Federal Court of Australia

AZL19 v Minister for Immigration and Citizenship [2026] FCA 1284

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal be dismissed.

3.    The first and second appellants pay the first respondent’s costs, as agreed or assessed.

THE COURT NOTES THAT:

1.    For the purposes of the costs order, the third appellant is a minor.

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

REASONS FOR JUDGMENT

YOUNAN J:

INTRODUCTION

1    The first appellant is a citizen of the People’s Republic of China, and arrived in Australia on 13 July 2008 on a student visa. The second appellant is the wife of the first appellant. The appellants have two children, one of whom is the third appellant. The appellants’ other child acquired Australian citizenship in April 2021.

2    The first appellant applied for a Protection (Class XA) (Subclass 866) visa (protection visa) on 18 May 2015, which was refused by a delegate of the Minister on 6 June 2016 under s 65 of the Migration Act 1958 (Cth) (delegate’s decision). The second and third appellants do not present claims of their own, and rely on the protection claims of the first appellant.

3    The first appellant’s protection claims are based on his practice of Catholicism.

Notice of appeal

4    By notice of appeal filed on 19 December 2024, the appellants appeal the decision of a judge of the Federal Circuit and Family Court of Australia (Division 2) on 21 November 2024, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal: AZL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1239 (primary judgment or PJ). On 6 September 2023, the Tribunal affirmed the delegate’s decision (Tribunal decision or T).

Appearance

5    The appellants were represented at the hearing before the primary judge. However, they are now self-represented litigants.

6    At the hearing before the Tribunal, the appellants had the assistance of a Mandarin interpreter. As such, a Mandarin interpreter was arranged for the hearing of the appeal on 13 August 2026.

FACTUAL BACKGROUND

7    There is no dispute as to the factual background to this matter, which is summarised at paragraphs [1], [3]–[11] of the primary judgment, and in the Tribunal decision at paragraphs [1]–[6] and [22]–[65], on which I rely

GROUNDS OF APPEAL

8    The grounds of appeal are stated as follows:

Grounds of appeal

1.    I do not agree with the Federal Circuit Court Judge. He is wrong because the Tribunal did make a jurisdictional error in relation to the religious practice of the First Applicant. This is all the mistakes of the Tribunal but the Federal Circuit Court Judge did not see them.

Particulars

The Tribunal may make a jurisdictional error of irrationality by illogical findings or reasoning material to its ultimate conclusion: BHD18 v Minister for Immigration [2020] FCAFC 151 at [29], BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865, [43];

b.    The Tribunal may make a jurisdictional error of irrationality by relying on unwarranted assumptions: BZI17 v Minister for Immigration [2022] FedCFamC2G 717 at [28]-[34], [48];

c.    The Tribunal found at paragraph 154 of its decision that, while it accepted that persecution of underground churches does occur in China, it had found that the First Applicant and his family were not underground church members;

d.     The Tribunal found at paragraphs 121-123 of its decision that the Applicant was not honest in stating that he was not baptised and did not take communion before coming to Australia as there were no priests. The basis for the Tribunal’s conclusion was that, although not ideal, it was permissible for lay persons in Catholicism to officiate at baptisms and provide communion;

e.    This comprised an unwarranted assumption, or illogical reasoning, on the part of the Tribunal, as the absence of a priest was still a possible reason for the Applicant not to have been baptised or taken communion before coming to Australia;

f.    The Tribunal found at paragraphs 124 and 140 of its decision that, as there was a church in the First Applicant’s village which was demolished, there were priests in the Applicant’s village, suggesting that if he were an underground church member, he would have been baptised and taken communion before coming to Australia;

g.    This reflected an unwarranted assumption, or illogical reasoning, on the part of the Tribunal, as the presence of a church of some kind, which was not apparent on the material before the Tribunal, did not persuasively suggest the presence of a priest who would have led to the First Applicant being baptised and taking communion;

h.    The Tribunal found at paragraph 126 of its decision that, if the First Applicant’s family had been underground church members and thus risked detention and damage to their reputation, they would also have had the First Applicant baptised and allowed him to take communion and further found at paragraph 138 of its decision that if his family were underground church members he would already have been baptised and taken communion before coming to Australia;

i.    This incorporated an unwarranted assumption or illogical reasoning as the First Applicant’s family may have wished him to be baptised by or receive communion from a priest, as the First Applicant explained. Their commitment to the underground church would not necessarily have meant they wished the First Applicant to be baptised or take communion in any circumstances, as the Tribunal assumed or reasoned;

j.    The Tribunal found at paragraph 130 of its decision that it was not convinced the First Applicant’s mother had been detained no earlier than 2014 and, in particular, was not persuaded by the First Applicant’s explanation that she had previously been careful;

k.    This entailed an unwarranted assumption or illogical reasoning that the First Applicant’s mother, if she had been an underground church member, would have been detained before 2014, regardless of how careful or fortunate she had been in avoiding detention before that time;

l.    The Tribunal found at paragraph 131 of its decision that the Applicant’s departures from China on a number of occasions before 2014 and the career of his brother would not have been possible as the First Applicant’s family would have come to the attention of the authorities for being underground church members;

m.    This represented an unwarranted assumption or illogical reasoning as the First Applicant’s family could have avoided detection until the First Applicant’s last departure from China and the authorities would not necessarily have targeted the First Applicant’s brother, including because according to the First Applicant his brother had not been a part of the underground church;

n.    The Tribunal effectively found at paragraph 137 of its decision that the First Applicant would have married his wife otherwise than at a civil ceremony due to his Catholic religion, which involved an unwarranted assumption or illogical reasoning as to the conduct of the First Applicant and his wife in their circumstances;

o.    The Tribunal was obliged to give proper consideration to, in the sense of active intellectual engagement with, the Applicant’s case: KXXH v Minister for Immigration [2022] FCAFC 111 at [45]-[54]; LJTZ v Minister for Immigration [2022] FCA 1209 at [123]-[126];

p.    The Tribunal found at paragraph 150 of its decision that there was no evidence before the Tribunal that the First Applicant would challenge the state authorities in China, apart from the First Applicant’s claim that he had converted a family member. It had been necessary for the Tribunal to determine the veracity of this claim and its significance for the First Applicant’s relationship with the state as a Catholic

2.    Your Honour, I feel confused because the Tribunal member felt that my religion should be followed in the way it is done in Australia or maybe around the world. But China is not Australia, and the way my religion is followed in China is very different. The Federal Circuit Court Judge followed the same wrong way of thinking as the Tribunal member, and his decision should be cancelled. Your Honour, this is not a just way of treating my case.

9    The particulars to Ground 1 replicate the grounds of review below. The second ground does not appear to raise an independent ground, but to underscore the allegation of assumptions made by the Tribunal member (and the primary judge) regarding the practice of the first appellant’s religion (Catholicism) in China.

10    The grounds of appeal, therefore, raise the issue of whether the Tribunal’s findings of the religious practice of the first appellant were based on “unwarranted assumptions” or “illogical reasoning”, thereby giving rise to jurisdictional error.

Legal principles

11    There is no contest that a finding of fact might involve jurisdictional error if it is shown to be irrational, or unreasonable, or lacking in an intelligible justification: BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 26 at [29] (Allsop CJ, Collier and Colvin JJ). The error must be material in the sense that there is a realistic basis to consider that the decision maker’s ultimate conclusion might have been different had the alleged error not been made: BHD18 at [29]; see also Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]–[50] (Bell, Gageler and Keane JJ).

12    However, as the Minister submits, the test for the test for irrationality or illogicality is stringent: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]–[131] (Crennan and Bell JJ). So too is the test for legal unreasonableness: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [67], [74]–[76] and [85] (Hayne, Kiefel and Bell JJ), [105] (Gageler J); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11] (Kiefel CJ), [135] (Edelman J).

13    The Minister accepts that “unwarranted assumptions” may result in a conclusion that a finding of fact is illogical, irrational or not founded on any probative evidence: DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [45] (Kenny, Kerr and Perry JJ).

14    However, the Minister drew the Court’s attention to Crennan and Bell JJ’s statement in SZMDS (at [135]):

A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

15    I do not understand the statement in SZMDS to be an exhaustive statement of the circumstances in which a decision might be said to be illogical or irrational. As Crennan and Bell JJ state in the previous sentence in SZMDS at [135], there may be varieties of illogicality and irrationality.

16    As the primary judge observed (at PJ [22]), Perram J in BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 at [7]–[8] found that there is “no freestanding ground of unwarranted assumptions”, and that “a party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the assumption is not one which a reasonable decision maker could make. Another way of asking this question is to ask whether the decision has an evident and intelligible basis”: SZVFW at [10] (Kiefel CJ, Nettle and Gordon JJ at [82]), citing Li at [76] (Hayne, Kiefel and Bell JJ).

17    The Minister seeks to transpose the proposition in SZMDS at paragraph [135] regarding a “decision” to a “finding that is critical to a decision”. In that regard, the Minister contends that a decision (or a finding critical to a decision) will not be legally unreasonable, simply because another decision (or finding) may have been available on the evidence.

18    To the extent that the appellants entreat the Court to prefer one finding over another, each finding available on the evidence, this is tantamount to a request to revisit the merits of the Tribunal’s decision, in order to reach a conclusion that is preferred by the appellants. To the extent that the appellants suggest that a finding of the Tribunal is somehow undermined by virtue of the available evidence, then one is not concerned with competing findings, but rather an assessment of the logical force of the finding in question, and, vis-à-vis any other rational explanation for an event, an assessment of the legal reasonableness of the Tribunal’s reasoning.

19    The appellants do not impugn the Tribunal’s reasoning or decision as legally unreasonable in the notice of appeal. Nevertheless, I have considered that question to the extent that it arises from an assessment of whether the impugned findings of the Tribunal constitute an “unwarranted assumption, or illogical reasoning”, as claimed in the notice of appeal.

Ground 1 – Irrationality or illogicality

20    The first ground of the notice of appeal contends that the primary judge did not perceive the errors of the Tribunal regarding the religious practice of the first appellant. Those errors are identified in the particulars to the first ground of appeal.

21    The appellants identify seven findings of the Tribunal, which contributed to the Tribunal’s conclusion that the first appellant and his family were not members of an underground Roman Catholic group in China. The appellants contend that each of (what are characterised as) Findings 1 to 6 reflects an unwarranted assumption, or irrational or illogical reasoning on the part of the Tribunal. Finding 7 is dealt with separately below.

22    The appellants also contend that the primary judge gave “insufficient attention” to the assumptions “built into the Tribunal’s reasoning”, and the subsequent effect on the Tribunal’s conclusion.

23    In respect of each of Findings 1 to 6, the Minister disputes that the Tribunal’s reasoning is based on an unwarranted assumption or is illogical or unreasonable. In respect of Finding 7, the Minister disputes that there was any error in the Tribunal’s reasoning.

Finding 1: Baptism and communion

24    Each of (what are characterised as) Finding 1 (particulars (d)–(e)), Finding 2 (particulars (f)–(g)), and Finding 3 (particulars (h)–(i)), concerns the first appellant’s explanation as to why he was not baptised or took communion before coming to Australia.

25    The appellants take issue with the Tribunal’s conclusion at paragraphs [121]–[123] of its decision that the first appellant had not given an honest response as to why he was not baptised, or did not take communion, before coming to Australia. Those paragraphs state:

[121]    The applicant claims that he was not baptised or took communion before coming to Australia as there were no priests.

[122]    The Tribunal does not accept this as an honest response. Lay persons in Catholicism can officiate at baptisms and provide communion which has been consecrated by a priest. Many remote communities around the world can participate in services due to this.

[123]    The applicant provided further submissions to the Tribunal. In those submissions and links to articles it states that baptism in circumstances where there is no priest are permissible it may not be ideal, but it is permissible.

26    The appellants contend that this finding is an “unwarranted assumption” or “illogical reasoning”, as the absence of a priest was nevertheless a possible explanation for the applicant not having been baptised or taken communion before coming to Australia. In written submissions, the appellants contend that lay baptism is an “exceptional procedure”, and the Tribunal had not identified any evidence that the first appellant’s underground church considered the use of “exceptional procedures” as appropriate. Further, the appellants contend that the Tribunal did not identify any evidence that the first appellant’s underground church had a person willing and able to perform baptism or had access to communion consecrated by a priest.

27    As such, the appellants contend that, notwithstanding the Tribunal’s finding that lay baptism and communion was technically possible, the Tribunal’s conclusion that it could have occurred in the first appellant’s underground church was not supported by the evidence.

28    The Minister submits that there is nothing illogical or unreasonable in the Tribunal’s reasoning, and that the Tribunal was not obliged to accept the first appellant’s explanation, even if the explanation itself was “possible”, reasonable or rational. The Minister submits that it was open to the Tribunal to find that the first appellant’s explanation for not having being baptised or taken communion in China due to the lack of priests was not persuasive, as priests were not essential for the sacraments to be administered. The Minister contends that it is a matter for the decision maker to explain its reasoning process, and that the Tribunal did so.

29    I accept the Minister’s submission, and the finding of the primary judge in relation to particulars (d) and (e) (PJ [31]), that the Tribunal’s reasons do not contain an unwarranted assumption or illogical reasoning. The Tribunal at paragraph [121] is addressing the proffered basis of the argument that the first appellant was not baptised or took communion before coming to Australia, i.e., “as there were no priests”. The appellants’ argument on appeal that “the absence of a priest was still a possible reason for the [first appellant] not to have been baptised or taken communion before coming to Australia”, ignores this. The appellants do not suggest that the Tribunal misunderstood their claim.

30    Furthermore, it is not for the Tribunal to identify evidence that the first appellant’s underground church had a lay person willing and able to perform baptism, or who had access to communion consecrated by a priest. The evidentiary onus lies on the appellants to demonstrate that the absence of a priest was a reason that the first appellant was not baptised or took communion before coming to Australia, as contended by the appellants before the Tribunal. The Tribunal discussed these matters with the first appellant at the hearing: T [88]–[90]. A further opportunity was provided by the Tribunal to respond to these matters: T [112]. The submissions and material provided by the appellants after the hearing indicate that baptism is permissible in circumstances where there is no priest: T [112]–[114], [123]. There is no error in the Tribunal relying on that material to negate the argument that the first appellant could not be baptised or take communion in the absence of a priest.

Finding 2: Availability of priests

31    The appellants submit that the Tribunal’s finding (at [124] and [140]) that there were priests in the first appellant’s village in China during the first appellant’s childhood (on the basis of evidence that the church in his village was being demolished) reflects an unwarranted assumption or illogical reasoning on the part of the Tribunal.

32    Paragraphs [124] and [140] of the Tribunal decision state:

[124]    In earlier submissions to the Department the applicant spoke about recently hearing, when in Australia, of the church in his village being demolished. This would indicate that at the time he was in China there were priests in the village.

…

[140]    His response that he was not baptised or had taken communion was because there were no priests in China is not accepted as truthful by the Tribunal. This contrasts with his statement to the Department provided with his application for protection in May 2015 in which he refers to recently hearing that the Catholic church in his village had been sealed up. This would indicate that during his childhood there were priests available in his village.

33    The appellants submit that the material before the Tribunal does not establish the “kind of church building…whether it was an official church or an underground meeting place, when priests were present, whether any priest served the First Appellant’s family church, or whether the First Appellant’s family could safely approach that priest for baptism and Communion”. As such, the appellants contend that the presence of a church (of some kind) does not persuasively indicate the presence of priests, whose presence would have led to the first appellant being baptised and taking communion.

34    The Minister contends that there was no irrationality nor unwarranted assumption in the Tribunal’s findings, and that it was logical for the Tribunal to conclude that the closing down of a church by the authorities indicated that the church was “operational” prior to being closed down. The Minister submits that if the church was operational, it follows that it must have had a priest (or priests) connected to the church. As such, the presence of priests around the first appellant’s village when he was a child provides a further reason to doubt the first appellant’s evidence as to why he had not received communion, or been baptised.

35    The primary judge accepted that the Tribunal assumed or reasoned that one or more priests would have worked in a Catholic church in China during the period the first appellant was in China (as opposed to a Catholic church operating without any priests). The primary judge held that it was open to the Tribunal to reason that, since there was a church in the first appellant’s village, there were priests in the village associated with that church (at [35]). The appellants take issue with the primary judge’s conclusion, submitting that it treats “ordinary church practice as decisive”, without considering the context in which an underground family church would operate in China.

36    I accept the appellants’ submission in this regard. The Tribunal’s deduction that when the first appellant was in China, there were priests in his village, is based on evidence (initially before the Department) that the first appellant had heard that the church in his village was being demolished. The assumption is that priests were attending the church, and a further assumption is made that they attended at the time the first appellant attended church. There is no evidence to support those assumptions. There is no evidence to suggest that the activities of the church were conducted by priests. That is not the only conclusion to be drawn from the existence of a church, at least not in the circumstances of a church that the first appellant says in his interview with the Department, was not approved by the Roman Catholic Church.

37    The first appellant’s statement to the Department provided with his application for protection in May 2015 (to which the Tribunal adverts at T [140]) indicates that he heard about the Chinese Government “demolishing church buildings”. There is no reference in that statement to the attendance of priests at the “Catholic Church in our village”, which was described as “unauthorized”. Rather, the first appellant referred to those attendees who were arrested by the local government, without mention of any priests. Further, in the first appellant’s interview with the Department, the first appellant referred to the underground church as a group of people who read the scripture, prayed and sang songs together: T [37]. (I note that Tribunal decision does not record that the group “prayed” together. The reference to that evidence is found in the delegate’s reasons for decision, which the Tribunal sought to summarise: T [30].)

38    The Minister submits that it is logical to conclude that the closing down of a church by the authorities indicated that the church was “operational” prior to being closed down, and that if the church was operational, it follows that it must have had a priest (or priests) connected to the church. However, that submission assumes, without evidence, that which it concludes, i.e., the manner in which the church operated before it was closed down. It also assumes the timing of attendance, and degree of involvement, of any such priests. The chasm between that assumption and the evidence is larger when one considers that the church in question, albeit described as “Catholic”, was also described by the first appellant as “unauthorized” or “underground”. As such, it is not safe to assume the manner in which it operated, i.e., with or without priests, and the time at which it operated as such. This is so especially in circumstances where the first appellant was asked about the underground church he attended in China, and he responded that it was a group of people who read the scripture, prayed and sang songs together. Whether such a church could properly be described as “Catholic” in the absence of attendance by priests, is a liturgical issue that is not the subject of this proceeding. The Tribunal did not take issue with the first appellant’s evidence on that basis.

39    I am of the view that the primary judge erred in concluding at PJ [37] that the Tribunal’s reasons did not contain an unwarranted assumption, i.e., an assumption that is not supported by the evidence. The question remains whether that error is material. In my view, it is not, as it operates as an alternative to Finding 1 (T [121]–[123]), which is based on the appellants’ claim that there were no priests (such as to baptise the first appellant or afford him communion). It is to be remembered that the appellants’ claims are based on the absence of priests to conduct baptism and allow communion.

40    While it may be said that the Tribunal’s “adverse credibility findings” pertain, in part, to a purported “contrast” between the first appellant’s evidence to the Tribunal that he was not baptised or had taken communion because there were no priests, and his statement to the Department in which he refers to hearing that the Catholic church in his village had been sealed up (T [140]; PJ [30]), from which the Tribunal has deduced that there were priests, the contrast or inconsistency also derives from the evidence of lay persons officiating at baptisms and providing communion that has been consecrated by a priest (T [122]).

41    In other words, the Tribunal did not accept the first appellant’s claim as to why he was not baptised or took communion before coming to Australia on a basis that assumes that there were no priests in the church in the first appellant’s village (as the appellants claim). As such, a finding that there were priests in the village does not affect the adverse credibility finding in relation to the appellants’ claim.

Finding 3: A devout Catholic family would have had the first appellant baptised or allowed him to take communion

42    The appellants dispute the Tribunal’s findings (at [126] and [138]) that if the first appellant’s family had been devout underground church members, who were willing to risk detention and damage to their reputation, they would have had the first appellant baptised or allowed him to take communion.

43    Paragraphs [126] and [138] of the Tribunal decision state:

[126]    The Tribunal does not accept that if the applicant came from an underground Catholic family in China which was so devout, they were willing to be detained and risk their family’s reputation and safety that they would not have had their child baptised or allowed them to take communion.

…

[138]    The Tribunal does not accept that the applicant or his family were devout Catholics in China who participated in illegal underground churches and activities. His evidence is that in 2014 he joined catechist lessons in Australia to learn about the religion and prepare for baptism. The Tribunal does not accept that if he came from a devout Catholic family, he would have needed to undertake this journey. He would have already been baptised and have a knowledge of the sacraments and participated in communion.

44    The appellants contend that the Tribunal’s reasoning assumes that greater religious commitment necessarily meant a willingness to use any available method of baptism or communion. The appellants submit that this incorporated an unwarranted assumption or illogical reasoning, on the basis that the first appellant’s family may have wished him to be baptised by or receive communion from a priest, and the family’s commitment to the underground church would not necessarily have meant that they wished the first appellant to be baptised or take communion in any circumstances.

45    The appellants contend that the first appellant’s explanation is that his family understood those sacraments as ordinarily requiring a priest, and the circumstances did not allow access to one; and further, that such a position is not inconsistent with religious devotion.

46    The Minister contends that whilst the first appellant’s explanation may be reasonable, it was ultimately a question of fact for the Tribunal to determine. The fact that there might have been an alternative and available path of reasoning for the Tribunal does not mean the Tribunal’s reasoning was illogical.

47    The appellants submit that the relevant issue is not whether another explanation is available, but rather “whether the adverse inference actually followed from the evidence”, in circumstances where the Tribunal had relied on the disputed assumptions about lay baptism and the presence of priests.

48    The primary judge held that it was open to the Tribunal not to accept the appellants’ claims (that the first appellant came from an underground Catholic family in China that was so devout, they were willing to be detained and risk their reputation: T [126]) on the basis of a tension or inconsistency with evidence that the first appellant was not baptised or allowed to take communion in China (PJ [40]).

49    In light of the Tribunal’s finding regarding the possibility of lay persons officiating at baptisms and providing communion (which has been consecrated by a priest) (Finding 1), I accept that there is a tension between the first appellant’s claims of adherence to, and abstinence from, the tenets of his professed religion. That the first appellant’s family may have wished him to be baptised or receive communion from a priest (which is a submission, and not the subject of evidence) does not negate the rationality of the Tribunal’s reasoning, which is that a devout Catholic family would have ensured the baptism of their son, if that avenue were available (as the Tribunal found that it was).

50    Contrary to the appellants’ submission, this finding is not based on an unwarranted assumption or illogical reasoning, even though alternative explanations may be available. The alternative explanations proffered by the appellants give less weight to the (other) findings of the Tribunal that support the finding in contention, and in that way seek to substitute their own view for that of the Tribunal.

Finding 4: Detainment of the first appellant’s mother

51    The appellants dispute the Tribunal’s finding that it was not persuaded that the first appellant’s mother had been detained due to her religious beliefs (at [130]). Paragraph [130] states:

[130]    He claims that his mother was detained in 2014. He did not know when his uncle was detained. He claims that his mother is on a blacklist as she was denied a Visitor visa to Australia. When asked to explain why they suddenly came to the notice of authorities in the period he lodged his application for protection he could offer no convincing explanation except to say they had previously been careful.

52    The appellants contend that the Tribunal’s finding reflects an unwarranted assumption or illogical reasoning that the first appellant’s mother would have been detained prior to 2014 (had she been an underground church member) regardless of how careful or fortunate she had been in avoiding detention before that time. The appellants submit that the Tribunal “treated the absence of earlier detection…as inconsistent with the claim” without a “sufficient basis”.

53    The Minister submits that the Tribunal did not expressly reject the first appellant’s explanation for the timing of his mother’s detention in 2014 (at T [130]), however it was open to the Tribunal to be concerned about the coincidence of the first appellant’s claim that his mother had been detained and his application for a protection visa two years later (in fact, the application was submitted in May 2015). The appellants accept that the Tribunal could examine the timing of the detention.

54    The Minister submits that the Tribunal was permitted to believe or disbelieve the first appellant’s explanation regarding the detention of his mother.

55    The Tribunal was not satisfied with the first appellant’s explanation as to why his mother (and uncle) had come to the notice of authorities in 2014, being the period the first appellant lodged his protection visa application (which was received by the Department in May 2015). As a purported explanation of his mother’s detention, that she had previously been “careful” assumes that the mother would have been detained but for her care. It does not explain the authorities’ interest in the first appellant’s mother at the relevant time.

56    I do not accept the first appellant’s characterisation of the Tribunal’s reasoning as involving an assumption that the first appellant’s mother would have been detained before 2014 regardless of how careful or fortunate she had been in avoiding detention before that time. As the primary judge found (at PJ [44]), the Tribunal made no such assumption. Rather, the appellants project the presumption that lies at the heart of the first appellant’s evidence that his mother avoided detection because she had been careful. The Tribunal takes issue with this as an adequate explanation as to why the first appellant’s mother (and uncle) came to the notice of authorities in the period the first appellant lodged his protection visa application. Contrary to the appellants’ submission, this does not entail an unwarranted assumption or illogical reasoning.

Finding 5: First appellant’s departures from China, and his brother’s career

57    The appellants dispute the Tribunal’s finding (at [131]) that the first appellant’s departures from China on several occasions, and his brother’s career, would not have been possible had the first appellant’s family members come to the attention of the authorities for being underground church members. Paragraph [131] of the Tribunal decision states:

[131]    The Tribunal does not accept that the applicant would have been able to leave China on his own passport four times with no problem and his brother attend a University in China and works in a prestigious position as a doctor in a hospital if the authorities had any concerns about his family’s behaviour and loyalty to the Communist government. If the applicant’s family were such devout underground Catholics the Tribunal would have expected, they would have come to the attention of the local authorities. The applicant gave evidence to the previously constituted Tribunal that his brother was a member of the Communist Party. The Tribunal does not accept that as a member of the communist party he would have been able to promote his career if he had the difficulty of his parents’ conducting activities which were seen as hostile to the authorities.

58    The appellants submit that this reflects an unwarranted assumption or illogical reasoning, on the basis that: (i) the first appellant’s family could have avoided detection until the first appellant’s last departure from China; and (ii) the authorities would not necessarily have targeted the first appellant’s brother, as he had not been part of the underground church. The appellants contend that the Tribunal did not identify any evidence in support of its findings.

59    The Minister accepts that the first appellant’s family “could’ have avoided detection, and that the authorities “would not necessarily” have targeted his brother. However, this does not render the Tribunal’s rejection of the appellants’ claims (for the reasons it gave) as unreasonable, illogical or irrational.

60    The Tribunal did not accept that, if the authorities had any concerns about the first appellant’s family’s behaviour, as evidenced in the claimed detention of his mother and uncle, that the first appellant would have been able to leave China on his own passport four times without difficulty, and that his brother (a member of the Communist Party) would have been able to promote his career. The assumption in that reasoning is that any concerns about the family’s behaviour and loyalty to the Communist party would have prevented or hindered those events. That this is not a necessary conclusion, does not mean that it is illogical or irrational. The fact that those events were not prevented or hindered suggested to the Tribunal that the authorities did not have any concerns about the first appellant’s family’s behaviour. That is a logical and reasonable inference to be drawn. On that basis, the Tribunal did not accept that the first appellant’s mother and uncle were detained by authorities for reasons of religion (Finding 4) (T [132]).

61    There is no error in the primary judge concluding that the Tribunal’s reasons do not contain an unwarranted assumption or illogical reasoning in that regard (PJ [46]).

Finding 6: First appellant’s marriage to his wife

62    The appellants take issue with the Tribunal’s finding at paragraph [137] of its decision, regarding the first appellant’s explanation as to why he and his wife had undergone a civil ceremony when they married:

[137]    The applicant stated that he and his wife had only undergone a civil ceremony when they married. The Tribunal discussed that the Catholic religion considers marriage a sacrament. He did not respond to that in any meaningful way which would satisfy the Tribunal as to why he had not participated in the sacrament of marriage.

63    The appellants contend that the Tribunal “effectively found” that the first appellant would have married his wife otherwise than at a civil ceremony due to his Catholic religion, which involved an unwarranted assumption or illogical reasoning as to the conduct of the first appellant and his wife in their circumstances. The appellants submit that the Tribunal did not address the couple’s circumstances at that time (including the availability of a priest, the second appellant’s position, or “the distinction between the First Appellant’s childhood exposure and his later formal baptism in Australia”).

64    The Minister submits that the Tribunal did not make any assumption at paragraph [137], but rather, the Tribunal had a valid concern that the first appellant, as a devout Catholic, decided not to be married in a religious ceremony. The Tribunal expressed concern that the appellant was unable to meaningfully explain why he was married in a civil ceremony.

65    The Tribunal does not go as far as the appellants suggest to (effectively) find that the first appellant would have married his wife otherwise than at a civil ceremony due to his Catholic religion. Rather, as stated at paragraph [137], the Tribunal put to the first appellant that the Catholic religion considers marriage a sacrament. Acceptance of that proposition begged the question as to why a person of Catholic faith would not participate in that sacrament. The Tribunal was not satisfied that the first appellant’s response to that proposition adequately answered the question.

66    The ground of appeal does not warrant examination of the transcript of the discussion between the Tribunal and the first appellant referred to in paragraph [137] of the Tribunal decision (PJ [48]). The question is not whether the first appellant’s response was “meaningful”, contrary to the finding of the Tribunal. The question on appeal is whether such a finding is a rational basis upon which to question whether the appellants were devout Catholics in China. I consider that it is. The finding is concerned with the appellants’ practice of their professed religion.

67    At the hearing of the appeal on 13 August 2026, the appellant explained that he underwent the civil ceremony in 2009, when he and his wife were not baptised. This may have been a possible reason for not participating in the “sacrament of marriage”. However, when asked whether he gave this evidence to the Tribunal when the matter was raised with him (as indicated at T [137]), he indicated that he may not have done so at the time. The transcript of the Tribunal hearing on 9 August 2023 bears that out. Even if the significance of that exchange was not appreciated by the first appellant at the time, the reason now proffered only begs the question as to why the appellant and his wife were not baptised, which is addressed in relation to Finding 1 (Ground 1(d) – (e)), Finding 2 (Ground 1(f) – (g)) and Finding 3 (Ground 1(h) – (i)).

68    I agree with the primary judge that the Tribunal’s finding at paragraph [137] does not involve an unwarranted assumption or illogical reasoning.

Finding 7: Challenge of state authorities

69    The appellants take issue with the Tribunal’s finding at paragraph [150] of its decision, that there was no evidence before the Tribunal that the first appellant would challenge the state authorities in China:

[150]    There is no evidence before the Tribunal, other than the applicant’s claim he has converted a family member, which indicates that the applicant or the second named applicant are preaching or would engage in activities which would challenge the state authorities in China.

70    The appellants contend that it was necessary for the Tribunal to determine the veracity of this claim. This is on the basis that it “left an important part of the future-risk assessment unresolved”, and that the Tribunal needed to “explain why” it had rejected the appellants’ evidence. The appellants dispute the conclusion of the primary judge that, as the Tribunal did not reject the first appellant’s claim that he converted a family member, it was not required to make any further findings about the veracity of the claim (PJ [52(b)]).

71    I agree with the primary judge. The Tribunal took the appellants’ case at its highest, and found it wanting. Given that presumption, it is not evident what testing the veracity of the claim would achieve. If made out, it would underscore the point made by the Tribunal. If not made out, it would further undermine the appellants’ case.

72    The Minister contends that the appellants do not submit that the Tribunal was wrong in finding that the only claim that the first appellant and his wife raised concerning their engagement in activities in China that would challenge state authorities was the conversion of a family member. In any event, the appellants’ claim that they would be at risk of harm for future proselytising was based on the claim that the first appellant and his family were practising underground Catholics, which is a claim that the Tribunal rejected.

73    There is no need to further examine the “significance for the [first appellant]’s relationship with the state as a Catholic” in circumstances where the Tribunal did not accept that the appellants were devout Catholics in China who participated in illegal underground churches and activities: T [138], [143].

74    The appellants have not demonstrated any error in this finding.

Ground 2 – Catholicism in China

75    The second ground of the notice of appeal takes issue with the Tribunal’s (and primary judge’s) conclusions regarding the practice of Catholicism in China (which, the appellants contend, is different from how Catholicism is followed in Australia).

76    This is a criticism that underlies the Tribunal’s findings particularised in Ground 1.

77    The appellants submit that the Tribunal failed to recognise the “claimed setting: an underground family church in China operating without regular clergy, formal records or open access to church institutions”, and the fact that “its practice was not approved by the state”. The appellants submit that, similarly, the primary judge did not directly address the “broader mismatch between the claim and the setting used to assess it”. The appellants contend that, had the Tribunal assessed the evidence “without the disputed assumptions about ordinary Catholic practice”, it may have reached a different conclusion.

78    This submission invites the Tribunal to embrace evidence that it rejected. Moreover, the reference to an absence of “regular clergy” raises the prospect that the church was at times attended by clergy, which is at odds with the evidence of the first appellant that “there were no priests” (T [121]). It also raises the question of time of attendance, i.e., the degree of regularity, which is not answered by the evidence.

79    In addition, the appellants contend that the Tribunal’s conclusion that the appellants could attend an authorised church (in Fujian Province) and practice Catholicism (T [166]–[168]) did not answer the first appellant’s “stated wish to preach and share the Gospel”, and therefore whether he would face harm if he engaged in this practice in China. In fact, the Tribunal did address that question by rejecting its premise, i.e., that the first appellant would preach the gospel or become involved in underground activities in China (T [143]).

80    Ground 2 is predicated on the first ground of appeal: i.e., it relies on the “disputed assumptions” particularised in the first ground. As such, and as the Minister contends, Ground 2 fails for the same reasons.

81    The Minister contends that Ground 2 invites the Court to undertake impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). There is merit in that submission, which may also be applied to the first ground of appeal (save as to particulars (f) and (g)), insofar as the appellants ask the Court to prefer their “way of thinking” (or approaching the evidence) over the reasoning of the Tribunal, which the appellants have not demonstrated to be lacking an evident and intelligible justification (or at least one that is material to the outcome).

CONCLUSION

82    For the above reasons, the appeal should be dismissed, with costs.

Associate:

Dated:    3 September 2026