EZP19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1500

1. By way of Application filed on 16 December 2019, the applicants (Applicants) seek judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 2 December 2019 (Tribunal's Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) (Application).
2. In the Tribunal's Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the first Applicant (Applicant) a Protection (Class XA) (Subclass 866) visa (Visa) on the basis that the Applicant had not satisfied the Delegate that she is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Migration Act.
3. The hearing of the Application took place at the Melbourne Registry of the Court on 10 September 2025 (Hearing). The Minister was represented by a solicitor. The Applicants were self-represented with the assistance of an interpreter. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.

1. The issue in dispute is whether the Tribunal made a jurisdictional error in determining that it was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Migration Act.

1. The Applicants are citizens of China.
2. The second applicant is the husband of the first applicant (second applicant).[2]
3. On 31 May 2015, the Applicants arrived in Australia as the holders of Tourist (Subclass 600) visas.[3]
4. On 3 August 2015, the Applicant applied for the Visa, the subject of these proceedings.[4] The second applicant was included as a dependent.[5] The Applicant applied for the Visa on the basis that:[6]

(a) she was born into a Christian family but was an atheist until 2011. There was an incident in 2011 involving her neighbour which led the Applicant to begin to follow Christianity;

(b) in late 2012, her father and siblings in China were arrested for attending a religious gathering;

(c) she met the second applicant at a religious gathering. She became pregnant in 2014 and was pressured by authorities to abort the child. However, she went into hiding and gave birth to her daughter;

(d) while celebrating her daughter's first birthday, authorities came into her home and arrested everyone present. She was held by authorities for one day and subjected to anti-religious brainwashing. She was later released. However, her father, mother and the second applicant were detained for longer periods;

(e) she decided to seek religious freedom in Australia; and

(f) she got married in or around 2015 at her home, which the police visited to ensure a religious gathering was not being held. The Applicants decided to come to Australia two days later.

1. On 6 July 2016, a Delegate of the Minister invited the Applicant to attend an interview on 18 July 2016 in relation to her Visa application.[7]
2. On 18 July 2016, the Applicant attended the interview and made claims consistent with those contained in her Visa application.[8]
3. On 22 July 2016, a Delegate of the Minister refused to grant the Applicants the Visa (Delegate's Decision) on the basis that the Applicant was not a person in respect of whom Australia has protection obligations.[9]
4. On 19 August 2016, the Applicants applied to the Tribunal for review (Review Application).[10]
5. On 22 August 2016, the Tribunal acknowledged receipt of the Review Application.[11]
6. On 15 September 2016, the Applicants submitted a 'Change of Address and Passport Details' form to the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (Department).[12]
7. On 16 September 2016, the Tribunal requested that the Applicants provide copies of their updated certified passport biodata pages.[13]
8. On 22 September 2016, the Tribunal confirmed receipt of the Applicants updated passport biodata details.[14]
9. On 24 October 2018, the Tribunal wrote to the Applicants and indicated that their file was being prepared for allocation to a Member.[15]
10. On 20 January 2019, the Applicants appointed a new representative (Representative). The Representative wrote to the Tribunal and attached relevant forms.[16]
11. On 23 January 2019, the Tribunal acknowledged the appointment of the Applicant's Representative.[17]
12. On 25 October 2019, the Tribunal invited the Applicants to attend a hearing on 28 November 2019.[18] The Tribunal requested that written submissions prior to the hearing be provided by 21 November 2019.[19]
13. On 27 October 2019, the Applicants provided a response to the hearing invitation.[20]
14. On 28 November 2019, the Applicants attended the hearing. At the hearing, the Applicants provided written submissions which raised new protection claims.[21]
15. On 2 December 2019, the Tribunal affirmed the Delegate's Decision.[22]
16. On 3 December 2019, the Tribunal provided written reasons, by way of email to the Applicants.[23]

1. The Tribunal's Decision is at 180 to 192 of the Court Book.
2. The Tribunal first outlined the relevant law and the purpose of the Tribunal in relation to the Review Application: Tribunal's Decision [3] to [8].
3. The Tribunal found that the non-disclosure certificate attached to the Applicants' file was invalid.[24] The Tribunal did not accept that the relevant materials invoked any public interest immunity. [25]

1. The Tribunal noted that the Applicant appeared to know "very little" about Christianity despite claiming to fear harm on return due to her Christian faith.[26] The Tribunal raised concerns about the inconsistent nature of the Applicant's claims which contradicted DFAT country information.[27]
2. The Tribunal found that the Applicant's evidence regarding attendance at church in Australia was "confused, unconvincing and at odds with evidence provided by the second applicant".[28] The Tribunal noted that the Applicant had failed to provide any supporting evidence of attendance at church, despite claiming to do so on a regular basis.[29]
3. The Tribunal did not accept that the Applicant was a genuine or committed Christian.[30] The Tribunal did not accept that someone attending religious gatherings on a regular basis since 2011 would know so little about their faith.[31] On the evidence before it, the Tribunal found that the Applicant was not a truthful or credible witness.[32]
4. The Tribunal rejected the Applicant's claim that she feared the second applicant's life was at risk upon return due to issues with the second applicant's father.[33] The Tribunal found that this claim had been "concocted to enhance the applicant's chances of obtaining protection".[34]
5. The Tribunal did not accept that the Applicant was part of any religious group in China.[35] The Tribunal did not accept that she or any other family member was ever detained for participating in religious gatherings,[36] or that she would participate in any religious activities on return.

1. The Tribunal summarised the second applicant's written claims in his Visa application,[37] and noted he did not give evidence at the Department interview on 18 July 2016.[38] The Tribunal considered the second applicant's oral evidence at the hearing.[39]
2. The Tribunal did not accept that the second applicant's father was murdered by criminals in February 2019, and that the second applicant's life would be at risk upon return.[40] The Tribunal did not accept that the second applicant was a genuine or committed Christian given his lack of knowledge and understanding of the faith.[41] The Tribunal found that the second applicant was not a truthful or credible witness.[42]
3. Whilst acknowledging that Applicants may be confused when asked to recall past events, the Tribunal did not accept that the second applicant could be confused about when he was arrested or detained. The Tribunal found that his evidence was "confused" on the basis that the events never occurred.[43]
4. The Tribunal rejected the second applicant's oral claims at the hearing that his life was threatened by gangs prior to departing China. The Tribunal concluded that the second applicant would have provided supporting evidence to the Department in relation to his claims if they were true.[44] The Tribunal noted that the second applicant could have sought assistance from his migration agent at any time if he wished to include these claims prior to the hearing.[45]
5. The Tribunal found that the documents provided by the second applicant were fraudulent,[46] and that he had "concocted the claims with respect to his father".[47]
6. The Tribunal found that there was no evidence to suggest that the Applicants faced a real risk of serious or significant harm for any reason on return.[48]

1. On 16 December 2019, the Application was filed in this Court, within 35 days of the date of the Tribunal's Decision pursuant to s 477 of the Migration Act.
2. On 7 December 2021, Orders were made by Registrar Carney of this Court for the Applicant to file and serve at least 28 days before the hearing: written submissions, any amended application and any additional evidence. For the First Respondent to file and serve at least 14 days before the hearing: written submissions, and any additional evidence. For the First Respondent to file and serve at least 7 days before the hearing: an affidavit of service of the Court Book, written submissions and any additional evidence. The Court noted that the Applicants retained a copy of the Court Book.
3. On 28 March 2025, Orders were made by Registrar Rohan of this Court for the First Respondent's name be amended to "Minister for Immigration and Multicultural Affairs." For the name of the Second Respondent be amended to "Administrative Review Tribunal." For the Applicant to file and serve at least 28 days before the hearing: written submissions, any amended application and any additional evidence. For the First Respondent to file and serve at least 14 days before the hearing: written submissions, and any additional evidence. For the First Respondent to file and serve at least 7 days before the hearing: an affidavit of service of the Court Book, written submissions and any additional evidence. The Court noted that the Applicants retained a copy of the Court Book.
4. This matter was heard on 10 September for a Final Hearing before me.
5. The Applicant relied upon the following documents:

(a) the Application filed 16 December 2019; and

(b) the affidavit of the Applicant sworn 8 December 2019, filed on 16 December 2019 (Applicant's Affidavit sworn 8 December 2019).

(a) the response, filed 24 January 2020;

(b) affidavit of service of Alexandra Jessica Sarah Lean affirmed and filed 9 September 2025;

(c) outline of submissions filed 27 August 2025; and

(d) list of authorities filed 10 September 2025.

1. Both parties relied on the Court Book.
2. The Application contains the following four grounds of review (Grounds of Review):
   1. The Tribunal failed to disclose the country information. (Ground 1).

Particulars

Paragraph 31 of the decision record

1. The Tribunal made a finding without supporting evidence, namely the Tribunal failed to provide evidences on which level of knowledge the applicant should have. (Ground 2).

Particulars

Paragraph 41 of the decision record

1. The Tribunal exercised excessively in power, namely the Tribunal is not qualified to examine a fraudulent document. (Ground 3).

Particulars

Paragraph 65 of the decision record

1. The Tribunal failed to consider the applicants' new born child. (Ground 4).

1. The Applicant did not file written submissions.
2. In oral submissions, the Applicants raised concerns regarding the Tribunal's finding that certain documents were fraudulent. The Applicants were told by the Tribunal that they could provide evidence or verify the documents.
3. The Applicants stated that the Tribunal did not believe their claim to being Christian. The Applicant noted that when asked about the Bible, she was unable to answer correctly as being a Christian is more about belief or lifestyle, as opposed to reading through all of the books. The Applicants submitted that they had one child in Australia. At a later point, they referred to another child (a girl) who was staying with friends in China. The Applicants submitted that the Tribunal failed to consider their children or their future, including education and lifestyle. The Applicants referred to the poor written literacy in their province in China. As for the documents, the Applicants noted that they did not have the power to create fake documents. The also said that they would not want to use their father in that way.

1. The Minister submits that the Applicant's Grounds of Review fail to demonstrate any jurisdictional error in the Tribunal's Decision and that the Application should be dismissed.

1. The Minister notes that the Tribunal raised DFAT advice with the Applicant in relation to the claims made before it. [49] The advice indicated that authorities were not "greatly concerned" with people participating in small gatherings held in private. The Tribunal considered the Applicant's response to this advice in making its decision.
2. The Minister submits that the Tribunal expressly put particulars of the country information to the Applicant at the hearing. The Applicant's attention was drawn to the "gist" of the Tribunal's research.[50]
3. The Minister contends that the DFAT advice relied upon was "general country information" which is an exception under s 424A(3)(a) of the Migration Act.[51] The Minister submits that the Tribunal was under no obligation to put this information to the Applicants under s 424A(1) of the Migration Act. The Minister submits that this ground fails.

1. The Tribunal outlined reasons for concluding that the Applicant was not a truthful or credible witness.[52] The Minister recognises that it is not appropriate for the Tribunal to take on the role of "arbiter of doctrine" in relation to any religion.[53] However, the Tribunal can legitimately explore what an individual knows about a given religion in order to access the "genuineness" of the claim.[54] The weight given to this assessment is ordinarily a matter for the Tribunal.[55]
2. The Minister submits that the Tribunal was entitled to examine the Applicants' knowledge of Christianity and make findings based on the responses provided.[56] The Tribunal did not err by concluding that there were particular elements of Christianity which the Applicants' might reasonably be expected to know.[57] There is no suggestion that the Tribunal operated by reference to a preconceived minimum standard of knowledge required by the Applicants'. The Tribunal provided ample opportunity for the Applicants to demonstrate their knowledge of Christianity.[58] The Tribunal found that the Applicants were unable to provide any coherent or convincing account of their faith.[59]

1. At the hearing, the second applicant raised new protection claims concerning issues with his father for the first time.[60] The Tribunal expressed its credibility concerns in relation to these new claims.[61] The Tribunal did not accept the authenticity of the documents.[62] The Tribunal did not accept that the second applicant's father was pursued, killed or was otherwise targeted by criminals.[63]
2. The Tribunal noted that the documents provided by the second applicant "could have been manufactured by anyone with access to a computer".[64] At the hearing, the second applicant requested that the Tribunal "conduct investigations" to establish the authenticity of the documents.[65] The Member advised that the Tribunal "did not intend to" conduct further investigations.[66]
3. The Minister submits that the Tribunal does not have a duty to investigate the Applicants' claims.[67] Although the Tribunal has the power to obtain further information, the Minister submits that it was for the Applicants' to put forward material in support of their case.[68] The Minister contends that the Tribunal was entitled to accept or reject, or give such weight to the provided evidence, as it deemed appropriate.[69]

1. The Minister notes that the Tribunal expressly had regard to the Applicants' two children, including a newborn child born in Australia.[70] The Tribunal had regard to the Applicant's claim in relation to being arrested during a religious gathering and later released by authorities "because she had a young child".[71] The Tribunal recorded an inconsistency in the evidence given by the Applicants in relation to this claim.[72]
2. The Minister notes that the Tribunal questioned the second applicant in relation to the birth of his first child out of wedlock, to which he responded.[73] There were no other claims in relation to the Applicants' newborn child that was expressly made or open on the materials.[74]
3. The Minister notes that the newborn child was not a party to the Review Application. The Minister submits that the Tribunal had no overarching obligation to consider the best interests of the child.[75]

1. In the written reasons, the Tribunal identified a non-disclosure certificate attached to the Applicants' file.[76] The certificate stated that it was contrary to public interest to disclose information within folios 84 and 85 of the file as they contained information relating to an internal working document and business affairs.[77] The Minister notes that a file containing "internal working documents" is neither a necessary or sufficient basis for public interest immunity.[78] The Minister submits that there was no error in the Tribunal's treatment of the certificate as invalid.[79]

1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[80]
3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it." The court neither consider the merits of the decision nor remakes it.[81] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[82]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[83] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include "misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness".[84] Different kinds of error may overlap.[85] The categories are not closed.[86]
5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[87] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[88] It has been described as an "undemanding" standard.[89]

1. The Protection Visa (Subclass 866) visa allows a person who is at real risk of significant harm or persecution in their home country to live in Australia permanently.
2. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Migration Regulations 1994 (Cth) (Regulations)) have been satisfied, and to refuse to grant the visa, if not so satisfied.
3. Section 36(2)(a) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. The term "refugee" is defined by s 5H of the Migration Act in terms that require the applicant for the visa to have a "well-founded fear of persecution"[90] as defined by s 5J.
4. Section 36(2)(aa) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non‑citizen in Australia (other than a non‑citizen mentioned in s 36(2)(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.
5. Sections 36(2)(b) and (c) of the Migration Act provides that a criterion for a protection visa is that applicant for the visa is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa), who holds a protection visa of the same class as that applied for by the applicant.
6. The criteria that the Applicant was required to satisfy for the grant of a Protection visa (Subclass 866) are set out in Part 866 to Schedule 2 of the Regulations.

The Tribunal failed to disclose the country information.

Particulars

Paragraph 31 of the decision record

1. Paragraph 31 of the Tribunal's Decision provides:

I advised the applicant that advice from DFAT indicated Fujian authorities were not greatly concerned about people who participated in small gatherings held in private and that only leaders of certain groups or people who proselytized or engaged in other public activities were likely to face problems at that time.1 She said that someone had reported her group and the applicant said that her father had been the leader of the group and he had been involved in evangelising. I observed that this was at odds with her earlier evidence that nobody in the group had been involved in any activities apart from attending gatherings. She maintained that her claims were true.

[Footnote 1 was: See DFAT Thematic Report Fujian Province, China 16 December 2016 p. 9]

1. This extract demonstrates that the Tribunal put the gist of the information concerning the advice from DFAT to the Applicant, and the Tribunal considered the Applicant's response to it.
2. Section 424AA of the Migration Act provides:
   1. If an applicant is appearing before the Tribunal because of an invitation under section 425:
      1. the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
      2. if the Tribunal does so - the Tribunal must:
         1. ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
         2. orally invite the applicant to comment on or respond to the information; and
         3. advise the applicant that he or she may seek additional time to comment on or respond to the information; and
         4. if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
   2. A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
3. Section 424A of the Migration provides:
   1. Subject to subsections (2A) and (3), the Tribunal must:
      1. give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
      2. ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
      3. invite the applicant to comment on or respond to it.
   2. The information and invitation must be given to the applicant:
      1. except where paragraph (b) applies - by one of the methods specified in section 441A; or
      2. if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

2A. The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

1. This section does not apply to information:

   1. that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   2. that the applicant gave for the purpose of the application for review; or

   3. that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   4. that is non‑disclosable information.

2. A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

1. Given that the information referred to in the Tribunal Decision at [31][91] was "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member" it was subject to the exception in s 424A(3)(a) of the Migration Act, meaning that it was not subject to the requirement in s 424A(1).[92]
2. While the notification requirement in s 424A is obligatory,[93] such that non-compliance will often amount to jurisdictional error, s 424AA is facultative.[94] Section 424A prescribes what must be done whereas s 424AA provides a (but not the only) means of satisfying the obligation.
3. I am not satisfied that jurisdictional error is made out by reference to Ground 1.

The Tribunal made a finding without supporting evidence, namely the Tribunal failed to provide evidences on which level of knowledge the applicant should have.

Particulars

Paragraph 41 of the decision record

1. Paragraph 41 of the Tribunal Decision provided:[95]

In the first place, she knows very little about Christianity and almost nothing about the Bible and she was unable to provide a coherent account of what Christianity means to her and why she is a Christian when asked to do so at the hearing. While I acknowledge that genuine Christians may have a limited knowledge of the Bible and that reasons for attending a church or following a religion vary greatly I do not accept that someone who has been attending religious gatherings or church services on a reasonably regular basis since 2011 would know so little about her chosen faith and be unable to provide a reasonably convincing account of her reasons for joining and continuing to follow Christianity.

1. The substance of Ground 2 was that the Tribunal failed to specify the standard of knowledge that the Applicants were required to have or made a finding without evidence.
2. It has been held that it is not appropriate for the Tribunal to take on the role of "arbiter of doctrine" with respect to religion.[96] However, the Tribunal is entitled to explore a person's "level of... knowledge and understanding, and commitment" in order to assess the genuineness of the claim.[97] The evaluation of that evidence is ordinarily a matter for the Tribunal.
3. The Tribunal Decision records that the Applicants were given an opportunity to demonstrate their knowledge of Christianity, including questions concerning religious activities, church attendance[98] and beliefs.[99] The Tribunal found that the Applicants knew either very little,[100] or almost nothing,[101] about Christianity and the Bible; and the Applicant did not know the names of the churches she claims to have attended.[102]
4. The Tribunal was entitled to test the Applicant's knowledge of Christianity and make findings based on the limited account that the Applicants were able to give as to their Christian beliefs.[103] The Tribunal's findings that it was not satisfied that either of the Applicants "is or ever was a genuine Christian",[104] were findings that were open to it. It has not been demonstrated that the Tribunal's conclusions in relation to these matters were in error, noting that there was no transcript of the Tribunal hearing in evidence before me.
5. I am not satisfied that jurisdictional error is made out by reference to Ground 2.

The Tribunal exercised excessively in power, namely the Tribunal is not qualified to examine a fraudulent document.

Particulars

Paragraph 65 of the decision record

1. Paragraph 63 of the Tribunal's Decision provided:[105]

In support of these claims Applicant B provided documents purporting to be a notice of detention and decision to release on bail relating to his father. The former states that his father had been detained in Guizhou Province on 17 February 2015 because he was suspected of contract fraud. The latter states that he was released on bail because the People's Procuratorate had not approved his arrest and further investigation was required.

1. Paragraph 65 of the Tribunal's Decision provided:[106]

With regard to the documents provided by Applicant B, I noted that they could have been manufactured by anyone with access to a computer. Applicant B said that the original had a red stamp and asked me to conduct investigations to establish their authenticity. I asked if there was a specific investigation he wished me to carry out. He responded that his life was involved and I should investigate. I advised him that I did not intend to conduct further investigations.

1. Paragraph 73 of the Tribunal's Decision provided:[107]

In considering Applicant B's claims regarding the problems which his father faced in China I have noted the documents which state that his father was briefly detained in 2015. As pointed out at the hearing, these documents could have easily been manufactured by someone with a computer and printer and in light of my findings regarding the credibility of Applicant B's claims about the problems faced by his father I believe that these documents are most likely fraudulent. In any event, even if I accept them at face value they relate to fraud charges against Applicant B's father. It is perhaps possible that Applicant B's father was charged with fraud in 2015 for some reason. However, for the reasons set out above, I do not accept that he was pursued or killed by criminals because of this or that Applicant B has also been targeted by these criminals.

1. Translations[108] of the documents were before the Tribunal.[109]
2. I start by considering the potential relevance the documents relating to the second applicant's father. The documents, if accepted, recorded that the second applicant's father had been detained on suspicions of contract fraud and then released on bail. The documents were tendered by the second applicant to corroborate his claim that " his life was threatened prior to his departure from China by criminal gangs, that his father was forced into hiding shortly after his departure to escape these gangs, but was found and killed by them in February 2019."[110] The criminal gangs were hired to pursue moneys owed as a result of the "contract fraud".[111] These matters formed the basis of the second applicant's claim that "he is at risk of harm from criminals in relation to a debt which they claim his father owes them".
3. The second applicant suggested that the Tribunal should have investigated the authenticity of the documents. While in the "ordinary case" a review involves "consideration of the written information provided in the application",[112] in conducting the review the Tribunal "may get any information that it considers relevant".[113]
4. In Ismail v Minister for Immigration,[114] Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ stated:[115]

Making of a decision, the decision-maker having failed to inquire about a relevant fact or matter, may involve jurisdictional error capable of characterisation as either a constructive failure to exercise jurisdiction or a legally unreasonable exercise of a particular duty or power. While decisions have expressed the criteria for an error of this kind as including that the potential fact was readily ascertainable and was critical or central to the decision, these criteria merely reflect the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law.

1. The Tribunal's Decision not to investigate the question of fraud was not one in relation to a matter that was critical or central to its decision.[116] Nor was it in respect of a matter that was readily ascertainable. I do not consider that the decision was legally unreasonable.
2. While the Tribunal indicated a belief "that these documents are most likely fraudulent", a fair reading of [73][117] indicates that it did not purport to resolve that question. That was because the documents related to fraud charges against the second applicant's father ("even if I accept them at face value they relate to fraud charges against Applicant B's father"). The Tribunal accepted the possibility that the father had been charged with fraud in 2015 ("It is possible..."). Nevertheless, the Tribunal determined for reasons given earlier that "I do not accept that he was pursued or killed by criminals because of this or that Applicant B has also been targeted by these criminals". The reasons given earlier demonstrated that the Tribunal did not believe the second applicant's account.[118] Rather than positively concluding that the documents were fraudulent, the Tribunal's Decision at [73],[119] indicated that it was not satisfied that the documents corroborated the second applicant's claims. Such a conclusion was open to the Tribunal on the evidence, whether or not the documents were accepted as authentic.
3. I do not accept the Minister's claim made in the alternative that if there had been an erroneous finding concerning the documents as being fraudulent, that such an error would have been immaterial and therefore non jurisdictional. The Minister contends that the rejection of the second applicant's claims that "he was pursued or killed by criminals because of this or that [he] has also been targeted by these criminals" was made independently of the findings at [73].[120] However, it is a "path fraught with danger" to attribute to a decision maker "a linear reasoning process".[121] If the Tribunal had accepted the authenticity of the documents, it might have provided some corroboration for one aspect of the second applicant's claim, namely that his father was pursued or killed by criminals because of contract fraud. While the connection is somewhat tenuous, there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[122]
4. I am not satisfied that jurisdictional error is made out by reference to Ground 3.

The Tribunal failed to consider the applicants' new born child.

1. The premise of Ground 4 cannot be reconciled with the Tribunal's Decision. The Tribunal's Decision records that the Applicants had a five-year-old daughter who remained in China and a three month old child who was born in Australia.[123] There is also reference to the Applicant having a young child in an account of a police raid.[124] There is also a reference to the second applicant having confirmed that he did not face problems related to the birth of his first child out of wedlock.[125] I do not accept that the Tribunal "failed to consider" the Applicants' new born child. The extent of that consideration was appropriate having regard to the "issues arising in relation to the decision under review".
2. In Kaur v Minister for Immigration and Border Protection,[126] (Kaur) the Full Court held that, in the absence of any express provision, un-enacted international treaty obligations, such as the Convention on the Rights of the Child,[127] were not mandatory relevant considerations which, if not considered, would attract judicial review for jurisdictional error.
3. I am not satisfied that jurisdictional error is made out by reference to Ground 4.

1. As the Applicants have not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[128] the Application for review must be dismissed.

1. At the end of each party's submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $5,454 being less than the scale amount.[129] I am satisfied that the Minister is entitled to his costs in the proceedings on the basis that costs ought to follow the event.[130] I am further satisfied that it is appropriate to make an order for payment of the amount sought by having regard to the scale and the extent of work undertaken as evidenced by the Court file.[131]

I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 10 September 2025, Order 2.

[24] CB 182 [12]; ss 438(3) and (4) of the Migration Act.

[50] SZEDA v Minister for Immigration and Citizenship [2008] FMCA 754 at [23].

[51] SZEDA v Minister for Immigration and Citizenship [2008] FCA 1496 at [33].

[53] Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548; [2000] FCA 1599 at [16].

[54] SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 at [47]; WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [30].

[55] Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577 at [8].

[57] Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108.

[59] CB 186 [40]-[41],190 [66]-[67].

[67] Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; SZHQG v Minister for Immigration & Anor [2006] FMCA 1275 at [33].

[68] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [20].

[69] Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].

[74] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [61].

[75] SZRKY v Minister for Immigration and Citizenship (2012) 132 ALD 525 at [65]-[66]; SZQGE v Minister for Immigration and Citizenship [2011] FCA 1018 at [13].

[77] CB 123; ss 438(3) and (4) of the Migration Act.

[78] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 at [37].

[80] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 (Plaintiff S157/2002).

[81] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 per Allson CJ, Besanko and O'Callaghan JJ at [17].

[82] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) at [2].

[83] Plaintiff S157/2002.

[85] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].

[88] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[89] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ at [33].

[90] See s 5H(1)(a) of the Migration Act.

[92] See Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572

[93] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294.

[94] SZMCD v Minister for Immigration and Citizenship and Another [2009] FCAFC 46; (2009) 174 FCR 415 at [73].

[96] Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548; [2000] FCA 1599 at [16].

[97] SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 at [47]; WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [30].

[108] The originals are not in the Court Book.

[112] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [49].

[114] [2024] HCA 2; (2024) 417 ALR 36.

[115] At [25]. See also Minister for Immigration and Citizenship v SZIAI [2009] HCATrans 165; (2009) 259 ALR 429 at [25].

[121] EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304 at [45].

[126] [2017] FCAFC 184; (2017) 256 FCR 235.

[127] United Nations Convention on the Rights of the Child (UNCRC, 1989) Article 3(1) (CRC Art 3(1))

[128] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [113].

[129] See Division 1 of Part 3 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

[130] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

[131] See r 25.14 of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) and Division 1 of Part 3 of Schedule 2.