CJT19 v Minister for Immigration and Citizenship [2026] FedCFamC2G 3

Note: The Court may vary or set aside a judgment or order for various reasons including where necessary to remedy clerical errors, accidental slips or omissions (r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)).

1. Before the Court is an application seeking judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 24 May 2019. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant both applicants a Protection (Class XA) (Subclass 866) visa (protection visa).
2. The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
3. The following issues arise for determination in this matter:

(a) First, whether the Tribunal properly considered the first applicant's claim that she would be subject to discrimination as a single mother if she returned to China.

(b) Secondly, whether the Tribunal correctly assessed the applicants against the criterion in s 36(2)(aa) of the Act (complementary protection criterion).

(c) Thirdly, whether the Tribunal properly considered the claims and evidence before it and applied country information in finding:

(i) that, on return to China, the first applicant and her family could obtain employment to pay a social compensation fee (a fee payable to provincial authorities for children born outside China's family planning policy); and

(ii) that the relevant Chinese authorities would issue the second applicant a household registration document or hukou, which enables access to health and education services, regardless of whether the social compensation fee had been paid.

1. The applicants sought to challenge the Tribunal's reasons and findings on the ground set out at [24] of this judgment. For the reasons that follow at [31]-[48] of this judgment, I find the applicants have not established jurisdictional error and that no such error is otherwise apparent. Accordingly, as I conclude at [49], the application must be dismissed.

1. The background and procedural history to this proceeding was set out in the Minister's written submissions, which I largely adopt.
2. The family unit in this matter is comprised of a mother (first applicant) and her son (second applicant).
3. The first applicant is a female national of China,[1] who first arrived in Australia on 8 August 2007 as the holder of a Student (Class TU) (Subclass 571 - Schools Sector) visa valid until 15 March 2010.[2] The first applicant remained in Australia as an unlawful non-citizen until she lodged a Student (Class TU) (Subclass 572 - Vocational Education and Training Sector) visa on 9 February 2012, which was refused.[3] The first applicant sought merits review of the refusal, which was affirmed by the then Migration Review Tribunal on 21 June 2012.[4] On 18 July 2012, the applicant lodged a Ministerial intervention request and on 14 August 2012, the Minister decided not to exercise his power to intervene.[5] The first applicant's associated Bridging C (Class WC) (Subclass 030) visa ceased on 30 July 2012 and she remained in Australia as an unlawful non-citizen until she lodged her protection visa application on 16 September 2014.[6]
4. The second applicant, a male national of China, was born in Australia on 19 March 2015.[7] The second applicant was taken to have applied for the protection visa at the time of his birth and his application was taken to be combined with the first applicant's protection visa application: see reg 2.08 of the Migration Regulations 1994 (Cth).

1. By application received by the Department of Immigration and Border Protection (Department) on 16 September 2014, the first applicant lodged an application for a protection visa.[8] In her written statement dated 30 August 2014 attached to her protection visa application, the first applicant claimed fear of harm from the Chinese government due to her religious beliefs, as she was a member of Yi Guan Dao, also referred to as I-Kuan-Tao (IKT), a banned religious group in China.[9]
2. On 10 August 2015, the first applicant attended an interview with the Department.[10] Following the interview, the first applicant provided information to the Department in relation to her son, the second applicant.[11] No claims for protection were made by, or advanced on behalf of, the second applicant.
3. On 26 August 2015, a delegate of the Minister refused to grant the applicants protection visas (delegate's decision).[12] The delegate concluded that the first applicant demonstrated neither genuine knowledge of nor commitment to IKT, and her vague evidence about her spiritual journey led to a finding that she was not a genuine religious convert. On that basis, the delegate determined that her conversion was undertaken solely to strengthen her refugee claim and, for the purposes of assessment against the refugee criterion in s 36(2)(aa) of the Act, could therefore be disregarded under s 91R(3) of the Act.[13] The delegate found the first applicant's claims lacked credibility and did not accept that her level of involvement in IKT, or her profile as an IKT adherent or practitioner, created a real chance of serious harm or a real risk of significant harm if she returned to China. On that basis, the delegate concluded that the first applicant met neither the refugee criterion nor the complementary protection criterion. As the first applicant was refused a protection visa and the second applicant had no independent protection claims, the delegate also refused the second applicant's application because he was not a member of a family unit of a person to whom Australia owed protection obligations.[14]

1. On 14 September 2015, the first applicant on behalf of the applicants applied to the Tribunal for review of the delegate's decision.[15]

1. On 23 November 2018, the Tribunal invited the applicants to give evidence and present arguments at a hearing on 18 January 2019.[16]
2. The first applicant attended the hearing on 18 January 2019 on behalf of the applicants. Communication between the Tribunal and the first applicant was facilitated with the assistance of an interpreter certified by the National Accreditation Authority for Translators and Interpreters in the Mandarin and English languages.[17]

1. Following the hearing, the Tribunal on 24 January 2019 wrote to the applicants identifying inconsistencies in the first applicant's evidence given to the Tribunal and invited the applicants to comment on or respond to the identified inconsistencies and information by 7 February 2019 (invitation letter).[18] The first applicant provided a written response to the Tribunal's invitation letter by email on 7 February 2019.[19]

1. On 24 May 2019, the Tribunal affirmed the delegate's decision not to grant the applicants the protection visas.[20]
2. The Tribunal summarised the first applicant's claims for protection, being that she was a single mother, she followed IKT and her child, the second applicant, was born out of wedlock.[21]

1. The Tribunal noted that it held credibility concerns about the following matters:

(a) the claims and evidence given by the first applicant about harm suffered by her family in China because they were IKT followers;

(b) the claims and evidence given by the first applicant about her IKT practice in Australia and her engagement with other IKT followers in Australia;

(c) the delay in, and basis for, seeking protection; and

(d) the evidence given by the first applicant about the nature, degree and timing of contact with her family, particularly her mother, in China.[22]

1. The Tribunal's credibility concerns, when considered cumulatively, led it to conclude the first applicant was not a witness of truth. Accordingly, the Tribunal did not accept the following claims made by the first applicant:

(a) she and her family followed IKT when she lived in China;

(b) her parents were detained, and the family home was raided by officials, because they were IKT followers;

(c) officials continued to go to the family home causing her father to live in other places;

(d) after she came to Australia she made enquiries about IKT;

(e) her father in some way practised IKT in the period they shared a house together in Australia; and

(f) she was estranged from her father and family in China.[23]

1. The Tribunal further noted that it did not accept the following claims raised by the first applicant as it had no credible evidence regarding them: her attendance at a temple related to IKT; her association with IKT followers; her family, particularly her mother, having disowned or distanced themselves from her; that on return to China she and her child could not live with her family and be supported to reintegrate back into life there; that she or any member of her family suffered harm in China and that Chinese officials or anyone in China sought to harm them; and why she did not want to return to China.[24]
2. The Tribunal found that the first applicant had no commitment to IKT, was not a follower of that religion and she would not nor would want to follow or practice IKT on return to China.[25] It found none of the evidence before it outweighed the concerns the Tribunal held about the first applicant's credibility.[26]
3. Further, after considering a range of country information, the Tribunal found that the risk of the applicants suffering harm in China because the first applicant was a single mother whose child was born out of wedlock was remote.[27]
4. As the Tribunal was not satisfied that either of the applicants were a person in respect of whom Australia has protection obligations and as they did not satisfy the criterion set out in s 36(2)(a), (aa), (b) or (c) for a protection visa, the delegate's decision not to grant the applicants protection visas was affirmed.[28]

1. By application filed on 18 June 2019, the applicants advance a single ground for review as follows (reproduced without alteration):

The Tribunal failed to give sufficient consideration to the claims made by the applicant that she will be subject to discrimination as a single mother if she returns to China. By failing to do so the Tribunal did not properly assess the applicant's may meet the criterion for complementary protection under s.36(2)(aa).

1. The first applicant appeared at the hearing before me as a litigant in person, assisted by way of an interpreter in the Mandarin and English languages. Ms Gillespie, a solicitor from Mills Oakley, appeared for the Minister. Mindful of the Court's duty to litigants in person, I explained to the first applicant the role of the Court in undertaking judicial review. I ensured the first applicant was in possession of all relevant documents, namely, her application and supporting affidavit filed on 18 June 2019, the Court Book filed on 12 September 2019 and the Minister's written submissions filed on 16 October 2025. The applicants did not file any written submissions. At hearing, I accepted as submissions, without objection, the statements set out in first applicant's affidavit sworn on 17 June 2019, which annexed the Tribunal's decision record. The first applicant and Ms Gillespie also made oral submissions. Both parties were given the opportunity to file post-hearing written submissions and additional evidentiary material, which the Minister did.
2. The materials before the Court include:

(a) the application for judicial review filed on 18 June 2019;

(b) the affidavit of the first applicant sworn on 17 June 2019, annexed to which is a copy of the Tribunal's decision (the affidavit being treated as the applicants' written submissions at the hearing on 31 October 2025);

(c) a Court Book numbering 156 pages (tendered into evidence at the hearing on 31 October 2025 by the first respondent and marked as Exhibit 1R);

(d) written submissions filed on behalf of the first respondent on 16 October 2025;

(e) affidavit of Emma Louise Hubball affirmed on 29 October 2025 (the affidavit being taken as read and in evidence at the hearing on 31 October 2025);

(f) affidavit of Emma Louise Hubball affirmed on 31 October 2025 annexed to which are the 'DFAT Thematic Report - Fujian Province, People's Republic of China issued 16 December 2016' (2016 DFAT Report) and the 'DFAT Country Information Report - People's Republic of China issued 21 December 2017' (2017 DFAT Report);

(g) affidavit of Emma Louise Hubball affirmed on 14 November 2025 annexed to which is the 'DFAT Country Information Request Report - Hukou for single mothers and unmarried parents prepared 3 May 2018' (2018 DFAT Report); and

(h) written submissions filed on behalf of the first respondent on 14 November 2025.

1. At the relevant time, s 36(2) of the Act provided:

36 Protection visas - criteria provided for by this Act

...

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa of the same class as that applied for by the applicant; or

(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa of the same class as that applied for by the applicant.

1. In this judicial review proceeding, the Court's task is to determine whether the Tribunal's decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s 474 of the Act; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; HCA 2.
2. The Court has also scrutinised the application, the materials before the Tribunal and the Tribunal's decision to identify any jurisdictional error, noting the Court's obligations towards litigants in person as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58]- [77], [100] and [112]-[113]. At hearing before me, the first applicant was asked to explain the basis of each of her ground, especially where it was unparticularised, and to indicate whether there was anything the Tribunal had done or not done throughout the review application process, including at the Tribunal hearing, which she considered unfair or unreasonable. I explained to the first applicant the limitations of the Court's role in judicial review, noting that it would be impermissible for me to entertain submissions that merely invited a reconsideration of the merits of her case. I further indicated that such submissions must instead identify, or at least point to, an instance or possibility that the Tribunal conducted its review in a manner giving rise to jurisdictional error.
3. I now turn to consider the sole ground raised by the applicants.

1. By ground one, the applicants contend the Tribunal failed to consider the first applicant's claim to satisfy the complementary protection provisions on the basis of discrimination she would face in China due to being a single mother.
2. At the hearing before me, the first applicant expanded on the ground as follows:

After - a long time had passed after I lodged my application. I had a baby myself. Then I - I had a boyfriend at that time. Boyfriend was no longer there. I became a single mother. I was very anxious during that time. I was also very scared. Plus I joined the Yiguandao religion. I - I felt extremely scared after I gave birth to the baby, because I didn't have a visa. I'm not sure what my future will be if I was asked to return to China with a - with a child. My child is older now and I'm working at the moment, so everything is quite stable. My child has a very good life in school, as well.[29]

...

So it was said as now I can pay off the penalty fine, the fees, then I can get my child registered for hukou. But at that time, I was not capable to pay off the fees.[30]

1. By way of pre-hearing written submissions, the Minister submits the sole ground of review amounts to an assertion that the Tribunal failed to consider the first applicant's claim that she would face discrimination in China as a single mother and this bore upon the assessment against the complementary protection criterion. The Minister further submits that, contrary to this assertion, the Tribunal expressly considered the applicant's claims in this regard at [78]-[86] of its decision. Further, the Tribunal relied on country information about the treatment of single mothers in China and found at [81]-[83] of its reasons that the first applicant did not face a real chance of harm on that basis. The Minister submits that the Tribunal's findings were open for the reasons it gave and notes that at [87] of its reasons the Tribunal relied on its findings in relation to its refugee assessment and found that, for the same reasons, the applicant did not face a real risk of significant harm. The Court's attention was drawn to authorities which provide there is no jurisdictional error in the Tribunal referring to its previous findings of fact in relation to an applicant's refugee claims when assessing their claims under the complementary protection provisions: see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [54]- [56] per Robertson J; MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31] per Marshall J. On that basis, the Minister concluded the sole ground of judicial review fails to make out jurisdictional error.
2. Before considering whether error lies in the Tribunal's reasoning, it is convenient to first elucidate its findings at [80]-[83].
3. At [80], the Tribunal acknowledged country information detailing the various forms and degrees of discrimination and societal violence faced by women in China. At [81], it demonstrated awareness of the particular discrimination encountered by single women who have given birth out of wedlock, including the imposition of a social compensation fee, the potential for coercive measures such as forced sterilisation, and the risk that the second applicant might be denied a hukou if the fee were unpaid. The Tribunal assessed each of these risks and concluded that they were either remote or non-existent. These findings were supported by country information, including references to the 2016 DFAT Report, 2017 DFAT Report, and 2018 DFAT Report.
4. At [82], the Tribunal noted the absence of country information suggesting that single mothers in China are prohibited from employment or denied work opportunities. Having regard to its earlier finding that the applicants would receive support from the first applicant's family upon return to China, the Tribunal concluded there was no real risk of serious harm arising from significant economic hardship or an inability to earn a livelihood. At [83], the Tribunal considered the applicant's oral evidence that she would be 'looked down upon as a single mother' but found that this, of itself, did not amount to serious harm.
5. In my view, these reasons demonstrate that the Tribunal properly engaged with the first applicant's status as a single mother and turned its mind to the nature and degree of harm the applicants might face in China on that basis.
6. At the hearing, I drew Ms Gillespie's attention to two country information reports cited in the Tribunal's decision - the 2016 DFAT Report and 2017 DFAT Report - which were omitted from the Court Book, along with other country information sources referred to in the reasons. Although this country information was not specifically identified in the applicants' sole ground of review, and therefore was not required to be included in the Court Book pursuant to clause 8 of the Court's Central Practice Direction: Migration Proceedings (re-issued 1 September 2025), its inclusion would have facilitated a shorter hearing and avoided the need for extensive post-hearing submissions, thereby promoting the just, efficient, and inexpensive resolution of the dispute.
7. Nevertheless, with Ms Gillespie's consent, the Court provided copies of the 2016 DFAT Report and 2017 DFAT Report to the parties at hearing (which are publicly available on the internet) and raised the fact that the Tribunal had summarised, rather than extracted, relevant portions of these and other country information sources when making its assessments against the refugee and complementary protection criteria. This left open the possibility that the Tribunal misunderstood or misapplied that material. In particular, I noted the potential for error in its assessment of the applicants under both the refugee and complementary protection criteria, specifically regarding the first applicant having to pay what might be an exorbitant social compensation fee and whether the second applicant would face serious or significant harm as a member of a particular social group - children born out of wedlock to single mothers - who may be at risk of being denied a hukou.
8. I stood the matter down to allow the parties to consider the two DFAT reports and for Ms Gillespie to obtain instructions. Upon resumption, it became apparent that further time was required and that the Court would benefit from post-hearing written submissions. Orders were made granting leave for the first respondent to file and serve the two DFAT reports by affidavit and for both parties to file supplementary submissions.
9. Following the hearing, the Minister filed the 2016 DFAT Report, 2017 DFAT Report, and 2018 DFAT Report together with supplementary written submissions. The applicants did not file any further material.
10. Having considered the post-hearing material, I am satisfied that the Tribunal had proper regard to the country information cited in its decision, including by footnote, when assessing the nature and extent of serious or significant harm the applicants might face upon return to China.
11. Although the Tribunal did not expressly engage with paragraphs [3.29]-[3.32] of the 2016 DFAT Report, which indicate that the social compensation fee payable could be as high as AUD 25,000, I find it was not legally unreasonable for the Tribunal to conclude that the fee could be paid, given its findings that:

(a) there was no credible evidence the first applicant was impecunious or unable to make appropriate arrangements with Chinese authorities to pay the requisite amount (at [86]); and

(b) upon return to China, the first applicant and her family could seek employment to meet the cost if they did not already have sufficient funds (at [81]).

1. Further, my review of the 2018 DFAT Report confirms that the Tribunal was properly informed when finding at [79] of its reasons that the second applicant would not be denied a hukou by provincial authorities in Fujian if the social compensation fee were unpaid.
2. Accordingly, I accept the Minister's submission that the Tribunal's findings were open to it on the evidence and for the reasons it gave.
3. I also accept that it was open to the Tribunal to rely on its refugee assessment findings when considering the complementary protection criterion.
4. The applicants' sole ground of review is therefore not made out.

1. As the applicants are litigants in person, I have also reviewed the reasons of the Tribunal to determine whether there was any self-evident jurisdictional error: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 at [11] per Flick J. I have not identified any such jurisdictional error.

1. As jurisdictional error has not been established, the application must be dismissed.
2. Finally, as a consequence of changes to Ministerial portfolio arrangements, the name of the first respondent is to be amended to Minister for Immigration and Citizenship.
3. I will hear the parties as to costs.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[29] Transcript of court hearing, 30 September 2025, p 8 lines 28-35.

[30] Transcript of court hearing, 30 September 2025, p 19 lines 26-28.