The applicant advances a singular ground of judicial review contained in the Originating Application filed with the Court on 19 April 2023. The sole ground of review is as follows (emphasis in original):
The Second Respondent (Tribunal) made a jurisdictional error in relation to proselytising by the Second Applicant.
The Tribunal found at paragraph 112 of its decision that the Applicant's church was not evangelical "in the sense of proselytising to non-Presbyterians, let alone non-Christians" and further found it was "evidently not evangelical in a Charismatic or Pentecostal sense";
The Tribunal found at paragraph 112 of its decision that it was "not satisfied on the evidence before me that the church left it to individual 'Key to Life' volunteers to decide how much religious preaching, secret or otherwise, they could add to the events they staged" and further found that the Second Applicant's "evidence about how little she and her church leaders discussed the sensitive issue of proselytising in Egypt lacks credibility in the claimed circumstances";
The Tribunal found at paragraph 113 of its decision that the Second Applicant was not detected proselytising many times as she would then have been "learning from the experience and adapting her approach along the way";
The Tribunal found at paragraph 114 of its decision that "a reasonable person would expect the church to have counselled [the Second Applicant] after she reported what happened to her" and further did "not believe her suggestion that her church gave her little to no guidance in such affairs";
The Tribunal found at paragraph 114 of its decision that the Second Applicant's evidence as to evangelising "operated in a social, practical and factual vacuum";
The Tribunal found at paragraph 115 of its decision that if the Second Applicant "had actually gone through what she claims to have experienced, she would have taken more trouble to monitor any strife her former colleagues might be having in Egypt";
The Tribunal found at paragraph 116 of its decision that "[i]n light of all these concerns, I do not accept that [the Second Applicant] has been truthful about having proselytised and evangelised in Egypt" and further found that as a result "her overall claim to be vocationally evangelical is significantly tarnished";
The Tribunal may make a jurisdictional error of irrationality by illogical findings or reasoning material to its ultimate conclusion: BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2020] FCAFC 151 at [29];
The Tribunal may make a jurisdictional error of irrationality by relying on unwarranted assumptions: BZI17 v Minister for Immigration[2022] FedCFamC2G 717 at [28]- [34], [48];
The concerns on which the Tribunal relied, as enumerated at (a) to (f) above, indicated a lapse in logic, and in particular reliance on unwarranted assumptions, thus vitiating its conclusion as to the Applicant's proselytising or evangelising.
[2]
The applicants' sole ground of judicial review alleges that the Tribunal erred in its finding regarding the second applicant's proselytising.
A Tribunal may fall into jurisdictional error, by legal unreasonableness or irrationality, where its state of satisfaction is reached through "a reasoning error, or of sufficient criticality and materiality to cause the statutory task to miscarry": BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs[2023] FCA 865 (BQG21) at [43] per Mortimer CJ.
Turning to unwarranted assumptions, the applicants relied on BZI17 v Minister for Immigration, Citizenship and Multicultural Affairs[2022] FedCFamC2G 717 (BZI17) at [28]-[34], where Given J synthesised Federal Court authority to the effect that credibility findings may be irrational if grounded in unwarranted assumptions: SZHYH v Minister for Immigration and Border Protection (No 3) (2019) 165 ALD 463 (SZHYH). At [48] of BZI17, Given J held that the Tribunal's adverse finding was based on an unwarranted assumption, as the Tribunal exceeded the jurisdictional limits of proper and logical fact-finding by making findings about the methods used by Malaysian gangs in kidnappings without any evidentiary foundation. Given J asserts that such matters could not be determined by common sense or general human experience, and there was no indication that the Tribunal relied on personal or specialised knowledge: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1 (Djokovic) at [39]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane[2021] HCA 41; (2021) 395 ALR 403 at [17]-[21].
The Tribunal's reasoning regarding the second applicant's evangelising was affected by unwarranted assumptions. The Tribunal found that the second applicant's church was not "evangelical" in the sense of proselytising beyond Presbyterians, characterising it instead as a "Reformist church" aligned with its European branches: [112]. That conclusion lacked an evidentiary foundation. Although the Tribunal earlier referred to country information concerning the church at [45]-[46], it did not explain or justify the assumption it drew from that material. On the contrary, the information described the church as conducting "programmes" that were "evangelistic" at [45], undermining the Tribunal's finding.
Regarding the "Key to Life" project, the Tribunal's findings that (a) volunteers were not left to determine the extent of religious content [112], and (b) that the second applicant's account of limited discussions with church leaders on proselytising lacked credibility, were unsupported by evidence and reflected the Tribunal's own expectations about how the church "would" regulate evangelising. Such expectations, absent of an evidentiary foundation, could not sustain the adverse credibility findings.
The Tribunal made further unwarranted assumptions in its findings concerning the "Key to Life" project. The Tribunal reasoned that the second applicant would not have been detected evangelising by a "Muslim" on multiple occasions, because she would have learned from earlier encounters and adapted her approach to avoid detection: [113]. That reasoning assumed a level of skill and behavioural adaptation on the second applicant's part that was not necessarily present. The Tribunal also assumed that, had she been detected, "a reasonable person would expect the church to have counselled" her, and relied on that asserted expectation to reject her claims.
The Tribunal also erred in its treatment of the second applicant's claims concerning subsequent contact with "similarly situated persons in Egypt". The Tribunal reasoned that, if the second applicant had genuinely experienced what she claimed, she would have taken greater steps to monitor any difficulties faced by her former colleagues. From the absence of updated information about those persons, the Tribunal inferred that the applicant was not an evangelist: [115]. That reasoning rested on an unwarranted assumption. The second applicant was not necessarily expected to maintain ongoing contact, and the lack of such contact does not logically support the conclusion that either she or her colleagues were not evangelising.
[3]
The applicants' challenge, as directed to the Tribunal's consideration and ultimate rejection of the second applicant's claimed proselytising and evangelising in Egypt, is based on adverse credibility findings. To establish jurisdictional error for illogicality or irrationality, the illogicality must be "extreme", recognising that it is insufficient that reasonable minds could differ on a factual question: ARG15 v Minister for Immigration and Border Protection[2016] FCAFC 174 at [47]; Minister for Immigration and Citizenship v SZRKT[2013] FCA 317 at [148]. A decision is not illogical if a logical or rational decision-maker could reach the same view on the material: SZMDS (2010) 240 CLR 611 (SZMDS) at [135]. Not every lapse in logic amounts to jurisdictional error: SZMDS at [130]. Nor does emphatic disagreement suffice: CQG15 v Minister for Immigration and Border Protection[2016] FCAFC 146 at [61]. The threshold for irrationality is high: SZMDS at [135], and for legal unreasonableness more generally: Djokovic at [33].
On unwarranted assumptions, the applicants must show the assumption is not one a reasonable decision-maker could make, or that the decision lacks an "evident and intelligible justification": BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs[2023] FCA 573 at [8]; Minister for Immigration and Citizenship v Li[2013] HCA 18 (Li) at [76]. The first respondent contends that, in the present matter, the Tribunal's findings were open on the evidence and reasons given, and were not based on unwarranted assumptions, but on matters logically probative of credibility.
Firstly, as to the Tribunal's finding that the church was a Reformist church "in the mode of its European and other branches" [112], as identified in addressed in particular (a), the Tribunal relied on independent material concerning the church at [45]-[46] and the second applicant's own evidence at [47]. On that basis, the finding was not an unwarranted assumption but one reasonably open to a rational decision-maker.
Secondly, regarding the Tribunal's reasoning about the lack of guidance or counselling from the church, as identified in particulars (b), (d) and (e), it was logically open to the Tribunal expect some guidance or counselling in relation to an activity characterised as dangerous and sensitive. The issue was put to the applicant in the hearing at [57], [78]-[79]. The finding at [114] was not an unwarranted assumption amounting to serious illogicality or irrationality so as to compromise the decision: SZHYH at [40]. Nor was the topic so "niche" that the Tribunal must have been applying a personal assumption as a critical factor: BZI17 at [49].
Third, the Tribunal's rejection of the second applicant's claims to have proselytised and evangelised in Egypt was supported by findings of inconsistency in her evidence. Particularly concerning the number of times she was detected proselytising, whether she mentioned Jesus during "Key to Life" activities, and her contact with former colleagues in Egypt: [113]-[115]. The Tribunal's reasoning on these matters was not illogical or irrational.
Fourthly, particular (c) misstates the Tribunal's reasoning at [113]. The Tribunal did not find that the second applicant could not have been detected many times because she "would have learned", rather, in light of inconsistencies about detection frequency, it declined to accept that she was detected many times, "let alone" without learning and adapting. The Tribunal reasonably doubted the second applicant's claim that, despite apparent dangers, she "did not know how the church dealt with [angry citizens and police] ... she just kept doing what she did": [52]. It was open to another rational decision-maker to reach the same conclusion.
Finally as to particular (f), the Tribunal's inference concerning the second applicant's failure to monitor the situation of former colleagues at [115], this assumption had a clear place in logic in that a person who had fled harm, leaving close friends or colleagues in a similar position, and facing possible return, might be expected to show some interest in whether conditions remained dangerous. Particularly against a backdrop of inconsistent evidence concerning her contact with church friends in Egypt: [54]-[56]. The inference was not so groundless or beyond logic as to affect the ultimate credibility findings: XRZG v Minister for Immigration, Citizenship and Multicultural Affairs[2024] FCAFC 131 at [64].
[4]
In Djokovic at [17], the task of a Court conducting judicial review was described in this manner:
[5]
...an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
[6]
Unreasonableness, of which illogicality or irrationality are subsets, is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Li at [28], or where a decision has been made that lacks an "evident and intelligible justification": Li at [76]. The test for unreasonableness is "stringent" and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].
In Minister for Immigration and Border Protection v Stretton[2016] FCAFC 11 at [11], Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
[7]
The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
[8]
A finding that is not evidence-based is also a category of legal unreasonableness.
It is also well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant_: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs_ [1994] FCA 1253; (1994) 52 FCR 437 at 451.
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs[1994] FCA 1105; (1994) 34 ALD 347 at 348
Adverse credibility findings, if they reach the stringent threshold for legal unreasonableness, may constitute jurisdictional error: EVI19 v Minister for Immigration[2022] FCA 518 at [36].
Wigney J in Minister for Immigration and Border protection v SZNUX[2016] FCA 516 at [54] said the following in relation to a case where there has been a series of factual findings:
[9]
...The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings "on the way" to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection[2016] FCA 51 at [61]-[62].
[10]
The sole ground of judicial review is a claim that the Tribunal made a series of unwarranted assumptions that are of sufficient seriousness as to constitute jurisdictional error. Ten matters are particularised.
Particular (a) relates to the Tribunal's finding at [112] that the second applicant's church was not evangelical 'in the sense of proselytising to non-Presbyterians, let alone non- Christians' and further found it was 'evidently not evangelical in a Charismatic or Pentecostal sense'.
At [45] of the decision record, the Tribunal refers to material it gathered from both YouTube and the World Council of Churches (WCC) to conclude that evangelical churches seem to operate successfully in Egypt. At [46] - [47] the of the decision record the following appears:
[11]
[46] The WCC lists the Evangelical Presbyterian Church in Egypt as a "Reformed Church" with 250,000 members and provides this description of its structure and leadership
[12]
The Reformed churches generally adhere, with some variations, to a form of ecclesiastical polity in which the church is led by teaching elders (ordained pastors) and ruling elders or presbyters (lay persons) who are organized in various "courts".
[13]
[47] On this information, it appears that the Evangelical Presbyterian Church in Egypt might be evangelical in name only and more like a Protestant church. This impression is strengthened by Ms Awed having told me that she did not know of any Pentecostal missions in Egypt while she was there. Meanwhile, I note, Ms Awed previously claimed that the activities she performed in the community were organised by the Anglican Church.
[14]
On the basis of this conclusion, the Tribunal found at [112] that the second applicant's church was not 'evangelical in the sense of proselytising to non-Presbyterians, let alone non-Christians... find[ing] that this church is a Reformist church in the mode of its European and other branches'. The Tribunal then goes on to make a number of adverse credit findings based on its disbelief that the second applicant had engaged in any proselytising.
I am reasonably satisfied that the finding that the church the second applicant belonged to did not engage in evangelical activities was unwarranted in the Tribunal did not have a firm or sufficient evidentiary base. The finding relied on an understanding of what the Tribunal member expected of a Presbyterian Church in the European sense, rather than on how this church operates in Egypt. The material set out at [45] of the decision record included a statement that the church in Egypt has (emphasis added):
[15]
...carried on the tradition of serving the local communities through countless social, educational, medical, evangelistic and mission programmes.
[16]
It is not possible to reconcile this statement with its explicit reference to evangelistic activities and the finding that the church did not seek to evangelise non-Christians. This unwarranted finding then caused the Tribunal to have the doubts it expressed as to the second applicant's credibility, which was the basis of affirming the decision in relation to her.
I am further satisfied that this unwarranted factual finding was material, in that without it, there is a realistic possibility that there may have been a favourable outcome for the applicants.
Having come to this conclusion, it is not necessary for me to consider the other particulars relied upon.
[17]
The Application is allowed, and I make the orders sought in the Originating Application, remitting the matter for further consideration.
I will hear from the parties on the issue of costs.
[18]
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.
Parties
Applicant/Plaintiff:
BQC20
Respondent/Defendant:
Minister for Immigration and Citizenship [2026] FedCFamC2G 125
Legislation Cited (1)
Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025
Cases Cited (6)
The first respondent concedes that the second respondent fell into jurisdictional error by making its decision on the basis of a fundamental misunderstanding of the evidence before it, and in a way that was material to the outcome: Gill v Minister for Immigration and Border Protection[2017] FCAFC 51; (2017) 250 FCR 309 at [71]- [72]. Specifically, the second respondent at paragraph [73] of its decision found that there was no country information indicating that evangelising was illegal in Egypt and that there was country information that said that "while proselytising is not illegal, Egyptian authorities tolerate non-Muslimreligious groups as long as they don't proselytise amongst Muslims". At [2.3.18] of the Country Information and Guidance - Egypt: Christians prepared by the Home Office of the Government of the United Kingdom (country information), the report from the link at footnote 4 of paragraph [73], it is stated that neither the constitution nor the civil or penal codes prohibit proselytising and that "the government generally tolerates foreignreligious workerson condition that they do not proselytise Muslims" (emphasis added). The second respondent was not a "foreign religious worker". The Tribunal's misunderstanding of the country information was material to the Tribunal's findings on the applicant's claims and therefore, to the outcome of the review.