant does not have a visa to enter Australia, this is sufficient to establish futility.

1. The Tribunal at [76] accepted "that at some point the applicant has converted from Islam to Christianity".
2. It is asserted in ground 1 of the Application that the Tribunal failed "to consider the extent to which the applicant's renunciation of Islam would of itself give rise to a real risk of harm, particularly from his family members and local Islamic community in South Africa".
3. I disagree that the Tribunal failed to consider this matter. The Tribunal found at [77]:

The Tribunal is not satisfied that the applicant or his family have suffered any degree of serious or significant harm as a result of either the applicant's or the family's conversion from Islam to Christianity. The Tribunal is not satisfied as to any of the claimed specific incidents of harm claimed in the interview, the hearing or in his written claims. The Tribunal is not satisfied that there is any adverse intention towards the applicant by his family or former fellow Muslims or Al-Qaeda to cause the applicant or his family serious or significant harm. The Tribunal is not satisfied that the applicant's daughter was assaulted/raped as claimed, including as a result of the family's religious conversion.

1. The findings at [77] address the past and present. In a context where "what has occurred in the past is likely to be the most reliable guide as to what will happen in the future" (see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575), the Tribunal at [79] considered the future and found, unsurprisingly, that it was "not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed".
2. Contrary to the assertion in ground 1, the Tribunal expressly considered the extent to which the applicant's conversion from Islam to Christianity gave rise to a real risk of harm. That the applicant might disagree with the Tribunal's finding does not mean the Tribunal failed to consider the issue.
3. It is also asserted in ground 1 that the Tribunal failed to consider "whether the reason the applicant kept his conversion to Christianity secret was because he feared persecution". The applicant stated in a statement dated 19 November 2020 that "initially the applicant kept his conversion to Christianity as a secret" (November Statement). The Tribunal considered this evidence at [42], although neither accepted nor rejected the evidence. The applicant did not explain why he kept his conversion to Christianity a secret. The Tribunal has no obligation to consider evidence not provided by the applicant to the Tribunal. The Tribunal, therefore, was not required to consider, if it had been satisfied that the applicant kept his conversion to Christianity a secret, why he did so.
4. For the above reasons, ground 1 does not identify a jurisdictional error in the Tribunal's decision.

1. It is asserted in ground 2 that the Tribunal failed to consider an integer of the applicant's claims. It appears from the particulars to ground 2 that the integer which the Tribunal allegedly failed to consider was the applicant's evidence in paragraphs 16 and 17 of the November Statement which is set out in the Tribunal's decision at [42]. The applicant stated in paragraphs 16 and 17 of that statement:
   1. In December 2015, the applicant converted from Islam to Christianity. Prior to this date he was a Muslim, and he claims that his family is a descendant of The Prophet Mohammad. The applicant also read the Al-Quran (Tahfiz) and had travelled throughout South Africa in a religious capacity.
   2. The applicant attended Gelvan Park mosques in Port Elizabeth and had some duties such as reading prayers during Fridays and Ramadaan periods.
2. Contrary to the assertion in ground 2, the Tribunal clearly considered these paragraphs of the applicant's statement. That the Tribunal did not make a favourable finding concerning the applicant after considering the November Statement does not mean the Tribunal failed to consider the statement or a part of the statement.
3. For the above reasons, ground 2 does not identify a jurisdictional error in the Tribunal's decision.

1. The meaning of ground 3 is unclear. The Tribunal at [53] recorded that it "made a request of the Country of Origin Information Services Section (COISS) of the Department seeking information concerning the attitude of Muslims towards Muslims who have converted to Christianity in South Africa" and on 19 November 2020 COISS provided a response which commenced with the following paragraph:

No specific information was found about the attitude of Muslims towards former Muslims who have converted to Christianity.

The Tribunal also noted to the applicant that credibility issues as to claimed harm faced as a result of converting from Islam to Christianity are reinforced by the lack of any independent evidence finding no evidence of any instance or widespread occurrence of individuals facing harm due to religious conversions and the fact that the evidence indicates that South Africa has some of the fewest social hostilities involving religion. In response the applicant and his representative submitted that there may not be reports of such occurrences and that the applicant faces a particular risk of being targeted because of his important role in the mosque and that he is a direct descendant of the Prophet Mohammed.

1. It is asserted in ground 3 that "the Tribunal erroneously conflated a factual finding that there was no relevant information about the attitude of Muslims towards former Muslims who have converted to Christianity in South Africa with a conclusion that there was no evidence of any instance or widespread occurrence of individuals facing harm due to religious conversions in South Africa".
2. Ground 3 appears to assert that there was some form of jurisdictional error in the Tribunal's finding at [73] that there was "no evidence of any instance or widespread occurrence of individuals facing harm due to religious conversions" (No Evidence Finding), which error arose from a misunderstanding by the Tribunal of the evidence recorded at [53] from COISS that "no specific information was found about the attitude of Muslims towards former Muslims who have converted to Christianity". I disagree that there was some form of jurisdictional error in the No Evidence Finding. I agree with the first respondent's submission at RS [37] that the No Evidence Finding "was open to the Tribunal" and was consistent with matters discussed in earlier parts of the Tribunal's decision, including an acknowledgement by the applicant's representative recorded by the Tribunal at [45] that "the representative is unable to provide country information indicating the systematic and targeted persecution of a convert from Islam to Christianity in South Africa".
3. For the above reasons, ground 3 does not identify a jurisdictional error in the Tribunal's decision.

1. During the hearing, the applicant contended that the Tribunal overlooked why the applicant became Christian; and why his life was in danger: see paragraph 25 above.
2. In relation to the applicant's contention concerning why he became Christian, the Tribunal at [42] set out the applicant's November Statement. The applicant, in paragraph 5 of the statement, explained why he became Christian. It is clear that the Tribunal considered the contents of the applicant's November Statement, including why the applicant became Christian.
3. In relation to the applicant's contention concerning why his life was in danger:

(a) The Tribunal at [77] was "not satisfied that the applicant or his family have suffered any degree of serious or significant harm as a result of either the applicant's or the family's conversion from Islam to Christianity".

(b) The Tribunal at [80] was "not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s 5J(1) of the Act for any of the reasons claimed".

By these findings, the Tribunal effectively found that the applicant's life was not in danger. Since the Tribunal effectively found that the applicant's life was not in danger, there was no basis for the Tribunal to consider why the applicant's life was in danger.

1. The matters raised by the applicant at the hearing do not identify a jurisdictional error in the Tribunal's decision.

1. It is stated at RS [40]-[43] that, even if there was a jurisdictional error in the Tribunal's decision, the Court should refuse to grant relief on discretionary grounds. The contention is that, since:

(a) the applicant has departed Australia;

(b) the applicant has no Australian visa which permits him to return to Australia; and

(c) a criterion for the grant of a subclass 866 protection visa is that "the applicant must be in Australia" (cl 866.411 of the Migration Regulations 1994 (Cth)),

it would be futile to remit the application to the Tribunal because "the applicant simply cannot be granted the visa": RS [43]. The first respondent adds, with reference to SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 (SZBYR) at [28]-[29], that "the inability of a judicial review proceeding to give rise to any useful result is a recognised basis upon which the grant of relief can be refused".

1. As stated in SZBYR at [28]-[29], including earlier High Court decisions quoted at [28], "the grant of the constitutional writs is a matter of discretion" and "the writ may not be granted ... if no useful result could ensue".
2. In Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; 159 FCR 181 at [48] Besanko J (with whom other members of the Full Court agreed) stated that "before a Court will exercise its discretion to refuse relief on the ground of futility, it must be quite clear that a rehearing or reconsideration is or will be futile".
3. I accept the applicant does not presently have a visa which would permit him to enter Australia. I also doubt the applicant will obtain a visa to enter Australia in the reasonably foreseeable future. However, I cannot rule out the possibility that he may obtain a visa. If there was a jurisdictional error in the Tribunal's decision, I would need to further consider whether the low probability of the applicant obtaining a visa to enter Australia before the Tribunal re-heard the matter and made a decision was such that relief should be refused on the ground of futility. Since the applicant has not identified a jurisdictional error in the Tribunal's decision or in respect of which the Court can grant relief, this is a moot point.

1. At the conclusion of the hearing, I invited submissions from the parties on costs. If the application was dismissed, Ms Celata sought an order that the applicant pay the first respondent's costs in the amount of $5,600, which was less than the first respondent's solicitor/client costs.
2. The applicant stated that he did not have much money and he would need to get a job to pay these costs. However, as stated in Northern Territory v Sangare [2019] HCA 25; 265 CLR 164 at [26] and [27], "the impecuniosity of an unsuccessful party, without more, is not a sufficient reason for depriving a successful party of its costs" and "the statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant in person". The applicant, by filing and progressing the Application to hearing, has forced the first respondent to incur legal costs. His claimed limited financial position does not affect a determination of an appropriate amount in the present matter.
3. I consider the amount claimed by the first respondent is reasonable. I will make this order.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.