Federal Court of Australia

BZV19 v Minister for Immigration and Citizenship [2026] FCA 262

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Citizenship”

2.    The application for leave to appeal be dismissed.

3.    The applicants pay the costs of the first respondent fixed in the sum of $5,000.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J

1    The first applicant is a female citizen of China and the second applicant is a male citizen of China who is married to the first applicant. On 6 September 2014, they arrived in Australia as holders of Tourist (FA-600) visas. On 26 November 2014, the applicants applied for protection visas. The first applicant sought protection on the basis of claims to have been detained in China due to her religion. The second applicant relied on the first applicant’s claims. On 14 July 2016, a delegate of the Minister refused the applications on the basis the delegate was not satisfied that the first applicant was a person to whom Australia owed protection obligations under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act) and that the second applicant was not a member of the family unit of a person to whom Australia owed protection obligations.

2    On 10 August 2016, the applicants sought review of the delegate’s decision by the Administrative Appeals Tribunal (Tribunal). On 9 April 2019, the applicants attended a hearing before the Tribunal with the assistance of a Mandarin interpreter. On 26 April 2019, the Tribunal affirmed the delegate’s decision. On 17 May 2019, the applicants applied for judicial review of the Tribunal’s decision. On 4 September 2024, a Registrar made orders dismissing the judicial review application pursuant to Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules) r 13.06(1)(c) when the applicants failed to appear at a callover scheduled before the Registrar on that date.

3    On 2 October 2024, the applicants filed an application seeking reinstatement, which was dismissed by the Registrar on 12 November 2024. On 20 November 2024, the applicants sought review of the Registrar’s orders dismissing their reinstatement application. On 17 January 2025, the primary judge dismissed the reinstatement application: BZV19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 26. The applicants seek leave to appeal from that decision.

4    The applicants were unrepresented in the Court below and were also unrepresented in this Court. The first applicant appeared with the assistance of a Mandarin interpreter, and I understood she was appearing on behalf of the second applicant. The applicants did not file any written submissions in accordance with the Court’s orders. The first applicant acknowledged that she had received the Minister’s submissions. The applicants made a limited submission, that given the consequences of being forced to return to China, they should have had the opportunity to present further evidence. I take this to relate to proposed ground three of the appeal. Brief reference was also made to the country information relied on by the Tribunal, which relates to ground two of the appeal.

5    For the reasons below, leave is refused and the appeal is dismissed.

Consideration

6    As this is an appeal from an interlocutory judgment, the applicants require leave to appeal in accordance with s 24(1A) of the Federal Court of Australia Act 1976 (Cth): CIK23 v Minister for Immigration and Citizenship [2025] FCA 896 at [11]-[16].

7    Whether leave to appeal should be granted involves consideration of (1) whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by the Court exercising its appellate jurisdiction; and (2) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96 (Miraki) at [5]; Décor Corporation Pty v Dart Industries [1991] FCAFC 844; (1991) 33 FCR 397 at [2]. The discretion to grant leave is not constrained by rigid rules: Miraki at [5]. The applicants bear the onus of establishing those matters: SZTKB v Minister for Immigration and Border Protection [2014] FCA 653 at [8].

8    The applicants rely on four proposed grounds of appeal:

1.    The primary judge erred in his decision that the applicants invited the Court to engage in impermissible merits review. Rather, the applicants asked the court consider whether the Tribunal fairly weighed the evidences before it.

2.    The primary judge erred in his decision without considering that the Tribunal fairly not selectively accepts country information favourable to the Tribunal decision.

3.    The primary judge erred in his decision by failing to consider that the Tribunal has obligation to provide opportunity to the applicants to submit further evidences when the Tribunal made unfavourable decision against the applicants.

4.    The primary judge erred in his decision without considering the registrar’s decision properly.

9    The applicants have not established that the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration.

10    In relation to ground one, the applicants misread the decision of the primary judge. However the applicants characterised their arguments, the primary judge considered that in reality their application invited the Court to engage in impermissible merits review. The description was in the context of the primary judge’s observations at [61]-[62]:

[61]    The Court notes that the Tribunal’s decision record runs to some 164 paragraphs, over 19 typed pages. In the Court’s view, it is a detailed and comprehensive assessment of the applicant’s claims for protection together with the evidence upon which those claims are based.

[62]    The Court agrees with the respondent’s submission, but by and large, the grounds of judicial review rise no higher than emphatic disagreement with the Tribunal’s decision and invite the Court to engage in impermissible merits review.

11    The primary judge then addressed the grounds before him, having earlier articulated the applicants’ position in respect to each ground. A consideration of the grounds of review before the primary judge, and his Honour’s recitation of the applicants’ submission in respect to them, reflects no error has been demonstrated in his characterisation of them.

12    Ground two which relates to the assessment of country information, appears to reflect ground six before the primary judge. As the respondent submitted, it is well-established that the choice and assessment of country information was a matter for the Tribunal: e.g. NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [43], [54], [65]. The primary judge applied that principle in rejecting the ground: PJ [54] and [65]. No error has been demonstrated in the primary judge’s reasoning.

13    Ground three which alleges that a further opportunity should have been given to the applicants to provide further evidence after an unfavourable decision was made, reflects grounds nine and fourteen before the primary judge. It is for an applicant to present their claims and evidence to enable the Tribunal to reach the requisite state of satisfaction: e.g. Minister for Immigration and Multicultural Affairs v Ly Let [2006] FCAFC 61; (2006) 151 FCR 214 at [76]. The applicants were afforded an opportunity to give evidence before the Tribunal. The Tribunal was under no obligation to afford the applicants every opportunity to present their best possible case. There was no obligation on the Tribunal to request the applicants provide further and better evidence. No error has been identified in the primary judge’s conclusion: PJ [48], [70].

14    Ground four fails to recognise the role of the primary judge on the reinstatement application as a hearing de novo: r 21.04 FCFCOA Rules. The “review, or de novo appeal, is not concerned with correcting error or part of a tiered process but as a fresh hearing which may result in a different order having the effect of undoing or revoking the decision of the registrar”: BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307 at [11]. The primary judge appropriately determined the reinstatement application afresh without any focus on the decision he was “reviewing”.

Conclusion

15    The applicants have not established that the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration by the Court exercising its appellate jurisdiction. Accordingly, the application for leave to appeal is dismissed with costs.

Associate:

Dated:    17 March 2026