Federal Court of Australia

FTK24 v Minister for Immigration and Citizenship [2026] FCA 1281

ORDERS

THE COURT ORDERS THAT:

1.    The amended notice of appeal be dismissed.

2.    The appellants are to pay the first respondent’s costs, as taxed or agreed.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    This is an appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) dismissing an application by the appellants for judicial review of a decision of the second respondent (Tribunal) of a decision by a delegate of the first respondent (Minister) refusing an application by the appellants for a Protection (Class XA) (subclass 866) visa (Protection Visa).

2    The central issue for determination in this appeal is whether the decision of the Tribunal was legally unreasonable because it was based on a critical assumption for which there was no evidential support.

3    The first appellant and his wife, the second appellant, are citizens of the People’s Republic of China. They arrived in Australia on 3 March 2015 with a tour group.

4    On 26 March 2015, the first appellant applied for a Protection Visa on the basis that he feared that, if he returned to China, he would be arrested and imprisoned by the Chinese authorities because he is a practitioner of Falun Gong. The second appellant was a member of the family unit included in the first applicant’s application for a Protection Visa. In his statutory declaration accompanying the application for a Protection Visa, the first appellant stated that shortly after he had arrived in Australia with his wife, he was informed that his Falun Gong mentor, Master Tang, had been arrested. He was also informed that the police had raided his house in Guangzhou and discovered the book of Zhuan Falun, a book that had been banned by the Chinese authorities, that he had hidden in his house.

5    On 10 November 2015, a delegate of the first respondent refused to grant the appellants a Protection Visa. The delegate was not satisfied that the appellants met the requirements for a Protection Visa pursuant to either the refugee criterion under s 36(2)(a) of the Migration Act 1958 (Cth) (Act), or the complementary criterion under s 36(2)(aa) of the Act.

6    On 4 December 2015, the appellants applied to the Tribunal for review of the delegate’s decision.

7    On 30 April 2018, the Tribunal affirmed the delegate’s decision to refuse to grant the appellants a Protection Visa. The Tribunal was similarly not satisfied that the appellants met the requirements for a Protection Visa under either the refugee criterion or the complementary criterion.

8    On 21 May 2018, the appellants filed an application in the FCFCOA for judicial review of the Tribunal's decision.

9    On 16 August 2024, the primary judge made orders dismissing the judicial review application and delivered reasons for judgment: FTK24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 733 (Primary Judgment or PJ).

10    On 6 September 2024, the appellants filed a notice of appeal from the orders made by the primary judge but containing no articulation of any grounds of appeal other than “[a] bias off [sic] AAT”.

11    On 5 May 2026, the appellants filed, without leave, a document described as a “Supplementary Notice of Appeal” which included a particularised ground of appeal that the decision of the Tribunal was affected by legal unreasonableness. At the commencement of the hearing of the appeal on 27 August 2026, the Minister confirmed it did not object to leave now being given for the appellants to file an amended notice of appeal in the form of the Supplementary Notice of Appeal and I granted leave to the appellants to file an amended notice of appeal in that form.

12    For the reasons that follow, I have concluded that the amended notice of appeal must be dismissed and the appellants are to pay the Minister’s costs.

B.    Relevant statutory provisions

13    An applicant for a Protection Visa must meet (a) the criteria specified in s 36(1B) and s 36(1C) of the Act and (b) at least one of the criteria specified in s 36(2) of the Act. There was no issue concerning subsections (1B) and (1C). Section 36(2) of the Act relevantly provides:

(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 …

14    Section 5H of the Act provides that a person is a refugee for the purposes of the application of the Act and regulations if a person is outside their country of nationality and, due to a “well-founded fear of prosecution”, they are unable or unwilling to avail themselves of the protection of that country. In turn, s 5J of the Act relevantly for present purposes provides:

(1)     For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

…

(6)    In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

15    The power of the Tribunal to review a decision to refuse to grant a Protection Visa, pursuant to s 65 and relying on s 36(1C), is provided by s 500(1)(c)(i) of the Act:

500    Review of decision

(1)    An application may be made to the ART for review of:

…

(c)    a decision, other than a decision to which a certificate under section 502 applies, to refuse under section 65 to grant a protection visa, relying on:

(i)     subsection 5H(2) or 36(1C); …

C.    The Tribunal Decision

16    During the course of the hearing before the Tribunal, the first named appellant was questioned about his background, his family, his education, where he lived in China, his reasons for leaving China and why he feared returning to China. The Tribunal did not accept that the first named appellant was a credible witness. It found that aspects of his evidence were “evasive, contradictory, implausible and unconvincing” and concluded that “[t]here were inconsistencies between his evidence to the Department and to the Tribunal”, he advanced new claims at the hearing before the Tribunal, his evidence was inconsistent with country information, and he was “fabricating some of his evidence as he was giving it” (at DR [23]).

17    The Tribunal identified at DR [24]-[64] some 14 respects in which the first appellant’s evidence was inconsistent or implausible that had caused it to conclude that he was not a credible witness. These included that (a) the country information revealed that committed practitioners of Falun Gong that were known to the Chinese authorities or who had overtly engaged in behaviour that was considered politically sensitive would likely find it very difficult to obtain a passport to leave China, but the first named appellant had no problems obtaining a passport in 2008 and renewing it in 2012 (at DR [43]), and (b) the appellants had travelled to Singapore and Malaysia in 2014 and had then voluntarily returned to China (at DR [49]).

18    Nor did the Tribunal accept that the second named appellant was a credible witness. It found that her failure to make any claims for protection until the hearing before the Tribunal, almost three years after she had arrived in Australia, gave rise to “concerns in relation to her credibility and the veracity of her claims” (at DR [68]).

19    Given its concerns about the credibility of the appellants and the claims they were advancing, the Tribunal was not satisfied that either of the appellants were Falun Gong practitioners in China (at DR [69]). Moreover, the Tribunal expressly found that the appellants were “not witnesses of truth” and they had “fabricated their material clams for the purpose of obtaining Protection visas” (at DR [79]).

20    The Tribunal accepted that the appellants, since coming to Australia, had “participated in Falun Gong related activities” but was not satisfied that “they are genuine Falun Gong practitioners” (at DR [82]). The Tribunal was also not satisfied that the appellants’ attendance at Falun Gong related activities in Australia was “otherwise than for the purpose of strengthening their claims to be refugees” and found that it must therefore disregard that conduct by reason of s 91R(3) of the Act (at DR [84]).

21    The Tribunal concluded that there was no real chance that the appellants were at risk of serious harm by reason of their religion or any other reason set forth in s 5J(1)(a) of the Act if they were returned to China now, or in the foreseeable future. Therefore, neither had a well-founded fear of persecution and accordingly neither satisfied the criterion in s 36(2)(a) of the Act” (at DR [85]).

22    The Tribunal also concluded that the appellants did not satisfy the criterion in s 36(2)(aa) of the Act for a Protection Visa. It was not satisfied that the appellants would be “arbitrarily deprived of life, the death penalty will be carried out on them, they will be subjected to cruel or inhuman treatment or punishment” if they are returned to China now, or in the “reasonably foreseeable future” (DR [90]-[91]).

D.    The Primary Judge’s Decision

23    The appellants were not legally represented before the primary judge. The first appellant appeared as a litigant in person.

24    The primary judge proceeded on the basis that the appellants had contended in their written submissions that the Tribunal’s decision was affected by (a) actual or apprehended bias, (b) identification of the wrong issue or asking the wrong question, and (c) the making of findings without evidence, without considering evidence, or in a manner that was not open on the evidence (at PJ [12]).

25    Ground (b) and (c) were directed at the Tribunal’s finding rejecting the appellants’ claims concerning the first appellant’s Falun Gong activities in China and the finding that the appellants’ engagement in Falun Gong related activities in Australia was not for purposes other than their protection claims.

26    The primary judge did not accept that the Tribunal had erred in any of the respects advanced by the appellants and dismissed the application for judicial review.

27    The appellants do not seek to advance any of the grounds of review advanced before the primary judge on this appeal.

E.    Was the decision of the Tribunal legally unreasonable?

E.1.    Overview

28    The appellant seeks to advance a new ground of appeal that was not advanced before the FCFCOA, that the primary judge erred in not concluding that the decision of the Tribunal “was affected by legal unreasonableness”. The appellants require leave to rely on that ground because it was not advanced before the primary judge.

29    The appellant provides the following particulars of the ground (as written):

1.    The AAT accepted that the applicants had been practising Falun Gong in Australia. 2

2.    At paragraph [88] the AAT made a “what if I am wrong” finding about what would happen in the future if the authorities learned of the applicants Falun Gong practice in Australia.

3.    In making the finding at [88] The AAT reasoned that the authorities concern would be with what activities the applicants will engage in on their return to China

4.    In making the finding at [88] the AAT made an assumption that the authorities would not take an adverse view of the applicants’ historical practice of Falun Gong in Australia.

5.    In its reasons at [45] the AAT had stated that “The Country information is that the Chinese authorities are very sensitive about the Falun Gong issue” The AAT did not ex- plain why it assumed the authorities would have no adverse interest in a history of Fa- lun Gong practice in Australia.

6.    In these circumstances the assumption that the authorities would not take an adverse view of the applicants’ historical practice of Falun Gong in Australia was unwarranted and no reasonable decision maker could have made this assumption.

7.    In making this finding as to what would happen in the foreseeable future the AAT made the further assumption that the Chinese authorities would conclude that the applicants were not genuine Falun Gong practitioners even though they had been engaging in Falun Gong practice in Australia

8.    There is no apparent basis for the assumption that the Chinese Authorities would conclude that the applicants were not genuine Falun Gong practitioners even though they had been engaging in Falun Gong practice in Australia apart from the AAT s own conclusion that they were not genuine practitioners.

9.    The assumption that the Chinese authorities would conclude that the applicants were not genuine Falun Gong practitioners even though they had been engaging in Falun Gong practice in Australia was pure speculation. \

10.    The assumption that the Chinese Authorities would conclude that the applicants were not genuine Falun Gong practitioners even though they had been engaging in Falun Gong practice in Australia was unwarranted and no reasonable decision maker could have made this assumption.

11.    The unwarranted assumptions made by the AAT were critical to its conclusion that the appellants did not have a well-founded fear of persecution in Australia.

E.2.    Legal principles

30    It is well established that an administrative decision can be set aside under judicial review on the ground that it “is so unreasonable that no reasonable authority could ever have come to it”: Minister for Immigration v SZDMS (2010) 240 CLR 611; [2010] HCA 16 at [123] (Crennan and Bell JJ) citing Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 (Lord Greene MR).

31    In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, a Full Court of this Court described the interrelated concepts of illogicality, irrationality and unreasonableness in administrative decision making in the following terms at [45] (Perram, Murphy and Lee JJ):

Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]–[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. As Allsop CJ observed in Minister for Immigration & Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question is “whether a decision-maker could reasonably come to the conclusion” reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.

32    A decision may be found to be legally unreasonable if the reasons advanced in support of the decision depend on factual assumptions that are not supported by evidence: Minister for Immigration and Citizenship v Singh (2026) 315 FCR 400; [2026] FCAFC 42 at [74] (Rangiah, McDonald and Younan JJ).

E.3.    The appellants’ contentions

33    The appellants contend that the Tribunal made the following assumption that was critical to its reasoning without any evidential support; namely, it assumed that even if the Chinese authorities became aware of the appellants’ Falun Gong related activities in the foreseeable future, they would only be concerned with what Falun Gong related activities that they might engage in on their return to China because the Chinese authorities would not consider that the appellants were genuine Falun Gong practitioners in Australia.

E.4.    The appellants cannot satisfy the refugee criterion in s 36(2)(a)

34    The appellants can only succeed in satisfying the refugee criterion in s 36(2)(a) if they can establish that they had a well-founded fear of persecution, as defined in s 5J of the Act.

35    The Tribunal’s finding that it was not satisfied that the appellants were Falun Gong practitioners in China was not challenged by the appellants. It follows that none of the claims made by the appellants with respect to their alleged Falun Gong conduct in China can give rise to any well-founded fear of persecution. Nor by reason of s 5J(6) of the Act can the appellants’ “attendance at Falun Gong related activities in Australia” be relied upon as giving rise to a “well-founded fear of persecution” because of the Tribunal’s finding that it was not satisfied that their attendance at those activities was “other than for the purpose of strengthening their claims to be refugees and must therefore be disregarded”. The Tribunal erroneously made that finding by reference to s 91R(3) of the Act. That section of the Act had in fact been repealed at the time that the Tribunal made its decision, but s 5J(6) has the same substantive operation.

36    Section 5J(6) provides:

In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

37    The appellants, who are now legally represented, do not challenge the Tribunal’s finding to the effect that they had only attended Falun Gong related activities in Australia for the purpose of strengthening their claims to be refugees.

38    The claims for complementary protection pursuant to s 36(2)(aa) of the Act, however, are not dependent on an applicant establishing a well-founded fear of prosecution. I now turn to consider the appellant’s ground of appeal with respect to the complementary protection claims.

E.5.    Dispositive reasoning of the Tribunal

39    The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellants’ removal to China, there was a real risk that they will suffer significant harm. That conclusion depended on three critical findings.

40    First, the Tribunal found at DR [87] that it did “not accept that the Chinese authorities are aware of their Falun Gong related activities in Australia or that they are of adverse interest to the Chinese authorities for this reason”. In context, it is evident that the reference to “their Falun Gong related activities” is a reference to the finding of the Tribunal that the appellants, since coming to Australia, had “participated in Falun Gong related activities” but were not “genuine Falun Gong practitioners” (at DR [82]). In the absence of any specific evidence that the Chinese authorities were aware of any Falun Gong related activities of the appellants in Australia, it was open to the Tribunal to make that finding. Any finding to the contrary could only have been made on the basis of impermissible speculation as to the surveillance capabilities of the “Chinese authorities” in this country.

41    Second, the Tribunal was not satisfied (at DR [88]) that the appellants will practise Falun Gong or have any desire to do so on the return to China in the foreseeable future. That finding was open to the Tribunal given its findings to the effect that the appellants had not practised Falun Gong in China and their attendance at Falun Gong related activities in Australia was only for the purpose of strengthening their claims to be refugees. In those circumstances, it would logically follow that the appellants would have no incentive to participate or apparent interest in participating in any Falun Gong activities in China.

42    Third, the Tribunal found at DR [88] that there was “no real risk that they will come to the adverse attention of the Chinese authorities”. Given the Tribunal’s findings that (a) it did not accept that the Chinese authorities were aware of the appellants’ Falun Gong related activities in Australia, and (b) it was not satisfied that the appellants in the foreseeable future would practise Falun Gong or have any desire to do so if they returned to China, it was open to the Tribunal to make that finding.

E.6.    Attitude of Chinese authorities to appellants’ Falun Gong related activities in Australia

43    In that context, it is then necessary to address the finding by the Tribunal at DR [88] that “even if the Chinese authorities become aware of the applicants’ Falun Gong related activities in Australia in the foreseeable future, their concern would be with what activities they will engage in on their return to China”. The finding carried with it a necessary implication that the appellants’ Falun Gong related activities in Australia would not be of “adverse interest” to the Chinese authorities.

44    The appellants contend, and I accept, given the Tribunal’s findings as to the attitude of the Chinese authorities to Falun Gong practitioners, the Tribunal’s finding that if the Chinese authorities became aware of the Falun Gong related activities of the appellants in Australia they would not have been concerned must carry a necessary implication that the Chinese authorities would have formed a similar view to the Tribunal that the appellants were not genuine Falun Gong practitioners. Had the Tribunal not made an implicit assumption to that effect, it is not logically possible to reconcile the two findings made by the Tribunal.

45    The Tribunal had earlier found at DR [45] that the country information indicates that “the Chinese authorities are very sensitive about the issue of Falun Gong”. That finding was sourced from a thematic report of the Department of Foreign Affairs and Trade (DFAT report) dated 3 March 2015 entitled “Unregistered religious organizations and other groups in the People’s Republic of China”. The delegate, in making her decision, had also relied on the DFAT report and reports from the United States Department of State and the United Kingdom Home Office to find that:

… the Chinese government continues to identify Falun Gong as the biggest threat to its authority, and uses harsh measures to deal with those it perceives to be leaders or proponents of the practice. These actions extend to family members of practitioners, and those who support or defend them and associate with them.

(Citations omitted.)

46    It is not apparent why, in light of this country information, the Tribunal concluded that the Chinese authorities would not be concerned about the appellants engaging in Falun Gong related activities in Australia, unless the Tribunal had proceeded on the implicit assumption that if the Chinese authorities became aware of the appellants’ Falun Gong related activities in Australia they would conclude, as the Tribunal had found, that they were not genuine.

47    The Tribunal’s finding that the appellants were not genuine Falun Gong practitioners was based on responses that the Tribunal had received from the first named appellant in the course of the hearing before the Tribunal to questions testing the depth of the first appellant’s knowledge of the teachings of Falun Gong as identified in the Zhuan Falun text (at DR [70]-[73]), and the first appellant’s evidence that he had asked Falun Gong practitioners to take photographs of him engaging in Falun Gong activities to assist him with his application for a Protection Visa (at DR [74]-[75]). The Tribunal, however, fairly acknowledged, that it “does not purport to be an arbiter of Falun Gong doctrine”. One could readily accept that the approach of the Chinese authorities to determining whether a person was a genuine Falun Gong practitioner would likely be more rigorous and sophisticated. Nor could one plausibly accept that the Chinese authorities would doubt that a person was a genuine Falun Gong practitioner on the basis that they asked someone to take photographs of them participating in Falun Gong activities to support an application to an Australian tribunal for a Protection Visa.

48    The Minister contends that the Tribunal’s finding that the Chinese authorities would only be concerned with Falun Gong activities that the appellants might engage in on their return to China, and not on their Falun Gong related activities in Australia, was a finding open to the Tribunal given (a) the country information referred to by the Tribunal at DR [43] and [45], and (b) factual findings of the Tribunal that are not challenged by the appellant.

49    The country information referred to by the Tribunal at DR [43] and [45] was concerned with the unlikelihood of the Chinese authorities issuing a passport to a person who was committed to Falun Gong and who was already known to them. The country information highlighted the concern of the Chinese authorities about Falun Gong and was relied upon by the Tribunal to conclude that “it is highly unlikely that an officer in the passport office would risk losing his/her job and possibly more severe punishment for issuing a known Falun Gong practitioner, who had been detained and monitored by the Police, with a passport”.

50    The Tribunal relied on that sensitivity of the Chinese authorities to reject the appellants’ claims of any involvement in Falun Gong in China, given the first appellant was able to obtain a passport in 2008 and renew it in 2012. That sensitivity, however, does not logically suggest that any concern about persons being involved in Falun Gong was restricted to Falun Gong related activities in China.

51    The critical question, however, is ultimately not whether any findings made or speculation expressed by the Tribunal as to the Chinese authorities’ attitude to the Falun Gong related activities engaged in by the appellants in Australia had an evidentiary foundation. Rather, the critical question is whether the dispositive reasoning of the Tribunal depended on such findings or speculation.

52    Moreover, the issue of whether the Chinese authorities would have been concerned about the appellants’ Falun Gong activities in Australia would only relevantly arise if they became aware of those activities at some time in the foreseeable future. Neither the country information before the Tribunal, nor the evidence advanced by the appellants before the Tribunal, however, enabled any assessment to be made as to whether there was a real risk that the Chinese authorities might learn in the foreseeable future of the appellants’ Falun Gong related activities in Australia.

53    The appellants’ reliance on the reasoning of Allsop CJ in SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589 was misplaced. The Tribunal’s decision turned on a lack of belief in the evidence given by an applicant because of perceived inconsistencies in his evidence (at [22]). His Honour found that the credit finding made by the Tribunal, which caused it to reject the applicant’s claims, was based on “unwarranted assumptions”, being findings made in the absence of any evidentiary foundation in the country information or otherwise, that (a) it was implausible that the applicant would have been elected as leader of a village because he no longer lived there (at [44]), (b) if the applicant had been released on bail as he claimed, he would have been required to surrender his passport (at [46]), and (c) the Chinese authorities would not have waited 2 weeks to arrest the applicant had in fact attended a protest (at [48]). These were material findings on which the Tribunal had relied upon in rejecting the evidence given by the applicant and making its decision.

54    The equivalent credit findings made by the Tribunal in this case were not challenged by the appellants.

55    Any findings made or speculation expressed by the Tribunal that any concerns of the Chinese authorities would not extend to the Falun Gong related activities engaged in by the appellants in Australia therefore cannot give rise to jurisdictional error because (a) there was no basis to find that there was a real risk that the Chinese authorities would learn in the foreseeable future of the appellants’ Falun Gong related activities in Australia, and (b) the dispositive reasons advanced by the Tribunal to affirm the decision of the delegate, as explained at [39]-[42] above, proceeded independently of any speculation engaged in by Tribunal in its “even if the Chinese authorities become aware of” finding at DR [88].

F.    Disposition

56    For the foregoing reasons, the amended notice of appeal is to be dismissed and the appellants are to pay the costs of the first respondent, as taxed or agreed.

Associate:

Dated:    2 September 2026